Exhibit 4.1
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XXXXXXXX-VAN HEUSEN CORPORATION
As Issuer
TO
UNION BANK OF CALIFORNIA, N.A.
As Trustee
----------------
Indenture
Dated as of April 22, 1998
----------------
$150,000,000
9 1/2% Senior Subordinated Notes due May 1, 2008
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.....................................
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of August 7, 1997
Trust Indenture Indenture
Act Section Section
----------- -------
ss. 310(a)(1) ............................... 609
(a)(2) ............................... 609
(a)(3) ............................... Not
Applicable
(a)(4) ............................... Not
Applicable
(b) ............................... 608
610
ss. 311(a) ............................... 613(a)
(b) ............................... 613(b)
(b)(2) ............................... 703(a)(2)
703(b)
ss. 312(a) ............................... 701
702(a)
(b) ............................... 702(b)
(c) ............................... 702(c)
ss. 313(a) ............................... 703(a)
(b) ............................... 703(b)
(c) ............................... 703(a)
703(b)
(d) ............................... 703(c)
ss. 314(a) ............................... 704
(b) ............................... Not
Applicable
(c)(1) ............................... 102
(c)(2) ............................... 102
(c)(3) ............................... Not
Applicable
(d) ............................... Not
Applicable
(e) ............................... 102
ss. 315(a) ............................... 601(a)
(b) ............................... 602
703(a)(6)
(c) ............................... 601(b)
(d) ............................... 601(c)
(d)(1) ............................... 601(a)(1)
(d)(2) ............................... 601(c)(2)
i
Trust Indenture Indenture
Act Section Section
----------- ------
(d)(3) ............................... 601(c)(3)
(e) ............................... 514
ss. 316(a) ............................... 101
(a)(1)(A) ............................... 502
512
(a)(1)(B) ............................... 513
(a)(2) ............................... Not
Applicable
(b) ............................... 508
ss. 317(a)(1) ............................... 503
(a)(2) ............................... 504
(b) ............................... 1003
ss. 318(a) ............................... 107
--------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
TABLE OF CONTENTS
Page
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RECITALS OF THE COMPANY..................................................................................1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions................................................................................1
Act.............................................................................................2
Affiliate.......................................................................................2
Agent Member....................................................................................3
Applicable Procedures...........................................................................3
Asset Disposition...............................................................................3
Board of Directors..............................................................................3
Board Resolution................................................................................3
Business Day....................................................................................4
Capital Lease Obligation........................................................................4
Capital Stock...................................................................................4
Cash Equivalents................................................................................4
Cedel...........................................................................................5
Closing Date....................................................................................5
Commission......................................................................................5
Common Stock....................................................................................5
Company.........................................................................................5
Company Request/Company Order...................................................................5
Consolidated Cash Flow Available for Fixed Charges..............................................5
Consolidated Cash Flow Coverage Ratio...........................................................6
Consolidated Fixed Charges......................................................................7
Consolidated Income Tax Expense.................................................................7
Consolidated Interest Expense...................................................................7
Consolidated Net Income.........................................................................7
Consolidated Net Worth..........................................................................8
Consolidated Tangible Assets....................................................................8
Corporate Trust Office..........................................................................8
corporation.....................................................................................9
Debt............................................................................................9
Depositary......................................................................................9
Designated Senior Debt.........................................................................10
DTC............................................................................................10
Euroclear......................................................................................10
Event of Default...............................................................................10
Exchange Act...................................................................................10
Exchange and Registration Rights Agreement.....................................................10
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Exchange Notes.................................................................................10
Exchange Offer.................................................................................10
Exchange Registration Statement................................................................10
Global Note....................................................................................11
Guarantee......................................................................................11
Holder.........................................................................................11
Incur..........................................................................................11
Indenture......................................................................................11
Initial Purchasers.............................................................................12
Interest Payment Date..........................................................................12
Interest Rate, Currency or Commodity Price
Agreement......................................................................................12
Investment.....................................................................................12
Lien...........................................................................................12
Maturity.......................................................................................12
Xxxxx'x........................................................................................13
Net Available Proceeds.........................................................................13
New Credit Facility............................................................................14
Note Purchase Agreement........................................................................14
Notes..........................................................................................14
Offer to Purchase..............................................................................14
Officers' Certificate..........................................................................17
Opinion of Counsel.............................................................................17
Original Notes.................................................................................17
Outstanding....................................................................................17
Paying Agent...................................................................................18
Permitted Interest Rate, Currency or Commodity
Price Agreement................................................................................18
Permitted Investments..........................................................................19
Person.........................................................................................19
Predecessor Note...............................................................................19
Preferred Stock................................................................................20
Public Equity Offering.........................................................................20
Receivables....................................................................................20
Receivables Sale...............................................................................20
Redeemable Stock...............................................................................20
Redemption Date................................................................................20
Redemption Price...............................................................................20
Registration Default...........................................................................21
Registration Default Period....................................................................21
Regulation S...................................................................................21
Regulation S Certificate.......................................................................21
Regulation S Global Note.......................................................................21
Regulation S Legend............................................................................21
Regulation S Notes.............................................................................21
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Related Person.................................................................................22
Responsible Officer............................................................................22
Restricted Notes...............................................................................22
Restricted Notes Certificate...................................................................22
Restricted Notes Legend........................................................................22
Restricted Period..............................................................................22
Restricted Subsidiary..........................................................................22
Rule 144.......................................................................................22
Rule 144A......................................................................................23
Rule 144A Notes................................................................................23
S&P............................................................................................23
Securities Act.................................................................................23
Security Register/Security Registrar...........................................................23
Senior Debt....................................................................................23
Shelf Registration Statement...................................................................24
Special Interest...............................................................................24
Special Record Date............................................................................24
Stated Maturity................................................................................24
Subordinated Debt..............................................................................24
Subsidiary.....................................................................................25
Successor Note.................................................................................25
Temporary Cash Investments.....................................................................25
Trust Indenture Act............................................................................27
Trustee........................................................................................27
2023 Debentures................................................................................27
U.S. Person....................................................................................27
Vice President.................................................................................28
Voting Stock...................................................................................28
Wholly Owned Restricted Subsidiary.............................................................28
SECTION 102. Compliance Certificates and Opinions.......................................................28
SECTION 103. Form of Documents Delivered to Trustee.....................................................29
SECTION 104. Acts of Holders; Record Date...............................................................30
SECTION 105. Notices, Etc., to Trustee and Company......................................................31
SECTION 106. Notice to Holders; Waiver..................................................................32
SECTION 107. Conflict with Trust Indenture Act..........................................................33
SECTION 108. Effect of Headings and Table of Contents...................................................33
SECTION 109. Successors and Assigns.....................................................................33
SECTION 110. Separability Clause........................................................................33
SECTION 111. Benefits of Indenture......................................................................33
SECTION 112. Governing Law..............................................................................34
SECTION 113. Legal Holidays.............................................................................34
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ARTICLE TWO
Note Forms
Page
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SECTION 201. Forms Generally; Initial Forms of Rule
144A and Regulation S Notes...........................................................34
SECTION 202. Form of Face of Note..................................................................36
SECTION 203. Form of Reverse of Note...............................................................40
SECTION 204. Form of Trustee's Certificate of
Authentication........................................................................45
ARTICLE THREE
The Notes
SECTION 301. Title and Terms.......................................................................46
SECTION 302. Denominations.........................................................................47
SECTION 303. Execution, Authentication, Delivery
and Dating............................................................................47
SECTION 304. Temporary Notes.......................................................................49
SECTION 305. Global Notes..........................................................................49
SECTION 306. Registration, Registration of Transfer
and Exchange Generally; Restrictions
on Transfer and Exchange; Securities
Act Legends...........................................................................51
SECTION 307. Mutilated, Destroyed, Lost and Stolen
Notes....................................................................56
SECTION 308. Payment of Interest; Interest Rights
Preserved.............................................................................57
SECTION 309. Persons Deemed Owners.................................................................59
SECTION 310. Cancellation..........................................................................60
SECTION 311. Computation of Interest...............................................................60
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture...............................................60
SECTION 402. Application of Trust Money............................................................62
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.....................................................................62
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Page
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SECTION 502. Acceleration of Maturity; Rescission
and Annulment.........................................................................66
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee............................................................67
SECTION 504. Trustee May File Proofs of Claim......................................................68
SECTION 505. Trustee May Enforce Claims Without
Possession of Notes...................................................................69
SECTION 506. Application of Money Collected........................................................69
SECTION 507. Limitation on Suits...................................................................70
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.......................................................71
SECTION 509. Restoration of Rights and Remedies....................................................71
SECTION 510. Rights and Remedies Cumulative........................................................71
SECTION 511. Delay or Omission Not Waiver..........................................................72
SECTION 512. Control by Holders....................................................................72
SECTION 513. Waiver of Past Defaults...............................................................72
SECTION 514. Undertaking for Costs.................................................................73
SECTION 515. Waiver of Stay or Extension Laws......................................................73
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities...................................................74
SECTION 602. Notice of Defaults....................................................................74
SECTION 603. Certain Rights of Trustee.............................................................74
SECTION 604. Not Responsible for Recitals or
Issuance of Notes.....................................................................76
SECTION 605. May Hold Notes........................................................................76
SECTION 606. Money Held in Trust...................................................................77
SECTION 607. Compensation and Reimbursement........................................................77
SECTION 608. Disqualification; Conflicting Interests...............................................78
SECTION 609. Corporate Trustee Required; Eligibility...............................................78
SECTION 610. Resignation and Removal; Appointment
of Successor..........................................................................78
SECTION 611. Acceptance of Appointment by Successor................................................80
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business................................................................80
SECTION 613. Preferential Collection of Claims
Against Company.......................................................................81
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Page
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SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders..................................................................81
SECTION 702. Preservation of Information;
Communications to Holders.............................................................82
SECTION 703. Reports by Trustee....................................................................82
SECTION 704. Reports by Company....................................................................82
SECTION 705. Officers' Certificate with Respect to
Change in Interest Rates..............................................................83
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Mergers, Consolidations and Certain
Transfers, Leases and Acquisition of
Assets...................................................................83
SECTION 802. Successor Substituted.................................................................84
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders....................................................................85
SECTION 902. Supplemental Indentures with Consent
of Holders............................................................................86
SECTION 903. Execution of Supplemental Indentures..................................................87
SECTION 904. Effect of Supplemental Indentures.....................................................87
SECTION 905. Conformity with Trust Indenture Act...................................................88
SECTION 906. Reference in Notes to Supplemental
Indentures............................................................................88
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest..............................................................................88
SECTION 1002. Maintenance of Office or Agency.......................................................88
SECTION 1003. Money for Note Payments to Be Held
in Trust..............................................................................89
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Page
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SECTION 1004. Existence.............................................................................91
SECTION 1005. Maintenance of Properties.............................................................91
SECTION 1006. Payment of Taxes and Other Claims.....................................................91
SECTION 1007. Maintenance of Insurance..............................................................92
SECTION 1008. Limitation on Consolidated Debt.......................................................92
SECTION 1009. Limitation on Senior Subordinated Debt................................................95
SECTION 1010. Limitation on Issuance of Guarantees
of Subordinated Debt..................................................................95
SECTION 1011. Limitation on Liens...................................................................95
SECTION 1012. Limitation on Restricted Payments.....................................................96
SECTION 1013. Limitations on Dividend and Other Payment
Restrictions Affecting Subsidiaries...................................................98
SECTION 1014. Limitation on Asset Disposition......................................................100
SECTION 1015. Transactions with Affiliates and Related
Persons..............................................................................101
SECTION 1016. Change of Control....................................................................102
SECTION 1017. Provision of Financial Information...................................................103
SECTION 1018. Unrestricted Subsidiaries............................................................103
SECTION 1019. Statement by Officers as to Default;
Compliance Certificates..............................................................104
SECTION 1020. Waiver of Certain Covenants..........................................................105
ARTICLE ELEVEN
Redemption of Notes
SECTION 1101. Right of Redemption..................................................................105
SECTION 1102. Applicability of Article.............................................................106
SECTION 1103. Election to Redeem; Notice to Trustee................................................106
SECTION 1104. Selection by Trustee of Notes to Be
Redeemed................................................................106
SECTION 1105. Notice of Redemption.................................................................107
SECTION 1106. Deposit of Redemption Price..........................................................108
SECTION 1107. Notes Payable on Redemption Date.....................................................108
SECTION 1108. Notes Redeemed in Part...............................................................109
ARTICLE TWELVE
Subordination of Notes
SECTION 1201. Notes Subordinate to Senior Debt.....................................................109
SECTION 1202. Payment Over of Proceeds Upon
Dissolution, Etc.....................................................................109
SECTION 1203. No Payment When Senior Debt in Default...............................................111
SECTION 1204. Payment Permitted If No Default......................................................113
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SECTION 1205. Subrogation to Rights of Holders of
Senior Debt..........................................................................113
SECTION 1206. Provisions Solely to Define Relative
Rights...............................................................................113
SECTION 1207. Trustee to Effectuate Subordination..................................................114
SECTION 1208. No Waiver of Subordination Provisions................................................114
SECTION 1209. Notice to Trustee....................................................................115
SECTION 1210. Reliance on Judicial Order or Certificate
of Liquidating Agent.................................................................116
SECTION 1211. Trustee Not Fiduciary for Holders of
Senior Debt..........................................................................116
SECTION 1212. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's Rights...............................................117
SECTION 1213. Article Applicable to Paying Agents..................................................117
SECTION 1214. Defeasance of this Article Twelve....................................................117
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance..................................................................118
SECTION 1302. Defeasance and Discharge.............................................................118
SECTION 1303. Covenant Defeasance..................................................................119
SECTION 1304. Conditions to Defeasance or Covenant
Defeasance...........................................................................119
SECTION 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions.......................................................122
SECTION 1306. Reinstatement........................................................................123
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ANNEX A -- Form of Regulation S Certificate..............................................................1
ANNEX B -- Form of Restricted Securities Certificate.....................................................1
ANNEX C -- Form of Unrestricted Securities Certificate...................................................1
ANNEX D -- Form of Certification to be Given by Holders of
Beneficial Interest in a Regulation S Temporary Global
Note..........................................................................................1
ANNEX E -- Form of Certification to be Given by the
Euroclear Operator or Cedel S.A...............................................................1
-xi-
INDENTURE, dated as of April 22, 1998, between Xxxxxxxx-Van
Heusen Corporation, a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal office
at 1290 Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000 and Union Bank of
California, N.A., a national banking association duly organized and existing
under the laws of the United States of America, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its 9 1/2% Senior Subordinated Notes due May 1, 2008 (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.
All things necessary (i) to make the Notes, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company and (ii) to make this Indenture a
valid agreement of the Company, all in accordance with their respective terms,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
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;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles (whether or not such is indicated
herein), and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" or GAAP with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted as consistently applied by the
Company at the date of such computation;
(4) unless otherwise specifically set forth herein, all
calculations or determinations of a Person shall be performed or made
on a consolidated basis in accordance with generally accepted
accounting principles; and
(5) 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.
Certain terms, used principally in Article Six, are defined in
that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any 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.
-2-
"Agent Member" means any member of, or participant
in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Note or beneficial interest therein, the rules
and procedures of the Depositary for such Note, Euroclear and Cedel, in each
case to the extent applicable to such transaction and as in effect at the time
of such transfer or transaction.
"Asset Disposition" by any Person means any transfer,
conveyance, sale, lease or other disposition by such Person or any of its
Restricted Subsidiaries (including any issuance or sale by a Restricted
Subsidiary of Capital Stock of such Restricted Subsidiary, and including a
consolidation or merger or other sale of any such Restricted Subsidiary with,
into or to another Person in a transaction in which such Restricted Subsidiary
ceases to be a Restricted Subsidiary, but excluding a disposition by a
Restricted Subsidiary of such Person to such Person or a Wholly Owned Restricted
Subsidiary of such Person or by such Person to a Wholly Owned Restricted
Subsidiary of such Person) of (i) shares of Capital Stock (other than directors'
qualifying shares) or other ownership interests of a Restricted Subsidiary of
such Person, (ii) substantially all of the assets of such Person or any of its
Restricted Subsidiaries representing a division or line of business or (iii)
other assets or rights of such Person or any of its Restricted Subsidiaries
outside of the ordinary course of business, provided in each case that the
aggregate consideration to the Company or Restricted Subsidiary in any single
transaction or series of related transactions for such transfer, conveyance,
sale, lease or other disposition is equal to $20.0 million or more.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board. Except as otherwise
provided or unless context otherwise requires, each reference herein to the
"Board of Directors" shall mean the Board of Directors of the Company.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company 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. Except as otherwise expressly
provided or unless the context otherwise
-3-
requires, each reference herein to a "Board Resolution" shall mean a Board
Resolution of the Company.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York, New
York or in the city in which the Corporate Trust Office is located are
authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means the obligation
to pay rent or other payment amounts under a lease of (or other Debt
arrangements conveying the right to use) real or personal property of such
Person which is required to be classified and accounted for as a capital lease
or a liability on the face of a balance sheet of such Person in accordance with
generally accepted accounting principles. The stated maturity of such obligation
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty. The principal amount of such obligation
shall be the capitalized amount thereof that would appear on the face of a
balance sheet of such Person in accordance with generally accepted accounting
principles.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock or other equity participations, including partnership interests, whether
general or limited, of such Person.
