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NINE WEST GROUP INC.
Issuer
and
NINE WEST DEVELOPMENT CORPORATION,
NINE WEST DISTRIBUTION CORPORATION,
NINE WEST FOOTWEAR CORPORATION and
NINE WEST MANUFACTURING CORPORATION
Guarantors
TO
THE BANK OF NEW YORK
Trustee
Indenture
Dated as of July 9, 1997
8-3/8% Senior Notes due 2005
8-3/8% Series B Senior Notes due 2005
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NINE WEST GROUP INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of July 9, 1997
-----------------------------------------------
Trust Indenture Indenture
Act Section Section
--------------- ----------
(Section) 310(a)(1)................................ 607
(a)(2)................................ 607
(b)................................... 608
(Section) 312(c)................................... 701
(Section) 314(a)................................... 703
(a)(4)................................ 1004
(c)(1)................................ 102
(c)(2)................................ 102
(e)................................... 102
(Section) 315(b)................................... 601
(Section) 316(a)(last sentence).................... 101 ("Outstanding")
(a)(1)(A)............................. 502, 512
(a)(1)(B)............................. 513
(b)................................... 508
(c)................................... 104(d)
(Section) 317(a)(1)................................ 503
(a)(2)................................ 504
(b)................................... 1003
(Section) 318(a)................................... 111
---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Table of Contents
Page
PARTIES................................................................ 1
RECITALS OF THE COMPANY................................................ 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.............................................. 2
Accounts Receivable Subsidiary..................... 2
Acquired Indebtedness.............................. 2
Act................................................ 3
Affiliate.......................................... 3
Agent Bank......................................... 3
Agent Members...................................... 3
Asset Acquisition.................................. 3
Asset Sale......................................... 3
Attributable Debt.................................. 4
Authenticating Agent............................... 4
Average Life....................................... 4
Bankruptcy Law..................................... 4
Banks.............................................. 4
Board of Directors................................. 4
Board Resolution................................... 4
Business Day....................................... 5
Capital Stock...................................... 5
Capitalized Lease Obligation....................... 5
Cash Equivalents................................... 5
Change of Control.................................. 5
Commission......................................... 6
Company............................................ 6
Company Request or Company Order................... 6
Consolidated Adjusted Net Income................... 7
Consolidated Fixed Charge Coverage Ratio........... 7
Consolidated Income Tax Expense.................... 7
Consolidated Interest Expense...................... 7
Consolidated Non-Cash Charges...................... 8
Convertible Notes.................................. 8
Corporate Trust Office............................. 8
corporation........................................ 8
Credit Agreement................................... 8
Currency Agreements................................ 9
Default............................................ 9
Defaulted Interest................................. 9
Depositary......................................... 9
Designated Noncash Consideration................... 9
Disinterested Director............................. 9
Dollar or $........................................ 9
Event of Default................................... 9
Exchange Act....................................... 9
Exchange Notes..................................... 10
Exchange Offer..................................... 10
Exchange Offer Registration Statement.............. 10
Fair Market Value.................................. 10
Foreign Subsidiary................................. 10
Generally Accepted Accounting Principles or GAAP... 10
Global Notes....................................... 10
guarantee.......................................... 10
Guarantee.......................................... 10
Guarantor.......................................... 11
Holder............................................. 11
Indebtedness....................................... 11
Indenture.......................................... 12
Initial Notes...................................... 12
Institutional Accredited Investor.................. 12
Interest Payment Date.............................. 12
Interest Rate Agreements........................... 12
Investment......................................... 12
Leveraged Subsidiary............................... 12
Lien............................................... 12
Maturity........................................... 13
Xxxxx'x............................................ 13
Net Cash Proceeds.................................. 13
Non-U.S. Person.................................... 13
Note Register and Note Registrar................... 13
Notes.............................................. 13
Officers' Certificate.............................. 13
Offshore Global Note............................... 14
Offshore Note Exchange Date........................ 14
Offshore Physical Note............................. 14
Opinion of Counsel................................. 14
Outstanding........................................ 14
Paying Agent....................................... 15
Permitted Indebtedness............................. 15
Permitted Investments.............................. 17
Permitted Liens.................................... 19
Person............................................. 22
Physical Notes..................................... 22
Place of Payment................................... 22
Predecessor Note................................... 22
Preferred Stock.................................... 22
Private Placement Legend........................... 22
Purchase Money Obligations......................... 22
QIB................................................ 22
Qualified Capital Stock............................ 22
Redeemable Capital Stock........................... 22
Registration Rights Agreement...................... 23
Registration Statement............................. 23
Regular Record Date................................ 23
Responsible Officer................................ 23
Restricted Subsidiary.............................. 23
S&P................................................ 23
Sale and Leaseback Transaction..................... 23
Senior Indebtedness................................ 23
Senior Subordinated Notes.......................... 24
Significant Subsidiary............................. 24
Special Record Date................................ 24
Stated Maturity.................................... 24
Subsidiary......................................... 24
Trust Indenture Act or TIA......................... 25
Trustee............................................ 25
United States...................................... 25
Unrestricted Subsidiary............................ 25
U.S. Government Obligations........................ 25
U.S. Global Note................................... 26
U.S. Physical Note................................. 26
Vice President..................................... 26
Voting Stock....................................... 26
SECTION 102. Compliance Certificates and Opinions................ 26
SECTION 103. Form of Documents Delivered to Trustee.............. 27
SECTION 104. Acts of Holders..................................... 28
SECTION 105. Notices, etc., to Trustee, Company and Agent Bank... 29
SECTION 106. Notice to Holders; Waiver........................... 29
SECTION 107. Effect of Headings and Table of Contents............ 30
SECTION 108. Successors and Assigns.............................. 30
SECTION 109. Separability Clause................................. 30
SECTION 110. Benefits of Indenture............................... 30
SECTION 111. Governing Law....................................... 30
SECTION 112. Legal Holidays...................................... 31
SECTION 113. Trust Indenture Act Controls........................ 31
SECTION 114. No Recourse Against Others.......................... 31
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally..................................... 31
SECTION 202. Form of Trustee's Certificate of Authentication..... 33
SECTION 203. Restrictive Legends................................. 33
SECTION 204. Form of Certificate to Be Delivered upon Termination
of Restricted Period.............................. 36
ARTICLE THREE
THE NOTES
SECTION 301. Amount.............................................. 37
SECTION 302. Denominations....................................... 37
SECTION 303. Execution, Authentication, Delivery and Dating...... 38
SECTION 304. Temporary Notes..................................... 39
SECTION 305. Registration, Registration of Transfer and Exchange. 39
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes......... 41
SECTION 307. Payment of Interest; Interest Rights Preserved...... 41
SECTION 308. Persons Deemed Owners............................... 43
SECTION 309. Cancellation........................................ 43
SECTION 310. Computation of Interest............................. 43
SECTION 311. Book-Entry Provisions for Global Notes.............. 44
SECTION 312. Transfer Provisions................................. 45
SECTION 313. Form of Accredited Investor Certificate............. 53
SECTION 314. Form of Regulation S Certificate.................... 55
SECTION 315. Form of Rule 144A Certificate....................... 57
SECTION 316. CUSIP Numbers....................................... 58
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture............. 58
SECTION 402. Application of Trust Money.......................... 60
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default................................... 60
SECTION 502. Acceleration of Maturity; Rescission and Annulment.. 62
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee......................................... 63
SECTION 504. Trustee May File Proofs of Claim.................... 64
SECTION 505. Trustee May Enforce Claims Without Possession
of Notes........................................... 65
SECTION 506. Application of Money Collected...................... 65
SECTION 507. Limitation on Suits................................. 66
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................... 66
SECTION 509. Restoration of Rights and Remedies.................. 67
SECTION 510. Rights and Remedies Cumulative...................... 67
SECTION 511. Delay or Omission Not Waiver........................ 67
SECTION 512. Control by Holders.................................. 67
SECTION 513. Waiver of Past Defaults............................. 68
SECTION 514. Waiver of Stay or Extension Laws.................... 68
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.................................. 69
SECTION 602. Certain Rights of Trustee........................... 69
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Notes.............................................. 71
SECTION 604. May Hold Notes...................................... 71
SECTION 605. Money Held in Trust................................. 71
SECTION 606. Compensation and Reimbursement...................... 71
SECTION 607. Corporate Trustee Required; Eligibility............. 72
SECTION 608. Resignation and Removal; Appointment of Successor... 72
SECTION 609. Acceptance of Appointment by Successor.............. 74
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business........................................... 74
SECTION 611. Appointment of Authenticating Agent................. 75
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders........ 77
SECTION 702. Reports by Trustee.................................. 77
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms.............................................. 77
SECTION 802. Guarantors May Consolidate, etc., Only on Certain
Terms.............................................. 79
SECTION 803. Successor Substituted............................... 80
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.. 80
SECTION 902. Supplemental Indentures with Consent of Holders..... 81
SECTION 903. Execution of Supplemental Indentures................ 82
SECTION 904. Effect of Supplemental Indentures................... 82
SECTION 905. Conformity with Trust Indenture Act................. 83
SECTION 906. Reference in Notes to Supplemental Indentures....... 83
SECTION 907. Notice of Supplemental Indentures................... 83
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and
Interest.......................................... 83
SECTION 1002. Maintenance of Office or Agency.................... 83
SECTION 1003. Money for Notes Payments to Be Held in Trust....... 84
SECTION 1004. Corporate Existence................................ 85
SECTION 1005. Payment of Taxes and Other Claims.................. 86
SECTION 1006. Maintenance of Properties.......................... 86
SECTION 1007. Statement by Officers As to Default................ 86
SECTION 1008. Limitation on Indebtedness......................... 87
SECTION 1009. Limitation on Restricted Payments.................. 87
SECTION 1010. Limitation on Issuances and Sales of Capital Stock
of Restricted Subsidiaries........................ 91
SECTION 1011. Limitation on Transactions with Affiliates......... 92
SECTION 1012. Limitation on Liens................................ 93
SECTION 1013. Limitations on Guarantees of Indebtedness by
Restricted Subsidiaries........................... 93
SECTION 1014. Purchase of Notes upon Change of Control........... 94
SECTION 1015. Limitation on Sale of Assets....................... 95
SECTION 1016. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries................. 97
SECTION 1017. Limitation on Unrestricted Subsidiaries............ 98
SECTION 1018. Provision of Financial Statements and Reports...... 98
SECTION 1019. Waiver of Certain Covenants........................ 99
SECTION 1020. Limitation on Applicability of Certain Covenants... 99
ARTICLE ELEVEN
SECTION 1101. [Reserved.]........................................ 99
ARTICLE TWELVE
SECTION 1201. [Reserved.]........................................ 99
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Guarantees......................................... 100
SECTION 1302. Severability....................................... 101
SECTION 1303. [Reserved.]........................................ 101
SECTION 1304. Limitation of Guarantors' Liability................ 101
SECTION 1305. Contribution....................................... 102
SECTION 1306. Subrogation........................................ 102
SECTION 1307. Reinstatement...................................... 102
SECTION 1308. Release of a Guarantor............................. 103
SECTION 1309. Benefits Acknowledged.............................. 103
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance........................................ 103
SECTION 1402. Defeasance and Discharge........................... 104
SECTION 1403. Covenant Defeasance................................ 104
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.... 105
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions..... 106
SECTION 1406. Reinstatement...................................... 107
TESTIMONIUM....................................................... 117
SIGNATURES AND SEALS.............................................. 117
EXHIBIT A - Form of Note
EXHIBIT B- Form of Subordinated Intercompany Note
INDENTURE, dated as of July 9, 1997, among NINE WEST GROUP INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 0 Xxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, and NINE WEST DEVELOPMENT CORPORATION, a
Delaware corporation, NINE WEST DISTRIBUTION CORPORATION, a Delaware
corporation, NINE WEST FOOTWEAR CORPORATION, a Delaware corporation, and NINE
WEST MANUFACTURING CORPORATION, a Delaware corporation (collectively, the
"Guarantors"), and THE BANK OF NEW YORK, a New York banking corporation, Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issuance of its
8-3/8% Senior Notes due 2005 (the "Initial Notes"), and its 8-3/8% Series B
Senior Notes due 2005 (the "Exchange Notes" and, together with the Initial
Notes, the "Notes"), of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
Each Guarantor has duly authorized the guarantee of up to $200,000,000
aggregate principal amount of the Initial Notes, and upon the issuance of the
Exchange Notes, if any, up to $200,000,000 aggregate principal amount of the
Exchange Notes (the "Guarantees").
Upon the issuance of the Exchange Notes, if any, or the effectiveness
of the Shelf Registration Statement (as defined herein), this Indenture will be
subject to, and shall be governed by the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of or deemed to be part of and
to govern the indentures qualified thereunder.
All things necessary have been done to make the Notes, when duly
executed and duly issued by the Company and authenticated and delivered
hereunder by the Trustee or the Authenticating Agent, the valid obligations of
the Company and to make this Indenture a valid agreement of the Company, in
accordance with their and its terms
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
It is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date hereof; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Accounts Receivable Subsidiary" means Nine West Funding Corporation
and any other present or future Subsidiary (including any credit card bank) of
the Company that is, directly or indirectly, wholly owned by the Company (other
than directors' qualifying shares) and organized for the purpose of and engaged
in (i) purchasing, financing, and collecting accounts receivable obligations of
customers of the Company or its Subsidiaries, (ii) issuing credit cards and
financing accounts receivable obligations of customers of the Company and its
Subsidiaries, (iii) the sale or financing of such accounts receivable or
interests therein and (iv) other activities incident thereto.
"Acquired Indebtedness" means Indebtedness of a Person (a) existing at
the time such Person becomes a Subsidiary or (b) assumed in connection with the
acquisition of assets from such Person; provided that, for purposes of Section
1008, such Indebtedness shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Restricted Subsidiary.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"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 Voting
Stock or (c) any executive officer or director of any such specified Person or
other Person or (d) with respect to any natural Person, any Person having a
relationship with such Person by blood, marriage or adoption not more remote
than first cousin. For the purposes of this definition, "control," when used
with respect to any specified Person, means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent Bank" means Citibank, N.A. as agent under the Credit Agreement
and any future or successor or replacement agent under the Credit Agreement.
"Agent Members" has the meaning specified in Section 311.
"Asset Acquisition" means (i) an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person will
become a Restricted Subsidiary or will be merged or consolidated with or into
the Company or any Restricted Subsidiary or (ii) the acquisition by the Company
or any Restricted Subsidiary of the assets of any Person which constitute
substantially all of the assets of such Person, or any division or line of
business of such Person, or which is otherwise outside of the ordinary course of
business.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of (a) any
Capital Stock of any Restricted Subsidiary; (b) all or substantially all of the
properties and assets of any division or line of business of the Company or its
Restricted Subsidiaries; 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 include any
transfer of properties or assets (i) that is governed by the provisions of
Article Eight, (ii) of the Company to any Restricted Subsidiary, or of any
Restricted Subsidiary to the Company or any Restricted Subsidiary in accordance
with the terms of this Indenture, (iii) to an Unrestricted Subsidiary, if
permitted under Section 1009 or (iv) any disposition, or series of related
dispositions, having a Fair Market Value of less than $1,000,000. For purposes
of Section 1015, the term "Asset Sale" shall not include any sale, conveyance,
transfer, lease or other disposition of accounts receivable to an Accounts
Receivable Subsidiary or to third parties that are not Affiliates of the Company
or any Subsidiary of the Company in the ordinary course of business.
"Attributable Debt" means, with respect to an operating lease included
in any Sale and Leaseback Transaction at the time of determination, the present
value (discounted at the interest rate implicit in the lease or, if not known,
at the Company's incremental borrowing rate) of the obligations of the lessee of
the property subject to such lease for rental payments during the remaining term
of the lease included in such transaction, including any period for which such
lease has been extended or may, at the option of the lessor, be extended, or
until the earliest date on which the lessee may terminate such lease without
penalty or upon payment of penalty (in which case the rental payments shall
include such penalty), after excluding from such rental payments all amounts
required to be paid on account of maintenance and repairs, insurance, taxes,
assessments, water, utilities and similar charges.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Notes.
"Average Life" means, as of the date of determination with respect to
any Indebtedness, the quotient obtained by dividing (a) the sum of the products
of (i) the number of years from the date of determination to the date or dates
of each successive scheduled principal payment (including, without limitation,
any sinking fund requirements) of such Indebtedness multiplied by (ii) the
amount of each such principal payment by (b) the sum of all such principal
payments.
"Bankruptcy Law" means Title 11 of the United States Code, as amended,
or any similar United States federal or state law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization or relief of
debtors or any amendment to, succession to or change in any such law.
"Banks" means the banks and other financial institutions from time to
time that are lenders under the Credit Agreement.
"Board of Directors" means either the board of directors of the
Company or a Guarantor, as applicable, or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or a Guarantor, as
applicable, to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Notes, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or other location are authorized
or obligated by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, partnership interests, participations, rights in or other equivalents
(however designated) of such Person's capital stock, and any rights (other than
debt securities convertible into capital stock), warrants or options
exchangeable for or convertible into such capital stock, whether now outstanding
or issued after the date of this Indenture.
"Capitalized Lease Obligation" means, with respect to any Person, any
obligation of such Person under a lease of (or other agreement conveying the
right to use) any property (whether real, personal or mixed) that is required to
be classified and accounted for as a capital lease obligation under GAAP, and,
for the purpose of this Indenture, the amount of such obligation at any date
shall be the capitalized amount thereof at such date, determined in accordance
with GAAP.
"Cash Equivalents" means (a) any evidence of Indebtedness 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) certificates of deposit or acceptances with a
maturity of 180 days or less of any financial institution that is a member of
the Federal Reserve System having combined capital and surplus and undivided
profits of not less than $500,000,000; (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 Moody's;
and (d) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (a) and (b) above.
"Change of Control" means the occurrence of any of the following
events: (a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all securities that such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 35% of the total
outstanding Voting Stock of the Company; (b) the Company consolidates with, or
merges with or into, another Person or conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any Person, or any Person
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which the outstanding Voting Stock of the Company
is converted into or exchanged for cash, securities or other property, other
than any such transaction (i) where the outstanding Voting Stock of the Company
is not converted or exchanged at all (except to the extent necessary to reflect
a change in the jurisdiction of incorporation of the Company) or is converted
into or exchanged for (A) Voting Stock (other than Redeemable Capital Stock) of
the surviving or transferee corporation or (B) Voting Stock (other than
Redeemable Capital Stock) of the surviving or transferee corporation and cash,
securities and other property (other than Capital Stock of the surviving or
transferee corporation) in an amount that could be paid by the Company as a
Restricted Payment as described under Section 1009 and (ii) immediately after
such transaction, no "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) is the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all securities that such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 35% of the total
outstanding Voting Stock of the surviving or transferee corporation; (c) during
any consecutive two year period, individuals who at the beginning of such period
constituted the Board of Directors of the Company (together with any new
directors whose election to such Board of Directors, or whose nomination for
election by the stockholders of the Company, was approved by a vote of 66 % of
the directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of the Company then in office; or (d) the Company is liquidated or
dissolved or adopts a plan of liquidation or dissolution other than in a
transaction which complies with Article Eight.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Operating Officer, its Chief
Financial Officer, any Vice President, its Treasurer or an Assistant Treasurer,
and delivered to the Trustee.