"Cash Equivalents" means (i) direct obligations of the United
States of America or any agency thereof having maturities of not more than one
year from the date of acquisition, (ii) time deposits and certificates of
deposit of any domestic commercial bank of recognized standing having capital
and surplus in excess of $500 million, with maturities of not more than one year
from the date of acquisition, (iii) repurchase obligations issued by any bank
described in clause (ii) above with a term not to exceed 30 days; (iv)
commercial paper rated at least A-1 or the equivalent thereof by S&P or at least
P-1 or the equivalent thereof by Moody's, in each case maturing within one year
after the date of acquisition and (v) shares of any money market mutual fund, or
similar fund, in each case having assets in excess of $500 million, which
invests
-4-
predominantly in investments of the types describes in clauses (i) through (iv)
above.
"Cedel" means Cedel, S.A. (or any successor securities
clearing agency).
"Closing Date" means April 22, 1998.
"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 instrument 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.
"Common Stock" of any Person means Capital Stock of such
Person that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument 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
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary and delivered to the Trustee.
"Consolidated Cash Flow Available for Fixed Charges" means for
any period the Consolidated Net Income of the Company and its Restricted
Subsidiaries for such period increased by the sum of (i) Consolidated Interest
Expense of the Company and its Restricted Subsidiaries for such period, plus
(ii) Consolidated Income Tax Expense of the Company and its Restricted
Subsidiaries for such period, plus (iii) the consolidated depreciation and
amortization expense included in the income statement of the Company and its
Restricted Subsidiaries for such period, plus (iv) all other non-cash items
reducing Consolidated Net Income of the Company and
-5-
its Restricted Subsidiaries, less all non-cash items increasing Consolidated Net
Income of the Company and its Restricted Subsidiaries; provided, however, that
there shall be excluded therefrom the Consolidated Cash Flow Available for Fixed
Charges (if positive) of any Restricted Subsidiary of the Company (calculated
separately for such Restricted Subsidiary in the same manner as provided above
for the Company) that is subject to a restriction which prevents the payment of
dividends or the making of distributions to the Company or another Restricted
Subsidiary of the Company to the extent of such restriction.
"Consolidated Cash Flow Coverage Ratio" as of any date of
determination means the ratio of (i) Consolidated Cash Flow Available for Fixed
Charges of the Company and its Restricted Subsidiaries for the period of the
most recently completed four consecutive fiscal quarters for which quarterly or
annual financial statements are available to (ii) Consolidated Fixed Charges of
the Company and its Restricted Subsidiaries for such period; provided, however,
that Consolidated Fixed Charges shall be adjusted to give effect on a pro forma
basis to any Debt (other than short-term Debt Incurred for working capital
purposes) that has been Incurred by the Company or any Restricted Subsidiary
since the beginning of such period that remains outstanding and to any Debt
(other than short-term Debt Incurred for working capital purposes) that is
proposed to be Incurred by the Company or any Restricted Subsidiary as if in
each case such Debt had been Incurred on the first day of such period and as if
any Debt (other than short-term Debt Incurred for working capital purposes) that
(i) is or will no longer be outstanding as the result of the Incurrence of any
such Debt or (ii) had been repaid or retired during such period had not been
outstanding as of the first day of such period; provided further that in making
such computation, the Consolidated Interest Expense of the Company and its
Restricted Subsidiaries attributable to interest on any proposed Debt bearing a
floating interest rate shall be computed on a pro forma basis as if the rate in
effect on the date of computation had been the applicable rate for the entire
period; and provided further that, in the event the Company or any of its
Restricted Subsidiaries has made Asset Dispositions or acquisitions of assets
not in the ordinary course of business (including acquisitions of other Persons
by merger, consolidation or purchase of Capital Stock) during or after such
period, such computation shall be made on a pro forma basis as if the Asset
Dispositions or
-6-
acquisitions had taken place on the first day of such period.
"Consolidated Fixed Charges" for any period means the sum of
(i) Consolidated Interest Expense and (ii) the consolidated amount of interest
capitalized by the Company and its Restricted Subsidiaries during such period
calculated in accordance with generally accepted accounting principles.
"Consolidated Income Tax Expense" for any period means the
consolidated provision for income taxes of the Company and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with generally accepted accounting principles.
"Consolidated Interest Expense" means for any period the
consolidated interest expense included in a consolidated income statement
(without deduction of interest income) of the Company and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with generally accepted accounting principles, including without limitation or
duplication (or, to the extent not so included, with the addition of), (i) the
amortization of Debt discounts; (ii) any payments or fees with respect to
letters of credit, bankers' acceptances or similar facilities; (iii) fees with
respect to Interest Rate, Currency or Commodity Price Agreements; (iv) Preferred
Stock dividends of Restricted Subsidiaries of the Company (other than with
respect to Redeemable Stock) declared and paid or payable to persons other than
the Company or any Restricted Subsidiary; (v) accrued Redeemable Stock dividends
of the Company and its Restricted Subsidiaries payable to persons other than the
Company or any Restricted Subsidiary, whether or not declared or paid; (vi)
interest on Debt guaranteed by the Company and its Restricted Subsidiaries; and
(vii) the portion of any rental obligation with respect to capitalized leases
allocable to interest expense.
"Consolidated Net Income" for any period means the
consolidated net income (or loss) of the Company and its Restricted Subsidiaries
for such period determined on a consolidated basis in accordance with generally
accepted accounting principles; provided that there shall be excluded therefrom
(a) the net income (or loss) of any Person acquired by the Company or a
Restricted Subsidiary of the Company in a pooling-of-interests transaction for
any period
-7-
prior to the date of such transaction, (b) the net income (or loss) of any
Person that is not a Subsidiary of the Company except to the extent of the
amount of dividends or other distributions actually paid to the Company or a
Subsidiary of the Company by such Person during such period, (c) gains or losses
on Asset Dispositions by the Company or its Restricted Subsidiaries, (d) all
extraordinary gains and extraordinary losses, (e) the cumulative effect of
changes in accounting principles and (f) the tax effect, if any, of any of the
items described in clauses (a) through (e) above; provided, further, that for
purposes of any determination pursuant to the provisions described under Section
1012 hereof, there shall further be excluded therefrom the net income (but not
net loss) of any Restricted Subsidiary of the Company that is subject to a
restriction which prevents the payment of dividends or the making of
distributions to the Company or another Restricted Subsidiary of the Company to
the extent of such restriction.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with generally accepted accounting principles, less amounts
attributable to Redeemable Stock of such Person; provided that, with respect to
the Company, adjustments following the date of this Indenture to the accounting
books and records of the Company in accordance with Accounting Principles Board
Opinions Nos. 16 and 17 (or successor opinions thereto) or otherwise resulting
from the acquisition of control of the Company by another Person shall not be
given effect to.
"Consolidated Tangible Assets" of any Person means, as of any
date, the amount which, in accordance with GAAP, would be set forth under the
caption "Total Assets" (or any like caption) on a consolidated balance sheet of
such Person and its Restricted Subsidiaries, less all intangible assets,
including, without limitation, goodwill, organization costs, patents,
trademarks, copyrights, franchises, and research and development costs.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which is, at the date as of which this Indenture is dated, located
at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
-8-
"corporation" means a corporation, association, company,
joint-stock company, partnership or business trust.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations Incurred in connection
with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (including securities repurchase
agreements but excluding trade accounts payable or accrued liabilities arising
in the ordinary course of business which are not overdue or which are being
contested in good faith), (v) every Capital Lease Obligation of such Person,
(vi) all Receivables Sales of such Person, together with any obligation of such
Person to pay any discount, interest, fees, indemnities, penalties, recourse,
expenses or other amounts in connection therewith, (vii) all Redeemable Stock
issued by such Person, (viii) Preferred Stock of Restricted Subsidiaries of such
Person held by Persons other than such Person or one of its Wholly Owned
Restricted Subsidiaries, (ix) every obligation under Interest Rate, Currency or
Commodity Price Agreements of such Person and (x) every obligation of the type
referred to in clauses (i) through (ix) of another Person and all dividends of
another Person the payment of which, in either case, such Person has Guaranteed
or is responsible or liable for, directly or indirectly, as obligor, Guarantor
or otherwise. The "amount" or "principal amount" of Debt at any time of
determination as used herein represented by (a) any Receivables Sale, shall be
the amount of the unrecovered capital or principal investment of the purchaser
(other than the Company or a Wholly Owned Restricted Subsidiary of the Company)
thereof, excluding amounts representative of yield or interest earned on such
investment and (b) any Redeemable Stock, shall be the maximum fixed redemption
or repurchase price in respect thereof.
"Depositary" means, with respect to any Notes, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Company to act as
-9-
Depositary for such Notes (or any successor securities clearing agency so
registered).
"Designated Senior Debt" shall mean (i) so long as the New
Credit Facility is in effect, the obligations of the Company under the New
Credit Facility and (ii) at any time thereafter, the 2023 Debentures and any
other Senior Debt of the Company permitted under this Indenture, the principal
amount of which at original issuance is $25.0 million or more and that has been
designated by the Company as Designated Senior Debt.
"DTC" means The Depository Trust Company, a New York
corporation.
"Euroclear" means the Euroclear Clearance System (or any
successor securities clearing agency).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 as it
may be amended and any successor act thereto.
"Exchange and Registration Rights Agreement" means the
Exchange and Registration Rights Agreement, dated as of April 22, 1998, among
the Company, Xxxxxxx, Xxxxx & Co., Chase Securities Inc. and Citicorp
Securities, Inc., as representatives of the Initial Purchasers, and the Holders
from time to time as provided therein, as such agreement may be amended from
time to time.
"Exchange Notes" means the Notes issued pursuant to the
Exchange Offer and their Successor Notes.
"Exchange Offer" means an offer made by the Company pursuant
to the Exchange and Registration Rights Agreement under the effective
registration statement under the Securities Act to exchange securities
substantially identical to Outstanding Notes (except for the differences
provided for herein) for Outstanding Notes.
"Exchange Registration Statement" means a registration
statement of the Company under the Securities Act registering Exchange Notes for
distribution pursuant to the Exchange Offer.
-10-
"Global Note" means a Note that is registered in the Security
Register in the name of a Depositary or a nominee thereof.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing, or having the economic effect of
guaranteeing, any Debt of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Debt of the payment of such Debt, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guarantee by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Holder" means a Person in whose name a Note is registered in
the Security Register.
"Incur" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, Guarantee or otherwise become liable in respect of such Debt or other
obligation or the recording, as required pursuant to generally accepted
accounting principles or otherwise, of any such Debt or other obligation on the
balance sheet of such Person (and "Incurrence", "Incurred", "Incurrable" and
"Incurring" shall have meanings correlative to the foregoing); provided,
however, that a change in generally accepted accounting principles that results
in an obligation of such Person that exists at such time becoming Debt shall not
be deemed an Incurrence of such Debt.
"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
including, for all purposes of this instrument and any such
-11-
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively.
"Initial Purchasers" means Xxxxxxx, Xxxxx & Co., Chase
Securities Inc. and Citicorp Securities, Inc., as purchasers of the Notes from
the Company pursuant to the Note Purchase Agreement.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes.
"Interest Rate, Currency or Commodity Price Agreement" of any
Person means any forward contract, futures contract, swap, option or other
financial agreement or arrangement (including, without limitation, caps, floors,
collars and similar agreements) relating to, or the value of which is dependent
upon, interest rates, currency exchange rates or commodity prices or indices
(excluding contracts for the purchase or sale of goods in the ordinary course of
business).
"Investment" by any Person means any direct or indirect loan,
advance or other extension of credit or capital contribution to (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) to, or purchase or
acquisition of Capital Stock, bonds, notes, debentures or other securities or
evidence of Debt issued by any other Person, including any payment on a
Guarantee of any obligation of such other Person.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, Receivables Sale,
deposit arrangement, security interest, lien, charge, easement (other than any
easement not materially impairing usefulness or marketability), encumbrance,
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever on or with respect to such property or assets
(including, without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Maturity", when used with respect to any Note, means the date
on which the principal of such Note becomes
-12-
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Available Proceeds" from any Asset Disposition by any
Person means cash or readily marketable cash equivalents received (including by
way of sale or discounting of a note, installment receivable or other
receivable, but excluding any other consideration received in the form of
assumption by the acquiree of Debt or other obligations relating to such
properties or assets) therefrom by such Person, net of (i) all legal, title and
recording tax expenses, commissions and other fees and expenses Incurred and all
federal, state, provincial, foreign and local taxes required to be accrued as a
liability as a consequence of such Asset Disposition, (ii) all payments made by
such Person or its Restricted Subsidiaries on any Debt which is secured by such
assets in accordance with the terms of any Lien upon or with respect to such
assets or which must by the terms of such Lien, or in order to obtain a
necessary consent to such Asset Disposition or by applicable law, be repaid out
of the proceeds from such Asset Disposition, (iii) all distributions and other
payments made to minority interest holders in Restricted Subsidiaries of such
Person or joint ventures as a result of such Asset Disposition and (iv)
appropriate amounts to be provided by such Person or any Restricted Subsidiary
thereof, as the case may be, as a reserve in accordance with generally accepted
accounting principles against any liabilities associated with such assets and
retained by such Person or any Restricted Subsidiary thereof, as the case may
be, after such Asset Disposition, including, without limitation, liabilities
under any indemnification obligations and severance and other employee
termination costs associated with such Asset Disposition, in each case as
determined by the Board of Directors, in its reasonable good faith judgment
evidenced by a resolution of the Board of Directors filed with the Trustee;
provided, however, that any reduction in such reserve following the consummation
of such Asset Disposition will be treated for all purposes of the Indenture and
the Notes as a new Asset Disposition at the time of such reduction with Net
Available Proceeds equal to the amount of such reduction.
-13-
"New Credit Facility" means the senior secured revolving
credit facility in the aggregate principal amount of $325.0 million between the
Company, The Chase Manhattan Bank, as administrative and collateral agent,
Citibank USA, Inc., as documentation agent, and certain other lenders, as it may
be amended or restated from time to time, and any renewal, extension,
refinancing, refunding or replacement thereof, in whole or in part.
"Note Purchase Agreement" means the Purchase Agreement, dated
as of April 22, 1998, between the Company and the Initial Purchasers, as such
agreement may be amended from time to time.
"Notes" means notes designated in the first paragraph of the
RECITALS OF THE COMPANY and includes the Exchange Notes.
"Offer to Purchase" means a written offer (the "Offer") sent
by the Company by first class mail, postage prepaid, to each Holder at his
address appearing in the Security Register on the date of the Offer offering to
purchase up to the principal amount of Notes specified in such Offer at the
purchase price specified in such Offer (as determined pursuant to this
Indenture). Unless otherwise required by applicable law, the Offer shall specify
an expiration date (the "Expiration Date") of the Offer to Purchase which shall
be, subject to any contrary requirements of applicable law, not less than 30
days or more than 60 days after the date of such Offer and a settlement date
(the "Purchase Date") for purchase of Notes within five Business Days after the
Expiration Date. The Company shall notify the Trustee at least 15 Business Days
(or such shorter period as is acceptable to the Trustee) prior to the mailing of
the Offer of the Company's obligation to make an Offer to Purchase, and the
Offer shall be mailed by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. The Offer shall contain
information concerning the business of the Company and its Restricted
Subsidiaries which the Company in good faith believes will enable such Holders
to make an informed decision with respect to the Offer to Purchase (which at a
minimum will include (i) the most recent annual and quarterly financial
statements and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" contained in the documents required to be filed with the
Trustee pursuant to
-14-
Section 1017 (which requirements may be satisfied by delivery of such documents
together with the Offer), (ii) a description of material developments in the
Company's business subsequent to the date of the latest of such financial
statements referred to in clause (i) (including a description of the events
requiring the Company to make the Offer to Purchase), (iii) if applicable,
appropriate pro forma financial information concerning the Offer to Purchase and
the events requiring the Company to make the Offer to Purchase and (iv) any
other information required by applicable law to be included therein. The Offer
shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the
Offer to Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding
Notes offered to be purchased by the Company pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such has
been determined pursuant to the Section hereof requiring the Offer to
Purchase) (the "Purchase Amount");
(4) the purchase price to be paid by the Company for each
$1,000 aggregate principal amount of Notes accepted for payment (as
specified pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the
Notes registered in the name of such Holder and that any portion of a
Note tendered must be tendered in an integral multiple of $1,000
principal amount;
(6) the place or places where Notes are to be surrendered
for tender pursuant to the Offer to Purchase;
(7) that interest on any Note not tendered or tendered
but not purchased by the Company
-15-
pursuant to the Offer to Purchase will continue to accrue;
(8) that on the Purchase Date the Purchase Price will
become due and payable upon each Note accepted for payment pursuant to
the Offer to Purchase and that interest thereon shall cease to accrue
on and after the Purchase Date;
(9) that each Holder electing to tender a Note pursuant
to the Offer to Purchase will be required to surrender such Note at the
place or places specified in the Offer prior to the close of business
on the Expiration Date (such Note being, if the Company or the Trustee
so requires, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing);
(10) that Holders will be entitled to withdraw all or any
portion of Notes tendered if the Company (or their Paying Agent)
receives, not later than the close of business on the Expiration Date,
a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
tendered, the certificate number of the Note the Holder tendered and a
statement that such Holder is withdrawing all or a portion of his
tender;
(11) that (a) if Notes in an aggregate principal amount
less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Notes and (b) if Notes in an aggregate principal amount in
excess of the Purchase Amount are tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase Notes having an
aggregate principal amount equal to the Purchase Amount on a pro rata
basis (with such adjustments as may be deemed appropriate so that only
Notes in denominations of $1,000 or integral multiples thereof shall be
purchased); and
-16-
(12) that in the case of any Holder whose Note is
purchased only in part, the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Note without
service charge, a new Note or Notes, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and
in exchange for the unpurchased portion of the Note so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee. Unless the context otherwise requires, each
reference herein to an "Officers' Certificate" shall mean an Officers'
Certificate of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be reasonably acceptable to the
Trustee.
"Original Notes" means all Notes other than Exchange Notes.
"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 canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Notes for whose payment or redemption 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; provided that, if such
Notes are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision
-17-
therefor satisfactory to the Trustee has been made; and
(iii) Notes which have been transferred 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, Notes owned by
the Company or any Affiliate of the Company shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Notes which the Trustee 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 so 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 of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Notes on behalf of
the Company.
"Permitted Interest Rate, Currency or Commodity Price
Agreement" of any Person means any Interest Rate, Currency or Commodity Price
Agreement entered into with one or more financial institutions in the ordinary
course of business that is designed to protect such Person against fluctuations
in interest rates or currency exchange rates with respect to Debt Incurred and
which shall have a notional amount no greater than the payments due with respect
to the Debt being hedged thereby, or in the case of currency or commodity
protection agreements, against currency exchange rate or commodity price
fluctuations in the ordinary course of business relating to then existing
financial obligations or then existing or forecast produc-
-18-
tion or for purchase of products for resale and not for purposes of speculation.
"Permitted Investments" means (i) an Investment in the Company
or a Wholly-Owned Restricted Subsidiary of the Company; (ii) an Investment in
Pyramid Sportswear; provided, however, that as a result thereof the Company owns
not less than a majority interest in Pyramid Sportswear; (iii) an Investment in
a Person, if such Person or a Subsidiary of such Person will, as a result of the
making of such Investment and all other contemporaneous related transactions,
become a Wholly-Owned Restricted Subsidiary of the Company or be merged or
consolidated with or into or transfer or convey all or substantially all its
assets to the Company or a Wholly-Owned Restricted Subsidiary of the Company;
(iv) a Temporary Cash Investment; (v) stock, obligations or securities received
in settlement of debts owing to the Company or a Restricted Subsidiary of the
Company as a result of bankruptcy or insolvency proceedings or upon the
foreclosure, perfection, enforcement or agreement in lieu of foreclosure of
any Lien in favor of the Company or a Restricted Subsidiary of the Company; (vi)
Investments in the Notes; (vii) Investments in Permitted Interest Rate, Currency
or Commodity Price Agreements; (viii) advances to employees of the Company made
in the ordinary course of business and (ix) entry into and Investments in joint
ventures, partnerships and other Persons engaged or proposing to engage in
businesses related to those conducted by the Company or any Restricted
Subsidiary of the Company, in an amount not to exceed $15 million.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"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 307 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.
-19-
"Preferred Stock", of any Person, means Capital Stock of such
Person of any class or classes (however designated) that ranks prior, as to the
payment of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class of such Person.
"Public Equity Offering" means an underwritten primary public
offering of Common Stock of the Company pursuant to an effective registration
statement under the Securities Act of 1933, as amended.
"Receivables" means receivables, chattel paper, instruments,
documents or intangibles evidencing or relating to the right to payment of
money.
"Receivables Sale" of any Person means any sale of Receivables
of such Person (pursuant to a purchase facility or otherwise), other than in
connection with a disposition of the business operations of such Person relating
thereto or a disposition of defaulted Receivables for purposes of collection and
not as a financing arrangement.
"Redeemable Stock" of any Person means any Capital Stock of
such Person that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or otherwise (including upon the
occurrence of an event) matures or is required to be redeemed (pursuant to any
sinking fund obligation or otherwise) or is convertible into or exchangeable for
Debt or is redeemable at the option of the holder thereof, in whole or in part,
at any time prior to the final Stated Maturity of the Notes; provided that
"Redeemable Stock" shall not include any Capital Stock that is payable at
maturity, or upon required redemption or redemption at the option of the holder
thereof, or that is automatically convertible or exchangeable, solely in or into
Common Stock of such Person.
"Redemption Date", when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
-20-
"Registration Default" means the occurrence of any of the
following events: (i) the Company has not filed the Exchange Registration
Statement or Shelf Registration Statement on or before the date on which such
registration statement is required to be filed pursuant to the Exchange and
Registration Rights Agreement, (ii) the Exchange Registration Statement or Shelf
Registration Statement has not become effective or been declared effective by
the Commission on or before the date on which such registration statement is
required to become or be declared effective under the requirements of the
Exchange and Registration Rights Agreement, (iii) the Exchange Offer has not
been completed within 30 Business Days after the initial effective date of the
Exchange Registration Statement relating to the Exchange Offer (if the Exchange
Offer is then required to be made under the Exchange and Registration Rights
Agreement) or (iv) any Exchange Registration Statement or Shelf Registration
Statement required to be filed pursuant the Exchange and Registration Rights
Agreement is filed and declared effective but shall thereafter either be
withdrawn by the Company or shall become subject to an effective stop order
issued pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as specifically permitted
herein) without being succeeded immediately by an additional registration
statement filed and declared effective.
"Registration Default Period" means any period during which a
Registration Default has occurred and is continuing.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" means a certificate substantially
in the form set forth in Annex A.
"Regulation S Global Note" has the meaning specified in
Section 201.
"Regulation S Legend" means a legend substantially in the form
of the legend required in the form of Note set forth in Section 202 to be placed
upon Regulation S Notes.
"Regulation S Notes" means all Notes required pursuant to
Section 306(c) to bear a Regulation S Legend.
-21-
"Related Person" of any Person means any other Person directly
or indirectly owning (a) 5% or more of the Outstanding Common Stock of such
Person (or in the case of a Person that is not a corporation, 5% or more of the
equity interest in such Person) or (b) 5% or more of the combined voting power
of the Voting Stock of such Person.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller 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
knowledge of and familiarity with the particular subject.
"Restricted Notes" means all Notes required pursuant to
Section 306(c) to bear a Restricted Notes Legend. Such term includes the
Restricted Global Notes.
"Restricted Notes Certificate" means a certificate
substantially in for form set forth in Annex B.
"Restricted Notes Legend" means a legend substantially in the
form of the legend required in the form of Note set forth in Section 202 to be
placed upon a Restricted Note.
"Restricted Period" means the period of 40 consecutive days
beginning on the later of (i) the day on which Notes are first offered to
persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the Closing Date.
"Restricted Subsidiary" means any Subsidiary, whether existing
on or after the date of this Indenture, unless such Subsidiary is an
Unrestricted Subsidiary.
"Rule 144" means Rule 144 under the Securities Act.
-22-
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Notes" means the Notes purchased by the Initial
Purchasers from the Company pursuant to the Note Purchase Agreement, other than
the Regulation S Notes.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc.
"Securities Act" means the Securities Act of 1933, as it may
be amended and any successor act thereto.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 306(a).
"Senior Debt" means (i) the principal of (and premium, if any)
and interest (including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding) on, and
penalties and any obligation of the Company for reimbursement, indemnities, fees
and expenses relating to, the New Credit Facility and (ii) every reimbursement
obligation of the Company with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of the Company and
(iii) the principal of (and premium, if any) and interest on Debt of the Company
for money borrowed, whether Incurred on or prior to the date of original
issuance of the Notes or thereafter, and any amendments, renewals, extensions,
modifications, refinancings and refundings of any such Debt and (iv) Permitted
Interest Rate, Currency or Commodity Price Agreements entered into with respect
to Debt described in clauses (i), (ii) and (iii) above; provided, however, that
the following shall not constitute Senior Debt: (1) any Debt as to which the
terms of the instrument creating or evidencing the same provide that such Debt
is not superior in right of payment to the Notes, (2) any Debt which is
subordinated in right of payment in any respect to any other Debt of the
Company, (3) Debt evidenced by the Notes, (4) any Debt owed to a Person when
such Person is a Subsidiary of the Company, (5) any obligation of the Company
arising from Redeemable Stock of the Company, (6) that portion of any Debt which
is Incurred in violation of the Indenture and (7) Debt which, when Incurred and
without respect to any election under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx
Code, is without
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recourse to the Company. If any Senior Debt is disallowed, avoided or
subordinated pursuant to the provisions of Xxxxxxx 000 xx Xxxxx 00, Xxxxxx
Xxxxxx Code, or any applicable state fraudulent conveyance law, such Senior Debt
nevertheless will constitute Senior Debt.
"Shelf Registration Statement" means a shelf registration
statement under the Securities Act filed by the Company, if required by, and
meeting the requirements of, the Exchange and Registration Rights Agreement,
registering Original Notes for resale.
"Special Interest" has the meaning specified in the form of
Notes set forth in Section 202.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by Trustee pursuant to Section 308.
"Stated Maturity", when used with respect to any Note or any
installment of interest thereon, means 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.
"Subordinated Debt" means Debt of the Company as to which the
payment of principal of (and premium, if any) and interest and other payment
obligations in respect of such Debt shall be subordinate to the prior payment in
full of the Notes to at least the following extent: (i) no payments of principal
of (or premium, if any) or interest on or otherwise due in respect of such Debt
may be permitted for so long as any default in the payment of principal (or
premium, if any) or interest on the Notes exists; (ii) in the event that any
other default that with the passing of time or the giving of notice, or both,
would constitute an event of default exists with respect to the Notes, upon
notice by 25% or more in principal amount of the Notes to the Trustee, the
Trustee shall have the right to give notice to the Company and the holders of
such Debt (or trustees or agents therefor) of a payment blockage, and thereafter
no payments of principal of (or premium, if any) or interest on or otherwise due
in respect of such Debt may be made for a period of 179 days from the date of
such notice; and (iii) such Debt may not (x) provide for payments of principal
of such Debt at the stated maturity thereof or by way of a sinking fund
applicable thereto or by way of any
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mandatory redemption, defeasance, retirement or repurchase thereof by the
Company (including any redemption, retirement or repurchase which is contingent
upon events or circumstances, but excluding any retirement required by virtue of
acceleration of such Debt upon an event of default thereunder), in each case
prior to the final Stated Maturity of the Notes or (y) permit redemption or
other retirement (including pursuant to an offer to purchase made by the
Company) of such other Debt at the option of the holder thereof prior to the
final Stated Maturity of the Notes, other than a redemption or other retirement
at the option of the holder of such Debt (including pursuant to an offer to
purchase made by the Company) which is conditioned upon a change of control of
the Company pursuant to provisions substantially similar to those contained in
Section 1016 hereof (and which shall provide that such Debt will not be
repurchased pursuant to such provisions prior to the Company's repurchase of the
Notes required to be repurchased by the Company pursuant to the provisions
described under Section 1016).
"Subsidiary" of any Person means (i) a corporation more than
50% of the combined voting power of the outstanding Voting Stock of which is
owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more Subsidiaries
thereof or (ii) any other Person (other than a corporation) in which such
Person, or one or more other Subsidiaries of such Person or such Person and one
or more other Subsidiaries thereof, directly or indirectly, has at least a
majority ownership and power to direct the policies, management and affairs
thereof.
"Successor Note" of any particular Note means every Note
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 307 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Note.
"Temporary Cash Investments" means any Investment in the
following kinds of instruments: (A) readily marketable obligations issued or
unconditionally guaranteed as to principal and interest by the United States of
America or by any agency or authority controlled or supervised by
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and acting as an instrumentality of the United States of America if, on the date
of purchase or other acquisition of any such instrument by the Company or any
Restricted Subsidiary of the Company, the remaining term to maturity or interest
rate adjustment is not more than two years; (B) obligations (including, but not
limited to, demand or time deposits, bankers' acceptances and certificates of
deposit) issued or guaranteed by a depository institution or trust company
incorporated under the laws of the United States of America, any state thereof
or the District of Columbia, provided that (1) such instrument has a final
maturity not more than one year from the date of purchase thereof by the Company
or any Restricted Subsidiary of the Company and (2) such depository institution
or trust company has at the time of the Company's or such Restricted
Subsidiary's Investment therein or contractual commitment providing for such
Investment, (x) capital, surplus and undivided profits (as of the date such
institution's most recently published financial statements) in excess of $100
million and (y) the long-term unsecured debt obligations (other than such
obligations rated on the basis of the credit of a Person other than such
institution) of such institution, at the time of the Company's or such
Restricted Subsidiary's Investment therein or contractual commitment providing
for such Investment, are rated in the highest rating category of both S&P and
Moody's; (C) commercial paper issued by any corporation, if such commercial
paper has, at the time of the Company's or any Restricted Subsidiary's
Investment therein or contractual commitment providing for such Investment
credit ratings of at least A-1 by S&P and P-1 by Moody's; (D) money market
mutual or similar funds having assets in excess of $100 million; (E) readily
marketable debt obligations issued by any corporation, if at the time of the
Company's or Restricted Subsidiary's Investment therein or contractual
commitment providing for such Investment (1) the remaining term to maturity is
not more than two years and (2) such debt obligations are rated in one of the
two highest rating categories of both S&P and Moody's; (F) demand or time
deposit accounts used in the ordinary course of business with commercial banks
the balances in which are at all times fully insured as to principal and
interest by the Federal Deposit Insurance Corporation or any successor thereto;
and (G) to the extent not otherwise included herein, Cash Equivalents. In the
event that either S&P or Moody's ceases to publish ratings of the type provided
herein, a replacement rating agency shall be selected by the Company
-26-
with the consent of the Trustee, and in each case the rating of such replacement
rating agency most nearly equivalent to the corresponding S&P or Xxxxx'x rating,
as the case may be, shall be used for purposes hereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed, except as
provided in Section 905; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"2023 Debentures" means the Company's 7.75% Debentures
due 2023.
"U.S. Person" means (i) any individual resident in the United
States, (ii) any partnership or corporation organized or incorporated under the
laws of the United States, (iii) any estate of which an executor or
administrator is a U.S. Person (other than an estate governed by foreign law and
of which at least one executor or administrator is a non-U.S. Person who has
sole or shared investment discretion with respect to its assets), (iv) any trust
of which any trustee is a U.S. Person (other than a trust of which at least one
trustee is a non-U.S. Person who has sole or shared investment discretion with
respect to its assets and no beneficiary of the trust (and no settlor if the
Trust is revocable) is a U.S. Person), (v) any agency or branch of a foreign
entity located in the United States, (vi) any non-discretionary or similar
account (other than an estate or trust) held by a dealer or other fiduciary for
the benefit or account of a U.S. Person, (vii) any discretionary or similar
account (other than an estate or trust) held by a dealer or other fiduciary
organized, incorporated or (if an individual) resident in the United States
(other than such an account held for the benefit or account of a non-U.S.
Person), (viii) any partnership or corporation organized or incorporated under
the laws of a foreign jurisdiction and formed by a U.S. Person principally for
the purpose of investing in securities not registered under the Securities
-27-
Act (unless it is organized or incorporated, and owned, by accredited investors
within the meaning of Rule 501(a) under the Securities Act who are not natural
persons, estates or trusts); provided, however, that the term "U.S. Person" does
not include (A) a branch or agency of a U.S. Person that is located and
operating outside the United States for valid business purposes as a locally
regulated branch or agency engaged in the banking or insurance business, (B) any
employee benefit plan established and administered in accordance with the law,
customary practices and documentation of a foreign country and (C) the
international organizations set forth in Section 902(o)(7) of Regulation S under
the Securities Act and any other similar international organizations, and their
agencies, affiliates and pension plans.
"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" of any Person means Capital Stock of such
Person which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Restricted Subsidiaries of such Person or by such Person and one or more Wholly
Owned Restricted Subsidiaries of such Person.
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 such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the Company,
or an Opinion of
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Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company 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
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exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, 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; Record Date.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. 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 (subject to Section 601) 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
-30-
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 his 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 Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders. If not set
by the Company prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
(d) The ownership of Notes shall be proved by the Security
Register.
(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 in reliance thereon, whether or not notation of such action is made upon
such Note.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
-31-
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing and mailed, first-class postage prepaid, or sent by
facsimile to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust, or
(2) the Company 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, or sent by facsimile to the Company addressed to it at the
address of its principal office specified in the first paragraph of
this instrument 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 to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), 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. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
-32-
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act, that is required under such Act to be part
of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be. Until such time as this Indenture shall be qualified under the Trust
Indenture Act, this Indenture, the Company and the Trustee shall be deemed for
all purposes hereof to be subject to and governed by the Trust Indenture Act to
the same extent as would be the case if this Indenture were so qualified on the
date hereof.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. 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 110. Separability Clause.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
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SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Debt and the Holders of Notes, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Notes shall be governed by and
construed in accordance with the laws of the State of New York; provided,
however, that the standard of performance by the Trustee of its duties hereunder
shall be governed by the laws of the State of California.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Purchase Date or Stated Maturity of any Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of interest or principal (and premium, if any) need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the Interest Payment Date, Redemption Date or Purchase
Date, or at the Stated Maturity, as the case may be, provided that no interest
shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Purchase Date or Stated Maturity, as the case may be.