"Consolidated Adjusted Net Income" means, for any period, the
consolidated net income (or loss) of the Company and all Restricted Subsidiaries
for such period as determined in accordance with GAAP, adjusted by excluding,
without duplication, (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 dispositions
other than in the ordinary course of business, (c) the portion of net income (or
loss) of any Person (other than the Company or a Restricted Subsidiary),
including Unrestricted Subsidiaries, in which the Company or any Restricted
Subsidiary has an ownership interest, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any Restricted
Subsidiary in cash dividends or distributions during such period, (d) the net
income (or loss) of any Person combined with the Company or any Restricted
Subsidiary on a "pooling of interests" basis attributable to any period prior to
the date of combination, (e) the net income of any Restricted Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by
such Restricted Subsidiary is not at the date of determination permitted,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Restricted Subsidiary or its stockholders and (f)
for purposes of calculating Consolidated Adjusted Net Income under Section 1009,
any net income (or loss) from any Restricted Subsidiary that was an Unrestricted
Subsidiary at any time during such period other than any amounts actually
received in cash from such Restricted Subsidiary.
"Consolidated Fixed Charge Coverage Ratio" of the Company means, for
any period, the ratio of (a) Consolidated Adjusted Net Income for such period,
plus the sum of Consolidated Interest Expense, Consolidated Income Tax Expense
and Consolidated Non-Cash Charges, in each case, to the extent deducted in
computing Consolidated Adjusted Net Income, for such period to (b) Consolidated
Interest Expense for such period.
"Consolidated Income Tax Expense" means, for any period, the provision
for federal, state, local and foreign income taxes of the Company and all
Restricted Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense" means, for any period, without
duplication, the sum of (a) the interest expense of the Company and its
Restricted Subsidiaries for such period, including, without limitation, (i)
amortization of debt discount, (ii) the net cost of Interest Rate Agreements
(including amortization of discounts), (iii) the interest portion of any
deferred payment obligation, (iv) accrued interest and (v) amortization of debt
issuance costs, plus (b) the interest component of Capitalized Lease Obligations
of the Company and its Restricted Subsidiaries paid, accrued and/or scheduled to
be paid or accrued during such period, plus (c) cash and non-cash dividends due
(whether or not declared) on Redeemable Capital Stock or on Preferred Stock of
any Restricted Subsidiary (to any Person other than the Company and any wholly
owned Restricted Subsidiary), plus (d) one-third of lease rental payments in
connection with operating leases related to Sale and Leaseback Transactions
paid, accrued and/or scheduled to be paid or accrued during such period, in each
case as determined on a consolidated basis in accordance with GAAP; provided
that (x) the Consolidated Interest Expense attributable to interest on any
Indebtedness computed on a pro forma basis and (A) bearing a floating interest
rate shall be computed as if the rate in effect on the date of computation had
been the applicable rate for the entire period and (B) which was not outstanding
during the period for which the computation is being made but which bears, at
the option of the Company, a fixed or floating rate of interest, shall be
computed by applying at the option of the Company, either the fixed or floating
rate, and (y) in making such computation, the Consolidated Interest Expense
attributable to interest on any Indebtedness under a revolving credit facility
computed on a pro forma basis shall be computed based upon the average daily
balance of such Indebtedness during the applicable period; provided further
that, notwithstanding the foregoing, the interest rate with respect to any
Indebtedness covered by any Interest Rate Agreement shall be deemed to be the
effective interest rate with respect to such Indebtedness after taking into
account such Interest Rate Agreement. For purposes of clause (c) of the
preceding sentence, dividends shall be deemed to be an amount equal to the
dividends due (whether or not declared) divided by one minus the applicable
actual combined federal, state, local and foreign income tax rate of the Company
and its Subsidiaries (expressed as a decimal).
"Consolidated Non-Cash Charges" means, for any period, the aggregate
depreciation, amortization and other non-cash expenses of the Company and any
Restricted Subsidiary reducing Consolidated Adjusted Net Income for such period,
determined on a consolidated basis in accordance with GAAP (excluding any such
non-cash charge that requires an accrual of or reserve for cash charges for any
future period).
"Convertible Notes" means the 5-1/2% Convertible Subordinated Notes
Due 2003 of the Company.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business shall
be administered, which office on the date of execution of this Indenture is
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"corporation" includes corporations, associations, companies and
business trusts.
"Credit Agreement" means the Amended and Restated Credit Agreement
dated as of August 2, 1996, among the Company, the Banks and Citibank, N.A., as
agent, including the Credit Agreement dated as of May 23, 1997, between the
Company and NationsBank of Texas, N.A., as such agreements may be amended,
renewed, extended, substituted, restated, refinanced, restructured, supplemented
or otherwise modified from time to time (including, without limitation, any
successive amendments, renewals, extensions, substitutions, restatements,
refinancings, restructuring, supplements or other modifications of the
foregoing); provided that with respect to any agreement providing for the
refinancing of Indebtedness under the Credit Agreement, such agreement shall be
the Credit Agreement under this Indenture only if a notice to that effect is
delivered by the Company to the Trustee and there shall be at any time only one
such agreement that is the Credit Agreement under this Indenture.
"Currency Agreements" means any spot or forward foreign exchange
agreements and currency swap, currency option or other similar financial
agreements or arrangements entered into by the Company or any of its Restricted
Subsidiaries designed to protect against or manage exposure to fluctuations in
currency exchange rates.
"Default" means any event that after notice or passage of time or both
would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Designated Noncash Consideration" means the fair market value of non-
cash consideration received by the Company or a Restricted Subsidiary in
connection with an Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an Officers' Certificate, setting forth the basis of
such valuation, executed by the principal executive officer and the principal
financial officer of the Company, less the amount of cash or Cash Equivalents
received in connection with a sale of such Designated Noncash Consideration.
"Disinterested Director" means, with respect to any transaction or
series of transactions in respect of which the Board of Directors is required to
deliver a resolution of the Board of Directors under this Indenture, a member of
the Board of Directors who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of
transactions.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" has the meaning stated in the first recital of this
Indenture and refers to any Exchange Notes containing terms substantially
identical to the Initial Notes (except that (i) such Exchange Notes shall not
contain terms with respect to transfer restrictions and shall be registered
under the Securities Act, and (ii) certain provisions relating to an increase in
the stated rate of interest thereon shall be eliminated) that are issued and
exchanged for the Initial Notes in accordance with the Exchange Offer, as
provided for in the Registration Rights Agreement and this Indenture.
"Exchange Offer" means the offer by the Company to the Holders of the
Initial Notes to exchange all of the Initial Notes for Exchange Notes, as
provided for in the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
"Foreign Subsidiary" means a Restricted Subsidiary not organized or
existing under the laws of the United States, any state thereof, the District of
Columbia or any territory thereof that has no material operations or assets in
the United States.
"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 this Indenture.
"Global Notes" has the meaning set forth in Section 201.
"guarantee" means, as applied to any obligation, (a) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit.
"Guarantee" means a guarantee of the obligations of the Company under
this Indenture in accordance with the provisions hereof. When used as a verb,
"Guarantee" shall have a corresponding meaning.
"Guarantor" means Nine West Development Corporation, Nine West
Distribution Corporation, Nine West Footwear Corporation, Nine West
Manufacturing Corporation and any Restricted Subsidiary that incurs a Guarantee;
provided that, upon the release and discharge of any Guarantor from its
Guarantee in accordance with this Indenture, such Guarantor shall cease to be a
Guarantor.
"Holder" means the Person in whose name a Note is registered in the
Note Register.
"Indebtedness" means, with respect to any Person, without duplication,
(a) all liabilities of such Person for borrowed money (including overdrafts) or
for the deferred purchase price of property or services, excluding any trade
payables and other accrued current liabilities incurred in the ordinary course
of business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit and
acceptances issued under letter of credit facilities, acceptance facilities or
other similar facilities, (b) all obligations of such Person evidenced by bonds,
notes, debentures or other similar instruments, (c) all indebtedness of such
Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even if the rights
and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), but excluding
trade payables arising in the ordinary course of business, (d) all Capitalized
Lease Obligations of such Person, (e) all obligations of such Person under or in
respect of Interest Rate Agreements or Currency Agreements, (f) all Indebtedness
referred to in (but not excluded from) the preceding clauses of other Persons
and all dividends of other Persons, the payment of which is secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or with respect to property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness (the amount of such obligation being deemed to be the
lesser of the value of such property or asset or the amount of the obligation so
secured), (g) all guarantees by such Person of Indebtedness referred to in this
definition of any other Person, (h) all Redeemable Capital Stock of such Person
valued at the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued and unpaid dividends and (i) all Attributable Debt of such
Person. For purposes hereof, the "maximum fixed repurchase price" of any
Redeemable Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Redeemable Capital Stock as if
such Redeemable Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the fair market value of such Redeemable Capital
Stock, such fair market value shall be determined in good faith by the board of
directors of the issuer of such Redeemable Capital Stock.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Notes" has the meaning specified in the recitals to this
Indenture.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act.
"Interest Payment Date", when used with respect to any Note, means the
Stated Maturity of an installment of interest on such Note.
"Interest Rate Agreements" means any interest rate protection
agreements and other types of interest rate hedging agreements (including,
without limitation, interest rate swaps, caps, floors, collars and similar
agreements).
"Investment" means, with respect to any Person, any direct or indirect
advance, loan, guarantee or other extension of credit or capital contribution to
(by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase,
acquisition or ownership by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued or owned by,
any other Person and all other items that would be classified as investments on
a balance sheet prepared in accordance with GAAP. In addition, the fair market
value of the net assets of any Restricted Subsidiary at the time that such
Restricted Subsidiary is designated an Unrestricted Subsidiary shall be deemed
to be an "Investment" made by the Company in such Unrestricted Subsidiary at
such time. "Investments" shall exclude extensions of trade credit on
commercially reasonable terms in accordance with normal trade practices.
"Leveraged Subsidiary" means any Restricted Subsidiary that has
incurred Indebtedness (other than Acquired Indebtedness pursuant to Xxxxxxx 0000
xxx Xxxxxxxxxxxx xxxxxxxxx xx xxxxxxx (x), (x), (x), (x), (0), (x), (x) and (o)
of the definition of "Permitted Indebtedness") pursuant to Section 1008 for so
long as such Indebtedness, or any refinancing thereof, is outstanding.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation, assignment for
security, claim, or preference or priority or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired. A Person shall be deemed to own subject to a Lien
any property which such Person has acquired or holds subject to the interest of
a vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement.
"Maturity" means, with respect to any Note, the date on which any
principal of such Note becomes due and payable as therein or herein provided,
whether at the Stated Maturity with respect to such principal or by declaration
of acceleration, purchase or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of, or stock
or other assets when disposed 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 (i) brokerage commissions and other fees
and expenses (including fees and expenses of legal counsel and investment banks)
related to such Asset Sale, (ii) provisions for all taxes payable as a result of
such Asset Sale, (iii) payments made to retire Indebtedness where payment of
such Indebtedness is secured by the assets or properties the subject of such
Asset Sale, (iv) amounts required to be paid to any Person (other than the
Company or any Restricted Subsidiary) owning a beneficial interest in the assets
subject to the Asset Sale and (v) appropriate amounts to be provided by the
Company or any Restricted Subsidiary, as the case may be, as a reserve required
in accordance with GAAP against any liabilities associated with such Asset Sale
and retained by the Company or any Restricted Subsidiary, as the case may be,
after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as reflected in an Officers' Certificate delivered to the
Trustee.
"Non-U.S. Person" means a person who is not a U.S. person as defined
in Regulation S.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 305.
"Notes" has the meaning stated in the first recital of this Indenture.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Offshore Global Note" has the meaning set forth in Section 201.
"Offshore Note Exchange Date" has the meaning set forth in Section
203.
"Offshore Physical Note" has the meaning set forth in Section 201.
"Opinion of Counsel" means a written opinion of legal 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 Notes, means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes, or portions thereof, for whose payment or repayment at
the option of the Holder 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 Notes;
(iii) Notes, except to the extent provided in Sections 1402 and 1403,
with respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article Fourteen; and
(iv) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a bona fide purchaser in whose hands such
Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
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 Notes which a Responsible Officer of
the Trustee actually knows to be so owned shall be so disregarded. Notes so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
to act with respect to such Notes and that the pledgee is not the Company or any
other obligor upon the Notes or any Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (or premium, if
any, on) or interest on any Notes on behalf of the Company.
"Permitted Indebtedness" means any of the following:
(a) (i) Indebtedness of the Company, any Guarantor or any Foreign
Subsidiary (provided that Indebtedness of any Foreign Subsidiary is
incurred to fund operations outside the United States), under the Credit
Agreement in an aggregate principal amount at any one time outstanding not
to exceed $600,000,000 less (x) the amount of any principal payments made
by the Company in respect of any term loans under the Credit Agreement
other than principal payments made with proceeds of the offering of the
Notes and the Senior Notes and (y) the amount by which the aggregate
commitment under any revolving credit facility under the Credit Agreement
at any time has been permanently reduced and (ii) any guarantee by the
Company or any Guarantor of Indebtedness incurred under clause (i);
(b) Indebtedness of the Company pursuant to the Notes or the Senior
Subordinated Notes or of any Restricted Subsidiary pursuant to a Guarantee
of the Notes or a guarantee of the Senior Subordinated Notes;
(c) Indebtedness of the Company or any Restricted Subsidiary not
otherwise referred to in this definition, whether contingent or otherwise,
that is outstanding on the date of this Indenture;
(d) Indebtedness of the Company owing to any Restricted Subsidiary;
provided that any Indebtedness of the Company owing to any such Restricted
Subsidiary is made pursuant to an intercompany note in the form attached
hereto as Exhibit B and is subordinated in right of payment from and after
such time as the Notes shall become due and payable (whether at Stated
Maturity, acceleration or otherwise) to the payment and performance of the
Company's obligations under such Notes; provided further that any
disposition, pledge or transfer of any such Indebtedness to a Person (other
than a disposition, pledge or transfer to the Company or another Restricted
Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the
Company not permitted by this clause (d);
(e) Indebtedness of any Restricted Subsidiary owing to the Company or
to another Restricted Subsidiary; provided that any such Indebtedness is
made pursuant to an intercompany note in the form attached to this
Indenture and such Indebtedness of any Guarantor is subordinated in right
of payment to the Guarantee of such Guarantor; provided further that any
disposition, pledge or transfer of any such Indebtedness to a Person (other
than a disposition, pledge or transfer to (i) the Company or a Restricted
Subsidiary or (ii) the Banks as security for obligations under the Credit
Agreement by the Company or a Restricted Subsidiary) shall be deemed to be
an incurrence of such Indebtedness by such Restricted Subsidiary not
permitted by this clause (e);
(f) guarantees of any Restricted Subsidiary of Indebtedness of the
Company entered into in accordance with the provisions of Section 1013;
(g) obligations of the Company or any Guarantor entered into in the
ordinary course of business (i) pursuant to Interest Rate Agreements
designed to protect the Company or any Restricted Subsidiary against
fluctuations in interest rates in respect of Indebtedness of the Company or
any Restricted Subsidiary, which obligations do not exceed the aggregate
principal amount of such Indebtedness and (ii) pursuant to Currency
Agreements entered into by the Company or any of its Restricted
Subsidiaries in respect of its (x) assets or (y) obligations, as the case
may be, denominated in a foreign currency;
(h) Capitalized Lease Obligations and Purchase Money Obligations of
the Company or any Guarantor in an aggregate amount which does not exceed
(i) $25,000,000 incurred in any one year and (ii) $50,000,000 at any one
time outstanding;
(i) Indebtedness of the Company or any Guarantor consisting of
guarantees, indemnities or obligations in respect of purchase price
adjustments in connection with the acquisition or disposition of assets,
including, without limitation, shares of Capital Stock of Restricted
Subsidiaries;
(j) any renewals, extensions, substitutions, refinancings or
replacements (each, for purposes of this clause, a "refinancing") of any
Indebtedness referred to in clause (b) or (c) of this definition, including
any successive refinancings, so long as (i) any such new Indebtedness shall
be in a principal amount that does not exceed the principal amount (or, if
such Indebtedness being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of determination)
so refinanced, plus the lesser of the amount of any premium required to be
paid in connection with such refinancing pursuant to the terms of the
Indebtedness refinanced or the amount of any premium reasonably determined
as necessary to accomplish such refinancing, (ii) in the case of any
refinancing of Indebtedness that is expressly subordinated to the
Indebtedness under the Notes such new Indebtedness is made subordinate to
the Notes at least to the same extent as the Indebtedness being refinanced,
(iii) such new Indebtedness has an Average Life longer than the Average
Life of the Notes and a final Stated Maturity later than the final Stated
Maturity of the Notes and (iv) Indebtedness of the Company or a Guarantor
may only be refinanced with Indebtedness of the Company or a Guarantor;
(k) Indebtedness of the Company or any Restricted Subsidiary arising
from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of
business; provided, however, that such Indebtedness is extinguished within
five Business Days of the Company or such Restricted Subsidiary, as the
case may be, obtaining knowledge of the incurrence thereof;
(l) Indebtedness of the Company or any Restricted Subsidiary
represented by (x) letters of credit for the account of the Company or any
Restricted Subsidiary or (y) other obligations to reimburse third parties
pursuant to any surety bond or other similar arrangements, which letters of
credit or other obligations, as the case may be, are intended to provide
security for workers' compensation claims, payment obligations in
connection with self-insurance or other similar requirements in the
ordinary course of business;
(m) Indebtedness, if any, of the Company or any Restricted Subsidiary
arising by reason of the recharacterization of the sale of accounts
receivable to an Accounts Receivable Subsidiary;
(n) Indebtedness of any Foreign Subsidiary incurred to fund
operations outside the United States, provided that at the time of, and
immediately after giving effect to, such incurrence the Company could incur
at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 1008; and
(o) Indebtedness of the Company or any Restricted Subsidiary not
otherwise permitted by the foregoing clauses (a) through (n) in an
aggregate principal amount not in excess of $50,000,000 at any one time
outstanding.
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents;
(b) Investments in the Company or any Restricted Subsidiary;
(c) intercompany Indebtedness to the extent permitted under clauses
(d) and (e) of the definition of "Permitted Indebtedness";
(d) Investments not otherwise permitted by the foregoing clauses (a)
through (c) or in the following clauses (e) through (m) in an amount not to
exceed $37,500,000 at any one time outstanding;
(e) Investments by the Company or any Restricted Subsidiary in
another Person, if as a result of such Investment (i) such other Person
becomes a Restricted Subsidiary or (ii) such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all
of its assets to, the Company or a Restricted Subsidiary;
(f) bonds, notes, debentures and other securities received as
consideration for Asset Sales to the extent permitted under Section 1015;
(g) lease, utility and other similar deposits in the ordinary course
of business;
(h) prepaid expenses incurred in the ordinary course of business
consistent with past practices;
(i) negotiable instruments held for collection;
(j) Investments in the form of the sale (on a "true-sale" non-
recourse basis) or the servicing of receivables transferred from the
Company or any Restricted Subsidiary, or transfers of cash, to an Accounts
Receivable Subsidiary as a capital contribution or in exchange for
Indebtedness of such Accounts Receivable Subsidiary or cash in the ordinary
course of business;
(k) Investments in joint ventures, partnerships or other Persons made
at any time reasonably related or complementary to the businesses of the
Company on the date of this Indenture so long as at the time of making such
Investment and after giving effect to such Investment on a pro forma basis,
the Consolidated Fixed Charge Coverage Ratio calculated as set forth in
Section 1008 would have been at least equal to 4.0 to 1.0, provided that
such Investment is in furtherance of the Company's business and no
Affiliate of the Company (other than a Restricted Subsidiary) or beneficial
holder of 5% or more of any class of Capital Stock of the Company shall
beneficially own Capital Stock in the Person in which such Investment is
made;
(l) personal loans or advances to employees of the Company or any
Restricted Subsidiary which loans and advances do not in the aggregate
exceed $10,000,000 outstanding at any one time; and
(m) loans or advances to customers or suppliers of the Company or any
Restricted Subsidiary in the ordinary course of business, which loans and
advances do not in the aggregate exceed $10,000,000 outstanding at any one
time.
"Permitted Liens" means the following types of Liens:
(a) Liens (other than Liens securing Indebtedness under the Credit
Agreement) existing on the date of this Indenture;
(b) Liens on property or assets of the Company or any Restricted
Subsidiary securing Indebtedness under the Credit Agreement in a principal
amount not to exceed the principal amount of the outstanding Indebtedness
permitted by clause (a)(i) of the definition of "Permitted Indebtedness";
(c) Liens on any property or assets of a Restricted Subsidiary
granted in favor of the Company or any wholly owned Restricted Subsidiary;
(d) Liens on any property or assets of the Company or any Restricted
Subsidiary securing the Notes;
(e) any interest or title of a lessor under any Capitalized Lease
Obligation or Sale and Leaseback Transaction so long as the Attributable
Debt secured by such Lien is not incurred in violation of Section 1008;
(f) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like Liens arising in
the ordinary course of business of the Company or any Restricted Subsidiary
and with respect to amounts not yet delinquent or being contested in good
faith by appropriate proceeding, if a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have
been made therefor;
(g) Liens for taxes, assessments, government charges or claims that
are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and if a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have
been made therefor;
(h) Liens incurred or deposit made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds,
government contracts, performance bonds and other obligations of a like
nature incurred in the ordinary course of business (other than contracts
for the payment of money);
(i) easements, rights-of-way, restrictions and other similar charges
or encumbrances not interfering in any material respect with the business
of the Company or any Restricted Subsidiary;
(j) Liens arising by reason of any judgment, decree or order of any
court so long as such Lien is adequately bonded and any appropriate legal
proceedings that may have been duly initiated for the review of such
judgment, decree or order shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have
expired;
(k) Liens securing Acquired Indebtedness created prior to (and not in
connection with or in contemplation of) the incurrence of such Indebtedness
by the Company or any Restricted Subsidiary, provided that such Lien does
not extend to any property or assets of the Company or any Restricted
Subsidiary other than the assets acquired in connection with the incurrence
of such Acquired Indebtedness;
(l) Liens securing obligations of the Company or any Guarantor under
Interest Rate Agreements or Currency Agreements or any collateral for the
Indebtedness to which such Interest Rate Agreements or Currency Agreements
relate;
(m) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security;
(n) Liens securing reimbursement obligations of the Company or any
Guarantor with respect to letters of credit that encumber documents and
other property relating to such letters of credit and the products and
proceeds thereof;
(o) Liens arising from purchase money mortgages and purchase money
security interests incurred in the normal and ordinary course of the
business of the Company or any Guarantor; provided that (i) the related
Indebtedness shall not be secured by any property or assets of the Company
or any Restricted Subsidiary other than the property and assets so acquired
and (ii) the Lien securing such Indebtedness shall be created within 60
days of such acquisition;
(p) Liens upon specific items of inventory or other goods and
proceeds of the Company or any Guarantor securing their obligations in
respect of bankers' acceptances issued or created for the account of any
such Person to facilitate the purchase, shipment or storage of such
inventory of other goods;
(q) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(r) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Company and the
Restricted Subsidiaries, taken as a whole;
(s) any interest or title of a lessor in any property that is (i)
subject to any lease or (ii) located on the real property subject to any
lease;
(t) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
the Company or any Restricted Subsidiary in the ordinary course of
business;
(u) Liens on the property or assets or Capital Stock of Accounts
Receivable Subsidiaries and Liens arising out of any sale of accounts
receivable in the ordinary course to or by an Accounts Receivable
Subsidiary;
(v) Liens securing Indebtedness incurred to finance the construction,
purchase or lease of, or repairs, improvements or additions to, property of
the Company or a Restricted Subsidiary; provided, however, that the Lien
may not extend to any property or assets of the Company or any Restricted
Subsidiary other than the property acquired, constructed, repaired,
improved or added to, and the Indebtedness secured by such Lien may not be
incurred more than 180 days after the later of the acquisition, completion
of construction, repair, improvement, addition or commencement of full
operation of the property subject to the Lien; provided, further, however,
that all such Indebtedness does not exceed 10% of the Company's
consolidated tangible assets at the time of incurrence;
(w) Liens not otherwise permitted by the foregoing clauses (a)
through (v) securing obligations or other liabilities (other than
Indebtedness) of the Company or any Restricted Subsidiary; provided,
however, that the aggregate amount of such obligations and liabilities
secured by such Liens shall not exceed $10,000,000 outstanding at any one
time; and
(x) any extension, renewal or replacement, in whole or in part, of
any Lien described in the foregoing clauses (a) through (v), provided that
any such extension, renewal or replacement shall be no more restrictive in
any material respect than the Lien so extended, renewed or replaced and
shall not extend to any additional property or assets.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Physical Notes" has the meaning set forth in Section 201.
"Place of Payment" means the office or agency maintained by the
Company where the principal of (and premium, if any, on) and interest on the
Notes are payable as specified in Section 1002.
"Predecessor Note" of any particular Note, means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"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 date of this Indenture, including, without limitation, all classes and
series of preferred or preference stock of such Person.
"Private Placement Legend" has the meaning set forth in Section 203.
"Purchase Money Obligations" means, with respect to any Person,
obligations, other than Capitalized Lease Obligations, incurred or assumed in
the ordinary course of business in connection with the purchase of property to
be used in the business of such Person within 90 days of such purchase, provided
that the amount of any Purchase Money Obligation shall not exceed the purchase
price of the property purchased.
"QIB" means a "Qualified Institutional Buyer" within the meaning of
Rule 144A under the Securities Act.
"Qualified Capital Stock" of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any class or series of Capital Stock
that, either by its terms, by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise, is, or upon the
happening of an event or passage of time would be, required to be redeemed prior
to the final Stated Maturity of the Notes or is redeemable at the option of the
holder thereof at any time prior to such final Stated Maturity, or is
convertible into or exchangeable for debt securities at any time prior to such
final Stated Maturity.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of July 9, 1997, among the Company, the Guarantors and the
Holders of Initial Notes.
"Registration Statement" means the Registration Statement as defined
in the Registration Rights Agreement.
"Regular Record Date" has the meaning specified in Section 301.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above-designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary.
"S&P" means Standard and Poor's Ratings Group, A Division of XxXxxx-
Xxxx, Inc., and its successors.
"Sale and Leaseback Transaction" means any transaction or series of
related transactions pursuant to which the Company or a Restricted Subsidiary
sells or transfers any property or asset in connection with the leasing, or the
resale against installment payments, of such property or asset to the seller or
transferor.
"Senior Indebtedness" means (i) all obligations of the Company, now or
hereafter existing, under or in respect of the Credit Agreement, whether for
principal, premium, if any, interest (including interest accruing after the
filing of, or which would have accrued but for the filing of, a petition by or
against the Company under Bankruptcy Law, whether or not such interest is
allowed as a claim after such filing in any proceeding under such law), fees,
expenses, indemnities, gross-ups or other payments thereunder, (ii) the
principal of, premium, if any, and interest on the Notes and (iii) the principal
of, premium, if any, and interest on all other Indebtedness of the Company
(other than the Senior Subordinated Notes and the Convertible Notes), whether
outstanding on the date of this Indenture or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Notes. Notwithstanding the foregoing, "Senior Indebtedness"
shall not include (i) Indebtedness evidenced by the Senior Subordinated Notes or
the Convertible Notes, (ii) Indebtedness of the Company that is expressly
subordinated in right of payment to any Indebtedness of the Company, (iii)
Indebtedness of the Company to the extent incurred in violation of any covenant
prohibiting the incurrence of Indebtedness under this Indenture, (iv) any
liability for federal, state or local taxes or other taxes, owed or owing by the
Company, (v) trade account payables owed or owing by the Company, (vi) amounts
owed by the Company for compensation to employees or for services rendered to
the Company, (vii) Indebtedness of the Company to any Subsidiary or any other
Affiliate of the Company, (viii) Redeemable Capital Stock of the Company and
(ix) Indebtedness which when incurred and without respect to any election under
Section 1111 (b) of Title 11 of the United States Code is without recourse to
the Company or any Subsidiary.
"Senior Subordinated Notes" means the 9% Senior Subordinated Notes due
2007 of the Company, issued pursuant to an Indenture dated the date hereof among
the Company, the Guarantors and The Bank of New York, as trustee.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that,
together with its Subsidiaries, (i) for the most recent fiscal year of the
Company, accounted for more than 5% of the consolidated revenues of the Company
and its Restricted Subsidiaries or (ii) as of the end of such fiscal year, was
the owner of more than 5% of the consolidated assets of the Company and its
Restricted Subsidiaries, all as set forth on the most recently available
consolidated financial statements of the Company for such fiscal year.
"Special Record Date" for the payment of any Defaulted Interest on the
Notes means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable, and, when used with respect to any other Indebtedness, means the
date specified in the instrument governing such Indebtedness as the fixed date
on which the principal of such Indebtedness, or any installment of interest
thereon, is due and payable.
"Subsidiary" means any Person, a majority of the equity ownership or
Voting Stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries or by the Company and one or more
other Subsidiaries.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
"United States" means the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"Unrestricted Subsidiary" means (a) any Subsidiary that at the time of
determination shall be an Unrestricted Subsidiary (as designated by the Board of
Directors of the Company, as provided below) and (b) any Subsidiary of an
Unrestricted Subsidiary; provided, however, that in no event shall any Guarantor
be an Unrestricted Subsidiary. 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
Indebtedness of such Subsidiary, (ii) no default with respect to any
Indebtedness of such Subsidiary would permit (upon notice, lapse of time or
otherwise) any holder of any other Indebtedness of the Company or any Restricted
Subsidiary to declare a default on such other Indebtedness 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 will not violate the provisions of Section 1017, (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 (1) to subscribe for additional
shares of Capital Stock or other equity interest in such Subsidiary or (2) to
maintain or preserve such Subsidiary's financial condition or to cause such
Subsidiary to achieve certain levels of operating results. Any such designation
by the Board of Directors of the Company shall be evidenced to the Trustee by
filing a board resolution with the Trustee giving effect to such designation.
The Board of Directors of the Company may designate any Unrestricted Subsidiary
as a Restricted Subsidiary if, immediately after giving effect to such
designation, there would be no Default or Event of Default under this Indenture
and the Company could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 1008.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
"U.S. Global Note" has the meaning set forth in Section 201.
"U.S. Physical Note" has the meaning set forth in Section 201.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company 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 to the effect that in the opinion
of such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of any such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant to
Section 1007) shall include:
(1) a statement to the effect that each individual or firm signing
such certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement to the effect that, in the opinion of each such
individual or such firm, he or she has or they have made such examination
or investigation as is necessary to enable him, her or them to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual
or such firm, such covenant or condition has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or of a
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 or her
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or such Guarantor stating that the information with respect to such
factual matters is in the possession of the Company or such Guarantor, 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 of the Outstanding Notes may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held by any
Person, and the date of holding the same, shall be proved by the Note Register.
(d) If the Company shall solicit from the Holders of Notes any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date
is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Notes have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the Outstanding Notes shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company or
any Guarantor in reliance thereon, whether or not notation of such action is
made upon such Note.
SECTION 105. Notices, etc., to Trustee, Company and Agent Bank.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any Guarantor
shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or
(2) the Company or any Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to the Company or such Guarantor addressed to it at the address of its
principal office, for the attention of the Chief Financial Officer,
specified in the first paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Notes by the Company or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at its
address as it appears in the Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Any notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be sufficient giving of
such notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Note shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto, any Authenticating Agent, any
Paying Agent, any Notes Registrar and their successors hereunder and the Holders
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. Governing Law.
This Indenture and the Notes shall be governed by and construed in
accordance with the law of the State of New York. Upon the effectiveness of the
Shelf Registration Statement or the consummation of the Exchange Offer, this
Indenture will be subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date or Stated Maturity or
Maturity of any Note shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Note) payment
of interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or at the Stated Maturity or Maturity; provided that no interest
shall accrue for the period from and after such Interest Payment Date, Stated
Maturity or Maturity, as the case may be.
SECTION 113. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the provision required by the TIA shall control.
SECTION 114. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
or any Guarantor shall not have any liability for any obligations of the Company
or such Guarantor under the Notes, any Guarantee or this Indenture, as
applicable, or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note and the related Guarantee,
each Holder shall waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the Notes and the
Guarantees.
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.
The Initial Notes shall be known as the "8-3/8% Senior Notes due 2005"
and the Exchange Notes shall be known as the "8-3/8% Series B Senior Notes due
2005", in each case, of the Company. The Notes and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers of the Company
executing such Notes, as evidenced by their execution of the Notes. Any portion
of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The definitive Notes shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers of the Company executing such Notes, as evidenced by their
execution of such Notes.
Initial Notes offered and sold in reliance on Rule 144A under the
Securities Act may be issued in the form of one or more permanent global Notes
in substantially the form set forth in Exhibit A and contain each of the legends
set forth in Section 203 (the "U.S. Global Note"), deposited with the Trustee,
as custodian for the Depositary or its nominee, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the U.S. Global Note may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depositary or its nominee, as hereinafter provided.
Initial Notes offered and sold in offshore transactions in reliance on
Regulation S under the Securities Act shall be issued in the form of a single
permanent global Note in substantially the form set forth in Exhibit A (the
"Offshore Global Note") deposited with the Trustee, as custodian for the
Depositary or its nominee, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the Offshore
Global Note may from time to time be increased or decreased by adjustments made
in the records of the Trustee, as custodian for the Depositary or its nominee,
as herein provided. Initial Notes issued pursuant to Section 305 in exchange
for or upon transfer of beneficial interests in the U.S. Global Note or the
Offshore Global Note shall be in the form of U.S. Physical Notes or in the form
of permanent certificated Notes substantially in the form set forth in Exhibit A
(the "Offshore Physical Notes"), respectively, as hereinafter provided.
Initial Notes which are offered and sold to Institutional Accredited
Investors which are not QIBs (excluding Non-U.S. Persons) shall be issued in the
form of permanent certificated Notes in substantially the form set forth in
Exhibit A and contain the Private Placement Legend as set forth in Section 203
(the "U.S. Physical Notes").
The Offshore Physical Notes and U.S. Physical Notes are sometimes
collectively herein referred to as the "Physical Notes". The U.S. Global Note
and the Offshore Global Note are sometimes collectively referred to as the
"Global Notes".
Exchange Notes shall be issued substantially in the form set forth in
Exhibit A.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: By:
---------------- --------------------
Authorized Signatory
SECTION 203. Restrictive Legends.
Unless and until (i) an Initial Note is sold pursuant to an effective
Shelf Registration Statement or (ii) an Initial Note is exchanged for an
Exchange Note in an Exchange Offer pursuant to an effective Exchange Offer
Registration Statement, in each case pursuant to the Registration Rights
Agreement, (A) each U.S. Global Note and U.S. Physical Note shall bear the
following legend set forth below (the "Private Placement Legend") on the face
thereof and (B) the Offshore Physical Notes and Offshore Global Note shall bear
the Private Placement Legend on the face thereof until at least 41 days after
the date hereof (the "Offshore Note Exchange Date") and receipt by the Company
and the Trustee of a certificate substantially in the form provided in Section
204:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A")) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO
RULE 903 OR 904 OF REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X)
THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OR
THIS SECURITY) AND THE LAST DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF
THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE
LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, (E) TO AN ACCREDITED
INVESTOR THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT (AND IF ACQUIRING THE SECURITIES FROM
SUCH AN ACCREDITED INVESTOR, IS ACQUIRING SECURITIES HAVING AN AGGREGATE
PRINCIPAL AMOUNT OF NOT LESS THAN $100,000), OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THAT THE COMPANY, THE TRUSTEE, THE TRANSFER AGENT AND THE
REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
(I) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Each Global Note, whether or not an Initial Note, shall also bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTIONS 311 AND 312 OF THE INDENTURE.
SECTION 204. Form of Certificate to Be Delivered upon Termination of
Restricted Period.
On or after August 18, 0000
XXX XXXX XX XXX XXXX
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Trustee Administration
Re: NINE WEST GROUP INC. (the "Company")
8-3/8% Senior Notes due 2005 (the "Notes")
Ladies and Gentlemen:
This letter relates to $__________ principal amount of Notes
represented by the offshore global note certificate (the "Offshore Global
Note"). Pursuant to Section 203 of the Indenture dated as of July 9, 1997
relating to the Notes (the "Indenture"), we hereby certify that (1) we are the
beneficial owner of such principal amount of Notes represented by the Offshore
Global Note and (2) we are a Non-U.S. Person to whom the Notes could be
transferred in accordance with Rule 904 of Regulation S promulgated under the
Securities Act of 1933, as amended ("Regulation S"). Accordingly, you are
hereby requested to issue an Offshore Physical Note representing the
undersigned's interest in the principal amount of Notes represented by the
Offshore Global Note, all in the manner provided by the Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
------------------------
Authorized Signature
ARTICLE THREE
THE NOTES
SECTION 301. Amount.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to $200,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 304, 305, 306, 311, 312,
906, 1014 or 1015 or pursuant to an Exchange Offer.