ARTICLE TWO
Note Forms
SECTION 201. Forms Generally; Initial Forms of Rule 144A and Regulation
S Notes.
The Notes and the Trustee's certificates 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
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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 executing such Notes, as evidenced by their execution of the Notes.
The definitive Notes to be endorsed thereon shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Notes may be listed, all as
determined by the officers executing such Notes, as evidenced by their execution
thereof.
Upon their original issuance, Rule 144A Notes shall be issued
in the form of one or more Global Notes without interest coupons registered in
the name of DTC, as Depositary, or its nominee and deposited with the Trustee,
as custodian for DTC, in New York, New York, for credit by DTC to the respective
accounts of beneficial owners of the Notes represented thereby (or such other
accounts as they may direct). Such Global Notes, together with their Successor
Notes which are Global Notes other than the Restricted Global Note are
collectively herein called the "Regulation S Global Note".
Upon their original issuance, Regulation S Notes (herein
called the "Regulation S Temporary Global Note") shall be issued in the form of
a single temporary Global Note without coupons registered in the name of DTC, as
Depositary, or its nominee and deposited with the Trustee at its Corporate Trust
Office, as custodian for DTC, for credit to Xxxxxx Guaranty Trust Company of New
York, Brussels Office, as operator of the Euroclear, and Cedel to the respective
accounts of beneficial owners of the Notes represented thereby (or such other
accounts as they may direct) in accordance with the rules thereof.
Beneficial interests in the Regulation S Temporary Global Note
may only be held through Euroclear and Cedel until such interests are exchanged
for corresponding interests in an unrestricted Global Note as provided in the
next sentence. A holder of a beneficial interest in the Regulation S Temporary
Global Note must provide written certification to Euroclear or CEDEL, as the
case may be, that the beneficial owner of the interest in such Global
-35-
Note is not a U.S. Person (an "Owner Securities Certification"), and Euroclear
or CEDEL, as the case may be, must provide to the Trustee a similar certificate
in the form set form in Annex C (a "Depositary Securities Certification"), prior
to (i) the payment of interest with respect to such holder's beneficial interest
in the Regulation S Temporary Global Note and (ii) any exchange of such
beneficial interest for a beneficial interest in the Regulation S Global Note.
SECTION 202. Form of Face of Note.
[If the Note is a Restricted Note, then insert -- THE NOTES
EVIDENCED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHOM THE TRANSFEROR
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO INSTITUTIONAL ACCREDITED INVESTORS
IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ALL OTHER APPLICABLE SECURITIES LAWS.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER
THAT THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A)
ABOVE.
THIS NOTE WILL NOT BE ACCEPTED FOR REGISTRATION OF TRANSFER
UNLESS THE REGISTRAR OR TRANSFER AGENT IS SATISFIED THAT THE RESTRICTIONS ON
TRANSFER SET FORTH ABOVE HAVE BEEN COMPLIED WITH, ALL AS PROVIDED IN THE
INDENTURE.]
[If the Note is a Global Note, then insert -- THIS NOTE IS A
GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT
BE
-36-
EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS
NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN
SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.]
[If the Note is a Global Note and The Depository Trust Company
is to be the Depositary therefor, then insert -- UNLESS THIS NOTE 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 NOTE 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.]
[If the Note is a Regulation S Note, then insert -- THIS NOTE
HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 , AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OF BENEFIT OF, ANY U.S. PERSON, UNLESS THIS
NOTE IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
[If the Note is a Regulation S Temporary Global Note, then
insert -- THIS NOTE IS A REGULATION S TEMPORARY GLOBAL NOTE WITHIN THE MEANING
OF THE INDENTURE REFERRED TO HEREINAFTER. INTERESTS IN THIS REGULATION S
TEMPORARY GLOBAL NOTE MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON PRIOR TO THE
EXPIRATION OF THE RESTRICTED PERIOD (AS DEFINED IN THE INDENTURE) EXCEPT IN
CERTAIN LIMITED CIRCUMSTANCES IN ACCORDANCE WITH THE TERMS OF THE INDENTURE.]
XXXXXXXX-VAN HEUSEN CORPORATION
9 1/2% SENIOR SUBORDINATED NOTES DUE 2008
[If Restricted Global Note - CUSIP No. ____________]
[If Regulation S Temporary Global Note - CUSIP No.
[_____________]]
[If Regulation S Global Note - ISIN No. [____________]]
No. __________ $___________
-00-
Xxxxxxxx-Xxx Xxxxxx Xxxxxxxxxxx, a corporation duly organized
and existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ________________, or registered
assigns, the principal sum of ______________ Dollars (such amount the "principal
amount" of this Note) [if the Note is a Global Note, then insert -- , or such
other principal amount (which, when taken together with the principal amounts of
all other Outstanding Notes, shall not exceed $150,000,000 in the aggregate at
any time) as may be set forth in the records of the Trustee hereinafter referred
to in accordance with the Indenture,] on May 1, 2008 and to pay interest thereon
from April 22, 1998, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on May 1 and November
1 in each year, commencing November 1, 1998, at the rate of 9 1/2% per annum,
until the principal hereof is paid or made available for payment; provided that,
if any Registration Default occurs under the Exchange and Registration Rights
Agreement, then the per annum interest rate on the applicable principal amount
will increase for the period from and including the date of the occurrence of
the Registration Default to but excluding such date as no Registration Default
is in effect (at which time the interest rate will be reduced to its initial
rate) at a per annum rate of 0.5% for the first 90-day period following the
occurrence of such Registration Default, and by an additional 0.5% thereafter
(up to a maximum of 1.0%) (such additional interest being hereafter referred to
as "Special Interest"), and provided, further,] that any amount of interest on
this Note which is overdue shall bear interest (to the extent that payment
thereof shall be legally enforceable) at the rate per annum then borne by this
Note from the date such amount is due to the day it is paid or made available
for payment, and such overdue interest shall be payable on demand.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the April 15 or October 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date [if the Note
is an Original Note, then insert --, provided that any
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accrued and unpaid interest (including Special Interest) on this Note upon the
issuance of an Exchange Note in exchange for this Note shall cease to be payable
to the Holder hereof and shall be payable on the next Interest Payment Date for
such Exchange Note to the Holder thereof on the related Regular Record Date].
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on the relevant Regular Record Date and may
either be paid to the Person in whose name this Note (or one or more Predecessor
Notes) is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Notes not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Interest on this Note shall be computed on the
basis set forth in the Indenture.
Payment of the principal of (and premium, if any) and any such
interest on this Note will be made at the office or agency of the Company in the
Borough of Manhattan, The City of New York, New York, maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register; provided further that all payments of the
principal (and premium, if any) and interest on Notes, the Holders of which have
given wire transfer instructions to the Company or its agent at least 10
Business Days prior to the applicable payment date will be required to be made
by wire transfer of immediately available funds to the accounts specified by
such Holders in such instructions. Notwithstanding the foregoing, the final
payment of principal shall be payable only upon surrender of this Note to the
Trustee.
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.
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Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
XXXXXXXX-VAN HEUSEN CORPORATION
[SEAL]
By___________________________________
Attest:
________________________________
SECTION 203. Form of Reverse of Note.
This Note is one of a duly authorized issue of Notes of the
Company designated as its 9 1/2% Senior Subordinated Notes due May 1, 2008
(herein called the "Notes"), limited in aggregate principal amount to
$150,000,000, issued and to be issued under an Indenture, dated as of April 22,
1998 (herein called the "Indenture", which term shall have the meaning assigned
to it in such instrument), between the Company and Union Bank of California,
N.A., as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes and of the terms upon which the Notes are,
and are to be, authenticated and delivered.
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The Notes will be subject to redemption, at the option of the
Company, in whole or in part, at any time on or after May 1, 2003 and prior to
maturity, upon not less than 30 nor more than 60 days' notice mailed to each
Holder of Notes to be redeemed at such Holder's address appearing in the
Security Register, in amounts of $1,000 or an integral multiple of $1,000, at
the following Redemption Prices (expressed as percentages of the principal
amount) plus accrued interest to but excluding the Redemption Date (subject to
the right of Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date that is on or prior to the Redemption
Date), if redeemed during the 12-month period beginning May 1 of the years
indicated:
Redemption
Year Price
---- ----------
2003................................................ 104.750%
2004................................................ 103.167%
2005................................................ 101.583%
2006 and thereafter................................. 100.000%
In addition, if on or before May 1, 2001 the Company receives
net proceeds from the sale of its Common Stock in one or more Public Equity
Offerings, the Company may, at its option use an amount equal to all or a
portion of any such net proceeds to redeem Notes in an aggregate principal
amount of up to 33 1/3% of the original aggregate principal amount of the Notes,
provided, however, that Notes having a principal amount equal to at least
66 2/3% of the original aggregate principal amount of the Notes remain
outstanding after such redemption. Such redemption must occur on a Redemption
Date within 90 days of such sale and upon not less than 30 nor more than 60
days' notice mailed to each Holder of Notes to be redeemed at such Holder's
address appearing in the Security Register, in amounts of $1,000 or an integral
multiple of $1,000, at a redemption price of 109.50% of the principal amount of
the Notes plus accrued interest to but excluding the Redemption Date (subject to
the right of Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date that is on or prior to the Redemption
Date).
If less than all the Notes are to be redeemed, the Trustee
shall select, in such manner as it shall deem fair
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and appropriate, the particular Notes to be redeemed or any portion thereof that
is an integral multiple of $1,000.
The Notes do not have the benefit of any sinking fund
obligations.
The Indenture provides that, subject to certain conditions, if
(i) certain Net Available Proceeds are available to the Company as a result of
Asset Dispositions or (ii) a Change of Control occurs, the Company shall be
required to make an Offer to Purchase for all or a specified portion of the
Notes.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Note in part only, a new Note or Notes of like tenor for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal of all the Notes may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of (i) the entire indebtedness of this Note having been paid or discharged or
(ii) certain restrictive covenants and Events of Default with respect to this
Note having occurred, in each case upon compliance with certain conditions set
forth therein.
The Notes shall be subordinated in right of payment to Senior
Debt of the Company as provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Notes at the time Outstanding, on
behalf of the Holders of all the Notes, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their
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consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
As provided in and subject to the provisions of the Indenture,
the Holder of this Note shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
to the Trustee written notice of a continuing Event of Default with respect to
the Notes, the Holders of not less than 25% in aggregate principal amount of the
Notes at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity and the Trustee shall not have received from
the Holders of a majority in aggregate principal amount of Notes at the time
Outstanding a direction inconsistent with such request and shall have failed to
institute any such proceeding for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to certain suits described
in the Indenture, including any suit instituted by the Holder of this Note for
the enforcement of any payment of principal hereof or any premium (if any) or
interest hereon on or after the respective due dates expressed herein (or, in
the case of redemption, on or after the Redemption Date or, in the case of any
purchase of this Note required to be made pursuant to an Offer to Purchase, on
the Purchase Date).
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note for registration of transfer at
the office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company
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and the Note Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 principal amount and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes are exchangeable for a like aggregate principal amount of Notes of
a different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes (subject to the provisions hereof with respect to determination
of the Person to whom interest is payable), whether or not this Note be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
Interest on this Note shall be computed on the basis of a
360-day year of twelve 30-month days.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Note shall be governed by and construed
in accordance with the laws of the State of New York; provided, however, that
the standard of performance by the Trustee of its duties hereunder shall be
governed by the laws of the State of California.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased in its
entirety by the Company pursuant to Section 1014 or 1016 of the Indenture, check
the box:
|_|
If you want to elect to have only a part of this Note
purchased by the Company pursuant to Section 1014 or 1016 of the Indenture,
state the principal amount of this Note you want to elect to have so purchased
by the Company: $____________
Dated:______________ Your Signature:____________________
(Sign exactly as
name appears on the
other side of this
Note)
Signature Guarantee:_________________________________________________
Notice: Signature(s) must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Trustee, which requirements
will include membership or participation in STAMP
or such other "signature guarantee program" as
may be determined by the Trustee in addition to,
or in substitution for STAMP, all in accordance
with the Securities Exchange Act of 1934, as
amended.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Notes referred to in the within-mentioned
Indenture.
------------------------
as Trustee
By
---------------------
Authorized Officer
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ARTICLE THREE
The Notes
SECTION 301. Title and Terms.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $150,000,000
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, 906 or 1108 or in connection with an Offer to Purchase pursuant to Sections
1014 and 1016.
The Notes shall be known and designated as the "9 1/2% Senior
Subordinated Notes due May 1, 2008" of the Company. Their Stated Maturity shall
be May 1, 2008 and they shall bear interest at the rate of 9 1/2% per annum,
from April 22, 1998 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable
semi-annually on May 1 and November 1, commencing November 1, 1998, until the
principal thereof is paid or made available for payment provided, if any
Registration Default occurs under the Exchange and Registration Rights
Agreement, then the per annum interest rate on the applicable principal amount
will increase for the period from and including the date of occurrence of the
Registration Default to but excluding such date as no Registration Default is in
effect (at which time the interest rate will be reduced to its initial rate) by
a per annum rate of 0.5% for the first 90-day period following the occurrence of
such Registration Default, and by an additional 0.5% thereafter (up to a maximum
of 1.0%).
The principal of (and premium, if any) and interest on the
Notes shall be payable at the office or agency of the Company in the Borough of
Manhattan, The City of New York maintained for such purpose and at any other
office or agency maintained by the Company for such purpose; provided, however,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The Notes shall be subject to repurchase by the Company
pursuant to an Offer to Purchase as provided in Sections 1014 and 1016.
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The Notes shall be redeemable as provided in Article Eleven.
The Notes shall be subordinated in right of payment to Senior
Debt of the Company as provided in Article Twelve.
The Notes shall be subject to defeasance at the option of the
Company as provided in Article Thirteen.
Unless the context otherwise requires, the Original Notes and
the Exchange Notes shall constitute one series for all purposes under the
Indenture, including with respect to any amendment, waiver, acceleration or
other Act of Holders, redemption or Offer to Purchase.
SECTION 302. Denominations.
The Notes shall be issuable only in registered form without
coupons and only in denominations of $1000 and integral multiples 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 President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Notes may
be manual or facsimile.
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.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Notes; and the Trustee
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in accordance with such Company Order shall authenticate and deliver such Notes
as in this Indenture provided and not otherwise.
At any time and from time to time after the execution and
delivery of this Indenture and after the effectiveness of a registration
statement under the Securities Act with respect thereto, the Company may deliver
Exchange Notes executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Exchange Notes and a like principal amount of Original Notes for cancellation in
accordance with this Article Three of this Indenture, and the Trustee in
accordance with the Company Order shall authenticate and deliver such Notes.
Prior to authenticating such Exchange Notes, and accepting any additional
responsibilities under this Indenture in relation to such Notes, the Trustee
shall be entitled to receive, if requested, and (subject to Section 601) shall
be fully protected in relying upon, an Opinion of Counsel stating in substance:
(a) that all conditions hereunder precedent to the
authentication and delivery of such Exchange Notes have been complied
with and that such Exchange Notes, when such Notes have been duly
authenticated and delivered by the Trustee (and subject to any other
conditions specified in such Opinion of Counsel), have been duly issued
and delivered and will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
(b) that the issuance of the Exchange Notes in exchange for
Original Notes has been effected in compliance with the Securities Act.
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
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executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
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 Notes 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 evidenced by
their execution thereof.
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 any office or agency
of the Company designated pursuant to Section 1002, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes the
Company shall execute and the Trustee shall authenticate and deliver 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. Global Notes.
(a) Each Global Note authenticated under this Indenture shall
be registered in the name of the Depositary designated by the Company for such
Global Note or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Note shall constitute a
single Note for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Note may be exchanged in whole or in part for Notes registered, and no
transfer of a Global Note in whole or in part may be registered, in the name of
any Person other than the Depositary for such Global Note or a
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nominee thereof unless (i) such Depositary (A) has notified the Company that it
is unwilling or unable to continue as Depositary for such Global Note or (B) has
ceased to be a clearing agency registered as such under the Exchange Act, and in
either case the Company fails to appoint a successor Depositary within 90 days,
(ii) the Company executes and delivers to the Trustee a Company Order stating
that it elects to cause the issuance of the Notes in certificated form and that
all Global Notes shall be exchanged in whole for Securities that are not Global
Notes (in which case such exchange shall be effected by the Trustee) or (iii)
there shall have occurred and be continuing an Event of Default or any Event
which after notice or lapse of time or both would be an Event of Default with
respect to the Notes.