The Stated Maturity of the Notes shall be August 15, 2005, and they
shall bear interest at the rate of 8-3/8% per annum from July 9, 1997, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, payable on February 15, 1998 and semi-annually thereafter on
February 15th and August 15th in each year, until the principal thereof is paid
in full and to the Person in whose name the Note (or any predecessor Note) is
registered at the close of business on the February 1st or August 1st
immediately preceding such Interest Payment Date (each, a "Regular Record
Date"). Interest will be computed on the Notes as specified in Section 310
hereof.
The principal of (and premium, if any) and interest on the Notes shall
be payable at the office or agency of the Company maintained for such purpose in
The City of New York, or at such other office or agency of the Company as may be
maintained for such purpose; provided, however, that, at the option of the
Company, interest may be paid (a) by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Note Register or (b) by
wire transfer to an account maintained by the payee in the United States.
Holders shall have the right to require the Company to purchase their
Notes, in whole or in part, in the event of a Change of Control pursuant to
Section 1014 and in the event of certain Asset Sales pursuant to Section 1015.
The Notes shall not be redeemable at the option of the Company prior
to their Stated Maturity.
SECTION 302. Denominations.
The Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its Chairman
of the Board, its Chief Executive Officer, its President, its Chief Operating
Officer, its Chief Financial Officer or a Vice President. The signature of any
of these officers on the Notes may be the manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or otherwise
reproduced on the Notes.
Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
On Company Order, the Trustee shall authenticate for original issue
Initial Notes in an aggregate principal amount not to exceed $200,000,000. On
Company Order, the Trustee shall authenticate for original issue Exchange Notes
in an aggregate principal amount not to exceed $200,000,000; provided that such
Exchange Notes shall be issuable only upon the valid surrender for cancellation
of Initial Notes of a like aggregate principal amount in accordance with an
Exchange Offer pursuant to the Registration Rights Agreement. In each case, the
Trustee shall be entitled to receive an Officers' Certificate and an Opinion of
Counsel of the Company that it may reasonably request in connection with such
authentication of Notes. Such order shall specify the amount of Notes to be
authenticated and the date on which the original issue of Notes is to be
authenticated.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
In case the Company or any Guarantor, pursuant to Article Eight, shall
be consolidated or merged with or into any other Person or shall convey,
transfer, lease or otherwise dispose of its properties and assets substantially
as an entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company or such
Guarantor shall have been merged, or the Person which shall have received a
conveyance, transfer, lease or other disposition as aforesaid, shall have
executed an indenture supplemental hereto with the Trustee pursuant to Article
Eight, any of the Notes authenticated or delivered prior to such consolidation,
merger, conveyance, transfer, lease or other disposition may, from time to time,
at the request of the successor Person, be exchanged for other Notes executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Notes
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, shall authenticate and deliver
Notes as specified in such request for the purpose of such exchange. If Notes
shall at any time be authenticated and delivered in any new name of a successor
Person pursuant to this Section 303 in exchange or substitution for or upon
registration of transfer of any Notes, such successor Person, at the option of
the Holders but without expense to them, shall provide for the exchange of all
Notes at the time Outstanding for Notes authenticated and delivered in such new
name.
SECTION 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Notes which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as conclusively evidenced by their execution
of such Notes.
If temporary Notes are issued, the Company will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes, upon
surrender of the temporary Notes at the office or agency of the Company in a
Place of Payment, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Notes, the Company shall execute and, upon Company
Order, the Trustee shall authenticate and make available for delivery in
exchange therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for the Notes (the register maintained in the Corporate
Trust Office of the Trustee and in any other office or agency of the Company in
a Place of Payment being herein sometimes collectively referred to as the "Note
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Notes and of transfers of
Notes. The Note Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, the Note Register shall be open to inspection by the Trustee. The
Trustee is hereby initially appointed as note registrar (the Trustee in such
capacity, together with any successor Trustee in such capacity, the "Note
Registrar") for the purpose of registering Notes and transfers of Notes as
herein provided.
Upon surrender for registration of transfer of any Note at the office
or agency in a Place of Payment, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, in the name of the
designated transferee, one or more new Notes, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Notes may be exchanged for other Notes,
of any authorized denomination and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Notes which the
Holder making the exchange is entitled to receive; provided that no exchange of
Initial Notes for Exchange Notes shall occur until an Exchange Offer
Registration Statement shall have been declared effective by the Commission, the
Trustee shall have received an Officers' Certificate confirming that the
Exchange Offer Registration Statement has been declared effective by the
Commission and the Initial Notes to be exchanged for the Exchange Notes shall be
cancelled by the Trustee.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Note Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Note Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, 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 Notes, other than exchanges
pursuant to Section 304, 906, 1014, 1015 or 1108 not involving any transfer.
The Company shall not be required to issue, register the transfer of
or exchange any Note which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Note not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and make available for delivery in
exchange therefor a new Note of like tenor and principal amount and bearing a
number not contemporaneously outstanding, or, in case any such mutilated Note
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Note, pay such Note.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and upon Company Order the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Note, a new Note of like tenor and principal amount and bearing a
number not contemporaneously outstanding, or, in case any such destroyed, lost
or stolen Note has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note, shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest at the Place of Payment;
provided, however, that each installment of interest on any Note may at the
Company's option be paid (i) by mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 308,
to the address of such Person as it appears on the Note Register or (ii) by wire
transfer to an account located in the United States maintained by the payee.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such defaulted interest and, if applicable, interest on
such defaulted interest (to the extent lawful) at the rate specified in the
Notes (such defaulted interest and, if applicable, interest thereon herein
collectively called "Defaulted Interest") may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Note and the date
of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given in the manner provided in
Section 106, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so given, such Defaulted Interest shall be
paid to the Persons in whose name the Registered Notes (or their respective
Predecessor Notes) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted Interest on the
Notes in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer, the
Company, any Guarantor, the Trustee and any agent of the Company, any Guarantor
or the Trustee may treat the Person in whose name such Note is registered as the
owner of such Note for the purpose of receiving payment of principal of (and
premium, if any, on) and (subject to Sections 305 and 307) interest on such Note
and for all other purposes whatsoever, whether or not such Note be overdue, and
none of the Company, any Guarantor, the Trustee or any agent of the Company, any
Guarantor or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Notes surrendered for payment, repayment at the option of the
Holder, registration of transfer or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Notes so delivered to
the Trustee shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Notes previously authenticated hereunder
which the Company has not issued and sold, and all Notes so delivered shall be
promptly cancelled by the Trustee. If the Company shall so acquire any of the
Notes, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled
Notes held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures unless by Company Order the Company shall direct that
cancelled Notes be returned to it.
SECTION 310. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
SECTION 311. Book-Entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in the name of
the Depositary for such Global Notes or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) bear legends
as set forth in Section 203.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note, and the
Depositary may be treated by the Company, the Guarantors, the Trustee and any
agent of the Company, the Guarantors or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Guarantors, the Trustee or any
agent of the Company, the Guarantors or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a beneficial owner
of any Note. The registered holder of a Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
(b) Interests of beneficial owners in a Global Note may be transferred
in accordance with the applicable rules and procedures of the Depositary and the
provisions of Section 312. Transfers of a Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees, except (i) as otherwise set forth in
Section 312 and (ii) U.S. Physical Notes or Offshore Physical Notes shall be
transferred to all beneficial owners in exchange for their beneficial interests
in the U.S. Global Note or the Offshore Global Note, respectively, in the event
that the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the applicable Global Note or the Depositary ceases
to be a "Clearing Agency" registered under the Exchange Act and a successor
depositary is not appointed by the Company within 90 days. In connection with a
transfer of an entire Global Note to beneficial owners pursuant to clause (ii)
of this paragraph (b), the applicable Global Note shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and
the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in the applicable
Global Note, an equal aggregate principal amount at maturity of U.S. Physical
Notes (in the case of the U.S. Global Note) or Offshore Physical Notes (in the
case of the Offshore Global Note), as the case may be, of authorized
denominations.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(d) Any U.S. Physical Note delivered in exchange for an interest in
the U.S. Global Note pursuant to paragraph (b) of this Section shall, unless
such exchange is made on or after the Resale Restriction Termination Date and
except as otherwise provided in Section 312, bear the Private Placement Legend.
SECTION 312. Transfer Provisions.
Unless and until (i) an Initial Note is sold pursuant to an effective
Registration Statement, or (ii) an Initial Note is exchanged for an Exchange
Note in the Exchange Offer pursuant to an effective Registration Statement, in
each case, pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) General. The provisions of this Section 312 shall apply to all
transfers involving any Physical Note and any beneficial interest in any Global
Note.
(b) Certain Definitions. As used in this Section 312 only, "delivery"
of a certificate by a transferee or transferor means the delivery to the Note
Registrar by such transferee or transferor of the applicable certificate duly
completed; "holding" includes both possession of a Physical Note and ownership
of a beneficial interest in a Global Note, as the context requires;
"transferring" a Global Note means transferring that portion of the principal
amount of the transferor's beneficial interest therein that the transferor has
notified the Note Registrar that it has agreed to transfer; and "transferring" a
Physical Note means transferring that portion of the principal amount thereof
that the transferor has notified the Note Registrar that it has agreed to
transfer.
As used in this Indenture, "Accredited Investor Certificate" means a
certificate substantially in the form set forth in Section 313; "Regulation S
Certificate" means a certificate substantially in the form set forth in Section
314; "Rule 144A Certificate" means a certificate substantially in the form set
forth in Section 315; and "Non-Registration Opinion and Supporting Evidence"
means a written opinion of counsel reasonably acceptable to the Company to the
effect that, and such other certification or information as the Company may
reasonably require to confirm that, the proposed transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
(c) [Intentionally Omitted]
(d) Deemed Delivery of a Rule 144A Certificate in Certain
Circumstances. A Rule 144A Certificate, if not actually delivered, will be
deemed delivered if (A) (i) the transferor advises the Company and the Trustee
in writing that the relevant offer and sale were made in accordance with the
provisions of Rule 144A (or, in the case of a transfer of a Physical Note, the
transferor checks the box provided on the Physical Note to that effect) and (ii)
the transferee advises the Company and the Trustee in writing that (x) it and,
if applicable, each account for which it is acting in connection with the
relevant transfer, is a qualified institutional buyer within the meaning of Rule
144A, (y) it is aware that the transfer of Notes to it is being made in reliance
on the exemption from the provisions of Section 5 of the Securities Act provided
by Rule 144A, and (z) prior to the proposed date of transfer it has been given
the opportunity to obtain from the Company the information referred to in Rule
144A(d)(4), and has either declined such opportunity or has received such
information (or, in the case of a transfer of a Physical Note, the transferee
signs the certification provided on the Physical Note to that effect); or (B)
the transferor holds the U.S. Global Note and is transferring to a transferee
that will take delivery in the form of the U.S. Global Note.
(e) Procedures and Requirements.
1. If the proposed transfer occurs prior to the Offshore Note Exchange
Date, and the proposed transferor holds:
(A) a U.S. Physical Note which is surrendered to the Note Registrar,
and the proposed transferee or transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if required
by the Company, a Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to clause (d) above)
a Rule 144A Certificate and the proposed transferee requests delivery
in the form of a U.S. Physical Note, then the Note Registrar shall (x)
register such transfer in the name of such transferee and record the
date thereof in its books and records, (y) cancel such surrendered
U.S. Physical Note and (z) deliver a new U.S. Physical Note to such
transferee duly registered in the name of such transferee in principal
amount equal to the principal amount being transferred of such
surrendered U.S. Physical Note;
(ii) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests that the proposed
transferee receive a beneficial interest in the U.S. Global Note, then
the Note Registrar shall (x) cancel such surrendered U.S. Physical
Note, (y) record an increase in the principal amount of the U.S.
Global Note equal to the principal amount being transferred of such
surrendered U.S. Physical Note and (z) notify the Depositary in
accordance with the procedures of the Depositary that it approves of
such transfer; or
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the Offshore
Global Note, then the Note Registrar shall (x) cancel such surrendered
U.S. Physical Note, (y) record an increase in the principal amount of
the Offshore Global Note equal to the principal amount being
transferred of such surrendered U.S. Physical Note and (z) notify the
Depositary in accordance with the procedures of the Depositary that it
approves of such transfer.
In any of the cases described in this Section 312(e)(1)(A), the Note
Registrar shall deliver to the transferor a new U.S. Physical Note in
principal amount equal to the principal amount not being transferred of
such surrendered U.S. Physical Note, as applicable.
(B) the U.S. Global Note, and the proposed transferee or transferor,
as applicable:
(i) delivers an Accredited Investor Certificate and, if required
by the Company, a Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to clause (d) above)
a Rule 144A Certificate and the proposed transferee requests delivery
in the form of a U.S. Physical Note, then the Note Registrar shall (w)
register such transfer in the name of such transferee and record the
date thereof in its books and records, (x) record a decrease in the
principal amount of the U.S. Global Note in an amount equal to the
beneficial interest therein being transferred, (y) deliver a new U.S.
Physical Note to such transferee duly registered in the name of such
transferee in principal amount equal to the amount of such decrease
and (z) notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer;
(ii) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests that the proposed
transferee receive a beneficial interest in the U.S. Global Note, then
the transfer shall be effected in accordance with the procedures of
the Depositary therefor; or
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the Offshore
Global Note, then the Note Registrar shall (w) register such transfer
in the name of such transferee and record the date thereof in its
books and records, (x) record a decrease in the principal amount of
the U.S. Global Note in an amount equal to the beneficial interest
therein being transferred, (y) record an increase in the principal
amount of the Offshore Global Note equal to the amount of such
decrease and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer.
(C) the Offshore Global Note, and the proposed transferee or
transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if required
by the Company, a Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to clause (d) above)
a Rule 144A Certificate and the proposed transferee requests delivery
in the form of a U.S. Physical Note, then the Note Registrar shall (w)
register such transfer in the name of such transferee and record the
date thereof in its books and records, (x) record a decrease in the
principal amount of the Offshore Global Note in an amount equal to the
beneficial interest therein being transferred, (y) deliver a new U.S.
Physical Note to such transferee duly registered in the name of such
transferee in principal amount equal to the amount of such decrease
and (z) notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer;
(ii) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests that the proposed
transferee receive a beneficial interest in the U.S. Global Note, then
the Note Registrar shall (x) record a decrease in the principal amount
of the Offshore Global Note in an amount equal to the beneficial
interest therein being transferred, (y) record an increase in the
principal amount of the U.S. Global Note equal to the amount of such
decrease and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer; or
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the Offshore
Global Note, then the transfer shall be effected in accordance with
the procedures of the Depositary therefor; provided, however, that
until the Offshore Note Exchange Date occurs, beneficial interests in
the Offshore Global Note may be held only in or through accounts
maintained at the Depositary by Euroclear or Cedel (or by Agent
Members acting for the account thereof), and no person shall be
entitled to effect any transfer or exchange that would result in any
such interest being held otherwise than in or through such an account.
2. If the proposed transfer occurs on or after the Offshore Notes
Exchange Date and the proposed transferor holds:
(A) a U.S. Physical Note which is surrendered to the Note Registrar,
and the proposed transferee or transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if required
by the Company, a Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to clause (d) above)
a Rule 144A Certificate and the proposed transferee requests delivery
in the form of a U.S. Physical Note, then the procedures set forth in
Section 312(e)(1)(A)(i) shall apply;
(ii) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests that the proposed
transferee receive a beneficial interest in the Offshore Global Note,
then the procedures set forth in Section 312(e)(1)(A)(ii) shall apply;
or
(iii) delivers a Regulation S Certificate, then the Note
Registrar shall cancel such surrendered U.S. Physical Note and at the
direction of the transferee, either:
(x) register such transfer in the name of such transferee,
record the date thereof in its books and records and deliver a
new Offshore Physical Note to such transferee in principal amount
equal to the principal amount being transferred of such
surrendered U.S. Physical Note, or
(y) if the proposed transferee is or is acting through an
Agent Member, record an increase in the principal amount of the
Offshore Global Note equal to the principal amount being
transferred of such surrendered U.S. Physical Note and notify the
Depositary in accordance with the procedures of the Depositary
that it approves of such transfer.
In any of the cases described in this Section 312(e)(2)(A)(i), (ii) or
(iii)(x), the Note Registrar shall deliver to the transferor a new U.S.
Physical Note in principal amount equal to the principal amount not being
transferred of such surrendered U.S. Physical Note, as applicable.
(B) the U.S. Global Note, and the proposed transferee or transferor,
as applicable:
(i) delivers an Accredited Investor Certificate and, if required
by the Company, a Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to clause (d) above)
a Rule 144A Certificate and the proposed transferee requests delivery
in the form of a U.S. Physical Note, then the procedures set forth in
Section 312(e)(1)(B)(i) shall apply; or
(ii) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests that the proposed
transferee receive a beneficial interest in the U.S. Global Note, then
the procedures set forth in Section 312(e)(1)(B)(ii) shall apply; or
(iii) delivers a Regulation S Certificate, then the Note
Registrar shall (x) record a decrease in the principal amount of the
U.S. Global Note in an amount equal to the beneficial interest therein
being transferred, (y) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer and (z)
at the direction of the transferee, either:
(x) register such transfer in the name of such transferee,
record the date thereof in its books and records and deliver a
new Offshore Physical Note to such transferee in principal amount
equal to the amount of such decrease, or
(y) if the proposed transferee is or is acting through an
Agent Member, record an increase in the principal amount of the
Offshore Global Note equal to the amount of such decrease.
(C) an Offshore Physical Note which is surrendered to the Note
Registrar, and the proposed transferee or transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests delivery in the form of
the U.S. Global Note, then the Note Registrar shall (x) cancel such
surrendered Offshore Physical Note, (y) record an increase in the
principal amount of the U.S. Global Note equal to the principal amount
being transferred of such surrendered Offshore Physical Note and (z)
notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer;
(ii) where the proposed transferee is or is acting through an
Agent Member, requests that the proposed transferee receive a
beneficial interest in the Offshore Global Note, then the Note
Registrar shall (x) cancel such surrendered Offshore Physical Note,
(y) record an increase in the principal amount of the Offshore Global
Note equal to the principal amount being transferred of such
surrendered Offshore Physical Note and (z) notify the Depositary in
accordance with the procedures of the Depositary that it approves of
such transfer; or
(iii) does not make a request covered by Section 312(e)(2)(C)(i)
or Section 312(e)(2)(C)(ii), then the Note Registrar shall (x)
register such transfer in the name of such transferee and record the
date thereof in its books and records, (y) cancel such surrendered
Offshore Physical Note and (z) deliver a new Offshore Physical Note to
such transferee duly registered in the name of such transferee in
principal amount equal to the principal amount being transferred of
such surrendered Offshore Physical Note.
In any of the cases described in this Section 312(e)(2)(C), the Note
Registrar shall deliver to the transferor a new U.S. Physical Note in principal
amount equal to the principal amount not being transferred of such surrendered
U.S. Physical Note, as applicable.
(D) the Offshore Global Note, and the proposed transferee or
transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is
or is acting through an Agent Member and requests delivery in the
form of the U.S. Global Note, then the Note Registrar shall (x)
record a decrease in the principal amount of the Offshore Global
Note in an amount equal to the beneficial interest therein being
transferred, (y) record an increase in the principal amount of
the U.S. Global Note equal to the amount of such decrease and (z)
notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer;
(ii) where the proposed transferee is or is acting through an
Agent Member, requests that the proposed transferee receive a
beneficial interest in the Offshore Global Note, then the
transfer shall be effected in accordance with the procedures of
the Depositary therefor; or
(iii) does not make a request covered by Section 312(e)(2)(D)(i)
or Section 312(e)(2)(D)(ii), then the Note Registrar shall (w)
register such transfer in the name of such transferee and record
the date thereof in its books and records, (x) record a decrease
in the principal amount of the Offshore Global Note in an amount
equal to the beneficial interest therein being transferred, (y)
deliver a new Offshore Physical Note to such transferee duly
registered in the name of such transferee in principal amount
equal to the amount of such decrease and (z) notify the
Depositary in accordance with the procedures of the Depositary
that it approves of such transfer.
(f) Execution, Authentication and Delivery of Physical Notes. In any
case in which the Note Registrar is required to deliver a Physical Note to a
transferee or transferor, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, such Physical Note.
(g) Certain Additional Terms Applicable to Physical Notes. Any
transferee entitled to receive a Physical Note may request that the principal
amount thereof be evidenced by one or more Physical Notes in any authorized
denomination or denominations and the Note Registrar shall comply with such
request if all other transfer restrictions are satisfied.
(h) Transfers Not Covered by Section 312(e). The Note Registrar shall
effect and record, upon receipt of a written request from the Company so to do,
a transfer not otherwise permitted by Section 312(e), such recording to be done
in accordance with the otherwise applicable provisions of Section 312(e), upon
the furnishing by the proposed transferor or transferee of a Non-Registration
Opinion and Supporting Evidence.
(i) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in the
Indenture. The Note Registrar shall not register a transfer of any Note unless
such transfer complies with the restrictions with respect thereto set forth in
this Indenture. The Note Registrar shall not be required to determine (but may
rely upon a determination made by the Company) the sufficiency of any such
certifications, legal opinions or other information.
(j) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Note
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Note Registrar shall deliver only Notes that bear the
Private Placement Legend unless (i) the circumstances exist contemplated by the
fourth paragraph of Section 201 (with respect to an Offshore Physical Note) or
the requested transfer is at least two years after the original issue date of
the Initial Note (with respect to any Physical Note), (ii) there is delivered to
the Note Registrar an Opinion of Counsel reasonably satisfactory to the Company
and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act or (iii) such Notes are exchanged for Exchange
Notes pursuant to an Exchange Offer.
SECTION 313. Form of Accredited Investor Certificate.
Transferee Letter of Representation
The Bank of New York,
as Trustee
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of $_______ aggregate
principal amount of the 8-3/8% Senior Notes due 2005 (the "Notes") of Nine West
Group Inc. (the "Company"), we confirm that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of
1933, as amended (the "Securities Act")) purchasing for our own account or
for the account of such an institutional "accredited investor," and we are
acquiring the Notes for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of the
Securities Act or other applicable securities law and we have such
knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we
and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
2. We understand and acknowledge that the Notes have not been
registered under the Securities Act, or any other applicable securities law
and may not be offered, sold or otherwise transferred except in compliance
with the registration requirements of the Securities Act or any other
applicable securities law, or pursuant to an exemption therefrom, and in
each case in compliance with the conditions for transfer set forth below.
We agree on our own behalf and on behalf of any investor account for which
we are purchasing Notes to offer, sell or otherwise transfer such Notes
prior to the date which is two years after the later of the date of
original issue and the last date on which the Company or any affiliate of
the Company was the owner of such Notes (or any predecessor thereto) (the
"Resale Restriction Termination Date") only (a) to the Company or any
affiliate of the Company, (b) pursuant to a registration statement which
has been declared effective under the Securities Act, (c) for so long as
the Notes are eligible for resale pursuant to Rule 144A under the
Securities Act ("Rule 144A"), to a person we reasonably believe is a
"Qualified Institutional Buyer" within the meaning of Rule 144A (a "QIB")
that purchases for its own account or for the account of a QIB and to whom
notice is given that the transfer is being made in reliance on Rule 144A,
(d) pursuant to offers and sales to non-U.S. persons that occur outside the
United States within the meaning of Regulation S under the Securities Act,
(e) to an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501 under the
Securities Act that is acquiring the Notes for its own account or for the
account of such an institutional "accredited investor" for investment
purposes and not with a view to, or for offer or sale in connection with,
any distribution in violation of the Securities Act or (f) pursuant to any
other available exemption from the registration requirements of the
Securities Act, subject in each of the foregoing cases to any requirement
of law that the disposition of our property or the property of such
investor account or accounts be at all times within our or their control
and to compliance with any applicable state securities laws. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Notes is proposed
to be made pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver to the trustee (the
"Trustee") under the Indenture pursuant to which the Notes are issued a
letter from the transferee substantially in the form of this letter, which
shall provide, among other things, that the transferee is a person or
entity as defined in paragraph 1 of this letter and that it is acquiring
such Notes for investment purposes and not for distribution in violation of
the Securities Act. We acknowledge that the Company and the Trustee
reserve the right prior to any offer, sale or other transfer of the Notes
pursuant to clauses (d), (e) and (f) above prior to the Resale Restriction
Termination Date to require the delivery of an opinion of counsel,
certifications and/or other information satisfactory to the Company and the
Trustee.
3. We are acquiring the Notes purchased by us for our own account or
for one or more accounts as to each of which we exercise sole investment
discretion.
4. You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
(Name of Purchaser)
By:
-----------------------------
Date:
---------------------------
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
By:
--------------------
Date:
------------------
SECTION 314. Form of Regulation S Certificate.
Regulation S Certificate
To: The Bank of New York,
as Trustee (the "Trustee")
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: Nine West Group Inc. (the "Company")
8-3/8% Senior Notes due 2005 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $____ aggregate principal
amount of Notes, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S ("Regulation S") under the Securities Act of 1933,
as amended (the "Securities Act"), and accordingly, we hereby certify as
follows:
1. The offer of the Notes was not made to a person in the United
States (unless such person or the account held by it for which it is acting
is excluded from the definition of "U.S. person" pursuant to Rule 902(o) of
Regulation S under the circumstances described in Rule 902(i)(3) of
Regulation S) or specifically targeted at an identifiable group of U.S.
citizens abroad.
2. Either (a) at the time the buy order was originated, the buyer was
outside the United States or we and any person acting on our behalf
reasonably believed that the buyer was outside the United States or (b) the
transaction was executed in, on or through the facilities of a designated
offshore securities market, and neither we nor any person acting on our
behalf knows that the transaction was pre-arranged with a buyer in the
United States.
3. Neither we, any of our affiliates, nor any person acting on our or
their behalf has made any directed selling efforts in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable.
4. The proposed transfer of Notes is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling concession or
other fee or remuneration in respect of the Notes, and the proposed
transfer takes place before the Offshore Note Exchange Date referred to in
the Indentures, each dated as of July 9, 1997, among the Company, the
guarantors thereunder and the Trustee, or we are an officer or director of
the Company or a distributor, we certify that the proposed transfer is
being made in accordance with the provisions of Rules 903 and 904(c) of
Regulation S.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[NAME OF SELLER]
By:
-----------------------
Name:
Title:
Address:
Date of this Certificate: __________ __, 199_
SECTION 315. Form of Rule 144A Certificate.
Rule 144A Certificate
To: The Bank of New York,
as Trustee (the "Trustee")
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: Nine West Group Inc. (the "Company")
8-3/8% Senior Notes due 2005 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $____ aggregate principal
amount of Notes, we confirm that such sale has been effected pursuant to and in
accordance with Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act"). We are aware that the transfer of Notes to us
is being made in reliance on the exemption from the provisions of Section 5 of
the Securities Act provided by Rule 144A. Prior to the date of this Certificate
we have been given the opportunity to obtain from the Company the information
referred to in Rule 144A(d)(4), and have either declined such opportunity or
have received such information.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER]
By:
----------------------
Name:
Title:
Address:
Date of this Certificate: __________ __, 199_
SECTION 316. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
to Holders as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice and that reliance may be
placed only on the other identification numbers printed on the Notes. The
Company will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further
effect with respect to Notes (except as to any surviving rights of registration
of transfer or exchange of Notes expressly provided for) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture when
(1) either
(A) all Notes theretofore authenticated and delivered (other than
(i) Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306, and (ii) Notes for
whose payment money has theretofore been deposited in trust with the
Trustee or any Paying Agent or segregated and held in trust by the
Company and thereafter repaid to the Company, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) all Notes and, in the case of (i) or (ii) below, not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year,
and the Company or any Guarantor, in the case of (i) or (ii) above,
has irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose an amount sufficient to pay
and discharge the entire indebtedness on such Notes not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest to the date of such deposit (in the case of Notes
which have become due and payable) or to the Stated Maturity, as the
case may be;
(2) the Company or any Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company or any Guarantor; and
(3) 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, the obligations of
the Company to any Authenticating Agent under Section 611 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest on any Note when such
interest becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Note at its Maturity (upon acceleration, required purchase or
otherwise); or
(3) default in the performance, or breach, of the provisions of
Article Eight, the failure to make or consummate a Change of Control Offer
in accordance with Section 1014 or the failure to make or consummate an
Excess Proceeds Offer in accordance with Section 1015; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company or any Guarantor contained in this Indenture (other than a
default in the performance, or breach of a covenant or warranty which is
specifically dealt with elsewhere in this Section), and continuance of such
default or breach for a period of 45 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of all Outstanding Notes a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) (a) one or more defaults in the payment of principal of (or
premium, if any, on) Indebtedness of the Company or any Restricted
Subsidiary aggregating $25,000,000 or more, when the same becomes due and
payable at the stated maturity thereof, and such default or defaults shall
have continued after any applicable grace period and shall not have been
cured or waived or (b) Indebtedness of the Company or any Restricted
Subsidiary aggregating $25,000,000 or more shall have been accelerated or
otherwise declared due and payable, or required to be prepaid or
repurchased (other than by regularly scheduled required prepayment) prior
to the stated maturity thereof; or
(6) one or more final judgments or orders rendered against the Company
or any Restricted Subsidiary which require the payment in money, either
individually or in an aggregate amount, in excess of $25,000,000 and shall
not be discharged and either (a) an enforcement proceeding shall have been
commenced by any creditor upon such judgment or order or (b) there shall
have been a period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, was not in effect; or
(7) any Guarantee ceases to be in full force and effect or is declared
null and void or any Guarantor denies that it has any further liability
under any Guarantee or gives notice to such effect (other than by reason of
the termination of this Indenture or the release of any such Guarantee in
accordance with this Indenture); or
(8) the 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, adjustment or composition of or in respect of
the Company or any Significant Subsidiary under a Bankruptcy Law 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 60 consecutive days; or
(9) 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 a Bankruptcy Law 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 a general
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 an Event of Default specified in
clause (8) or (9) of Section 501) occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Notes by written notice to the Company (and to the
Trustee if such notice is given by the Holders), may, and the Trustee upon the
written request of such Holders shall, declare the principal of, premium, if
any, and accrued interest on all of the Outstanding Notes to be due and payable
immediately, and upon any such declaration all such amounts payable shall become
immediately due and payable. If an Event of Default described in clause (8) or
(9) of Section 501 occurs and is continuing, then the principal of, premium, if
any, and accrued interest on all the Outstanding Notes shall ipso facto become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Outstanding Notes, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Outstanding Notes,
(B) all unpaid principal of (and premium, if any, on) any
Outstanding Notes that has become due otherwise than by such
declaration of acceleration together with interest on such unpaid
principal at the rate borne by such Notes,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest and overdue principal at the rate or
rates borne by such Notes, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of amounts of
principal of (or premium, if any, on) or interest on Notes which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in 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 Notes because of an Event of Default specified
in Section 501(5) shall have occurred and be continuing, such Event of Default
and all consequences thereof (including, without limitation, any acceleration or
resulting payment default) shall be automatically annulled, waived and rescinded
if the Indebtedness that is the subject of such Event of Default has been
discharged or the holders thereof have rescinded their declaration of
acceleration in respect of such Indebtedness or the default that is the basis
for such Event of Default has been cured, and written notice of such discharge
or rescission or cure, as the case may be, shall have been given to the Trustee
by the Company and countersigned by the holders of such Indebtedness or a
trustee, fiduciary or agent for such holders, within 30 days after such
declaration of acceleration in respect of the Notes, 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 Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Note when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Note at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Notes, the whole amount then due and payable on
such Notes for principal (and premium, if any) and interest, and interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of
interest, at the rate borne by such Notes, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any Guarantor (in accordance with the applicable
Guarantee) or any other obligor upon such Notes and collect the moneys adjudged
or decreed to be payable in the manner provided by law out of the property of
the Company, any Guarantor or any other obligor upon such Notes, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders 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, including any
Guarantor, upon the Notes or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal, premium, if any,
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 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 Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture, the Notes or the
Guarantees may be prosecuted and enforced by the Trustee without the possession
of any of the Notes or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Notes and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
606;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest on the Notes in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Notes for principal (and premium, if any)
and interest, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto, including the Company or any other obligor on the Notes, as their
interests may appear or as a court of competent jurisdiction may direct.
SECTION 507. Limitation on Suits.
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Notes shall have made a written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture, any Note or any Guarantee to affect, disturb or prejudice the
rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, any Note or any Guarantee, except in the manner herein provided and
for the equal and ratable benefit of all Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article Eleven) of the
principal of (and premium, if any, on) and (subject to Section 307) interest on,
such Note on the respective Stated Maturities expressed in such Note 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 Trustee and the Holders of
Notes shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders of Notes is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Notes shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) subject to Section 315 of the Trust Indenture Act, the Trustee may
take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of Notes not
consenting.
SECTION 513. Waiver of Past Defaults.
Subject to Section 902 and the last paragraph of Section 502, the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Notes may on behalf of the Holders of all the Notes waive any past
default hereunder and its consequences under this Indenture or any Guarantee,
except a default
(1) in respect of the payment of the principal of (or premium, if any,
on) or interest on any Note, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Note affected.
Upon any such waiver, any such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture and the Guarantees; but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
Each of the Company, the Guarantors and any other obligor on the Notes
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and each of the Company, the Guarantors and any other obligor
on the Notes (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within five days after the earlier of receipt from the Company of
notice of the occurrence of any Default or Event of Default hereunder or the
date when such Default or Event of Default becomes known to the Trustee, the
Trustee shall transmit, in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee, unless such
Default shall have been cured or waived; provided, however, that, except in the
case of a Default in the payment of the principal of (or premium, if any, on) or
interest on any Note, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the Holders;
and provided further that in the case of any Default of the character specified
in Section 501(4) with respect to Notes, no such notice to Holders shall be
given until at least 45 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d)
(determined as if the TIA were applicable to this Indenture at all times):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Notes pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture; and
(9) the Trustee shall not be deemed to have notice of any Event of
Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and 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
Notes.
The recitals contained herein and in the Notes, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Notes, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Notes and perform its obligations hereunder and that
the statements made by it in its Statement of Eligibility on Form T-1 supplied
to the Company are true and accurate, subject to the qualifications set forth
therein. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Notes or the proceeds thereof.
SECTION 604. May Hold Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any Note
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Notes and, subject to
TIA Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Note Registrar or such other agent.
SECTION 605. Money Held in Trust.
All money received by the Trustee shall, until used or applied as
herein provided, be held in trust hereunder for the purposes for which they were
received. Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee and
its agents for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the Notes
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any, on) or
interest on particular Notes.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(8) or Section 501(9), the
expenses (including the reasonable charges and expenses of its counsel) of and
the compensation of the Trustee for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. 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 with respect to the Notes by
giving written notice thereof to the Company. 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 with respect to the Notes.
(c) The Trustee may be removed at any time with respect to the Notes
by Act of the Holders of not less than a majority in principal amount of the
Outstanding Notes, delivered to the Trustee and to the Company. If the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the Trustee being removed may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Notes.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Note for at least six months,
or
(2) the Trustee shall cease to be eligible under Section 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 Note for at least six months,
or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a 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 a Board Resolution, may remove the
Trustee with respect to all Notes, or (ii) subject to TIA Section 315(e), any
Holder who has been a bona fide Holder of a Note for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all Notes
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Notes, the Company, by a Board Resolution, shall promptly appoint
a successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Notes shall be appointed by Act of the Holders of a majority in
aggregate principal amount of the Outstanding Notes delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Trustee with respect to
the Notes and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Notes shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Note for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Notes.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Notes and each appointment of a successor
Trustee with respect to the Notes to the Holders of Notes in the manner provided
for in Section 106. Each notice shall include the name of the successor Trustee
with respect to the Notes and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) Each successor Trustee shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless at the
time of such acceptance, such successor Trustee shall be qualified and eligible
under this Article.
SECTION 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 the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes. In case at that
time any of the Notes shall not have been authenticated, any successor Trustee
may authenticate such Notes either in the name of any predecessor hereunder or
in the name of the successor Trustee. In all such cases such certificates shall
have the full force which it is anywhere in the Notes or in this Indenture,
provided that the certificate of authentication the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Notes remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents with respect to the Notes which shall
be authorized to act on behalf of the Trustee to authenticate Notes and the
Trustee shall give written notice of such appointment to all Holders of Notes
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Notes so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Notes by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of Notes, in the manner provided for in Section
106. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time such compensation for its services under this Section as shall be agreed in
writing between the Company and such Authenticating Agent.