(c) If any Global Note is to be exchanged for other Notes or
canceled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Trustee, as Security Registrar, for exchange or cancellation
as provided in this Article Three. If any Global Note is to be exchanged for
other Notes or canceled in part, or if another Note is to be exchanged in whole
or in part for a beneficial interest in any Global Note, then either (i) such
Global Note shall be so surrendered for exchange or cancellation as provided in
this Article Three or (ii) the principal amount thereof shall be reduced or
increased by an amount equal to the portion thereof to be so exchanged or
canceled, or equal to the principal amount of such other Note to be so exchanged
for a beneficial interest therein, as the case may be, by means of an
appropriate adjustment made on the records of the Trustee, as Security
Registrar, whereupon the Trustee, in accordance with the Applicable Procedures,
shall instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or adjustment
of a Global Note, the Trustee shall, subject to Section 306(c) and as otherwise
provided in this Article Three, authenticate and deliver any Notes issuable in
exchange for such Global Note (or any portion thereof) to or upon the order of,
and registered in such names as may be directed by, the Depositary or its
authorized representative. Upon the request of the Trustee in connection with
the occurrence of any of the events specified in the preceding paragraph, the
Company shall promptly make available to the Trustee a reasonable supply of
Notes that are not in the form of Global Notes. The Trustee shall be entitled to
rely upon any order, direction or request of the Depositary or its
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authorized representative which is given or made pursuant to this Article Three
if such order, direction or request is given or made in accordance with the
Applicable Procedures.
(d) Every Note authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Note or any portion
thereof, whether pursuant to this Article Three or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Note, unless
such Note is registered in the name of a Person other than the Depositary for
such Global Note or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a
Global Note, shall be the Holder of such Global Note for all purposes under the
Indenture and the Notes, and owners of beneficial interests in a Global Note
shall hold such interests pursuant to the Applicable Procedures. Accordingly,
any such owner's beneficial interest in a Global Note will be shown only on, and
the transfer of such interest shall be effected only through, records maintained
by the Depositary or its nominee or its Agent Members.
SECTION 306. Registration, Registration of Transfer and Exchange Generally;
Restrictions on Transfer and Exchange; Securities Act Legends.
(a) Registration, Registration of Transfer and Exchange
Generally. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Notes and of transfers and exchanges of Notes. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Notes and transfers and exchanges of Notes as herein provided. Such Security
Register shall distinguish between Original Notes and Exchange Notes.
Upon surrender for registration of transfer of any Note at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, and provided that the other requirements of this Section 306 have been
satisfied, the Company shall execute, and the Trustee shall
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authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denominations, of a like
aggregate principal amount and bearing such restrictive legends as may be
required by this Indenture.
At the option of the Holder, and subject to the other
provisions of this Section 306, Notes may be exchanged for other Notes of any
authorized denominations, of a like aggregate principal amount and bearing such
restrictive legends as may be required by this Indenture upon surrender of the
Notes to be exchanged at any such office or agency. Whenever any Notes are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Holder making the exchange is
entitled to receive.
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 (except for the differences between Original Notes and Exchange Notes
provided for herein) 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 Security
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 Sections 303, 304, 305, 306, 906, 1016, 1017 or 1109 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of, or exchange any Note during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Notes selected for redemption under Section 1105 and ending at the close of
business on the day of such mailing, or (ii) to
-52-
register the transfer of or exchange any Note so selected for redemption, in
whole or in part, except the unredeemed portion of any Note being redeemed in
part.
(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture or the Notes, transfers and exchanges of Notes and
beneficial interests in a Global Note of the kinds specified in this Section
306(b) shall be made only in accordance with this Section 306(b).
(i) Restricted Global Note to Regulation S Temporary Global
Note or Regulation S Global Note. If the owner of a beneficial interest
in the Restricted Global Note wishes at any time to transfer such
interest to a Person who wishes to acquire the same in the form of a
beneficial interest in the Regulation S Temporary Global Note (if
before the expiration of the Restricted Period) or in the Regulation S
Global Note (if thereafter), such transfer may be effected only in
accordance with the provisions of this Clause (b)(i) subject to the
Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of (A) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the Regulation S
Temporary Global Note or Regulation S Temporary Global Note or
Regulation S Global Note (as applicable) in a specified principal
amount be credited to a specified Agent Member's account and that a
beneficial interest in the Restricted Global Note in an equal principal
amount be debited from another specified Agent Member's account and (B)
a Regulation S Certificate, satisfactory to the Trustee and duly
executed by the owner of such beneficial interest in the Restricted
Global Note or his attorney duly authorized in writing, then the
Trustee, as Security Registrar but subject to Clause (b)(iv) below,
shall reduce the principal amount of the Restricted Global Note and
increase the principal amount of the Regulation S Temporary Global Note
or Regulation S Global Note (as applicable) by such specified principal
amount as provided in Section 305(c).
(ii) Regulation S Temporary Global Note to Restricted Global
Note. If the owner of a beneficial interest in the Regulation S
Temporary Global Note wishes at any time to transfer such interest to a
Person who wishes to acquire the same in the form of a
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beneficial interest in the Restricted Global Note, such transfer may be
effected only in accordance with this Clause (b)(ii) and subject to the
Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of (A) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the Restricted
Global Note in a specified principal amount be credited to a specified
Agent Member's account and that a beneficial interest in the Regulation
S Temporary Global Note in an equal principal amount be debited from
another specified Agent Member's account and (B) a Restricted Notes
Certificate, satisfactory to the Trustee and duly executed by the owner
of such beneficial interest in the Regulation S Temporary Global Note
or his attorney duly authorized in writing, then the Trustee, as
Security Registrar, shall reduce the principal amount of the Regulation
S Temporary Global Note and increase the principal amount of the
Restricted Global Note by such specified principal amount as provided
in Section 305(c).
(iii) Exchanges between Global Note and Non-Global Note. A
beneficial interest in a Global Note may be exchanged for a Note that
is not a Global Note as provided in Section 305, provided that, if such
interest is a beneficial interest in the Restricted Global Note, or if
such interest is a beneficial interest in the Regulation S Temporary
Global Note, then such interest shall be exchanged for a Restricted
Note (subject in each case to Section 306(c)).
(iv) Regulation S Temporary Global Note to be Held Through
Euroclear or Cedel during Restricted Period. The Company shall use its
best efforts to cause the Depositary to ensure that beneficial
interests in the Regulation S Temporary 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; provided that this Clause (b)(iv) shall not prohibit any
transfer or exchange of such an interest in accordance with Clause
(b)(ii) above.
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(c) Securities Act Legends. Rule 144A Notes and their
respective Successor Notes shall bear a Restricted Notes Legend, and Regulation
S Notes and their Successor Notes shall bear a Regulation S Legend, subject to
the following:
(i) subject to the following Clauses of this Section 306(c), a
Note or any portion thereof which is exchanged, upon transfer or
otherwise, for a Global Note or any portion thereof shall bear the
Securities Act Legend borne by such Global Note while represented
thereby;
(ii) subject to the following Clauses of this Section 306(c),
a new Note which is not a Global Note and is issued in exchange for
another Note (including a Global Note) or any portion thereof, upon
transfer or otherwise, shall bear the Securities Act Legend borne by
such other Note, provided that, if such new Note is required pursuant
to Section 306(b)(iii) to be issued in the form of a Restricted Note,
it shall bear a Restricted Notes Legend and, if such new Note is so
required to be issued in the form of a Regulation S Note, it shall bear
a Regulation S Legend;
(iii) Exchange Notes shall not bear a Securities Act Legend;
(iv) at any time after the Notes may be freely transferred
without registration under the Securities Act or without being subject
to transfer restrictions pursuant to the Securities Act, a new Note
which does not bear a Securities Act Legend may be issued in exchange
for or in lieu of a Note (other than a Global Note) or any portion
thereof which bears such a legend if the Trustee has received an
Unrestricted Notes Certificate, satisfactory to the Trustee and duly
executed by the Holder of such legended Note or his attorney duly
authorized in writing, and after such date and receipt of such
certificate, the Trustee shall authenticate and deliver such a new Note
in exchange for or in lieu of such other Note as provided in this
Article Three;
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(v) a new Note which does not bear a Securities Act Legend may
be issued in exchange for or in lieu of a Note (other than a Global
Note) or any portion thereof which bears such a legend if, in the
Company's judgment, placing such a legend upon such new Note is not
necessary to ensure compliance with the registration requirements of
the Securities Act, and the Trustee, at the direction of the Company,
shall authenticate and deliver such a new Note as provided in this
Article Three; and
(vi) notwithstanding the foregoing provisions of this Section
306(c), a Successor Note of a Note that does not bear a particular form
of Securities Act Legend shall not bear such form of legend unless the
Company has reasonable cause to believe that such Successor Note is a
"restricted security" within the meaning of Rule 144, in which case the
Trustee, at the direction of the Company, shall authenticate and
deliver a new Note bearing a Restricted Notes Legend in exchange for
such Successor Note as provided in this Article Three.
SECTION 307. Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and 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 either of 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 its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a
new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
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In case any such mutilated, 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 308. 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 that Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") 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 may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
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(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 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 mailed, first-class postage
prepaid, to each Holder at his address as it appears in the Security
Register, 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 mailed, such Defaulted
Interest shall be paid to the Persons in whose names the 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 in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by
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such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each 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 309. Persons Deemed Owners.
Prior to due presentment of a Note for registration of
transfer, the Company, the Trustee and any agent of the Company 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)
and (subject to Section 308) interest on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and none of the Company, the
Trustee or any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Note in global form, or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Note in global form, nothing herein shall prevent
the Company or the Trustee, or any agent of the Company or the Trustee, from
giving effect to any written certification, proxy or other authorization
furnished by any Depositary (or its nominee), as a Holder, with respect to such
Note in global form or impair, as between such Depositary and owners of
beneficial interests in such Note in global form, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as Holder of such Note in global form.
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SECTION 310. Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange or any Offer to Purchase pursuant to Section 1014 or 1016
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly canceled 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 all Notes so delivered shall be promptly canceled by the
Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Notes held by the Trustee shall be disposed of as
directed by a Company Order.
SECTION 311. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360
day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to (i) rights of registration of transfer and exchange and the Company's right
of optional redemption, (ii) substitution of apparently mutilated, defaced,
destroyed, lost or stolen Notes, (iii) rights of Holders to receive payment of
principal and interest on the Notes, (iv) rights, obligations and immunities of
the Trustee under the Indenture, (v) rights of the Holders of the Notes as
beneficiaries of the Indenture with respect to any property deposited with the
Trustee payable to all or any of them and (vi) obligations of the Company under
Section 610(e)), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
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(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 307 and (ii) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Notes 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, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
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 or Redemption Date, as the
case may be;
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(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; 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 pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607 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 uninvested 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 separated 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 occasioned by the provisions of Article Twelve or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order,
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rule or regulation of any administrative or governmental body):
(1) failure to pay the principal of (or premium, if any,
on) any Note at its Maturity; or
(2) failure to pay any interest upon any Note when it
becomes due and payable, and continuance of such
default for a period of 30 days; or
(3) default in the payment of principal and interest on
Notes required to be purchased by the Company
pursuant to an Offer to Purchase as described in
Section 1014 herein and Section 1016 herein when due
and payable; or
(4) failure to perform or comply with the provisions of
Section 801; or
(5) failure to perform any other covenant or agreement of
the Company in this Indenture or Notes (other than a
covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such
default or breach for a period of 60 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 principal
amount of the 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
(6) default under the terms of any instrument evidencing
or securing Debt for money borrowed by the Company or
any Restricted Subsidiary having an outstanding
principal amount of $5.0 million individually or in
the aggregate which default results in the
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acceleration of the payment of such indebtedness or
constitutes the failure to pay such indebtedness when
due; or
(7) a final judgment or judgments (not subject to appeal)
for the payment of money are entered against the
Company or any Restricted Subsidiary of the Company
in an amount in excess of $5.0 million by a court or
courts of competent jurisdiction, which judgments
remain undischarged or unstayed for a period of 60
days after the date on which the right to appeal all
such judgments has expired; or
(8) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in
respect of the Company or any Restricted Subsidiary
of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company or any
such Restricted 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
such Restricted Subsidiary under any applicable
Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or any such
Restricted Subsidiary of any substantial part of the
property of the Company or any such Restricted
Subsidiary, or ordering the winding up or liquidation
of the affairs of the Company or any such Subsidiary,
and the continuance of any such decree or order for
relief or any such other decree or order unstayed and
in effect for a period of 60 consecutive days; or
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(9) the commencement by the Company or any Restricted
Subsidiary of the Company of a voluntary case or
proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent
by the Company or any such Restricted Subsidiary to
the entry of a decree or order for relief in respect
of the Company or any Restricted Subsidiary of the
Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to
the commencement of any bankruptcy or insolvency case
or proceeding against the Company or any Restricted
Subsidiary of the Company, or the filing by the
Company or any such Restricted Subsidiary of a
petition or answer or consent seeking reorganization
or relief under any applicable Federal or State law,
or the consent by the Company or any such Restricted
Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or any Restricted
Subsidiary of the Company of any substantial part of
the property of the Company or any Restricted
Subsidiary of the Company, or the making by the
Company or any Restricted Subsidiary of the Company
of an assignment for the benefit of creditors, or the
admission by the Company or any such Restricted
Subsidiary in writing of its inability to pay its
debts generally as they become due, or the taking of
corporate action by the Company or any such
Restricted Subsidiary in furtherance of any such
action.
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(8) or (9)) occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Notes may declare all of the Notes to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal and any
accrued interest, if any, shall become immediately due and payable. If an Event
of Default specified in Section 501(8) or (9) occurs, the principal and any
accrued interest on the Notes then Outstanding shall ipso facto become
immediately due and payable without any declaration or other Act on the part of
the Trustee or any Holder.
At any time after such 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 Notes,
(B) the principal of (and premium, if any, on) any Notes
which have become due otherwise than by such declaration of
acceleration (including any Notes required to have been
purchased on the Purchase Date pursuant to an Offer to
Purchase made by the Company) and, to the extent that payment
of such interest is lawful, interest thereon at the rate
provided by the Notes,
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(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided by
the 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 the
principal of 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.
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 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 or, with respect
to any Note required to have been purchased pursuant to an Offer to
Purchase made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, 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, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest, at the rate provided by the
Notes,
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if any, 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 and 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 other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the 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 any judicial proceeding relative to the Company or
any other obligor upon the Notes, or upon the property of the Company or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized 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
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counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture 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 or the
Notes 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 607; and
SECOND: To the extent provided in Article Twelve, to
the holders of Senior Debt in accordance with Article Twelve;
and
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THIRD: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) 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.
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 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 aggregate principal amount of the Outstanding Notes;
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it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 306) interest on such Note on the respective Stated Maturities expressed
in such Note (or, in the case of redemption, on the Redemption Date or in the
case of an Offer to Purchase made by the Company and required to be accepted as
to such Note, on the Purchase Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 307, no right
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or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
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 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, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
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, except a default
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(1) in the payment of the principal of (or premium, if any) or
interest on any Note (including any Note which is required to have been
purchased pursuant to an Offer to Purchase which has been made by the
Company), or
(2) in respect of a covenant or provision hereof which under
Article Ten cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; provided, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company.
SECTION 515. Waiver of Stay or Extension Laws.
The Company 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 the Company (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.
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ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
Except during the continuance of an Event of Default, the
duties and responsibilities of the Trustee shall be as provided by the
Indenture. During the existence of an Event of Default, the Trustee will
exercise such rights and powers vested in it under the Indenture and use the
same degree of care and skill in its exercise as a prudent person would exercise
under the circumstances in the conduct of such person's own affairs.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4), no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon
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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;
(b) 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;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into 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
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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;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be deemed to have notice of a
"default" as defined in Section 602, or an Event of Default as defined
in Section 501 hereof, unless and until it has actual knowledge thereof
at its Corporate Trust Office.
SECTION 604. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes. The Trustee shall not be accountable for the use or
application by the Company of Notes or the proceeds thereof.
SECTION 605. May Hold Notes.
The Trustee, any Paying Agent, any Note Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Notes and, subject to Sections 608 and 613, may otherwise
deal with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Note Registrar or such other agent.
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SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation
as shall be agreed to in writing by 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 the Trustee for, and to hold it harmless
against, any loss, liability or expense (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 this trust, 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.
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SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such conflict or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and its Corporate
Trust Office in the Borough of Manhattan, The City of New York. If such Person
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 Person 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 610. 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 under
Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in aggregate principal amount
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of the Outstanding Notes, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 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 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, 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, or (ii) subject to Section 514, 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 and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in 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 and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Note for at least six
months may, on
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behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. 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
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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.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Notes), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Note Registrar.
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SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Note
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Notes and the
corresponding rights and duties of the Trustee, shall be provided by the Trust
Indenture Act.
(c) Every Holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Notes are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Notes are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, docu-
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ments and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant to
such Act; provided that any such information, documents or reports required to
be filed with Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 30 days after the same is so required to
be filed with the Commission.
SECTION 705. Officers' Certificate with Respect to Change in Interest Rates.
Within five days after the day on which any Special Interest
begins accruing, and within five days after any Special Interest ceases to
accrue, the Company shall deliver an Officers' Certificate to the Trustee
stating the interest rate thereupon in effect for the applicable Notes (if any
are Outstanding) and the date on which such rate became effective.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Mergers, Consolidations and Certain Transfers, Leases and
Acquisition of Assets.