If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Notes designated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
-----------------------
as Authenticating Agent
By
-----------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Notes, by receiving and holding the same, agrees with
the Company and the Trustee that none of the Company or the Trustee or any agent
of either of them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders in accordance with
TIA Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Notes pursuant to this Indenture, the Trustee
shall transmit to the Holders of Notes (with a copy to the Company at the Place
of Payment), in the manner and to the extent provided in TIA Section 313(c), a
brief report dated as of such May 15 if required by TIA Section 313(a).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not, in a single transaction or a series of
transactions, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease or otherwise dispose of its properties and
assets to any Person or Persons, and the Company will not permit any Restricted
Subsidiary to enter into any such transaction or series of transactions if such
transaction or series of transactions, in the aggregate, would result in a sale,
assignment, conveyance, transfer, lease or other disposition of all or
substantially all of the properties and assets of the Company and its Restricted
Subsidiaries, to any Person or Persons, unless:
(a) either (1) the Company shall be the continuing corporation or (2)
the Person (if other than the Company) formed by such consolidation or into
which the Company or such Restricted Subsidiary is merged or the Person
which acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of the
Company or such Restricted Subsidiary, as the case may be, (i) shall be a
corporation duly organized and validly existing under the laws of the
United States or any state thereof or the District of Columbia and (ii)
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on
all the Notes and the performance and observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(b) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (and treating
any obligation of the Company or any Restricted Subsidiary incurred in
connection with or as a result of such transaction or series of
transactions as having been incurred at the time of such transaction), no
Default or Event of Default shall have occurred and be continuing;
(c) subject to Section 1020, immediately before and immediately after
giving effect to any such transaction or series of transactions on a pro
forma basis (on the assumption that the transaction or series of
transactions occurred on the first day of the four-quarter period
immediately prior to the consummation of such transaction or series of
transactions with the appropriate adjustments with respect to the
transaction or series of transactions being included in such pro forma
calculations), the Company (in the case of clause (1) of Subsection (a)
above) or such Person (in the case of clause (2) of Subsection (a) above),
could incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 1008;
(d) each Guarantor, if any, unless it is the other party to the
transactions described above, shall have by supplemental indenture
confirmed that its Guarantee will apply to such Person's obligations
hereunder and under the Notes;
(e) if any of the property or assets of the Company or any of its
Restricted Subsidiaries would thereupon become subject to any Lien, the
provisions of Section 1012 are complied with; and
(f) the Company or such Person shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Section 801 and
that all conditions precedent herein provided for relating to such
transaction have been satisfied.
SECTION 802. Guarantors May Consolidate, etc., Only on Certain Terms.
Each Guarantor, if any (other than any Restricted Subsidiary whose
Guarantee is being released pursuant to the provisions of Section 1308 as a
result of such transaction), shall not, and the Company shall not permit a
Guarantor to, in a single transaction or a series of transactions, consolidate
with or merge with or into any other Person or sell, assign, convey, transfer,
lease or otherwise dispose of its properties and assets to any Person or Persons
(other than the Company or any Guarantor) if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
properties and assets of such Guarantor and its Restricted Subsidiaries on a
consolidated basis, to any Person or Persons (other than the Company or any
Guarantor), unless at the time and after giving effect thereto:
(a) either (1) such Guarantor shall be the continuing corporation or
(2) the Person (if other than such Guarantor) formed by such consolidation
or into which such Guarantor or such Restricted Subsidiary is merged or the
Person which acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of such
Guarantor and its Restricted Subsidiaries on a consolidated basis, (i)
shall be a corporation duly organized and validly existing under the laws
of the United States or any state thereof or the District of Columbia or
the laws of the jurisdiction in which such Guarantor was organized and (ii)
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on
all the Notes and the performance and observance of every covenant of this
Indenture on the part of such Guarantor to be performed or observed;
(b) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (and treating
any obligation of the Company, such Guarantor or any Restricted Subsidiary
incurred in connection with or as a result of such transaction or series of
transactions as having been incurred at the time of such transaction), no
Default or Event of Default shall have occurred and be continuing; and
(c) such Guarantor or such Person shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Section 802 and
that all conditions precedent herein provided for relating to such
transaction have been satisfied.
SECTION 803. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
properties and assets of the Company or any Guarantor in accordance with
Sections 801 and 802, the successor Person formed by such consolidation or into
which the Company or such Guarantor, as the case may be, is merged or the
successor Person to which such sale, assignment, conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company or such Guarantor, as the case may be, under this
Indenture or the Guarantee, as the case may be, with the same effect as if such
successor had been named as the Company or the Guarantor, as the case may be,
herein or the Guarantee, as the case may be; and thereafter, except in the case
of a lease, the Company shall be discharged from all obligations and covenants
under the Indenture, the Note or the Guarantee, as the case may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company or any Guarantor, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, a
Guarantor or any other obligor on the Notes, and the assumption by any such
successor of the covenants of the Company or such Guarantor or obligor
contained herein and in the Notes and Guarantees in accordance with Article
Eight; or
(2) to add to the covenants of the Company, any Guarantor or any
other obligor on the Notes for the benefit of the Holders or to surrender
any right or power conferred upon the Company, or any Guarantor or any
other obligor on the Notes, herein and in the Notes or in any Guarantee; or
(3) to cure any ambiguity, to correct or supplement any provision
herein or in the Notes or in any Guarantee which may be defective or
inconsistent with any other provision herein or in the Notes or in any
Guarantee, or to make any other provisions with respect to matters or
questions arising under this Indenture, the Notes or any Guarantee;
provided that, in each case, such provisions shall not adversely affect the
interests of the Holders; or
(4) to comply with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the Trust
Indenture Act; or
(5) to add a Guarantor of the Notes under this Indenture; or
(6) to evidence and provide the acceptance of the appointment of a
successor Trustee under this Indenture; or
(7) to mortgage, pledge, hypothecate or grant a security interest in
favor of the Trustee for the benefit of the Holders as additional security
for the payment and performance of the Company's and any guarantor's
obligations under this Indenture, in any property, or assets, including any
of which are required to be mortgaged, pledged or hypothecated, or in which
a security interest is required to be granted, to the Trustee pursuant to
this Indenture or otherwise.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Notes that are affected thereby, by Act of
said Holders delivered to the Company, the Guarantors and the Trustee, the
Company and the Guarantors, when authorized by or pursuant to their respective
Board Resolutions, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Notes under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
purchase thereof, or change the coin or currency in which any Note or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment after the Stated
Maturity thereof, or
(2) amend, change or modify any of the provisions of Section 1014 or
Section 1015 including any definitions relating thereto, or
(3) reduce the percentage in principal amount of the Outstanding
Notes, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture, or
(4) modify any provisions of this Section, Section 1019 or Section
513, except to increase the percentage in principal amount of the
Outstanding Notes required to take any of the actions described therein or
to provide that certain additional provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Note affected thereby, or
(5) except as otherwise permitted under Article Eight, consent to the
assignment or transfer by the Company or any Guarantor of their rights or
obligations under this Indenture, or
(6) amend or modify any of the provisions of Article Thirteen in any
manner adverse to the Holders.
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. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Note affected, in
the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest.
The Company covenants and agrees for the benefit of the Holders of
Notes that it will duly and punctually pay the principal of (and premium, if
any, on) and interest on the Notes in accordance with the terms of the Notes and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the City of New York an office or agency
where Notes may be presented or surrendered for payment (the "Place of
Payment"), where Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company hereby designates the
Corporate Trust Office as the Place of Payment.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of the Place of Payment. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind any such designation;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in
accordance with the requirements set forth above for Notes for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Notes Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to the Notes, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Notes, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Notes, it will, prior to or on each due date of the principal of (and premium,
if any, on) or interest on any Notes, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) and interest on the Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Notes) in the making of any payment of principal of
(or premium, if any) or interest on the Notes; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Note and remaining unclaimed for one year after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, the City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of the Company and each
Restricted Subsidiary; provided, however, that, subject to the other provisions
of this Indenture, the Company shall not be required to preserve any such right
or franchise, or the existence of any Restricted Subsidiary, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries as a whole
and that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and (b)
all lawful claims for labor, materials and supplies, which, if unpaid, would by
law become a lien (other than a Permitted 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 material properties owned by the Company or
any Restricted Subsidiary or used or held for use in the conduct of its business
or the business of any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order (except ordinary wear and tear) and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company or any
of its Restricted Subsidiaries from discontinuing the maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Restricted Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 1007. Statement by Officers As to Default.
(a) The Company and each Guarantor will deliver to the Trustee,
within 50 days after the end of each fiscal quarter and 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 of the
Company and each Guarantor as to his or her knowledge of the Company's or such
Guarantor's, as the case may be, compliance with all conditions and covenants
under this Indenture since the beginning of such quarter or such year, as the
case may be. For purposes of this Section 1007(a), such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
(b) When any Default has occurred and is continuing under this
Indenture, or if the trustee for or the holder of any other evidence of
Indebtedness of the Company or any Subsidiary gives any notice or takes any
other action with respect to a claimed default (other than with respect to
Indebtedness in the principal amount of less than US$10,000,000), 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 within five Business Days of its occurrence.
SECTION 1008. Limitation on Indebtedness.
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 Indebtedness (including any Acquired Indebtedness), other than
Permitted Indebtedness; provided, however, that (i) the Company and any
Guarantor may incur Indebtedness (including Acquired Indebtedness) and (ii) any
Restricted Subsidiary may incur Acquired Indebtedness (provided that such
Acquired Indebtedness was not incurred by the acquired Person or the Person from
whom the applicable assets were acquired, in connection with or in contemplation
of such acquisition by such Restricted Subsidiary) if, in either case, at the
time of such incurrence the Consolidated Fixed Charge Coverage Ratio for the
four full fiscal quarters immediately preceding the incurrence of such
Indebtedness, taken as one period (and after giving pro forma effect to (i) the
incurrence of such Indebtedness and (if applicable) the application of the net
proceeds therefrom, including to refinance other Indebtedness, as if such
Indebtedness was incurred, and the application of such proceeds occurred, on the
first day of such four-quarter period, (ii) the incurrence, repayment or
retirement of any other Indebtedness by the Company or its Restricted
Subsidiaries since the first day of such four-quarter period as if such
Indebtedness was incurred, repaid or retired on the first day of such four-
quarter period (except that, in making such computation, the amount of
Indebtedness under any revolving credit facility shall be computed based upon
the average daily balance of such Indebtedness during such four-quarter period)
and (iii) the acquisition (whether by purchase, merger or otherwise) or
disposition (whether by sale, merger or otherwise) of any company, entity or
business acquired or disposed of by the Company or its Restricted Subsidiaries,
as the case may be, since the first day of such four-quarter period, as if such
acquisition or disposition occurred on the first day of such four-quarter
period), would have been at least equal to 2.0 to 1.0.
SECTION 1009. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly,
(i) declare or pay any dividend, or make any distribution, on any
shares of the Capital Stock of the Company or any Restricted Subsidiary
(other than dividends or distributions payable solely in shares of its
Qualified Capital Stock or in options, warrants or other rights to acquire
such shares of Qualified Capital Stock or dividends and distributions made
by a Restricted Subsidiary on a pro rata basis to all shareholders of such
Restricted Subsidiary);
(ii) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any shares of Capital Stock of the Company or any
options, warrants or other rights to acquire such shares of Capital Stock
(other than such options, warrants or rights owned by the Company or a
wholly owned Restricted Subsidiary);
(iii) make any principal payment on, or repurchase, redeem, defease
or otherwise acquire or retire for value, prior to any scheduled principal
payment, sinking fund payment or maturity, any Indebtedness of the Company
that is expressly subordinated in right of payment to the Notes or
Indebtedness of any Guarantor that is expressly subordinated in right of
payment to Indebtedness under such Guarantor's Guarantee (in each case,
other than any such Indebtedness held by the Company or any Restricted
Subsidiary); or
(iv) make any Investment (other than any Permitted Investment) in any
Person;
(such payments or other actions described in (but not excluded from) clauses (i)
through (iv) are collectively referred to as "Restricted Payments"), unless at
the time of, and immediately after giving effect to, the proposed Restricted
Payment (the amount of any such Restricted Payment, if other than cash, as
determined by the Board of Directors of the Company, whose determination shall
be conclusive and evidenced by a Board Resolution), (1) no Default or Event of
Default shall have occurred and be continuing, (2) the Company could incur at
least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 1008 and (3) the aggregate amount of all Restricted Payments
declared or made after the date of this Indenture shall not exceed the sum of:
(A) 50% of the Consolidated Adjusted Net Income of the Company
accrued on a cumulative basis during the period beginning on the first day
of the Company's first fiscal quarter after the date of this Indenture and
ending on the last day of the Company's fiscal quarter ending immediately
prior to the date of such proposed Restricted Payment (or, if such
aggregate cumulative Consolidated Adjusted Net Income shall be a loss,
minus 100% of such amount), plus
(B) the aggregate net cash proceeds received by the Company after the
date of this Indenture from the issuance or sale (other than to any of its
Restricted Subsidiaries) of shares of Qualified Capital Stock of the
Company or warrants, options or rights to purchase shares of Qualified
Capital Stock of the Company, plus
(C) the aggregate net cash proceeds received after the date of this
Indenture by the Company from the issuance or sale (other than to any of
its Restricted Subsidiaries) of debt securities or Redeemable Capital Stock
that have been converted into or exchanged for Qualified Capital Stock of
the Company, to the extent such debt securities or Redeemable Capital Stock
were originally sold for cash, together with the aggregate net cash
proceeds received by the Company at the time of such conversion or
exchange, plus
(D) to the extent that any Investment constituting a Restricted
Payment that was made after the date of this Indenture is sold or is
otherwise liquidated or repaid, an amount (to the extent not included in
Consolidated Adjusted Net Income) equal to the lesser of (x) the cash
proceeds with respect to such Investment (less the cost of the disposition
of such Investment and net of taxes) and (y) the initial amount of such
Investment, plus
(E) $25,000,000.
(b) Notwithstanding paragraph (a) above, the Company and any
Restricted Subsidiary may take the following actions so long as (with respect to
clauses (ii) through (viii) below) no Default or Event of Default shall have
occurred and be continuing:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration the payment of such
dividend would have complied with the provisions of paragraph (a) above and
such payment shall be deemed to have been paid on such date of declaration
for purposes of the calculation required by paragraph (a) above;
(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 Restricted Subsidiary) of, shares of Qualified
Capital Stock of the Company;
(iii) the repurchase, redemption, defeasance or other acquisition or
retirement for value of any Indebtedness that is expressly subordinated in
right of payment to the Notes in exchange for, or out of the net cash
proceeds of a substantially concurrent issuance and sale (other than to a
Restricted Subsidiary) of, shares of Qualified Capital Stock of the
Company;
(iv) the purchase of any Indebtedness that is expressly subordinated
in right of payment to the Notes at a purchase price not greater than 101%
of the principal amount thereof in the event of (A) a Change of Control in
accordance with provisions similar to those of Section 1014 or (B) an
Excess Proceeds Offer in accordance with provisions similar to those of
Section 1015; provided that prior to such purchase the Company has made the
Change of Control Offer or Excess Proceeds Offer, as the case may be, as
provided in such relevant Section with respect to the Notes and has
purchased all Notes validly tendered for payment in connection with such
Change of Control Offer or Excess Proceeds Offer, as the case may be;
(v) the purchase, redemption, defeasance or other acquisition or
retirement for value of Indebtedness (other than Redeemable Capital Stock)
that is expressly subordinated in right of payment to the Notes in exchange
for, or out of the net cash proceeds of a substantially concurrent
incurrence (other than to a Restricted Subsidiary) of, new Indebtedness of
the Company that is expressly subordinated in right of payment to the Notes
so long as (A) the principal amount of such new Indebtedness does not
exceed the principal amount (or, if such Indebtedness being refinanced
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof, such lesser amount as
of the date of determination) of the Indebtedness being so purchased,
redeemed, defeased, acquired or retired, plus the lesser of (i) the amount
of any premium required to be paid in connection with such refinancing
pursuant to the terms of the Indebtedness being refinanced or (ii) the
amount of any premium reasonably determined by the Company as necessary to
accomplish such refinancing, (B) such new Indebtedness is subordinated to
the Notes to the same extent as such Indebtedness so purchased, redeemed,
defeased, acquired or retired and (C) such new Indebtedness has an Average
Life longer than the Average Life of the Notes and a final Stated Maturity
of principal later than the final Stated Maturity of principal of the
Notes;
(vi) the repurchase, redemption or other acquisition or retirement
for value of shares of Capital Stock of the Company issued pursuant to
stock option plans of the Company; provided that (1) the Company is
required, by the terms of such plans, to effect such purchase, redemption
or other acquisition or retirement for value of such shares and (2) the
aggregate consideration paid by the Company for such shares so purchased,
redeemed or otherwise acquired or retired for value does not exceed
$5,000,000 during any fiscal year of the Company;
(vii) payments or distributions to dissenting stockholders pursuant
to applicable law, pursuant to or in connection with an Asset Sale or Asset
Acquisition that complies with the provisions of this Indenture; and
(viii) repurchases of Capital Stock (or warrants or options
convertible into or exchangeable for such Capital Stock) deemed to occur
upon exercise of stock options to the extent that shares of such Capital
Stock (or warrants or options convertible into or exchangeable for such
Capital Stock) represent a portion of the exercise price of such options.
The actions described in clauses (i), (ii), (iii), (iv), (vi), (vii) and (viii)
of this paragraph (b) shall be Restricted Payments that shall be permitted to be
taken in accordance with this paragraph (b) but shall reduce the amount that
would otherwise be available for Restricted Payments under clause (3) of
paragraph (a) above and the actions described in clause (v) of this paragraph
(b) shall be Restricted Payments that shall be permitted to be taken in
accordance with this paragraph (b) and shall not reduce the amount that would
otherwise be available for Restricted Payments under clause (3) of paragraph (a)
above.
(c) In computing Consolidated Adjusted Net Income of the Company
under paragraph (a) above, (1) the Company shall 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 (2) the Company shall
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 which, 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
the 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
Adjusted Net Income of the Company for any period.
SECTION 1010. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries.
The Company shall not sell, and shall not permit any Restricted
Subsidiary to issue, any Capital Stock of such Restricted Subsidiary (other than
to the Company or a Restricted Subsidiary); provided, however, that this Section
1010 shall not prohibit (i) the sale or other disposition of all, but not less
than all, of the issued and outstanding Capital Stock of any Restricted
Subsidiary owned by the Company or any Restricted Subsidiary in compliance with
the other provisions of this Indenture, (ii) issuances or sales of Common Stock
of a Restricted Subsidiary if such issuance or sale complies with Section 1015,
provided that if, immediately after giving effect to such issuance or sale, such
Restricted Subsidiary would no longer constitute a Restricted Subsidiary, any
Investment in such Person remaining after giving effect to such issuance or sale
would have been permitted to be made under Section 1009, if made on the date of
such issuance or sale, or (iii) the ownership by directors of director's
qualifying shares or the ownership by foreign nationals of Capital Stock of any
Restricted Subsidiary, to the extent mandated by applicable law.
SECTION 1011. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, enter into or suffer to exist, any transaction or
series of related transactions (including, without limitation, the sale,
purchase, exchange or lease of assets, property or services) with, or for the
benefit of, any Affiliate of the Company or any Restricted Subsidiary (other
than the Company or a Restricted Subsidiary so long as no Affiliate of the
Company (other than a Restricted Subsidiary) or beneficial holder of 5% or more
of any class or series of Capital Stock of the Company shall beneficially own
Capital Stock in such Restricted Subsidiary), unless (i) such transaction or
series of transactions are on terms that are no less favorable to the Company or
such Restricted Subsidiary, as the case may be, than those that could have been
obtained in an arm's-length transaction with third parties that are not
Affiliates of the Company, (ii) with respect to any transaction or series of
related transactions involving aggregate consideration equal to or greater than
$5,000,000, the Company has delivered an Officers' Certificate to the Trustee
certifying that such transaction or series of related transactions complies with
clause (i) above and (iii) with respect to any transaction or series of related
transactions involving aggregate consideration equal to or greater than
$10,000,000, such transaction or series of related transactions has been
approved by the Board of Directors of the Company (including a majority of the
Disinterested Directors) or the Company has obtained a written opinion from a
nationally recognized investment banking firm to the effect that such
transaction or series of related transactions is fair to the Company or its
Restricted Subsidiary, as the case may be, from a financial point of view;
provided, however, that this Section 1011 shall not restrict (1) customary
directors' fees, indemnification and similar arrangements, consulting fees,
employee salaries, bonuses or employment agreements, compensation or employee
benefit arrangements and incentive arrangements with any officer, director or
employee of the Company or any Restricted Subsidiary entered into in the
ordinary course of business (including customary benefits thereunder) and
payments under any indemnification arrangements permitted by applicable law, (2)
the issue and sale by the Company to its stockholders of Capital Stock (other
than Redeemable Capital Stock), (3) any dividends made in compliance with
Section 1009, (4) loans and advances to officers, directors, employees and
consultants of the Company or any Restricted Subsidiary for travel,
entertainment, moving and other relocation expenses, in each case made in the
ordinary course of business, (5) the performance of any written agreement as in
effect on the date of this Indenture and as amended from time to time, provided
that any such amendment is not less favorable in any material respect to the
Company or any Restricted Subsidiary than the terms in effect on the date of
this Indenture, (6) tax sharing agreements between the Company and any
Restricted Subsidiary providing for the payment by such Restricted Subsidiary of
an amount equal to the hypothetical United States tax liability of such
Restricted Subsidiary as if such Restricted Subsidiary had filed its own United
States federal tax return for any given tax year and (7) transactions with or by
any Accounts Receivable Subsidiary made in the ordinary course of business.
SECTION 1012. Limitation on Liens.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien of any kind (other than Permitted Liens) on or with respect to any of
its property or assets, including any shares of stock or indebtedness of any
Restricted Subsidiary, whether owned at the date of this Indenture or hereafter
acquired, or any income, profits or proceeds therefrom, or assign or otherwise
convey any right to receive income thereon, unless (x) in the case of any Lien
securing Indebtedness that is expressly subordinated in right of payment to the
Notes, the Notes are secured by a Lien on such property, assets or proceeds that
is senior in priority to such Lien and (y) in the case of any Lien securing
Indebtedness that is pari passu in right of payment to the Notes, the Notes are
secured by a Lien on such property, assets or proceeds that is senior in
priority to or pari passu with such Lien.
(b) The Company shall not, and shall not permit any Guarantor to,
directly or indirectly, create, incur, assume or suffer to exist any Lien of any
kind (other than Permitted Liens) on or with respect to any of its property or
assets, including any shares of stock or indebtedness of any Restricted
Subsidiary, whether owned at the date of this Indenture or hereafter acquired,
or any income, profits or proceeds therefrom, or assign or otherwise convey any
right to receive income thereon, unless (x) in the case of any Lien securing
Indebtedness that is expressly subordinated in right of payment to such
Guarantee, such Guarantee is secured by a Lien on such property, assets or
proceeds that is senior in priority to such Lien and (y) in the case of any Lien
securing Indebtedness that is pari passu in right of payment to such Guarantee,
such Guarantee is secured by a Lien on such property, assets or proceeds that is
senior in priority to or pari passu with such Lien.
SECTION 1013. Limitations on Guarantees of Indebtedness by Restricted
Subsidiaries.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to guarantee, assume or in any other manner become liable with
respect to any Indebtedness of the Company unless (a) (i) if such Restricted
Subsidiary is not a Guarantor, such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture, in form satisfactory to the
Trustee, providing for a Guarantee of the Notes by such Restricted Subsidiary
and delivers to the Trustee an Opinion of Counsel reasonably satisfactory to the
Trustee to the effect that such supplemental indenture has been duly executed
and delivered by such Restricted Subsidiary and is in compliance with the terms
of this Indenture and (ii) with respect to any guarantee by a Restricted
Subsidiary of Indebtedness that is expressly subordinated in right of payment to
the Notes, any such guarantee shall be subordinated to such Restricted
Subsidiary's Guarantee at least to the same extent as such guaranteed
Indebtedness is subordinated to the Notes, and (b) such Restricted Subsidiary
waives and shall not in any manner whatsoever claim or take the benefit or
advantage of, any rights of reimbursement, indemnity or subrogation or any other
rights against the Company or any other Restricted Subsidiary as a result of any
payment by such Restricted Subsidiary under its Guarantee.
SECTION 1014. Purchase of Notes upon Change of Control.
(a) If a Change of Control shall occur at any time, then each Holder
of Notes shall have the right to require that the Company purchase such Holder's
Notes, in whole or in part in integral multiples of $1,000, at a purchase price
(the "Change of Control Purchase Price") in cash in an amount equal to 101% of
the principal amount thereof, plus accrued interest, if any, to the date of
purchase (the "Change of Control Purchase Date"), pursuant to the offer
described below (the "Change of Control Offer") and the other procedures set
forth in this Indenture.
(b) Within 30 days following any Change of Control, the Company shall
notify the Trustee thereof and give written notice of such Change of Control
Offer to each Holder of Notes by first-class mail, postage prepaid, at the
address of such Holder appearing in the Note Register, stating (i) the Change of
Control Purchase Price and the Change of Control Purchase Date, which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date such
notice is mailed, or such later date as is necessary to comply with requirements
under the Exchange Act or any applicable securities laws or regulations; (ii)
that any Note not tendered will continue to accrue interest; (iii) that, unless
the Company defaults in the payment of the Change of Control Purchase Price, any
Notes accepted for payment pursuant to the Change of Control Offer shall cease
to accrue interest after the Change of Control Purchase Date; (iv) that Holders
electing to have any Notes purchased pursuant to a Change of Control Offer shall
be required to surrender the Notes, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Notes completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Purchase Date; (v) that Holders
shall be entitled to withdraw their election if the Paying Agent receives, not
later than the close of business on the second Business Day preceding the Change
of Control Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes delivered
for purchase, and a statement that such Holder is withdrawing its election to
have such Notes purchased; (vi) that Holders whose Notes are being purchased
only in part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple thereof; (vii) the
instructions that the Holders of Notes must follow in order to tender their
Notes; and (viii) the circumstances and relevant facts regarding such Change of
Control.
(c) The Company shall comply to the extent applicable with the
requirements of the tender offer rules, including Rule 14e-1 under the Exchange
Act, and any other applicable securities laws and regulations in connection with
a Change of Control Offer.
(d) The Company shall not, and shall not permit any Restricted
Subsidiary to, create or permit to exist or become effective any restriction
(other than restrictions existing or under Indebtedness as in effect on the date
of this Indenture or under any agreement that extends, renews, refinances or
replaces any agreement governing such restrictions or Indebtedness, provided
that the restrictions contained in such new agreement are no more restrictive
than those under or pursuant to the agreement so extended, renewed, refinanced
or replaced) that would materially impair the ability of the Company to make a
Change of Control Offer to purchase the Notes or, if such Change of Control
Offer is made, to pay for the Notes tendered for purchase.
SECTION 1015. Limitation on Sale of Assets.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly, or indirectly, consummate an Asset Sale unless (i) the
consideration received by the Company or such Restricted Subsidiary for such
Asset Sale is not less than the fair market value of the assets sold (as
determined by the Board of Directors of the Company, whose determination shall
be conclusive and evidenced by a Board Resolution) and (ii) 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 any
Designated Noncash Consideration received by the Company or any Restricted
Subsidiary in such Asset Sale having an aggregate fair market value, taken
together with all other Designated Noncash Consideration received pursuant to
this proviso that is at that time outstanding, not in excess of $20,000,000
(with the fair market value of each item of Designated Noncash Consideration
being measured at the time received and without giving effect to subsequent
changes in value), shall be deemed to be cash for the purposes of this Section
1015.
(b) If the Company or any Restricted Subsidiary consummates an Asset
Sale, the Company may use the Net Cash Proceeds thereof, within 12 months after
such Asset Sale, to (i) permanently repay or prepay any then outstanding Senior
Indebtedness of the Company or any Guarantor or Indebtedness of any
non-Guarantor Restricted Subsidiary or (ii) invest (or enter into a legally
binding agreement to invest) 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, existing on the date of this Indenture or reasonably related
thereto. If any such legally binding agreement to invest such Net Cash Proceeds
is terminated, then the Company may, within 90 days of such termination or
within 12 months of such Asset Sale, whichever is later, invest such Net Cash
Proceeds as provided in clause (i) or (ii) (without regard to the parenthetical
contained in such clause (ii)) above. The amount of such Net Cash Proceeds not
so used as set forth above in this paragraph (b) shall constitute "Excess
Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $20,000,000,
the Company shall, within 15 Business Days, make an offer to purchase (an
"Excess Proceeds Offer") from all holders of Notes, on a pro rata basis, in
accordance with the procedures set forth below, the maximum principal amount
(expressed as a multiple of $1,000) of Notes that may be purchased with the
Excess Proceeds. The offer price as to each Note shall be payable in cash in an
amount equal to 100% of the principal amount of such Note plus accrued interest,
if any (the "Offered Price"), to the date such Excess Proceeds Offer is
consummated (the "Offer Date"). To the extent that the aggregate principal
amount of Notes tendered pursuant to an Excess Proceeds Offer is less than the
Excess Proceeds, the Company may use such deficiency for general corporate
purposes. If the aggregate principal amount of Notes validly tendered and not
withdrawn by holders thereof exceeds the Excess Proceeds, Notes to be purchased
shall be selected on a pro rata basis. Upon completion of such Exceeds Proceeds
Offer (or, in the event that an Excess Proceeds Offer is not required to be made
to the Holders of the Notes as a result of the proviso in the first sentence of
this Section 1015(c)), the amount of Excess Proceeds shall be reset to zero.
(d) Whenever the Excess Proceeds received by the Company exceed
$20,000,000, such Excess Proceeds shall be set aside by the Company in a
separate account pending (i) deposit with the Trustee or a paying agent of the
amount required to purchase the Notes tendered in an Excess Proceeds Offer, (ii)
delivery by the Company of the Offered Price to the holders of the Notes
tendered in an Excess Proceeds Offer and (iii) application, as set forth above,
of Excess Proceeds for general corporate purposes. Such Excess Proceeds may be
invested in Cash Equivalents, provided that the maturity date of any investment
shall not be later than the Offer Date. The Company shall be entitled to any
interest or dividends accrued, earned or paid on such Cash Equivalents.
(e) If the Company becomes obligated to make an Excess Proceeds Offer
pursuant to clause (c) above, the Notes shall be purchased by the Company, at
the option of the Holders thereof, in whole or in part in integral multiples of
$1,000, on a date that is not earlier than 30 days and not later than 60 days
from the date the notice is given to holders, or such later date as may be
necessary for the Company to comply with the requirements under the Exchange
Act, subject to proration in the event the amount of Excess Proceeds is less
than the aggregate Offered Price of all Notes tendered.
(f) Within 15 days after the obligation of the Company to make an
Excess Proceeds Offer arises, the Company shall notify the Trustee thereof and
give written notice of such Excess Proceeds Offer to each Holder of Notes by
first-class mail, postage prepaid, at the address of such Holder appearing in
the Note Register, stating, (i) the Offered Price and the Offer Date, which
shall be a Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed, or such later date as is necessary to comply with
requirements under the Exchange Act or any applicable securities laws or
regulations; (ii) that any Note not tendered will continue to accrue interest;
(iii) that, unless the Company defaults in the payment of the Offered Price, any
Notes accepted for payment pursuant to the Excess Proceeds Offer shall cease to
accrue interest after the date of purchase; (iv) that Holders electing to have
any Notes purchased pursuant to a Excess Proceeds Offer shall be required to
surrender the Notes, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third Business Day
preceding the Offer Date; (v) that Holders shall be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Offer Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing its election to have such Notes purchased; (vi) that Holders whose
Notes are being purchased only in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $1,000 in principal amount or an integral
multiple thereof; (vii) the instructions that the Holders of Notes must follow
in order to tender their Notes; and (viii) the circumstances and relevant facts
regarding such Excess Proceeds Offer.
(g) The Company shall comply to the extent applicable with the
requirements of the tender offer rules, including Rule 14e-1 under the Exchange
Act, and any other applicable securities laws and regulations in connection with
an Excess Proceeds Offer.
SECTION 1016. Limitation on Dividend 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
Indebtedness owed to the Company or any other Restricted Subsidiary, (c) make
loans or advances to the Company or any other Restricted Subsidiary, (d)
transfer any of its properties or assets to the Company or any other Restricted
Subsidiary (other than customary restrictions on transfers of property subject
to a Lien permitted under this Indenture that would not materially adversely
affect the Company's ability to satisfy its obligations under the Notes and this
Indenture) or (e) guarantee any Indebtedness of the Company or any other
Restricted Subsidiary, except for such encumbrances or restrictions existing
under or by reason of (i) any agreement in effect on the date of this Indenture,
(ii) applicable law, (iii) customary provisions restricting subletting or
assignment of any lease or assignment of any other contract to which the Company
or any Restricted Subsidiary is a party or to which any of their respective
properties or assets are subject, (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 assets permitted by Section 1015 with respect to the assets to be
sold pursuant to such contract and (vi) any encumbrance or restriction existing
under any agreement that extends, renews, refinances or replaces the agreements
containing the encumbrances or restrictions in the foregoing clauses (i) and
(iv); provided that the terms and conditions of any such encumbrances or
restrictions are no less favorable to the holders of the Notes than those under
or pursuant to the agreement so extended, renewed, refinanced or replaced.
SECTION 1017. Limitation on Unrestricted Subsidiaries.
The Company shall not make, and shall not permit any of its Restricted
Subsidiaries to make, any Investments in Unrestricted Subsidiaries if, at the
time thereof, the aggregate amount of such Investments would exceed the amount
of Restricted Payments then permitted to be made pursuant to Section 1009. Any
Investments in Unrestricted Subsidiaries permitted to be made pursuant to this
Section 1017 (i) shall be treated as the making of a Restricted Payment in
calculating the amount of Restricted Payments made by the Company or a
Restricted Subsidiary and (ii) may be made in cash or property.
SECTION 1018. Provision of Financial Statements and Reports.
The Company shall file on a timely basis with the Commission, to the
extent such filings are accepted by the Commission and whether or not the
Company has a class of securities registered under the Exchange Act, the annual
reports, quarterly reports and other documents that the Company would be
required to file if it were subject to Section 13 or 15 of the Exchange Act.
The Company shall also (a) file with the Trustee, and provide to each Holder of
Notes (at their respective addresses set forth in the Note Register), without
cost to such Holder, copies of such reports and documents within 15 days after
the date on which the Company files such reports and documents with the
Commission or the date on which the Company would be required to file such
reports and documents if the Company were so required, and (b) if filing such
reports and documents with the Commission is not accepted by the Commission or
is prohibited under the Exchange Act, supply at the Company's cost copies of
such reports and documents to any prospective Holder of Notes promptly upon
written request.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 1019. Waiver of Certain Covenants.
The Company and the Restricted Subsidiaries may omit in any particular
instance to comply with any term, provision or condition set forth in Sections
1005 to 1018, inclusive, if before or after the time for such compliance the
Holders of at least a majority in aggregate principal amount of all Outstanding
Notes affected by such term, provision or covenant, by Act of such Holders,
waive such compliance in such instance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company, the Restricted Subsidiaries and the
duties of the Trustee, as applicable, in respect of any such term, provision or
condition shall remain in full force and effect.
SECTION 1020. Limitation on Applicability of Certain Covenants.
If no Default or Event of Default has occurred and is continuing,
after the ratings assigned to the Notes by S&P and Xxxxx'x are equal to or
higher than BBB- and Baa3, or the equivalents thereof, respectively (the
"Investment Grade Ratings"), and notwithstanding that the Notes may later cease
to have an Investment Grade Rating, the Company and the Restricted Subsidiaries
shall not be subject to the provisions of Sections 1008, 1009, 1010, 1011, 1013,
1015, 1016 and 801(c).
ARTICLE ELEVEN
SECTION 1101. [Reserved.]
ARTICLE TWELVE
SECTION 1201. [Reserved.]
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Guarantees.
Each Guarantor hereby jointly and severally, absolutely,
unconditionally and irrevocably guarantees the Notes and obligations of the
Company hereunder and thereunder, and guarantees to each Holder of a Note
authenticated and delivered by the Trustee, and to the Trustee on behalf of such
Holder, that: (a) the principal of (and premium, if any) and interest on the
Notes will be paid in full when due, whether at Stated Maturity, by acceleration
or otherwise (including, without limitation, the amount that would become due
but for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Law), together with interest on the overdue principal, if any, and
interest on any overdue interest, to the extent lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be paid in full or performed, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or renewal of any
Notes or of any such other obligations, the same will be paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at Stated Maturity, by acceleration or otherwise, subject, however, in the case
of clauses (a) and (b) above, to the limitations set forth in Section 1304
hereof.
Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor.
Each Guarantor hereby waives (to the extent permitted by law) the
benefits of diligence, presentment, demand for payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company or any other Person, protest,
notice and all demands whatsoever and covenants that the Guarantee of such
Guarantor will not be discharged as to any Note except by complete performance
of the obligations contained in such Note and such Guarantee. Each of the
Guarantors hereby agrees that, in the event of a default in payment of principal
(or premium, if any) or interest on such Note, whether at its Stated Maturity,
by acceleration, purchase or otherwise, legal proceedings may be instituted by
the Trustee on behalf of, or by, the Holder of such Note, subject to the terms
and conditions set forth in this Indenture, directly against each of the
Guarantors to enforce such Guarantor's Guarantee without first proceeding
against the Company or any other Guarantor. Each Guarantor agrees that if,
after the occurrence and during the continuance of an Event of Default, the
Trustee or any of the Holders are prevented by applicable law from exercising
their respective rights to accelerate the maturity of the Notes, to collect
interest on the Notes, or to enforce or exercise any other right or remedy with
respect to the Notes, such Guarantor will pay to the Trustee for the account of
the Holders, upon demand therefor, the amount that would otherwise have been due
and payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company or any Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or any
Guarantor, any amount paid by any of them to the Trustee or such Holder, the
Guarantee of each of the Guarantors, to the extent theretofore discharged, shall
be reinstated in full force and effect. Each Guarantor further agrees that, as
between each Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Five hereof for the purposes of the Guarantee
of such Guarantor, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any acceleration of such obligations as provided in
Article Five hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of the
Guarantee of such Guarantor.
SECTION 1302. Severability.
In case any provision of any Guarantee shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1303. [Reserved.]
SECTION 1304. Limitation of Guarantors' Liability.
Each Guarantor and by its acceptance hereof each Holder confirms that
it is the intention of all such parties that the guarantee by each such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law or
the provisions of its local law relating to fraudulent transfer or conveyance.