The Company shall not, in a single transaction or a series of
related transactions, (i) consolidate with or merge into any other Person or
permit any other Person to consolidate with or merge into the Company or (ii)
directly or indirectly, transfer, sell, lease or otherwise dispose of all or
substantially all of its assets unless: (1) in a transaction in which the
Company does not survive or in which the Company sells, leases or otherwise
disposes of all or substantially all of its assets, the successor entity to the
Company is organized under the laws of the United States of America or any State
thereof or the District of Columbia and shall expressly assume, by a
supplemental indenture executed and delivered to the Trustee in form
satisfactory to the Trustee, all of the Company's obligations under the
Indenture; (2) immediately before and after giving effect to
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such transaction and treating any Debt which becomes an obligation of the
Company or a Restricted Subsidiary as a result of such transaction as having
been Incurred by the Company or such Restricted Subsidiary at the time of the
transaction, no Event of Default or event that with the passing of time or the
giving of notice, or both, would constitute an Event of Default shall have
occurred and be continuing; (3) immediately after giving effect to such
transaction, the Consolidated Net Worth of the Company (or other successor
entity to the Company) is equal to or greater than that of the Company
immediately prior to the transaction; (4) immediately after giving effect to
such transaction and treating any Debt which becomes an obligation of the
Company or a Restricted Subsidiary as a result of such transaction as having
been Incurred by the Company or such Restricted Subsidiary at the time of the
transaction, the Company (including any successor entity to the Company) could
Incur at least $1.00 of additional Debt pursuant to the provisions of the
Indenture described in the first paragraph under Section 1008 hereof; and (5)
the Company has delivered to the Trustee an Officer's Certificate and an Opinion
of Counsel (which Opinion of Counsel may rely, as to factual matters, on such
Officer's Certificate), each stating that such consolidation, merger,
conveyance, transfer, lease or acquisition and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
complies with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with, and, with respect to such
Officer's Certificate, setting forth the manner of determination of the
Consolidated Net Worth and the ability to Incur Debt in accordance with Clause
(4) of Section 801, of the Company or, if applicable, of the Successor Company
as required pursuant to the foregoing.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company as an entirety in accordance with Section 801, the Successor Company
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
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Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Notes.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution of the Company, 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 and the assumption by any such successor of the covenants of
the Company herein and in the Notes; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to secure the Notes pursuant to the requirements of
Section 1011 or otherwise; or
(4) to comply with any requirements of the Commission in order
to effect and maintain the qualification of this Indenture under the
Trust Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provi sions of this Indenture, provided such action pursuant
to this Clause (5) shall not adversely
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affect the interests of the Holders in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Notes, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board Resolution
of the Company, 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 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
instalment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable thereon,
or change the place of payment where, or 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 on
or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date or, in the case of an Offer to Purchase
which has been made, on or after the applicable Purchase Date), or
(2) 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
(3) modify any of the provisions of this Section, Section 513
or Section 1020, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot
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be modified or waived without the consent of the Holder of each
Outstanding Note affected thereby, or
(4) modify any of the provisions of this Indenture relating to
the subordination of the Notes in a manner adverse to the Holders, or
(5) following the mailing of an Offer with respect to an Offer
to Purchase pursuant to Sections 1014 and 1016, modify the provisions
of this Indenture with respect to such Offer to Purchase in a manner
materially adverse to such Holder.
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.
Upon the request of the Company, accotmpanied by a Board
Resolution authorizing the execution of any supplemental indenture, the Trustee
shall join the Company in the execution of any supplemental indenture authorized
or permitted by this Indenture and shall make any further appropriate agreements
and stipulations as may be contained therein. 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 (subject to Section 601) 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
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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.
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.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) 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 Borough of Manhattan, The
City of New York, an office or agency where Notes may be presented or
surrendered for 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 will give
prompt written notice to the
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Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside the Borough of Manhattan, The City of
New York) where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 1003. Money for Note Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of or 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, it
will, prior to each due date of the principal of (and premium, if any) 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.
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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) or interest on 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 (and premium, if any) or interest; 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 such 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 money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Note and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying
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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 City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors in good faith shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary of the Company to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined by the Board of Directors in good faith,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
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SECTION 1006. 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, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Company or
any of its Subsidiaries; 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 1007. Maintenance of Insurance.
The Company shall, and shall cause its Subsidiaries to, keep
at all times all of their properties which are of an insurable nature insured
against loss or damage with insurers believed by the Company to be responsible
to the extent that property of similar character is usually so insured by
corporations similarly situated and owning like properties in accordance with
good business practice. The Company shall, and shall cause its Subsidiaries to,
use an amount equal to not less than the proceeds from any such insurance policy
to repair, replace or otherwise restore the property to which such proceeds
relate.
SECTION 1008. Limitation on Consolidated Debt.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, Incur any Debt unless immediately after giving pro
forma effect to the Incurrence of such Debt and the receipt and application of
the proceeds thereof, the Consolidated Cash Flow Coverage Ratio of the Company
would be greater than 2.0 to 1 for any Incurrence of Debt prior to May 1, 2001,
and 2.5 to 1 for any Incurrence of Debt thereafter.
Notwithstanding the foregoing paragraph, the Company may, and
may permit any Restricted Subsidiary, to Incur the following Debt:
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(i) Debt under the New Credit Facility in an aggregate principal
amount at any one time not to exceed $325.0 million, less any amounts
by which any revolving credit facility commitments under the New Credit
Facility are permanently reduced pursuant to Section 1014 (so long as
and to the extent that any required payments in connection therewith
are actually made);
(ii) the original issuance by the Company of the Debt evidenced by
the Notes (including any Exchange Notes);
(iii) Debt (other than Debt described in another clause of this
paragraph) outstanding on the date of original issuance of the Notes
after giving effect to the application of the proceeds of the Notes, as
described in Schedule I hereto;
(iv) Debt owed by the Company to any Wholly Owned Restricted
Subsidiary of the Company or Debt owed by a Restricted Subsidiary of
the Company to the Company or a Wholly Owned Restricted Subsidiary of
the Company; provided, however, that upon either (A) the transfer or
other disposition by such Wholly Owned Restricted Subsidiary or the
Company of any Debt so permitted to a Person other than the Company or
another Wholly Owned Restricted Subsidiary of the Company or (B) the
issuance (other than directors' qualifying shares), sale, lease,
transfer or other disposition of shares of Capital Stock (including by
consolidation or merger) of such Wholly Owned Restricted Subsidiary to
a Person other than the Company or another such Wholly Owned Restricted
Subsidiary, the provisions of this Clause (iv) shall no longer be
applicable to such Debt and such Debt shall be deemed to have been
Incurred at the time of such transfer or other disposition;
(v) Debt consisting of Permitted Interest Rate, Currency or
Commodity Price Agreements;
(vi) Debt which is exchanged for or the proceeds of which are
used to refinance or refund, or any extension or renewal of,
outstanding Debt Incurred pursuant to the preceding paragraph or
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clauses (ii) or (iii) of this paragraph (each of the foregoing, a
"refinancing") in an aggregate principal amount not to exceed the
principal amount of the Debt so refinanced plus the amount of any
premium required to be paid in connection with such refinancing
pursuant to the terms of the Debt so refinanced or the amount of any
premium reasonably determined by the Company as necessary to accomplish
such refinancing by means of a tender offer or privately negotiated
repurchase, plus the expenses of the Company or the Restricted
Subsidiary, as the case may be, incurred in connection with such
refinancing; provided, however, that (A) Debt the proceeds of which are
used to refinance the Notes or Debt which is pari passu with or
subordinate in right of payment to the Notes shall only be permitted if
(x) in the case of any refinancing of the Notes or Debt which is pari
passu to the Notes, the refinancing Debt is made pari passu to the
Notes or subordinated to the Notes, and (y) in the case of any
refinancing of Debt which is subordinated to the Notes, the refinancing
Debt constitutes Subordinated Debt; (B) the refinancing Debt by its
terms, or by the terms of any agreement or instrument pursuant to which
such Debt is issued, (1) does not provide for payments of principal of
such Debt at the stated maturity thereof or by way of a sinking fund
applicable thereto or by way of any mandatory redemption, defeasance,
retirement or repurchase thereof (including any redemption, defeasance,
retirement or repurchase which is contingent upon events or
circumstances, but excluding any retirement required by virtue of
acceleration of such Debt upon any event of default thereunder), in
each case prior to the stated maturity of the Debt being refinanced and
(2) does not permit redemption or other retirement (including pursuant
to an offer to purchase) of such debt at the option of the holder
thereof prior to the final stated maturity of the Debt being
refinanced), other than a redemption or other retirement at the option
of the holder of such Debt (including pursuant to an offer to purchase)
which is conditioned upon provisions substantially similar to those
described under Sections 1014 and 1016; and (C) in the case of any
refinancing of Debt
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Incurred by the Company, the refinancing Debt may be Incurred only by
the Company, and in the case of any refinancing of Debt Incurred by a
Restricted Subsidiary, the refinancing Debt may be Incurred only by
such Restricted Subsidiary; provided, further, that Debt Incurred
pursuant to this clause (vi) may not be Incurred more than 45 days
prior to the application of the proceeds to repay the Debt to be
refinanced; and
(vii) Debt not otherwise permitted to be Incurred pursuant to
Clauses (i) through (vi) above, which, together with any other
outstanding Debt Incurred pursuant to this Clause (vii), has an
aggregate principal amount not in excess of $50.0 million at any time
outstanding.
SECTION 1009. Limitation on Senior Subordinated Debt.
The Company shall not Incur any Debt which by its terms is
both (i) subordinated in right of payment to any Senior Debt and (ii) senior in
right of payment to the Notes.
SECTION 1010. Limitation on Issuance of Guarantees of Subordinated Debt.
The Company shall not permit any Restricted Subsidiary,
directly or indirectly, to assume, guarantee or in any other manner become
liable with respect to any Debt of the Company that by its terms is pari passu
or junior in right of payment to the Notes.
SECTION 1011. Limitation on Liens.
The Company shall not, and shall not permit any Subsidiary to,
create, incur, assume or suffer to exist any Lien on or with respect to any
property or assets of the Company or any such Restricted Subsidiary now owned or
hereafter acquired to secure Debt which is pari passu with or subordinated in
right of payment to the Notes without making, or causing such Restricted
Subsidiary to make, effective provision for securing the Notes (and, if the
Company shall so determine, any other Debt of the Company
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which is not subordinate to the Notes or of such Restricted Subsidiary) (x)
equally and ratably with such Debt as to such property or assets for so long as
such Debt shall be so secured or (y) in the event such Debt is Debt of the
Company which is subordinate in right of payment to the Notes, prior to such
Debt as to such property for so long as such Debt will be so secured. The
foregoing restrictions shall not apply to Liens in respect of Debt existing at
the date of this Indenture or to: (i) Liens securing only the Notes; (ii) Liens
in favor of the Company or a Wholly Owned Restricted Subsidiary; or (iii) Liens
to secure Debt incurred to extend, renew, refinance or refund (or successive
extensions, renewals, refinancings or refundings), in whole or in part, any Debt
secured by Liens referred to in the foregoing clause (i) so long as such Lien
does not extend to any other property and the principal amount of Debt so
secured is not increased except as otherwise permitted under Clause (vi) of
Section 1008.
SECTION 1012. Limitation on Restricted Payments.
The Company (i) shall not, directly or indirectly, declare or
pay any dividend or make any distribution (including any payment in connection
with any merger or consolidation derived from assets of the Company or any
Restricted Subsidiary) in respect of its Capital Stock or to the holders
thereof, excluding any dividends or distributions by the Company payable solely
in shares of its Capital Stock (other than Redeemable Stock) or in options,
warrants or other rights to acquire its Capital Stock (other than Redeemable
Stock), (ii) shall not, and shall not permit any Restricted Subsidiary to,
purchase, redeem, or otherwise acquire or retire for value (a) any Capital Stock
of the Company or any Related Person of the Company or (b) any options, warrants
or other rights to acquire shares of Capital Stock of the Company or any Related
Person of the Company or any securities convertible or exchangeable into shares
of Capital Stock of the Company or any Related Person of the Company, (iii)
shall not make, or permit any Restricted Subsidiary to make, any Investment
other than a Permitted Investment, and (iv) shall not, and shall not permit any
Restricted Subsidiary to, redeem, repurchase, defease or otherwise acquire or
retire for value prior to any scheduled maturity, repayment or sinking fund
payment Debt of the Company which is subordinate in right of payment to the
Notes (each of clauses (i) through (iv) being a
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"Restricted Payment") if: (1) an Event of Default, or an event that with the
passing of time or the giving of notice, or both, would constitute an Event of
Default, shall have occurred and is continuing or would result from such
Restricted Payment, or (2) after giving pro forma effect to such Restricted
Payment as if such Restricted Payment had been made at the beginning of the
applicable four-fiscal-quarter period, the Company could not Incur at least
$1.00 of additional Debt pursuant to the terms of the Indenture described in the
first paragraph of Section 1008 hereof; provided that in connection with regular
quarterly dividends on the Company's Common Stock (not to exceed $7.5 million in
the aggregate) declared or payable prior to January 31, 1999, the Company's pro
forma capacity to Incur additional Debt shall be computed on a basis that
excludes the non-recurring charges recorded during the Company's 1997 fiscal
year, or (3) upon giving effect to such Restricted Payment, the aggregate of all
Restricted Payments from the date of issuance of the Notes exceeds the sum of:
(a) 50% of cumulative Consolidated Net Income (or, in the case Consolidated Net
Income shall be negative, less 100% of such deficit) of the Company since the
date of issuance of the Notes through the last day of the last full fiscal
quarter ending immediately preceding the date of such Restricted Payment for
which quarterly or annual financial statements are available (taken as a single
accounting period); plus (b) 100% of the aggregate net proceeds received by the
Company after the date of original issuance of the Notes, including the fair
market value of property other than cash (determined in good faith by the Board
of Directors as evidenced by a resolution of the Board of Directors filed with
the Trustee), from the issuance and sale (other than to a Restricted Subsidiary)
of Capital Stock (other than Redeemable Stock) of the Company, options, warrants
or other rights to acquire Capital Stock (other than Redeemable Stock) of the
Company and Debt of the Company that has been converted into or exchanged for
Capital Stock (other than Redeemable Stock and other than by or from a
Restricted Subsidiary) of the Company after the date of original issuance of the
Notes, provided that any such net proceeds received by the Company from an
employee stock ownership plan financed by loans from the Company or a Restricted
Subsidiary of the Company shall be included only to the extent such loans have
been repaid with cash on or prior to the date of determination; plus (c) $40.0
million. Prior to the making of any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate setting
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forth the computations by which the determinations required by clauses (2) and
(3) above were made and stating that no Event of Default, or event that with the
passing of time or the giving of notice, or both, would constitute an Event of
Default, has occurred and is continuing or will result from such Restricted
Payment.
Notwithstanding the foregoing, so long as no Event of Default,
or event that with the passing of time or the giving of notice, or both, would
constitute an Event of Default, shall have occurred and is continuing or would
result therefrom, (i) the Company may pay any dividend on Capital Stock of any
class within 60 days after the declaration thereof if, on the date when the
dividend was declared, the Company could have paid such dividend in accordance
with the foregoing provisions; (ii) the Company may refinance any Debt otherwise
permitted by clause (vi) of the second paragraph under Section 1008 above or
solely in exchange for or out of the net proceeds of the substantially
concurrent sale (other than from or to a Restricted Subsidiary or from or to an
employee stock ownership plan financed by loans from the Company or a Restricted
Subsidiary of the Company) of shares of Capital Stock (other than Redeemable
Stock) of the Company, provided that the amount of net proceeds from such
exchange or sale shall be excluded from the calculation of the amount available
for Restricted Payments pursuant to the preceding paragraph; (iii) the Company
may purchase, redeem, acquire or retire any shares of Capital Stock of the
Company solely in exchange for or out of the net proceeds of the substantially
concurrent sale (other than from or to a Restricted Subsidiary or from or to an
employee stock ownership plan financed by loans from the Company or a Restricted
Subsidiary of the Company) of shares of Capital Stock (other than Redeemable
Stock) of the Company; and (iv) the Company or a Restricted Subsidiary may
purchase or redeem any Debt from Net Available Proceeds to the extent permitted
under Section 1014. Any payment made pursuant to clause (i) or (iii) of this
paragraph shall be a Restricted Payment for purposes of calculating aggregate
Restricted Payments pursuant to the preceding paragraph.
SECTION 1013. Limitations on Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or
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otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary of the Company (i) to
pay dividends (in cash or otherwise) or make any other distributions in respect
of its Capital Stock or pay any Debt or other obligation owed to the Company or
any other Restricted Subsidiary; (ii) to make loans or advances to the Company
or any other Restricted Subsidiary; or (iii) to transfer any of its property or
assets to the Company or any other Restricted Subsidiary. Notwithstanding the
foregoing, the Company may, and may permit any Restricted Subsidiary to, suffer
to exist any such encumbrance or restriction (a) pursuant to any agreement in
effect on the date of original issuance of the Notes; (b) pursuant to an
agreement relating to any Debt Incurred by a Person (other than a Restricted
Subsidiary of the Company existing on the date of original issuance of the Notes
or any Restricted Subsidiary carrying on any of the businesses of any such
Restricted Subsidiary) prior to the date on which such Person became a
Restricted Subsidiary of the Company and outstanding on such date and not
Incurred in anticipation of becoming a Restricted Subsidiary, which encumbrance
or restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person so acquired; (c) pursuant to an agreement
effecting a renewal, refunding or extension of Debt Incurred pursuant to an
agreement referred to in clause (a) or (b) above, provided, however, that the
provisions contained in such renewal, refunding or extension agreement relating
to such encumbrance or restriction are no more restrictive in any material
respect than the provisions contained in the agreement the subject thereof, as
determined in good faith by the Board of Directors and evidenced by a resolution
of the Board of Directors filed with the Trustee; (d) pursuant to an agreement
relating to Debt of a Restricted Subsidiary that is not materially more
restrictive than customary provisions in comparable financing arrangements and
which the Board of Directors determines (as evidenced by a resolution of the
Board of Directors filed with the Trustee) will not materially impair the
Company's ability to make payments under the Notes; (e) in the case of clause
(iii) above, restrictions contained in any security agreement (including a
capital lease) securing Debt of a Restricted Subsidiary otherwise permitted
under this Indenture, but only to the extent such restrictions restrict the
transfer of the property subject to such security agreement; (f) in the case of
clause (iii) above, customary nonassignment provisions entered into in the
ordinary course of business
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consistent with past practices in leases and other contracts to the extent such
provisions restrict the transfer or subletting of any such lease or the
assignment of rights under any such contract; (g) any restriction with respect
to a Restricted Subsidiary of the Company imposed pursuant to an agreement which
has been entered into for the sale or disposition of all or substantially all of
the Capital Stock or assets of such Restricted Subsidiary, provided that
consummation of such transaction would not result in an Event of Default or an
event that, with the passing of time or the giving of notice or both, would
constitute an Event of Default, that such restriction terminates if such
transaction is closed or abandoned and that the closing or abandonment of such
transaction occurs within one year of the date such agreement was entered into;
or (h) such encumbrance or restriction is the result of applicable corporate law
or regulation relating to the payment of dividends or distributions.
SECTION 1014. Limitation on Asset Disposition.
The Company shall not, and shall not permit any Restricted
Subsidiary to, make any Asset Disposition in one or more related transactions
unless: (i) the Company or the Restricted Subsidiary, as the case may be,
receives consideration for such disposition at least equal to the fair market
value for the assets sold or disposed of as determined by the Board of Directors
in good faith and evidenced by a resolution of the Board of Directors filed with
the Trustee; (ii) at least 85% of the consideration for such disposition
consists of cash or readily marketable cash equivalents or the assumption of
Debt (other than Debt that is subordinated to the Notes) relating to such assets
and release from all liability on the Debt assumed; and (iii) all Net Available
Proceeds, less any amounts invested or committed to be invested within 365 days
of such disposition in assets related to the business of the Company or applied
to permanently repay Senior Debt, are applied within 365 days of such
disposition (1) first, to the permanent repayment or reduction of Senior Debt
then outstanding under any agreements or instruments which would require such
application or prohibit payments pursuant to clause (2) following, (2) second,
to the extent of remaining Net Available Proceeds, to make an Offer to Purchase
Outstanding Notes at 100% of their principal amount plus accrued interest to the
date of purchase and, to the extent
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required by the terms thereof, any other Debt of the Company that is pari passu
with the Notes at a price no greater than 100% of the principal amount thereof
plus accrued interest to the date of purchase, and (3) third, to the extent of
any remaining Net Available Proceeds, to any other use as determined by the
Company which is not otherwise prohibited by this Indenture.
SECTION 1015. Transactions with Affiliates and Related Persons.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, enter into any transaction (or series of related
transactions) with an Affiliate or Related Person of the Company (other than the
Company or a Wholly Owned Restricted Subsidiary of the Company), including any
Investment, either directly or indirectly, unless such transaction is on terms
no less favorable to the Company or such Restricted Subsidiary than those that
could be obtained in a comparable arm's-length transaction with an entity that
is not an Affiliate or Related Person. For any transaction that involves in
excess of $5,000,000, a majority of the disinterested members of the Board of
Directors shall determine that the transaction satisfies the above criteria and
shall evidence such a determination by a Board Resolution filed with the
Trustee. For any transaction that involves in excess of $10,000,000, the Company
shall also obtain an opinion from a nationally recognized expert with experience
in appraising the terms and conditions of the type of transaction (or series of
related transactions) for which the opinion is required stating that such
transaction (or series of related transactions) is on terms no less favorable to
the Company or such Restricted Subsidiary than those that could be obtained in a
comparable arm's-length transaction with an entity that is not an Affiliate or
Related Person of the Company, which opinion shall be filed with the Trustee.
Notwithstanding anything to the contrary contained in this
Indenture, the foregoing provisions shall not apply to (i) transactions with any
employee, officer or director of the Company or any of its Restricted
Subsidiaries pursuant to employee benefit plans or compensation arrangements or
agreements entered into in the ordinary course of business, (ii) purchases or
sales of goods or services in the ordinary course of business, or (iii)
transactions with any
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Affiliate or Related Person of the Company in which such Affiliate or Related
Person acquires or purchases the capital stock of the Company or any Restricted
Subsidiary at fair market value.
SECTION 1016. Change of Control.
Within 60 days of the occurrence of a Change of Control, the
Company will be required to make an Offer to Purchase all Outstanding Notes at a
purchase price equal to 101% of their principal amount plus accrued interest to
but excluding the date of purchase. A "Change of Control" will be deemed to have
occurred at such time as either (a) any Person (other than a Permitted Holder)
or any Persons acting together that would constitute a "group" (a "Group") for
purposes of Section 13(d) of the Exchange Act, or any successor provision
thereto (other than Permitted Holders), together with any Affiliates or Related
Persons thereof, shall beneficially own (within the meaning of Rule 13d-3 under
the Exchange Act, or any successor provision thereto), directly or indirectly,
at least 50% of the aggregate voting power of all classes of Voting Stock of the
Company (for the purposes of this clause (a) a person shall be deemed to
beneficially own the Voting Stock of a corporation that is beneficially owned
(as defined above) by another corporation (a "parent corporation"), if such
person beneficially owns (as defined above) at least 50% of the aggregate voting
power of all classes of Voting Stock of such parent corporation); or (b) any
Person or Group (other than Permitted Holders), together with any Affiliates or
Related Persons thereof, shall succeed in having a sufficient number of its
nominees elected to the Board of Directors of the Company such that such
nominees, when added to any existing director remaining on the Board of
Directors of the Company after such election who was a nominee of or is an
Affiliate or Related Person of such Person or Group, will constitute a majority
of the Board of Directors of the Company; or (c) the Company shall, directly or
indirectly, transfer, sell, lease or otherwise dispose of all or substantially
all of its assets; or (d) there shall be adopted a plan of liquidation or
dissolution of the Company; provided, however, that a transaction effected to
create a holding company of the Company, (i) pursuant to which the Company
becomes a wholly-owned Subsidiary of such holding company, and (ii) as a result
of which the holders of Capital Stock of such holding company are substantially
the same as the
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holders of Capital Stock of the Company immediately prior to such transaction,
shall not be deemed to involve a "Change of Control".
In the event that the Company makes an Offer to Purchase the
Notes, the Company intends to comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act.
SECTION 1017. Provision of Financial Information.
For so long as any of the Notes are outstanding, the Company
shall file with the Commission the annual reports, quarterly reports and other
documents which the Company is required to file with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act or any successor provisions thereto.
SECTION 1018. Unrestricted Subsidiaries.
The Company may designate any Subsidiary of the Company to be
an "Unrestricted Subsidiary" as provided below in which event such Subsidiary
and each other Person that is then or thereafter becomes a Subsidiary of such
Subsidiary will be deemed to be an Unrestricted Subsidiary. "Unrestricted
Subsidiary" means (1) any Subsidiary designated as such by the Board of
Directors as set forth below where (a) neither the Company nor any of its other
Subsidiaries (other than another Unrestricted Subsidiary) (i) provides credit
support for, or any Guarantee of, any Debt of such Subsidiary or any Subsidiary
of such Subsidiary (including any undertaking, agreement or instrument
evidencing such Debt) or (ii) is directly or indirectly liable for any Debt of
such Subsidiary or any Subsidiary of such Subsidiary, and (b) no default with
respect to any Debt of such Subsidiary or any Subsidiary of such Subsidiary
(including any right which the holders thereof may have to take enforcement
action against such Subsidiary) would permit (upon notice, lapse of time or
both) any holder of any other Debt of the Company and its Subsidiaries (other
than another Unrestricted Subsidiary) to declare a default on such other Debt or
cause the payment thereof to be accelerated or payable prior to its final
scheduled maturity and (2) any Subsidiary of an Unrestricted Subsidiary. The
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Board of Directors may designate any Subsidiary to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, any other Subsidiary of the Company which is not a Subsidiary
of the Subsidiary to be so designated or otherwise an Unrestricted Subsidiary,
provided that either (x) the Subsidiary to be so designated has total assets of
$1,000 or less or (y) immediately after giving effect to such designation, the
Company could Incur at least $1.00 of additional Debt pursuant to the first
paragraph under Section 1008 hereof and provided, further, that the Company
could make a Restricted Payment in an amount equal to the greater of the fair
market value and book value of such Subsidiary pursuant to Section 1012 hereof
and such amount is thereafter treated as a Restricted Payment for the purpose of
calculating the aggregate amount available for Restricted Payments thereunder.
SECTION 1019. Statement by Officers as to Default; Compliance Certificates.
(a) The Company will deliver to the Trustee, within
90 days after the end of each fiscal quarter of the Company ending after the
date hereof an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of Section 801 or
Sections 1004 to 1018, inclusive, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
(b) The Company shall deliver to the Trustee, as
soon as possible and in any event within 10 days after the Company becomes aware
or should reasonably become aware of the occurrence of an Event of Default or an
event which, with notice or the lapse of time or both, would constitute an Event
of Default, an Officers' Certificate setting forth the details of such Event of
Default or default, and the action which the Company proposes to take with
respect thereto.
(c) The Company shall deliver to the Trustee
within 90 days after the end of each fiscal year a written statement by the
Company's independent public accountants stating (A) that their audit
examination was conducted in
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accordance with generally accepted accounting standards, and (B) whether, in
connection with their audit examination, any event which, with notice or the
lapse of time or both, would constitute an Event of Default has come to their
attention insofar as it relates to accounting matters and, if such a default has
come to their attention, specifying the nature and period of the existence
thereof.
SECTION 1020. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Section 801 and Sections 1004 to 1018, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Notes shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect; provided, however, with respect to an Offer to Purchase as to
which an Offer has been mailed, no such waiver may be made or shall be effective
against any Holder tendering Notes pursuant to such Offer, and the Company may
not omit to comply with the terms of such Offer as to such Holder.
ARTICLE ELEVEN
Redemption of Notes
SECTION 1101. Right of Redemption.
The Notes may be redeemed at the option of the Company, in
whole or in part, at any time on or after May 1, 2003, and prior to maturity, at
the Redemption Prices specified in the form of Note hereinbefore set forth
together with accrued interest to, but excluding, the Redemption Date.
In addition, if on or before May 1, 2001 the Company receives
net proceeds from the sale of its Common Stock in one or more Public Equity
Offerings, the Company
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may, at its option, use an amount equal to all or a portion of any such net
proceeds to redeem Notes in an aggregate principal amount of up to 33 1/3% of
the original aggregate principal amount of the Notes, provided, however, that
Notes having a principal amount equal to at least 66 2/3% of the original
aggregate principal amount of the Notes remain outstanding after such
redemption. Such redemption must occur on a Redemption Date within 90 days of
such sale and upon not less than 30 nor more than 60 days' notice mailed to each
Holder of Notes to be redeemed at such Holder's address appearing in the
Security Register, in amounts of $1,000 or an integral multiple of $1,000, at a
redemption price of 109.50% of the principal amount of the Notes plus accrued
interest to but excluding the Redemption Date (subject to the right of Holders
of record on the relevant Regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date).
If less than all the Notes are to be redeemed, the Trustee
shall select, in such manner as it shall deem fair and appropriate, the
particular Notes to be redeemed or any portion thereof that is an integral
multiple of $1,000.
The Notes will not have the benefit of any sinking fund.
SECTION 1102. Applicability of Article.
Redemption of Notes at the election of the Company, as
permitted by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes
pursuant to Section 1101 shall be evidenced by a Board Resolution. In case of
any redemption at the election of the Company of less than all the Notes, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Notes to be
redeemed.
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SECTION 1104. Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the particular
Notes to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Notes not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
$1,000 or any integral multiple thereof) of the principal amount of Notes of a
denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Note
Registrar in writing of the Notes selected for redemption and, in the case of
any Notes selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Notes shall
relate, in the case of any Notes redeemed or to be redeemed only in part, to the
portion of the principal amount of such Notes which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Notes are to be redeemed,
the identification (and, in the case of partial redemption, the
principal amounts) of the particular Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon
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each such Note to be redeemed and that interest thereon will cease to
accrue on and after said date, and
(5) the place or places where such Notes are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Notes to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Notes which are to be redeemed on that date.
SECTION 1107. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price plus accrued
interest) such Notes shall cease to bear interest. Upon surrender of any such
Note for redemption in accordance with said notice, such Note shall be paid by
the Company at the Redemption Price together with accrued interest to the
Redemption Date; provided, however, that instalments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Notes, or one or more Predecessor Notes, registered as such at the close
of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal
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(and premium, if any) shall, until paid, bear interest from the Redemption Date
at the rate provided by the Note.
SECTION 1108. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Note without service
charge, a new Note or Notes, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Note so surrendered.
ARTICLE TWELVE
Subordination of Notes
SECTION 1201. Notes Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Note,
by his acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article (subject to the
provisions of Article Four and Article Thirteen), the payment of the principal
of (and premium, if any) and interest on each and all of the Notes (and any
liquidated damages under the Exchange and Registration Rights Agreement
("Additional Amounts")) are hereby expressly made subordinate and subject in
right of payment to the prior payment in full in cash of all Senior Debt of the
Company.
SECTION 1202. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as
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such, or to its assets, or (b) any liquidation, dissolution or other winding up
of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Proceeding") the holders of Senior Debt shall be
entitled to receive or retain payment in full in cash or cash equivalents of all
amounts due or to become due on or in respect of all Senior Debt, or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, before the Holders of the
Notes are entitled to receive any payment or distribution of any kind or
character, whether in cash, property or securities, on account of principal of
(or premium, if any) or interest on (or Additional Amounts) or other obligations
in respect of the Notes or on account of any purchase, redemption or other
acquisition of Notes by the Company or any Subsidiary of the Company (all such
payments, distributions, purchases and acquisitions herein referred to,
individually and collectively, as a "Notes Payment"), and to that end the
holders of Senior Debt shall be entitled to receive, for application to the
payment thereof, any Notes Payment which may be payable or deliverable in
respect of the Notes in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Note shall have received any
Notes Payment before all Senior Debt of the Company is paid in full in cash or
cash equivalents or payment thereof provided for in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of such Debt, then and in such
event such Notes Payment shall be paid over or delivered forthwith to the
trustee in bankruptcy or other person making payment or distribution of assets
of the Company for the application to the payment of all Senior Debt remaining
unpaid, to the extent necessary to pay the Senior Debt in full.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include a payment or distribution of stock or securities
of the Company provided for by a plan of reorganization or readjustment
authorized by an order or decree of a court of
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competent jurisdiction in a reorganization proceeding under any applicable
bankruptcy law or of any other corporation provided for by such plan of
reorganization or readjustment which stock or securities are subordinated in
right of payment to all then outstanding Senior Debt to substantially the same
extent as the Notes are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the conveyance
or transfer of all or substantially all of its properties and assets as an
entirety to another Person upon the terms and conditions set forth in Article
Eight shall not be deemed a Proceeding for the purposes of this Section if the
Person formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer such properties and assets as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article Eight.
SECTION 1203. No Payment When Senior Debt in Default.
In the event that any Company Senior Payment Default (as
defined below) shall have occurred and be continuing, then no Notes Payment
shall be made, and no defeasance of the Notes may be made, unless and until such
Company Senior Payment Default shall have been cured or waived or shall have
ceased to exist or all amounts then due and payable in respect of Senior Debt
shall have been paid in full in cash or cash equivalents, or provision shall
have been made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt. "Company Senior Payment
Default" means any default in the payment of principal of (or premium, if any)
or interest on Designated Senior Debt when due, whether at the Stated Maturity
of any such payment or by declaration of acceleration, call for redemption or
otherwise.
Upon the occurrence of a Senior Nonmonetary Default and
receipt of written notice by the Company and the Trustee of the occurrence of
such Senior Nonmonetary Default from any holder of Designated Senior Debt (or
any trustee, agent or other representative for such holder) which is the subject
of such Senior Nonmonetary Default, no Notes Payment may be made, and no
defeasance of the Notes, may be made for a period (the "Payment Blockage
Period") commencing on the
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date of the receipt of such notice and ending the earlier of (i) the date on
which such Senior Nonmonetary Default shall have been cured or waived or ceased
to exist or all Senior Debt the subject of such Senior Nonmonetary Default shall
have been discharged and (ii) the 179th day after the date of the receipt of
such notice. In any event, no more than one Payment Blockage Period may be
commenced during any 360-day period and there shall be a period of at least 181
days during each 360-day period when no Payment Blockage Period is in effect. In
addition, no Senior Nonmonetary Default that existed or was continuing on the
date of the commencement of a Payment Blockage Period may be made the basis of
the commencement of a subsequent Payment Blockage Period whether or not within a
period of 360 consecutive days, unless such Senior Nonmonetary Default shall
have been cured for a period of not less than 90 consecutive days. "Senior
Nonmonetary Default" means the occurrence or existence and continuance of an
event of default with respect to Company Senior Debt, other than a Senior
Payment Default, permitting the holders of the Designated Senior Debt (or a
trustee or other agent on behalf of the holders thereof) then to declare such
Designated Senior Debt due and payable prior to the date on which it would
otherwise become due and payable.
The failure to make any payment on the Notes by reason of the
provisions of the Indenture described under this Article Twelve will not be
construed as preventing the occurrence of an Event of Default with respect to
the Notes arising from any such failure to make payment. Upon termination of any
period of payment blockage the Company shall resume making any and all required
payments in respect of the Notes, including any missed payments.
In the event that, notwithstanding the foregoing, the Company
shall make any Company Notes Payment to the Trustee or any Holder prohibited by
the foregoing of this Section, and if such fact shall, at or prior to the time
of such Notes Payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such Notes Payment shall be paid over
and delivered forthwith to the holders of the Senior Debt of the Company.
The subordination provisions described above will not be
applicable to payments in respect of the Notes from a defeasance trust
established in connection with any defeasance or covenant defeasance of the
Notes as described under Article Thirteen.
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The provisions of this Section shall not apply to any Notes
Payment with respect to which Section 1202 would be applicable.
SECTION 1204. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Notes shall prevent (a) the Company, at any time
except during the pendency of any Proceeding referred to in Section 1202 or
under the conditions described in Section 1203, from making Notes Payments, or
(b) the application by the Trustee of any money deposited with it hereunder to
Notes Payments or the retention of such Notes Payment by the Holders, if, at the
time of such application by the Trustee, it did not have knowledge that such
Notes Payment would have been prohibited by the provisions of this Article.
SECTION 1205. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full in cash or cash equivalents of
all amounts due or to become due on or in respect of Senior Debt of the Company
or the provision for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, the Holders of the Notes
shall be subrogated to the rights of the holders of such Debt to receive
payments and distributions of cash, property and securities applicable to such
Debt until the principal of (and premium, if any) and interest on the Notes
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of the Company of any cash,
property or securities to which the Holders of the Notes or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Debt by
Holders of the Notes or the Trustee, shall, as among the Company, its creditors
other than holders of Senior Debt and the Holders of the Notes, be deemed to be
a payment or distribution by the Company to or on account of the Senior Debt of
the Company.
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SECTION 1206. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders on the one hand and
the holders of Senior Debt on the other hand. Nothing contained in this Article
or elsewhere in this Indenture or in the Notes is intended to or shall (a)
impair, as among the Company, its creditors other than holders of Senior Debt
and the Holders of the Notes, the obligation of the Company, which is absolute
and unconditional (and which, subject to the rights under this Article of the
holders of Senior Debt, is intended to rank equally with all other general
obligations of the Company), to pay to the Holders of the Notes the principal of
(and premium, if any) and interest on the Notes as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Notes and creditors of
the Company, other than the holders of Senior Debt; or (c) prevent the Trustee
or the Holder of any Note from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Debt to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1207. Trustee to Effectuate Subordination.
Each Holder of a Note by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1208. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
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Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the Notes,
without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Notes to the holders of Senior Debt,
do any one or more of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Debt, or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (iii) release any Person liable in
any manner for the collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 1209. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Notes, provided that failure to notify will
not affect the subordination provisions set forth herein. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the Notes,
unless and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee therefor at its Corporate
Trust Office; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Debt (or a
trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required
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with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Debt held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this Article, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
SECTION 1210. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets or securities of
the Company referred to in this Article, the Trustee, subject to the provisions
of Section 601, and the Holders of the Notes shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Notes, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 1211. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Notes or to
the Company or to any other Person cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this Article or otherwise.
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SECTION 1212. Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Debt which
may at any time be held by it, to the same extent as any other holder of Senior
Debt, and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 607.
SECTION 1213. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1212 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1214. Defeasance of this Article Twelve.
The subordination of the Notes provided by this Article Twelve
is expressly made subject to the provisions for defeasance or covenant
defeasance in Article Thirteen hereof and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance effected in compliance with this Indenture, the Notes then
outstanding shall thereupon cease to be subordinated pursuant to this Article
Twelve.
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ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may at its option by Board Resolution, at any
time, in accordance with the Exchange and Registration Rights Agreement, elect
to have either Section 1302 or Section 1303 applied to the Outstanding Notes
upon compliance with the conditions set forth below in this Article Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section
1301 applicable to this Section, the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding Notes, and the
provisions of Article Twelve hereof shall cease to be effective, on the date the
conditions set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Notes and to
have satisfied all its other obligations under such Notes and this Indenture
insofar as such 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 Notes to receive, solely from the
trust fund described in Section 1304 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any) and
interest on such Notes when such payments are due, (B) the Company's obligations
with respect to such Notes under Sections 304, 305, 306, 1002 and 1003, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (D)
this Article Thirteen. Subject to compliance with this Article Thirteen, the
Company may exercise its option under this Section 1302 notwithstanding the
prior exercise of its option under Section 1303.
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SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section
1301 applicable to this Section, (i) the Company shall be released from its
obligations under Sections 1005 through 1018, inclusive, and Clauses (3), (4)
and (5) of Section 801, (ii) the occurrence of an event specified in Sections
501(3), 501(4) (with respect to Clauses (1), (3), (4) or (5) of Section 801),
501(5) (with respect to any of Sections 1005 through 1018, inclusive), 501(6)
and 501(7) shall not be deemed to be an Event of Default and (iii) the
provisions of Article Twelve hereof shall cease to be effective on and after the
date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section, Clause or Article,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section, Clause or Article or by reason of any reference in any such
Section, Clause or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Notes shall be unaffected
thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 1302 or Section 1303 to the then 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 609 who shall agree to comply with the
provisions of this Article Thirteen 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) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due
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date of any payment, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of (, premium, if any,) and each instalment of
interest on the Notes on the Stated Maturity of such principal or
instalment of interest in accordance with the terms of this Indenture
and of such Notes. For this purpose, "U.S. Government Obligations"
means securities that are (x) direct obligations of the United States
of America for the 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 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 of 1933, as
amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the
U.S. Government Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 1302, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the
date of this Indenture there has been a change in the applicable
Federal
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income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of the Outstanding Notes
will not recognize gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to
Federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit, defeasance and
discharge had not occurred.
(3) In the case of an election under Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Outstanding Notes will not recognize
gain or loss for Federal income tax purposes as a result of such
deposit and covenant defeasance and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as
would have been the case if such deposit and covenant defeasance had
not occurred.
(4) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Notes, if then listed on
any securities exchange, will not be delisted as a result of such
deposit.
(5) Such defeasance or covenant defeasance shall not
cause the Trustee to have a conflicting interest as defined in Section
608 and for purposes of the Trust Indenture Act with respect to any
securities of the Company.
(6) At the time of such deposit: (A) no default in the
payment of all or a portion of principal of (or premium, if any) or
interest on or other obligations in respect of any Senior Debt shall
have occurred and be continuing, and no event of default with respect
to any Senior Debt shall have occurred and be continuing and shall have
resulted in such Senior Debt becoming or being declared due and payable
prior to the date on which it would otherwise have become due and
payable and (B) no other event of default with respect to any Senior
Debt shall have occurred and be continuing permitting (after notice or
the
-121-
lapse of time, or both) the holders of such Senior Debt (or a trustee
on behalf of the holders thereof) to declare such Senior Debt due and
payable prior to the date on which it would otherwise have become due
and payable, or, in the case of either Clause (A) or Clause (B) above,
each such default or event of default shall have been cured or waived
or shall have ceased to exist.
(7) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default shall have
occurred and be continuing.
(8) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by
which it is bound.
(9) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel (which Opinion of
Counsel may rely, as to factual matters, on such Officer's
Certificate), each stating that all conditions precedent provided for
relating to either the defeasance under Section 1302 or the covenant
defeasance under Section 1303 (as the case may be) have been complied
with.
(10) Such defeasance or covenant defeasance shall not
result in the trust arising from such deposit constituting an
investment company as defined in the Investment Company Act of 1940, as
amended, or such trust shall be qualified under such act or exempt from
regulation thereunder.
SECTION 1305. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee--collectively, for
purposes of
-122-
this Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Notes shall be held in trust uninvested 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 so held in trust shall not be subject to
the provisions of Article Twelve.
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 1304 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Notes.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it as
provided in Section 1304 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.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 1302 or 1303 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 the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to this Article Thirteen until such time as the Trustee or
Paying Agent is
-123-
permitted to apply all such money in accordance with Section 1302 or 1303;
provided, however, that if the Company makes any payment of principal of (and
premium, if any) or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Note to receive such payment from the money held by the Trustee or the
Paying Agent.
--------------------
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
XXXXXXXX-VAN HEUSEN CORPORATION
By /s/
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
Attest:
/s/ Xxxxxx X. Xxxxxxx
--------------------------
UNION BANK OF CALIFORNIA, N.A.
By /s/
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
STATE OF _________ ) ss.:
COUNTY OF _________)
On the _____ day of __________, 19__, before me personally
came ___________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is
___________________________________________________ of
___________________________, one of the corporations described in and which
executed the foregoing instrument; that [he -- she] knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that [he -- she] signed [his -- her] name thereto by like
authority.
------------------------------
STATE OF __________) ss.:
COUNTY OF _________)
On the _____ day of __________, 19__, before me personally
came ___________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is
___________________________________________________ of
___________________________, one of the corporations described in and which
executed the foregoing instrument; that [he -- she] knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that [he -- she] signed [his -- her] name thereto by like
authority.
------------------------------
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SCHEDULE I
7.75% Debentures due 2023
Capital Lease re: Industrial Development Board of Ozark, AL
(Interest rate: 6.50% - 7.75%; Maturity date: 09/01/99;
Amount outstanding as of 03/31/98: $670,000)
-126-
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to ss. 306(b)(i) of the Indenture)
[ ]
[ ]
[ ]
[ ]
Re: % Senior Subordinated Notes due , 2008 of
Granite Broadcasting Corporation (the "Securities")
Reference is made to the Indenture, dated as of May , 1998
(the "Indenture"), from Granite Broadcasting Corporation (the "Company") to The
Bank of New York, as Trustee. Terms used herein and defined in the Indenture or
in Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the
"Securities Act") are used herein as so defined.
This certificate relates to U.S. $_______________ principal
amount of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
The Specified Securities are represented by a Global Security and are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner.
A-1
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Regulation S Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 904 or Rule 144 under the Securities Act and with all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities,
an affiliate of the Company or any such distributor or a
person acting on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not
made to a person in the United States;
(C) either:
(i) at the time the buy order was
originated, the Transferee was outside the United
States or the Owner and any person acting on its
behalf reasonably believed that the Transferee was
outside the United States, or
(ii) the transaction is being executed in,
on or through the facilities of the Eurobond market,
as regulated by the Association of International Bond
Dealers, or another designated offshore securities
market and neither the Owner nor any person acting on
its behalf knows that the transaction has been
prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the
United States by or on behalf of the Owner or any affiliate
thereof;
A-2
(E) if the Owner is a dealer in securities or has
received a selling concession, fee or other renumeration in
respect of the Specified Securities, and the transfer is to
occur during the Restricted Period, then the requirements of
Rule 904(c)(1) have been satisfied; and
(F) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding period
of at least one year (computed in accordance with paragraph
(d) of Rule 144) has elapsed since the Specified Securities
were last acquired from the Company or from an affiliate of
the Company, whichever is later, and is being effected in
accordance with the applicable amount, manner of sale and
notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period
of at least two years has elapsed since the Specified
Securities were last acquired from the Company or from an
affiliate of the Company, whichever is later, and the Owner is
not, and during the preceding three months has not been, an
affiliate of the Company.
A-3
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchasers.
Dated: --------------------------------------
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By:
----------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
A-4
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to ss. 306(b)(ii) of the Indenture)
[ ]
[ ]
[ ]
[ ]
Re: % Senior Subordinated Notes due , 2008 of
Granite Broadcasting Corporation (the "Securities")
Reference is made to the Indenture, dated as of May , 1998
(the "Indenture"), from Granite Broadcasting Corporation (the "Company") to The
Bank of New York, as Trustee. Terms used herein and defined in the Indenture or
in Rule 144A or Rule 144 under the U.S. Securities Act of 1933 (the "Securities
Act") are used herein as so defined.
This certificate relates to U.S.$_____________ principal
amount of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
ISIN No(s) If any. ____________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
The Specified Securities are represented by a Global Security and are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Restricted Security. In
B-1
connection with such transfer, the Owner hereby certifies that, unless such
transfer is being effected pursuant to an effective registration statement under
the Securities Act, it is being effected in accordance with Rule 144A or Rule
144 under the Securities Act and all applicable securities laws of the states of
the United States and other jurisdictions. Accordingly, the Owner hereby further
certifies as:
(1) Rule 144A Transfers. If the transfer is being
effected in accordance with Rule 144A:
(A) the Specified Securities are being transferred to
a person that the Owner and any person acting on its behalf
reasonably believe is a "qualified institutional buyer" within
the meaning of Rule 144A, acquiring for its own account or for
the account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf
have taken reasonable steps to ensure that the Transferee is
aware that the Owner may be relying on Rule 144A in connection
with the transfer; and
(2) Rule 144 Transfers. If the transfer is being
effected pursuant to Rule 144:
(A) the transfer is occurring after a holding period
of at least one year (computed in accordance with paragraph
(d) of Rule 144) has elapsed since the Specified Securities
were last acquired from the Company or from an affiliate of
the Company, whichever is later, and is being effected in
accordance with the applicable amount, manner of sale and
notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period
of at least two years has elapsed since the Specified
Securities were last acquired from the Company or from an
affiliate of the Company, whichever is later, and the Owner is
not, and during the preceding three months has not been, an
affiliate of the Company.
B-2
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchasers.
Dated: _______________________________________
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By:____________________________________
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
X-0
XXXXX X -- Xxxx xx Xxxxxxxxxxxx
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to ss. 306(c))
[ ]
[ ]
[ ]
[ ]
Re: % Senior Subordinated Notes due , 2008 of
Granite Broadcasting Corporation (the "Securities")
Reference is made to the Indenture, dated as of May , 1998
(the "Indenture"), from Granite Broadcasting Corporation (the "Company") to The
Bank of New York, as Trustee. Terms used herein and defined in the Indenture or
in Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the
"Securities Act") are used herein as so defined.
This certificate relates to U.S. $_____________ principal
amount of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
C-1
The Owner has requested that the Specified Securities be
exchanged for Securities bearing no Securities Act Legend pursuant to Section
306(c) of the Indenture. In connection with such exchange, the Owner hereby
certifies that the exchange is occurring after a holding period of at least
three years (computed in accordance with paragraph (d) of Rule 144) has elapsed
since the Specified Securities were last acquired from the Company or from an
affiliate of the Company, whichever is later, and the Owner is not, and during
the preceding three months has not been, an affiliate of the Company. The Owner
also acknowledges that any future transfers of the Specified Securities must
comply with all applicable securities laws of the states of the United States
and other jurisdictions.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchasers.
Dated: ______________________________________
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By:___________________________________
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
C-2
ANNEX D -- Form of Certification to
be Given by Holders of Beneficial
Interest in a Regulation S Temporary
Global Note
OWNER SECURITIES CERTIFICATION
GRANITE BROADCASTING CORPORATION
% Senior Subordinated Notes due , 2008
This is to certify that, as of the date hereof, $________ of
the above-captioned Notes are beneficially owned by non-U.S. person(s). As used
in this paragraph, the term "U.S. person" has the meaning given to it by
Regulation S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the Notes held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
We understand that this certificate is required in connection
with certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceedings.
Dated:______________, ____
By:____________________________________________
As, or as agent for, the beneficial owner(s) of
the Notes to which this certificate relates.
D-1
ANNEX E -- Form of Certification to
be Given by the Euroclear Operator
or Cedel S.A.
DEPOSITARY SECURITIES CERTIFICATION
GRANITE BROADCASTING CORPORATION
% Senior Subordinated Notes due , 2008
This is to certify that, with respect to U.S. $___________
principal amount of the above-captioned Notes, except as set forth below, we
have received in writing, by tested telex or by electronic transmission, from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount of Notes set forth above (our "Member
Organizations"), certifications with respect to such portion, substantially to
the effect set forth in the Indenture.
We further certify (i) that we are not making available
herewith for exchange (or, if relevant, exercise of any rights or collection of
any interest) any portion of the Regulation S Temporary Global Note (as defined
in the Indenture) excepted in such certifications and (ii) that as of the date
hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain securities laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with
E-1
which this certification is or would be relevant, we irrevocably authorize you
to produce this certification to any interested party in such proceedings.
Dated: _____________, _______
Yours faithfully,
[XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, Brussels office,
as operator of the Euroclear System]
or
[CEDEL S.A.]
By____________________________
E-2