To effectuate the foregoing intention, the Holders and each such Guarantor
hereby irrevocably agree that the obligations of such Guarantor under its
Guarantee shall be limited to the maximum amount that will not, after giving
effect to all other contingent and fixed liabilities of such Guarantor and after
giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under its
Guarantee or pursuant to Section 1305 hereof, result in the obligations of such
Guarantor under its Guarantee constituting such fraudulent transfer or
conveyance.
SECTION 1305. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a Funding Guarantor") under a Guarantee,
such Funding Guarantor shall be entitled to a contribution from all other
Guarantors in a pro rata amount based on the Adjusted Net Assets (as defined
below) of each Guarantor (including the Funding Guarantor) for all payments,
damages and expenses incurred by that Funding Guarantor in discharging the
Company's obligations with respect to the Notes or any other Guarantor's
obligations with respect to the Guarantee of such Guarantor. "Adjusted Net
Assets" of such Guarantor at any date shall mean the lesser of (x) the amount by
which the fair value of the property of such 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 Guarantee of such Guarantor
at such date and (y) the amount by which the present fair salable value of the
assets of such Guarantor at such date exceeds the amount that will be required
to pay the probable liability of such 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 Guarantee of such Guarantor, as they
become absolute and matured.
SECTION 1306. Subrogation.
Each Guarantor shall be subrogated to all rights of Holders against
the Company in respect of any amounts paid by any Guarantor pursuant to the
provisions of Section 1301; provided, however, that, if an Event of Default has
occurred and is continuing, no Guarantor shall be entitled to enforce or receive
any payments arising out of, or based upon, such right of subrogation until all
amounts then due and payable by the Company under this Indenture or the Notes
shall have been paid in full.
SECTION 1307. Reinstatement.
Each Guarantor hereby agrees (and each Person who becomes a Guarantor
shall agree) that the Guarantee provided for in Section 1301 shall continue to
be effective or be reinstated, as the case may be, if at any time, payment, or
any part thereof, of any obligations or interest thereon is rescinded or must
otherwise be restored by a Holder to the Company upon the bankruptcy or
insolvency of the Company or any Guarantor.
SECTION 1308. Release of a Guarantor.
(a) The Guarantee issued by any Guarantor under this Indenture shall
be automatically and unconditionally released and discharged (i) upon any sale,
exchange or transfer to any Person not an Affiliate of the Company or a
Restricted Subsidiary of all of the Company's Capital Stock in, or all or
substantially all the assets of, such Guarantor (which sale, exchange or
transfer is not prohibited by this Indenture) or (ii) at the request of the
Company, if such Guarantor is not a Leveraged Subsidiary, in the event that (A)
no other Indebtedness of the Company remains guaranteed by such Guarantor or (B)
the holders of all such other Indebtedness that is guaranteed by such Guarantor
also release their guarantee by such Guarantor (including any deemed release
upon payment in full of all obligations under such Indebtedness except by or as
a result of payment under such guarantee); provided, however, that a release of
a Guarantor that is a Leveraged Subsidiary may only be obtained under the
circumstances described in this clause (ii) if, after giving effect to the
release, either (x) such Guarantor would have been permitted to incur all of its
then outstanding Indebtedness under the provisions of Section 1008 or (y)
Section 1008 would no longer be applicable pursuant to the terms of Section 1020
regarding Investment Grade Ratings.
(b) Concurrently with the discharge of the Notes under Section 401,
the defeasance of the Notes under Section 1402 hereof, or the covenant
defeasance of the Notes under Section 1403 hereof, the Guarantors shall be
released from all their obligations under their Guarantees under this Article
Thirteen.
SECTION 1309. Benefits Acknowledged.
Each 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 Guarantee are knowingly made in
contemplation of such benefits.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option and at any time, effect defeasance of
the Notes under Section 1402, or covenant defeasance of the Notes under Section
1403, in accordance with the terms of the Notes and in accordance with this
Article.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise under Section 1401 of the option
applicable to this Section 1402, the Company and the Guarantors shall be deemed
to have been discharged from their obligations with respect to the Outstanding
Notes and the Guarantees, respectively, on the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company and the Guarantors shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Notes, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 1405 and the other Sections of this Indenture referred to in
(A) and (B) below, and to have satisfied all its other obligations under the
Notes and this Indenture insofar as the Notes are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Outstanding Notes to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest on such Notes when such payments are due, (B) the Company's
obligations with respect to such Notes under Sections 305, 306, 1002 and 1003,
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (D) this Article Fourteen. Subject to compliance with this Article
Fourteen, the Company may exercise its option under this Section 1402
notwithstanding the prior exercise of its option under Section 1403 with respect
to such Notes.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise under Section 1401 of the option
applicable to this Section 1403, the Company and the Guarantors shall be
released from their obligations under Section 803 and Sections 1005 through 1018
with respect to the Outstanding Notes on and after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "covenant defeasance"), and
such Notes shall thereafter be deemed not to be "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Notes, the Company and any Guarantor, as applicable, may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of reference in any
such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 501(3) or 501(4) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1402 or Section 1403 to the Outstanding Notes:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Notes, (A) an
amount in cash, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment of principal (including any premium) and interest,
if any, on such Notes, money in an amount, or (C) a combination thereof, in
each case in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of (and premium, if any, on)
and interest on such Outstanding Notes on the Stated Maturity of such
principal (and premium, if any) or installment of interest; provided that
the Trustee (or such qualifying trustee) shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to said payments with respect to such Notes.
(2) No Default or Event of Default with respect to such Notes shall
have occurred and be continuing on the date of such deposit or, insofar as
paragraphs (8) and (9) of Section 501 are concerned, at any time during the
period ending on the 123rd day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any material agreement to which the Company or any Guarantor is a party or
is bound.
(4) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since June 30, 1997, there has been a
change in the applicable federal income tax law or interpretation of such
federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Notes will not
recognize income, gain or loss for federal income tax purposes as a result
of such defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(5) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such covenant defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred.
(6) In the case of defeasance or covenant defeasance, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that after the 123rd day following the deposit or after the date such
Opinion of Counsel is delivered, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1402
or the covenant defeasance under Section 1403 (as the case may be) have
been complied with.
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1405, the "Trustee") pursuant to Sections 1404 and 1406 in respect of
such Outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such Notes of
all sums due and to become due thereon in respect of principal (and premium, if
any) and interest, but such money need not be segregated from other funds except
to the extent required by law. Money and U.S. Government Obligations so held in
trust are not subject to Article Fifteen.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Notes.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations (or other property and any
proceeds therefrom) held by it as provided in Section 1404 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1402 or 1403, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1405; provided, however, that if the Company makes any payment of principal of
(or premium, if any) or interest on any such Note following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
NINE WEST GROUP INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President,
Chief Financial Officer and Treasurer
NINE WEST DEVELOPMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President,
Financial Officer and Treasurer
NINE WEST DISTRIBUTION CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President,
Financial Officer and Treasurer
NINE WEST FOOTWEAR CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President,
Financial Officer and Treasurer
NINE WEST MANUFACTURING
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President,
Financial Officer and Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxx Xxxxxxx
---------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Treasurer
Exhibit A
[FACE OF NOTE]
NINE WEST GROUP INC.
8-3/8% [Series B]** Senior Note due 2005
CUSIP _________
No. _______ $_________________
NINE WEST GROUP INC., a Delaware corporation (the "Company", which
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to ___________, or its registered assigns, the
principal sum of ____________________________________ Dollars ($___________), on
August 15, 2005.
[Initial Interest Rate: 8-3/8% per annum.]*
[Interest Rate: 8-3/8% per annum.]**
Interest Payment Dates: February 15 and August 15 of each year
commencing February 15, 1998.
Regular Record Dates: February 1 and August 1 of each year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Date: NINE WEST GROUP INC.
By:_______________________
Title:
* Include only for Initial Notes.
** Include only for Exchange Notes.
(Form of Trustee's Certificate of Authentication)
This is one of the 8-3/8% [Series B]** Senior Notes due 2005 referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: __________ By:_______________________
Authorized Signatory
** Include only for Exchange Note.
[REVERSE SIDE OF NOTE]
NINE WEST GROUP INC.
8-3/8% [Series B]** Senior Note due 2005
1. Principal and Interest.
The Company will pay the principal of this Note on August 15, 2005.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate of 8-3/8%
per annum [(subject to adjustment as provided below)]* [except that interest
accrued on this Note pursuant to the fourth paragraph of this Section 1 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 Notes from time to time during such periods].*
Interest will be payable semi-annually (to the Holders of record of
the Notes (or any Predecessor Notes) at the close of business on the February 1
or August 1 immediately preceding the Interest Payment Date) on each Interest
Payment Date, commencing February 15, 1998.
[The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement, dated July 9, 1997, among the Company, the
Guarantors and the Purchasers named therein (the "Registration Rights
Agreement"). In the event that either (a) the Exchange Offer Registration
Statement (as such term is defined in the Registration Rights Agreement) is not
filed with the Securities and Exchange Commission on or prior to the 60th
calendar day following the date of original issue of the Notes, (b) the Exchange
Offer Registration Statement or a Shelf Registration Statement (as such terms
are defined in the Registration Rights Agreement) has not been declared
effective on or prior to the 365th calendar day following the date of original
issue of the Notes or (c) the Exchange Offer (as such term is defined in the
Registration Rights Agreement) is not consummated on or prior to the 45th
calendar day following the effectiveness of the Exchange Offer Registration
Statement, the interest rate borne by this Note shall be increased by one-
quarter of one percent per annum following such 60-day period in the case of (a)
above, following such 365-day period in the case of (b) above or following such
45-day period in the case of (c) above, which rate will be increased by an
additional one-quarter of one percent per annum for each 90-day period that any
additional interest continues to accrue; provided that the aggregate increase in
such annual interest rate shall in no event exceed one percent. Upon (x) the
filing of the Exchange Offer Registration Statement after the 60-day period
described in clause (a) above, (y) the effectiveness of the Exchange Offer
Registration Statement or a Shelf Registration Statement, as the case may be,
after the 365-day period described in clause (b) above or (z) the day before the
consummation of the Exchange Offer after the 45-day period described in clause
(c) above, the interest rate borne by this Note from the date of such filing,
effectiveness or day before the consummation, as the case may be, will be
reduced to the interest rate set forth above; provided, however, that, if after
any such reduction in interest rate, a different event specified in clause (a),
(b) or (c) above occurs, the interest rate may again be increased pursuant to
the foregoing provisions.]*
Interest on this Note will accrue from the most recent date to which
interest has been paid [on this Note or the Note surrendered in exchange
herefor]** or, if no interest has been paid, from July 9, 1997; provided that,
if there is no existing default in the payment of interest and if this Note is
authenticated between a Regular Record Date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such
Interest Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
a rate per annum equal to the rate of interest applicable to the Notes.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on the
principal amount of the Notes on each February 15 and August 15 to the Persons
who are Holders (as reflected in the Note Register at the close of business on
the February 1 and August 1 immediately preceding the Interest Payment Date), in
each case, even if the Note is cancelled on registration of transfer or
registration of exchange after such Regular Record Date; provided that, with
respect to the payment of principal, the Company will make payment to the Holder
that surrenders this Note to any Paying Agent on or after August 15, 2005.
The Company will pay principal (premium, if any) and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may pay principal (premium, if
any) and interest by its check payable in such money. The Company may pay
interest on the Notes either (a) by mailing a check for such interest to a
Holder's registered address (as reflected in the Note Register) or (b) by wire
transfer to an account located in the United States maintained by the payee. If
a payment date is a date other than a Business Day at a place of payment,
payment may be made at that place on the next succeeding day that is a Business
Day and no interest shall accrue for the intervening period.
----------
* Include only for Initial Note.
** Include only for Exchange Note
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.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of July 9,
1997 (the "Indenture"), among the Company, the Guarantors and The Bank of New
York, as trustee (the "Trustee"). Capitalized terms herein are used as defined
in the Indenture unless otherwise indicated. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act. The Notes are subject to all such terms, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control.
The Notes are unsecured senior obligations of the Company. The
Indenture limits the aggregate principal amount of the Notes to $200,000,000.
5. Redemption.
The Notes will not be redeemable at the option of the Company prior to
their Stated Maturity.
6. Repurchase upon a Change in Control and Asset Sales.
Upon the occurrence of (a) a Change of Control, the Company is
obligated to make an offer to purchase all outstanding Notes 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) Asset Sales, the Company may be
obligated to make offers to purchase Notes with a portion of the Net Cash
Proceeds of such Asset Sales at a redemption price of 100% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons, in denominations of
$1,000 and multiples of $1,000 in excess thereof. A Holder may register the
transfer or exchange of Notes in accordance with the Indenture. The Note
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
8. Persons Deemed Owners.
A Holder may be treated as the owner of a Note for all purposes.
9. Unclaimed Money.
If money for the payment of principal (premium, if any) or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. Discharge Prior to Maturity.
If the Company irrevocably deposits, or causes to be deposited, with
the Trustee money or U.S. Government Obligations sufficient to pay the then
outstanding principal of (premium, if any) and accrued interest on the Notes (a)
to maturity, the Company will be discharged from the Indenture and the Notes,
except in certain circumstances for certain sections thereof, and (b) to the
Stated Maturity, the Company will be discharged from certain covenants set forth
in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and any existing
default or compliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Indebtedness;
(ii) Restricted Payments; (iii) issuances and sales of Capital Stock of
Restricted Subsidiaries; (iv) transactions with Affiliates; (v) Liens; (vi)
guarantees of Indebtedness by Restricted Subsidiaries; (vii) disposition of
proceeds of Asset Sales; (viii) dividend and other payment restrictions
affecting Restricted Subsidiaries; (ix) merger and certain transfers of assets;
and (x) limitation on Unrestricted Subsidiaries. Within 120 days after the end
of each fiscal year and within 50 days after each fiscal quarter, the Company
must report to the Trustee on compliance with such limitations. If no Default
or Event of Default has occurred and is continuing, from and after the time the
Notes are assigned Investment Grade Ratings, the Company will not be subject to
certain covenants.
13. Successor Persons.
When a successor person or other entity assumes all the obligations of
its predecessor under the Notes and the Indenture, the predecessor person will
be released from those obligations.
14. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding may declare all the Notes to be
immediately due and payable. If a bankruptcy or insolvency default with respect
to the Company or any of its Significant Subsidiaries occurs and is continuing,
the Notes automatically become immediately due and payable. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of at least a
majority in aggregate principal amount of the Notes then outstanding may direct
the Trustee in its exercise of any trust or power.
15. Guarantees.
The Company's obligations under the Notes are fully and irrevocably
guaranteed by the Guarantors.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may make loans to, accept
deposits from, perform services for, and otherwise deal with, the Company and
its Affiliates as if it were not the Trustee.
17. Authentication.
This Note shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Note.
18. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Nine West Group
Inc., 0 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Chief
Financial Officer.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
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(Please print or typewrite name and address including zip code of assignee)
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the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
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attorney to transfer such Note on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT PERMANENT OFFSHORE PHYSICAL
CERTIFICATES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
July 9, 1999, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
( ) (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided by Rule 144A
thereunder.
or
( )(b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of transfer
set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 312 of the Indenture shall have
been satisfied.
Date:_____________________
______________________
NOTICE: The signature
to this assignment must
correspond with the name
as written upon the face
of the within-mentioned
instrument in every
particular, without
alteration or any change
whatsoever.
Signature Guarantee:_______________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:__________________ _________________________________
NOTICE: To be executed by an
executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 1014 or Section 1015 of the Indenture, check the Box: ( ).
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 1014 or Section 1015 of the Indenture, state the amount (in
original principal amount) below:
$_____________________.
Date:______________________
Your Signature:__________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:_____________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
Exhibit B
SUBORDINATED PROMISSORY NOTE
Dated:_____________
FOR VALUE RECEIVED, the undersigned, _________________________, a
_______________ corporation ("Borrower"), HEREBY PROMISES TO PAY to
_______________ (the "Holder") and its successors and assigns on
________________, the aggregate unpaid principal amount of all advances made by
the Holder to Borrower and outstanding on such date; together with interest
(computed on the basis of a year of 360 days for the actual number of days
elapsed) on any and all principal amounts hereunder from time to time
outstanding from and including the date hereof until said principal amounts are
paid in full, on demand, at a rate per annum equal to _______; interest may be
paid in cash, or if not paid in cash on any date specified for the payment
thereof, shall be added to, and deemed for all purposes of this Subordinated
Promissory Note to constitute a portion of, the principal amount outstanding
hereunder; provided that any and all cash advanced by Borrower to the Holder at
a time when there shall be amounts outstanding hereunder shall be applied to the
prepayment of amounts outstanding hereunder, such payments to be applied in each
case, first, to the prepayment of accrued and unpaid interest to the date of
such prepayment and, second, to the payment of principal.
THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATED IN RIGHT
OF PAYMENT FROM AND AFTER SUCH TIME AS THE BORROWER'S 8-3/8% SENIOR NOTES DUE
2005 (THE "SENIOR NOTES") AND 9% SENIOR SUBORDINATED NOTES DUE 2007 (THE "SENIOR
SUBORDINATED NOTES", AND TOGETHER WITH THE SENIOR NOTES, THE "SECURITIES")
BECOME DUE AND PAYABLE (WHETHER AT STATED MATURITY, ACCELERATION OR OTHERWISE)
TO THE PAYMENT AND PERFORMANCE OF THE BORROWER'S OBLIGATIONS UNDER THE
SECURITIES.
By its acceptance hereof in the space provided below, the Holder
agrees that the accounts of Borrower shall be prima facie evidence of the
amounts advanced by the Holder to Borrower and the amounts repaid or prepaid by
Borrower to the Holder.
The Holder also agrees to pay on demand all reasonable costs and
expenses (including reasonable fees and expenses of counsel) incurred by the
Holder in enforcing this Intercompany Note.
Both principal and interest are payable in lawful money of the United
States of America to the Holder at the offices of the Holder or at such other
locations as the Holder shall from time to time specify by notice to Borrower at
its address at _________________.
This Subordinated Promissory Note shall not be assigned by the Holder
except by operation of law.
THIS SUBORDINATED PROMISSORY NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
BY ITS ACCEPTANCE HEREOF IN THE SPACE PROVIDED BELOW, THE HOLDER
HEREBY (1) ACKNOWLEDGES AND AGREES THAT THIS SUBORDINATED PROMISSORY NOTE AMENDS
AND RESTATES IN ITS ENTIRETY EACH AND EVERY OTHER PROMISSORY NOTE HERETOFORE
EXECUTED BY BORROWER IN FAVOR OF THE HOLDER AND (2) UNCONDITIONALLY AND
IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
SUBORDINATED PROMISSORY NOTE, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
[NAME OF BORROWER]
By: ----------------
Title:
ACCEPTED:
(NAME OF HOLDER)
By: -----------------------
Title:
