1
EXHIBIT 4(a)
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WESTPOINT XXXXXXX INC., as Issuer
and
The Bank of New York, as Trustee
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INDENTURE
Dated as of June 9, 1998
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$525,000,000
7 7/8% Senior Notes due 2005, Series A
7 7/8% Senior Notes due 2005, Series B
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Trust Indenture Indenture
Act Section Section
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ss.310 (a)(1)...................................... 6.09
(a)(2)...................................... 6.09
(a)(3)...................................... Not Applicable
(a)(4)...................................... Not Applicable
(b)......................................... 6.08, 6.10
ss.311 (a)......................................... 6.07
(b)......................................... 6.07
(c)......................................... Not Applicable
ss.312 (a)......................................... 7.01
(b)......................................... 7.02
(c)......................................... 7.02
ss.313 (a)......................................... 7.03
(b)......................................... 7.03
(c)......................................... 7.03
(d)......................................... 7.03
ss.314 (a)......................................... 7.04, 10.09
(b)......................................... Not Applicable
(c)(1)...................................... 1.04, 4.04
(c)(2)...................................... 1.04, 4.04,
(c)(3)...................................... Not Applicable
(d)......................................... Not Applicable
(e)......................................... 1.04
ss.315 (a)......................................... 6.01(a)
(b)......................................... 6.02
(c)......................................... 6.01(b)
(d)......................................... 6.01(c)
(e)......................................... 5.14
ss.316 (a) (last sentence) ........................ 3.14
(a)(1)(A)................................... 5.12
(a)(1)(B)................................... 5.13
(a)(2)...................................... Not Applicable
(b)......................................... 5.08
ss.317 (a)(1)...................................... 5.03
(a)(2)...................................... 5.04
(b)......................................... 10.03
ss.318 (a)......................................... 1.08
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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PARTIES................................................................ 1
RECITALS............................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.............................................1
Section 1.02. Other Definitions......................................23
Section 1.03. Rules of Construction..................................23
Section 1.04. Form of Documents Delivered to Trustee.................24
Section 1.05. Acts of Holders........................................24
Section 1.06. Notices, etc., to the Trustee and the Company..........25
Section 1.07. Notice to Holders; Waiver..............................26
Section 1.08. Conflict with Trust Indenture Act......................26
Section 1.09. Effect of Headings and Table of Contents...............27
Section 1.10. Successors and Assigns.................................27
Section 1.11. Separability Clause....................................27
Section 1.12. Benefits of Indenture..................................27
Section 1.13. GOVERNING LAW..........................................27
Section 1.14. No Recourse Against Others.............................27
Section 1.15. Independence of Covenants..............................27
Section 1.16. Exhibits...............................................28
Section 1.17. Counterparts...........................................28
Section 1.18. Duplicate Originals....................................28
ARTICLE TWO
SECURITY FORMS
Section 2.01. Form and Dating........................................28
ARTICLE THREE
THE SECURITIES
Section 3.01. Title and Terms........................................29
Section 3.02. Registrar and Paying Agent.............................30
Section 3.03. Execution and Authentication...........................30
Section 3.04. Temporary Securities...................................33
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Section 3.05. Transfer and Exchange..................................33
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities.......34
Section 3.07. Payment of Interest; Interest Rights Preserved.........35
Section 3.08. Persons Deemed Owners..................................36
Section 3.09. Cancellation...........................................37
Section 3.10. Computation of Interest................................37
Section 3.11. Legal Holidays.........................................37
Section 3.12. CUSIP Number...........................................38
Section 3.13. Paying Agent To Hold Money in Trust....................38
Section 3.14. Treasury Securities....................................38
Section 3.15. Deposits of Monies.....................................39
Section 3.16. Book-Entry Provisions for Global Securities............39
Section 3.17. Special Transfer Provisions............................40
ARTICLE FOUR
DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. Company's Option To Effect Defeasance or Covenant
Defeasance......................................43
Section 4.02. Defeasance and Discharge...............................43
Section 4.03. Covenant Defeasance....................................44
Section 4.04. Conditions to Defeasance or Covenant Defeasance........45
Section 4.05. Deposited Money and U.S. Government Obligations To
Be Held in Trust; Other Miscellaneous
Provisions......................................47
Section 4.06. Reinstatement..........................................48
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default......................................49
Section 5.02. Acceleration of Maturity; Rescission and Annulment.....51
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee..........................52
Section 5.04. Trustee May File Proofs of Claims......................52
Section 5.05. Trustee May Enforce Claims Without Possession of
Securities......................................53
Section 5.06. Application of Money Collected.........................54
Section 5.07. Limitation on Suits....................................54
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Section 5.08. Unconditional Right of Holders To Receive
Principal, Premium and Interest.................55
Section 5.09. Restoration of Rights and Remedies.....................56
Section 5.10. Rights and Remedies Cumulative.........................56
Section 5.11. Delay or Omission Not Waiver...........................56
Section 5.12. Control by Majority....................................56
Section 5.13. Waiver of Past Defaults................................57
Section 5.14. Undertaking for Costs..................................57
Section 5.15. Waiver of Stay, Extension or Usury Laws................58
Section 5.16. Unconditional Right of Holders To Institute Certain
Suits...........................................58
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities....................59
Section 6.02. Notice of Defaults.....................................60
Section 6.03. Certain Rights of Trustee..............................60
Section 6.04. Trustee Not Responsible for Recitals, Dispositions
of Securities or Application of Proceeds
Thereof.........................................62
Section 6.05. Trustee and Agents May Hold Securities;
Collections; Etc................................62
Section 6.06. Money Held in Trust....................................62
Section 6.07. Compensation and Indemnification of Trustee and Its
Prior Claim.....................................62
Section 6.08. Conflicting Interests..................................63
Section 6.09. Corporate Trustee Required; Eligibility................63
Section 6.10. Resignation and Removal; Appointment of Successor
Trustee.........................................64
Section 6.11. Acceptance of Appointment by Successor.................66
Section 6.12. Merger, Conversion, Amalgamation, Consolidation or
Succession to Business..........................67
Section 6.13. Trustee's Application for Instructions from the
Company.........................................67
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Preservation of Information; Company To Furnish
Trustee Names and Addresses of Holders..........68
Section 7.02. Communications of Holders..............................68
Section 7.03. Reports by Trustee.....................................69
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Section 7.04. Reports by Company.....................................69
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Company May Consolidate, etc., Only on Certain
Terms...........................................70
Section 8.02. Successor Substituted..................................71
ARTICLE NINE
SUPPLEMENTAL INDENTURES AND WAIVERS
Section 9.01. Supplemental Indentures, Agreements and Waivers
Without Consent of Holders......................71
Section 9.02. Supplemental Indentures, Agreements and Waivers
with Consent of Holders.........................72
Section 9.03. Execution of Supplemental Indentures, Agreements
and Waivers.....................................74
Section 9.04. Effect of Supplemental Indentures......................75
Section 9.05. Conformity with Trust Indenture Act....................75
Section 9.06. Reference in Securities to Supplemental Indentures.....75
Section 9.07. Record Date............................................75
Section 9.08. Revocation and Effect of Consents......................76
ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium and Interest............76
Section 10.02. Maintenance of Office or Agency.......................76
Section 10.03. Money for Security Payments To Be Held in Trust.......77
Section 10.04. Corporate Existence...................................79
Section 10.05. Payment of Taxes and Other Claims.....................79
Section 10.06. Maintenance of Properties.............................79
Section 10.07. Insurance.............................................80
Section 10.08. Books and Records.....................................80
Section 10.09. Provision of Financial Statements.....................80
Section 10.10. Change of Control Triggering Event....................80
Section 10.11. Limitation on Additional Indebtedness.................83
Section 10.12. Statement by Officers as to Default...................85
Section 10.13. Limitation on Liens...................................85
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Section 10.14. Limitation on Designations of Unrestricted
Subsidiaries....................................86
Section 10.15. Limitation on Sale and Leaseback Transactions.........87
Section 10.16. Compliance Certificates and Opinions..................87
Section 10.17. Application of Fall Away Covenants....................88
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 11.01. Right of Redemption...................................88
Section 11.02. Applicability of Article..............................88
Section 11.03. Election To Redeem; Notice to Trustee.................89
Section 11.04. Selection by Trustee of Securities To Be Redeemed.....89
Section 11.05. Notice of Redemption..................................90
Section 11.06. Deposit of Redemption Price...........................91
Section 11.07. Securities Payable on Redemption Date.................91
Section 11.08. Securities Redeemed or Purchased in Part..............91
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 12.01. Satisfaction and Discharge of Indenture...............92
Section 12.02. Application of Trust Money............................93
Exhibit A-1 - Form of Initial Security
Exhibit A-2 - Form of Exchange Security
Exhibit B - Form of Legend for Book-Entry Securities
Exhibit C - Form of Certificate To Be Delivered in
Connection with Transfers to Non-QIB Accredited
Investors
Exhibit D - Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S
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INDENTURE, dated as of June 9, 1998, between WestPoint Xxxxxxx Inc.,
a corporation incorporated under the laws of the State of Delaware (the
"Company"), as issuer, and The Bank of New York, a New York banking corporation,
as trustee (the "Trustee").
RECITALS
The Company has duly authorized the creation of an issue of 7 7/8%
Senior Notes due 2005, Series A, and 7 7/8% Senior Notes due 2005, Series B, to
be issued in exchange for the 7 7/8% Senior Notes due 2005, Series A, pursuant
to a Registration Rights Agreement (as defined), and, to provide therefor the
Company has duly authorized the execution and delivery of this Indenture.
All things necessary have been done to make the Securities (as
defined), when executed by the Company and authenticated and delivered hereunder
and duly issued by the Company, the valid obligations of the Company and to make
this Indenture a valid agreement of each of the Company and the Trustee in
accordance with the terms hereof.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders (as hereinafter defined) of the
Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
"8 3/4% Senior Notes" means the Company's 8 3/4% Senior Notes due
2001.
"9 3/8% Senior Subordinated Debentures" means the Company's 9 3/8%
Senior Subordinated Debentures due 2005.
"Acquired Indebtedness" means Indebtedness of a Person existing at
the time such Person becomes a Restricted Sub-
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sidiary or assumed in connection with an Asset Acquisition of such Person,
including, without limitation, Indebtedness incurred in connection with, or in
anticipation of, such Person's becoming a Restricted Subsidiary or such
acquisition.
"Affiliate" means, with respect to any specified Person, any other
Person which, directly or indirectly, controls, is controlled by or is under
direct or indirect common control with, such specified 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.
"Agent Member" has the meaning set forth in Section 3.16.
"Asset Acquisition" means (i) any capital contribution (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) or Investment by the
Company or any Restricted Subsidiary to or in any other Person, or purchase or
acquisition of Capital Stock, by the Company or any of its Restricted
Subsidiaries of any other Person, in either case pursuant to which such other
Person shall become a Restricted Subsidiary of the Company or any of the
Restricted Subsidiaries or shall be merged with or into the Company or any of
the Restricted Subsidiaries or (ii) any acquisition by the Company or any of the
Restricted Subsidiaries of the assets of any Person which constitute
substantially all of an operating unit or business of such Person.
"Asset Sale" means any direct or indirect sale, conveyance,
transfer, lease or other disposition to any Person other than the Company or a
Restricted Subsidiary, in one transaction or a series of related transactions
(including by way of sale and leaseback), of (i) any Capital Stock of any
Restricted Subsidiary or (ii) any other property or asset of the Company or any
Restricted Subsidiary outside of the ordinary course of business. The term
"Asset Sale" shall not include (a) any sale by the Company of its Capital Stock,
(b) sales of inventory, rental assets and real estate held for sale in the
ordinary course of business in accordance with past practices, (c) Capitalized
Lease Obligations or (d) sales of receivables as contemplated by the Trade
Receivables Facility.
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"Attributable Indebtedness" in respect of a Sale/Leaseback
Transaction means, as at the time of determination, the present value
(discounted at the interest rate borne by the Securities, compounded annually)
of the total obligations of the lessee for rental payments during the remaining
term of the lease included in such Sale/Leaseback Transaction (including any
period for which such lease has been extended).
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code or any similar
federal or state law relating to bankruptcy, insolvency, receivership,
winding-up, liquidation, reorganization or relief of debtors or the law of any
other jurisdiction relating to bankruptcy, insolvency, receivership, winding-up,
liquidation, reorganization or relief of debtors or any amendment to, succession
to or change in any such law.
"Bankruptcy Order" means any court order made in a proceeding
pursuant to or within the meaning of any Bankruptcy Law, containing an
adjudication of bankruptcy or insolvency, or providing for liquidation,
receivership, winding-up, dissolution, "concordate" or reorganization, or
appointing a Custodian of a debtor or of all or any substantial part of a
debtor's property, or providing for the staying, arrangement, adjustment or
composition of indebtedness or other relief of a debtor.
"Board" means 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, and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York,
State of New York are authorized or obligated by law, regulation or executive
order to close.
"Capital Stock" means, with respect to any Person, any and all
shares, partnership interests, participations, rights in, or other equivalents
(however designated and whether voting or non-voting) of, any Person, whether
outstanding on the Issue Date or issued after the Issue Date, and any and all
rights, warrants or options exchangeable for or convertible into such capital
stock.
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"Capitalized Lease Obligation" means any obligation to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
any property (whether real, personal or mixed) that is required to be classified
and accounted for as a capital lease obligation under GAAP, and, for the purpose
of this Indenture, the amount of such obligation at any date shall be the
capitalized amount thereof at such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) investments in direct obligations of
the United States government maturing within one year of the date of
acquisition, (ii) investments in certificates of deposit and money market
deposits maturing within one year of the date of acquisition thereof issued by a
bank or trust company which is organized under the laws of the United States,
any State thereof, the District of Columbia or any foreign jurisdiction having
capital, surplus and undivided profits aggregating in excess of $200 million,
(iii) repurchase obligations with a term of not more than 90 days for direct
obligations of the United States government or entered into with a bank meeting
the qualifications described in clause (ii) above, (iv) investment in commercial
paper given the highest rating by Standard & Poor's and Xxxxx'x and maturing not
more than one year from the date of acquisition, (v) investments in mutual funds
which invest exclusively in items described in (i)-(iv) above and (vi) demand
deposit accounts maintained in the ordinary course of business.
"Change of Control" means the occurrence of any of the following
events: (a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 50% of the total
Voting Stock of the Company; or (b) the Company consolidates with, or merges
with or into, another person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any person or
any person consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which the outstanding Voting Stock of the
Company is converted into or exchanged for cash, securities or other property,
other than any such transaction where (i) the outstanding Voting Stock of the
Company is converted into or exchanged for (1) Voting Stock (other than
Disqualified Stock) of the surviving or transferee corporation or its parent
corpora-
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tion and/or (2) cash, securities and other property in an amount which could be
paid by the Company as a Restricted Payment under this Indenture and (ii)
immediately after such transaction no "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act) is the "beneficial owner"
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
person shall be deemed to have "beneficial ownership" of all securities that
such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 50% of the total Voting Stock of the surviving or transferee corporation or
its parent corporation, as applicable; or (c) during any consecutive two-year
period, individuals who at the beginning of such period constituted the Board
(together with any new directors whose election by the Board or whose nomination
for election by the stockholders of the Company was approved by a vote of a
majority of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board then in office.
"Change of Control Triggering Event" means the occurrence of both a
Change of Control and a Rating Decline.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, or if at any time after the execution of this
Indenture such Commission is not existing and performing the applicable duties
now assigned to it, then the body or bodies performing such duties at such time.
"Company" means the person named as the "Company" in the first
paragraph of this Indenture, until a successor person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by any one of its Chairman of the Board,
its Vice-Chairman, its Chief Executive Officer, its President or a Vice
President, and by its Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, and delivered to the Trustee.
"Consolidated Adjusted Net Income" means, for any period, the
consolidated net income (or loss) of the Company and the Restricted Subsidiaries
for such period as determined in accordance with GAAP, adjusted, to the extent
included in calcu-
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lating such net income, by excluding, without duplication, (i) all extraordinary
gains or losses, (ii) the net income of any Person combined with the Company or
one of the Restricted Subsidiaries on a "pooling of interests" basis
attributable to any period prior to the date of combination, (iii) any gain or
loss realized upon the termination of any employee pension benefit plan (on an
after-tax basis), (iv) gains in respect of any Asset Sales by the Company or one
of the Restricted Subsidiaries (on an after-tax basis), (v) the net income of
any Restricted Subsidiary to the extent that the declaration of dividends or the
making of distributions by that Restricted Subsidiary of that income is not at
the time permitted, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, law,
rule or governmental regulations applicable to that Restricted Subsidiary or its
stockholders, (vi) the effect of any charge taken in connection with the
Financing Transactions, (vii) the amortization of goodwill, (viii) the non-cash
portion of any income taxes accrued in accordance with GAAP for such period and
(ix) all non-cash extraordinary, unusual or non-recurring charges for which no
cash accrual is required.
"Consolidated EBITDA" means, for any period, the Consolidated
Adjusted Net Income of the Company and the Restricted Subsidiaries for such
period increased to the extent deducted in determining Consolidated Adjusted Net
Income by the sum of: (i) all income taxes of the Company and the Restricted
Subsidiaries paid or accrued in accordance with GAAP for such period (other than
income taxes attributable to extraordinary, unusual or non-recurring gains or
losses); (ii) all interest expense of the Company and the Restricted
Subsidiaries paid or accrued for such period (including amortization of original
issue discount and interest with respect to Capitalized Lease Obligations);
(iii) the aggregate amount of cash dividends and other distributions declared,
or paid on Capital Stock other than Common Stock of the Company and the
Restricted Subsidiaries for the period; (iv) depreciation expense of the Company
and the Restricted Subsidiaries; (v) amortization expense of the Company and the
Restricted Subsidiaries including, without limitation, amortization of
capitalized debt issuance costs; and (vi) any other non-cash charges of the
Company and the Restricted Subsidiaries to the extent deducted in determining
the Consolidated Adjusted Net Income of the Company, all determined on a
consolidated basis in accordance with GAAP.
"Consolidated EBITDA Coverage Ratio" means the ratio of (i)
Consolidated EBITDA of the Company for the four full fiscal quarters for which
financial statements are available that
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immediately precede the date of the transaction or other circumstances giving
rise to the need to calculate the Consolidated EBITDA Coverage Ratio (the
"Transaction Date") to (ii) the sum of (a) all interest expense of the Company
and the Restricted Subsidiaries paid or accrued (including amortization of
original issue discount and interest with respect to Capitalized Lease
Obligations) and (b) the aggregate amount of cash dividends and other
distributions declared or paid on Disqualified Stock of the Company and the
Restricted Subsidiaries, in each case for such four full fiscal quarter period.
For purposes of this definition, if the Transaction Date occurs prior to the
date on which the Company's consolidated financial statements for the four full
fiscal quarters subsequent to the Issue Date are first available, "Consolidated
EBITDA" and the items referred to in the preceding clause (ii) shall be
calculated after giving effect on a pro forma basis as if the applicable issue
of Securities outstanding on the Transaction Date were issued on the first day
of such four full fiscal quarter period. In addition to and without limitation
of the foregoing, for purposes of this definition, "Consolidated EBITDA" and the
items referred to in the preceding clause (ii) shall be calculated after giving
effect on a pro forma basis for the period of such calculation to (i) the
incurrence of any Indebtedness of the Company or any of the Restricted
Subsidiaries at any time during the period (the "Reference Period") (A)
commencing on the first day of the four full fiscal quarter period for which
financial statements are available that precedes the Transaction Date and (B)
ending on and including the Transaction Date, including, without limitation, the
incurrence of the Indebtedness giving rise to the need to make such calculation,
as if such incurrence occurred on the first day of the Reference Period; and
(ii) any Asset Sales or Asset Acquisitions (including, without limitation, any
Asset Acquisition giving rise to the need to make such calculation as a result
of the Company or any of the Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring
Acquired Indebtedness) occurring during the Reference Period and any retirement
of Indebtedness in connection with such Asset Sales, as if such Asset Sale or
Asset Acquisition and/or retirement occurred on the first day of the Reference
Period. Furthermore, in calculating the denominator (but not the numerator) of
the Consolidated EBITDA Coverage Ratio, (1) interest on Indebtedness determined
on a fluctuating basis as of the Transaction Date and which will continue to be
so determined thereafter shall be deemed to accrue at a fixed rate per annum
equal to the rate of interest on such Indebtedness in effect on the Transaction
Date; and (2) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest
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is covered by agreements relating to Interest Rate Protection Obligations, shall
be deemed to accrue at the rate per annum resulting after giving effect to the
operation of such agreements. If the Company or any of the Restricted
Subsidiaries directly or indirectly guarantees Indebtedness of a third Person,
this definition shall give effect to the incurrence of such guaranteed
Indebtedness as if the Company or Restricted Subsidiary had directly incurred
such guaranteed Indebtedness.
"control" means, with respect to any specified person, the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286, Attention:
Corporate Trust Trustee Administration.
"Custodian" means any receiver, interim receiver, receiver and
manager, receiver-manager, trustee, assignee, liquidator, sequestrator or
similar official under any Bankruptcy Law or any other law respecting secured
creditors and the enforcement of their security or any other person with like
powers whether appointed judicially or out of court and whether pursuant to an
interim or final appointment.
"Debt Securities" means any debt securities (including any guarantee
of such securities) issued by the Company and/or any Restricted Subsidiary in
connection with a public offering (whether or not underwritten) or a private
placement (provided that such private placement is underwritten for resale
pursuant to Rule 144A, Regulation S or otherwise under the Securities Act or
sold on an agency basis by a broker-dealer or one of its Affiliates to 10 or
more beneficial holders).
"Default" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
"Depository" means The Depository Trust Company, its nominees
and successors.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which, by its terms (or by
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the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable (in each case, other than into common stock of the Company), pursuant
to a sinking fund obligation or otherwise, or is exchangeable for Indebtedness,
or is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the final Maturity Date of the specified Security. Notwithstanding the
foregoing, in no event shall Capital Stock that is considered Disqualified Stock
solely by reason of such Capital Stock being convertible at the option of the
holder of such capital stock into other Capital Stock (other than Disqualified
Stock) constitute Disqualified Stock.
"Duff & Xxxxxx" means Duff and Xxxxxx Credit Rating Co. and
its successors.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Securities" means 7 7/8% Senior Notes due 2005, Series B
(the terms of which are identical to the Initial Securities except that the
Exchange Securities shall be registered under the Securities Act, and shall not
contain the restrictive legend on the face of the form of Initial Securities),
issued pursuant to this Indenture.
"Fair Market Value" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length free market transaction,
for cash, between a willing seller and a willing buyer, neither of whom is under
undue pressure or compulsion to complete the transaction.
"Financing Transactions" means the consummation of (i) the offering
by the Company of $525,000,000 aggregate principal amount of the Securities and
$475,000,000 aggregate principal amount of its Senior Notes due 2008, (ii) the
Company's tender offers to purchase all of the 8 3/4% Senior Notes and all of
the 9 3/8% Senior Subordinated Debentures, (iii) the redemption of the Company's
9% Sinking Fund Debentures due 2017 and (iv) the Senior Credit Facility and the
availability of funds thereunder.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the
17
-10-
accounting profession of the United States, which are applicable as of the date
of determination. The Company may, by notice to the Trustee, elect to use GAAP
principles as in effect on the date of such election.
"Global Security" has the meaning provided in Section 3.03
hereof.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books, as the context requires.
"incur" means, with respect to any Indebtedness, to directly or
indirectly create, incur, assume, unconditionally guarantee or in any manner
become liable for such Indebtedness, whether contingently or otherwise, provided
that neither the accrual of interest nor the acquisition of original issue
discount shall be considered an incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all obligations for borrowed money, (ii) all obligations
evidenced by bonds, Securities, notes or other similar instruments, (iii) all
Capitalized Lease Obligations, (iv) all obligations issued or assumed as the
deferred purchase price of property, all conditional sale obligations and all
obligations under any title retention agreement which purchase price is due more
than six months from the date of incurrence (but excluding trade accounts
payable arising in the ordinary course of business), (v) all obligations issued
or contracted for as payment in consideration of the purchase by such Person of
the stock or substantially all the assets of another Person or a merger or
consolidation, (vi) all obligations for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transactions entered
into in the ordinary course of business, (vii) all obligations of the type
referred to in clauses (i) through (vi) of other Persons and all dividends of
other Persons for the payment of which, in either case, such Person is directly
or indirectly responsible or liable as obligor, guarantor or otherwise and
(viii) all obligations of the type referred to in clauses (i) through (vii) of
other Persons which are secured by any Lien on any property or asset of such
Person, the amount of such obligation being deemed to be the lesser of the value
of such property or asset or the amount of the obligation so secured. For
purposes of Section 10.11, "Indebtedness" shall include all Capital Stock that
is (i) in the case of any Restricted Subsidiary, not common stock of such
Restricted Subsidiary and (ii) Disqualified Stock of the Company.
18
-11-
"Indenture" means this instrument as originally executed (including
all exhibits and schedules hereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
"Indenture Obligations" means the obligations of the Company and any
other obligor under this Indenture or under the Securities to pay principal of,
premium, if any, and interest on the Securities when due and payable, whether at
maturity, by acceleration, call for redemption or repurchase or otherwise, and
all other amounts due or to become due under or in connection with this
Indenture or the Securities and the performance of all other obligations to the
Trustee (including, but not limited to, payment of all amounts due the Trustee
under Section 6.07 hereof) and the Holders of the Securities under this
Indenture and the Securities, according to the terms thereof.
"Initial Purchasers" means Xxxxxxx Xxxxx, Xxxxxxx Xxxxx & Co.,
NationsBanc, Xxxxxxxxxx Securities LLC, BNY Capital Markets, Inc., First Chicago
Capital Markets, Inc. and Scotia Capital Markets.
"Initial Securities" means the 7 7/8% Senior Notes due 2005, Series
A, for so long as such securities constitute Restricted Securities.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"interest," when used with respect to any Security, means the amount
of all interest accruing on such Security, including all additional interest
payable on the Securities pursuant to the Registration Rights Agreement and all
interest accruing subsequent to the occurrence of any events specified in
Sections 5.01(g), (h) and (i) or which would have accrued but for any such
event, whether or not such claims are allowable under applicable law.
"Interest Payment Date" means, when used with respect to any
Security, the Stated Maturity of an installment of interest on such Security, as
set forth in such Security.
"Interest Rate Protection Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated
19
-12-
by applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such Person calculated by
applying a fixed or a floating rate of interest on the same notional amount and
shall include without limitation, interest rate swaps, caps, floors, collars and
similar agreements.
"Investment" means, with respect to any person, any direct or
indirect advance, loan or other extension of credit (including by means of a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others or otherwise), or any purchase or acquisition by such person of
any Capital Stock, bonds, notes, debentures or other securities or evidences of
Indebtedness issued by any other person. Investments will exclude extensions of
trade credit on commercially reasonable terms in accordance with normal trade
practices. In addition to the foregoing, any foreign exchange contract, currency
swap, Interest Rate Protection Obligation or similar agreement shall constitute
an Investment.
"Investment Grade Rating" has the meaning provided in Section 10.17
hereof.
"Issue Date" means the original date of issuance of the Securities.
"Lien" means any mortgage, lien (statutory or other), pledge,
security interest, encumbrance, claim, hypothecation, assignment for security,
or preference or other security agreement of any kind or nature whatsoever. For
purposes of this Indenture, a Person shall be deemed to own subject to a Lien
any property which it has acquired or holds subject to the interest of a vendor
or lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to Indebtedness of such Person.
"Make-Whole Premium" means, with respect to any Security at any
Redemption Date, the excess, if any, of (a) the aggregate present value of the
sum of the principal and premium amount of such Securities, discounted on a
semi-annual bond equivalent basis from such Redemption Date to June 15, 2005, at
a per annum interest equal to the sum of the Treasury Yield (determined on the
Business Day immediately preceding the date of such redemption or declaration of
accelerated payment) plus 37.5 basis points over (b) the aggregate principal
amount of the Security being redeemed or paid.
20
-13-
"Maturity Date" means, with respect to any Security, the date on
which any principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity with respect to such principal
or by declaration of acceleration, call for redemption or purchase or otherwise.
"Xxxxxxx Xxxxx" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Non-Global Purchasers" shall have the meaning specified in Section
3.03 hereof.
"Offering Memorandum" means the Offering Memorandum dated June 3,
1998 pursuant to which the Initial Securities were offered, and any supplement
thereto.
"Officer" means, with respect to the Company, the Chairman of the
Board, a Vice Chairman, the President, a Vice President, the Secretary, an
Assistant Secretary, the Treasurer or an Assistant Treasurer.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, a Vice Chairman, the President or a Vice President, and by the
Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer, of
the Company and delivered to the Trustee.
"Offshore Physical Securities" shall have the meaning specified in
Section 3.03 hereof.
"Opinion of Counsel" means a written opinion of counsel who may be
counsel for the Company or the Trustee, and who shall be reasonably acceptable
to the Trustee.
"Outstanding" means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, 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 or any
Affiliate thereof) in trust
21
-14-
or set aside and segregated in trust by the Company or any Affiliate
thereof (if the Company or Affiliate shall act as Paying Agent) for the
Holders of such Securities; provided, however, that if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities with respect to which the Company has effected
defeasance or covenant defeasance as provided in Article Four, to the
extent provided in Sections 4.02 and 4.03; and
(iv) Securities in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands the Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities that a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. The Company shall notify
the Trustee, in writing, when it repurchases or otherwise acquires Securities,
of the aggregate principal amount of such Securities so repurchased or otherwise
acquired. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor. If the Paying Agent holds, in
its capacity as such, on any Maturity Date or on any optional redemption date
money sufficient to pay all accrued interest and principal with respect to such
Securities payable on that date and is not prohibited from paying such money to
the Holders thereof pursuant to the terms of this Indenture, then on and after
that date such Securities cease to be Outstanding and interest on them ceases to
accrue. Securities may
22
-15-
also cease to be outstanding to the extent expressly provided in Article Eight.
"Paying Agent" shall have the meaning specified in Section 3.02
hereof.
"Permitted Liens" means (a) Liens on property of (or on shares of
Capital Stock or debt securities of) a Person existing at the time such Person
(i) is merged into or consolidated with the Company or any Restricted Subsidiary
or (ii) becomes a Restricted Subsidiary; provided, however, that such Liens were
in existence prior to the contemplation of such merger, consolidation or
acquisition and do not secure any property or assets of the Company or any
Restricted Subsidiary other than the property or assets subject to the Liens
prior to such merger, consolidation or acquisition; (b) Liens existing on the
Issue Date; (c) Liens in favor of the Company or Liens on any property or assets
of a Subsidiary (or on shares of Capital Stock or debt securities of a
Subsidiary) in favor of the Company or any Restricted Subsidiary; (d) Liens
resulting from the deposit of cash or notes in connection with contracts,
tenders or expropriation proceedings, or to secure workers' compensation, surety
or appeal bonds, costs of litigation when required by law, public and statutory
obligations, obligations under franchise arrangements entered into in the
ordinary course of business and other obligations of a similar nature arising in
the ordinary course of business; (e) Liens securing Indebtedness under the
Senior Credit Facility; (f) Liens securing Indebtedness consisting of
Capitalized Lease Obligations, Purchase Money Indebtedness, mortgage financings,
industrial revenue bonds or other monetary obligations, in each case incurred
solely for the purpose of financing all or any part of the purchase price or
cost of construction or installation of assets used in the business of the
Company or the Restricted Subsidiaries, or repairs, additions or improvements to
such assets; provided, however, that (I) such Liens secure Indebtedness in an
amount not in excess of the original purchase price or the original cost of any
such assets or repair, addition or improvement thereto (plus an amount equal to
the reasonable fees and expenses in connection with the incurrence of such
Indebtedness), (II) such Liens do not extend to any other assets of the Company
or any of the Restricted Subsidiaries (and, in the case of repair, addition or
improvements to any such assets, such Lien extends only to the assets (and
improvements thereto or thereon) repaired, added to or improved), (III) the
incurrence of such Indebtedness is permitted by Section 10.11 and (IV) such
Liens attach prior to 270 days after such purchase, construction, installation,
repair, addition or improvement; (g) Liens to secure any refinanc-
23
-16-
ings (or successive refinancings), in whole or in part, of any Indebtedness
secured by Liens referred to in the clauses above so long as such Lien does not
extend to any other property (other than improvements thereto); (h) Liens
securing letters of credit entered into in the ordinary course of business and
consistent with past business practice; (i) Liens on and pledges of the capital
stock of any Unrestricted Subsidiary; (j) Liens arising from the rendering of a
judgment or order against the Company or any Restricted Subsidiary that does not
give rise to an Event of Default; (k) Liens arising out of conditional sale,
title retention, consignment or similar arrangements for the sale of goods
entered into by the Company or any Restricted Subsidiary in the ordinary course
of business; (l) Liens arising out of any sale of accounts receivable in the
ordinary course to or by a Receivables Subsidiary; (m) Liens on acquired
property or assets of a Restricted Subsidiary to secure Indebtedness of such
Restricted Subsidiary (other than Indebtedness evidenced by Disqualified Stock)
or a guarantee thereof; provided, however, that such Liens were not created in
contemplation of such acquisition; (n) Liens to secure the Indebtedness
described in clause (i) of Section 10.11; and (o) Liens on assets of Restricted
Subsidiaries to secure Indebtedness of the Company and the Restricted
Subsidiaries (other than Debt Securities).
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Physical Security" shall have the meaning specified in Section 3.03
hereof.
"Predecessor Security" means, with respect to any particular
Security, every previous Security evidencing all or a portion of the same debt
as that evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.06 hereof
in exchange for a mutilated Security or in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Security.
"Private Exchange Securities" shall have the meaning set forth in
the Registration Rights Agreement.
"Private Placement Legend" shall mean the first paragraph of the
legend initially set forth in the Securities in the form set forth on Exhibit
A-1.
24
-17-
"Productive Assets" means assets of a kind used or usable in the
business of the Company and the Restricted Subsidiaries.
"Purchase Money Indebtedness" means Indebtedness of the Company or
any Restricted Subsidiary (i) issued to finance or refinance (including any
extensions or renewals) the purchase or construction of any assets of the
Company or any Restricted Subsidiary or (ii) secured by a Lien on any assets of
the Company or any Restricted Subsidiary where the lender's sole recourse is to
the assets so encumbered in either case to the extent (a) the purchase or
construction costs for such assets are included as an asset on the balance sheet
of the Company in accordance with GAAP and (b) the purchase or construction of
such assets is not part of any acquisition of a Person or a business unit.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Rating Agencies" means (i) Standard & Poor's, (ii) Moody's and
(iii) Duff & Xxxxxx.
"Rating Category" means (i) with respect to Standard & Poor's, any
of the following categories: BB, B, CCC, CC, C and D (or equivalent successor
categories); (ii) with respect to Moody's, any of the following categories: Ba,
B, Caa, Ca, C and D (or equivalent successor categories); and (iii) with respect
to Duff & Xxxxxx XX, B, CCC and D (or equivalent successor categories). In
determining whether the rating of the Securities has decreased by one or more
gradations, gradations within Rating Categories (+ and - for Standard & Poor's;
1, 2 and 3 for Moody's; or + and - for Duff & Xxxxxx) shall be taken into
account (e.g., with respect to Standard & Poor's, a decline in a rating from BB+
to BB, as well as from BB- to B+, will constitute a decrease of one gradation).
"Rating Date" means the date which is 90 days prior to the earlier
of (i) a Change of Control and (ii) public notice of the occurrence of a Change
of Control or of the intention by the Company to effect a Change of Control.
"Rating Decline" means the occurrence of the following on, or within
90 days after, the earlier of (i) the occurrence of a Change of Control and (ii)
the date of public notice of the occurrence of a Change of Control or of the
public notice of the intention of the Company to effect a Change of Control
(which period shall be extended so long as the rating of the Se-
25
-18-
curities is under publicly announced consideration for possible downgrading by
any two of the Rating Agencies): (a) in the event that the Securities have an
Investment Grade Rating, the rating of the Securities by two of such Rating
Agencies shall be reduced below Investment Grade, or (b) in the event the
Securities are rated below Investment Grade by two of such Rating Agencies on
the Rating Date, the rating of the Securities by any of two Rating Agencies
shall be decreased by one or more gradations (including gradations within Rating
Categories as well as between Rating Categories).
"Receivables Subsidiary" means a bankruptcy-remote Subsidiary of the
Company party to a Trade Receivables Facility. The term "bankruptcy remote"
means that the Receivables Subsidiary's charter and by-laws and certain other
documentation relating to a Trade Receivables Facility will contain provisions
that are intended to prevent such Subsidiary from becoming subject to a
voluntary or involuntary bankruptcy proceeding. These provisions may include a
requirement of one or more directors who are not otherwise affiliated with the
Company.
"Redemption Date" means, with respect to any Security to be
redeemed, the date fixed by the Company for such redemption pursuant to this
Indenture and Securities.
"Redemption Price" means, with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture and
the terms of the Securities.
"Registered Exchange Offer" means the registration by the Company
under the Securities Act of all Exchange Securities pursuant to a registration
statement under which the Company offers each Holder of Initial Securities the
opportunity to exchange all Initial Securities held by such Holder for Exchange
Securities in an aggregate principal amount equal to the aggregate principal
amount of Initial Securities held by such Holder, all in accordance with the
terms and conditions of the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of June 9, 1998 by and among the Company and the Initial
Purchasers, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the terms thereof.
"Regular Record Date" means the Regular Record Date specified in the
Securities.
26
-19-
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer" means, with respect to the Trustee, any vice
president, any assistant vice president, the secretary, any assistant secretary,
the treasurer, any assistant treasurer, any trust officer or assistant trust
officer, or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer of
the Trustee to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Security" shall have the meaning specified in Rule
144(a)(3) under the Securities Act; provided that the Trustee shall be entitled
to request and conclusively rely upon an Opinion of Counsel with respect to
whether a Security is a Restricted Security.
"Restricted Subsidiaries" means all of the Company's existing and
future Subsidiaries that are not designated Unrestricted Subsidiaries on the
Issue Date or in accordance with Section 10.14.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale/Leaseback Transaction" means any arrangement with any Person
providing for the leasing to the Company or any Restricted Subsidiary of any
real or tangible personal property (except for leases between or among the
Company and any of the Restricted Subsidiaries), which property has been or is
to be sold or transferred by the Company or such Restricted Subsidiary to such
Person in contemplation of such leasing.
"Securities" means, collectively the Initial Securities, the
Exchange Securities and the Private Exchange Securities, if any, treated a
single class of securities, as amended or supplemented from time to time in
accordance with the terms of this Indenture, that are issued pursuant to this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" shall have the respective meanings specified in
Section 3.05 hereof.
27
-20-
"Security Registrar" or "Registrar" shall have the meaning specified
in Section 3.02 hereof.
"Senior Credit Facility" means the Second Amended and Restated
Credit Agreement dated as of June 9, 1998, among the Company, the financial
institutions party thereto in their capacities as lenders thereunder and
NationsBank, N.A., as Administrative Agent for the lenders, as the same may be
amended from time to time and increased in compliance with Section 10.11, and
any agreement evidencing (whether initial or successive) one or more
refinancings, modifications, replacements, renewals, restatements, refundings,
deferrals, extensions, substitutions, supplements, reissuances or resales
thereof.
"Significant Subsidiary" means, at any particular time, any
Restricted Subsidiary that (a) accounted for more than 10% of the consolidated
revenues or Consolidated EBITDA of the Company and the Restricted Subsidiaries
on a consolidated basis for the most recently completed fiscal year of the
Company or (b) was the owner of more than 10% of the consolidated assets of the
Company and the Restricted Subsidiaries on a consolidated basis as at the end of
such fiscal year, all as shown on the consolidated financial statements of the
Company and the Restricted Subsidiaries for such fiscal year.
"Special Record Date" means, with respect to the payment of any
Defaulted Interest, a date fixed by the Trustee pursuant to Section 3.07 hereof.
"Stated Maturity" means, with respect to any Security or any
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable, and when used with respect to any other
Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness, or
any installment of interest thereon, is due and payable.
"Standard & Poor's" means Standard & Poor's Ratings Service and its
successors.
Subordinated Indebtedness" means Indebtedness of the Company which
is expressly subordinated in right of payment to the Securities.
"Subsidiary" means, with respect to any Person, (i) any corporation
of which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the
28
-21-
election of directors shall at the time be owned, directly or indirectly, by
such Person, or (ii) any other Person of which at least a majority of voting
interest is at the time, directly or indirectly, owned by such Person.
"Tender Offer Documents" means the Offer to Purchase dated April 29,
1998 relating to the 8 3/4% Senior Notes and 9 3/8% Senior Subordinated
Debentures, as the same may be amended or supplemented from time to time (other
than the Minimum Condition and Supplemental Indenture Condition set forth
therein).
"Trade Receivables Facility" means the arrangements entered into or
that may be entered into by the Company or one or more of its Subsidiaries
pursuant to which the Company or one or more of its Subsidiaries may either
transfer to any other Person or grant a security interest in any trade or other
receivables (whether now existing or arising in the future) and any assets
related to such trade or other receivables including, without limitation, all
collateral securing such trade or other receivables and shall include any
contributions of trade or other receivables and related assets in exchange for
the capital stock of the Receivables Subsidiary and other capital contributions
of trade or other receivables and related assets to the Receivables Subsidiary.
"Treasury Yield" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by and published in the most recent Federal Reserve Statistical Release
H.15 (519) which has become publicly available at least two Business Days prior
to the date fixed for redemption (or, if such Statistical Release is no longer
published, any publicly available source of similar data)) most nearly equal to
the then remaining average life of the Securities; provided, that if the average
life of the Securities is not equal to the constant maturity of a United States
Treasury security for which a weekly average yield is given, the Treasury yield
shall be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of United States Treasury securities
for which such yields are given, except that if the average life of the
Securities is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended.
29
-22-
"Trustee" means the person named as the "Trustee" in the first
paragraph of this Indenture, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Subsidiary" means any Subsidiary of the Company
designated as such on the Issue Date and any other Subsidiary designated as such
pursuant to and in compliance with the covenant described in Section 10.14. Any
such designation may be revoked by a Board Resolution of the Company delivered
to the Trustee, subject to the provisions of Section 10.14.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holders thereof
to vote in the election of members of the board of directors of such Person.
"Wholly Owned Subsidiary" means any Restricted Subsidiary, 100% of
the Capital Stock of which (other than shares of Capital Stock representing any
director's qualifying shares of investments by foreign nationals mandated by
applicable law not in any event to exceed 5% of the total outstanding Capital
Stock) is owned by the Company, by a Wholly Owned Restricted Subsidiary or by
the Company and a Wholly Owned Restricted Subsidiary.
30
-23-
Section 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Act" 1.05
"Change of Control Date" 10.10
"Change of Control Offer" 10.10
"Change of Control Payment Date" 10.10
"covenant defeasance" 4.03
"Defaulted Interest" 3.07
"defeasance" 4.02
"Defeased Securities" 4.01
"insolvent person" 4.04
"Surviving Entity" 8.01
Section 1.03. Rules of Construction.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(e) all references to "$" or "dollars" shall refer to the lawful
currency of the United States of America; and
(f) the words "include," "included" and "including" as used herein
shall be deemed in each case to be followed by the phrase "without
limitation."
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Section 1.04. 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 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 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 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, with
proper identification of each matter covered therein, and form one instrument.
Section 1.05. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an 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 exe-
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cution (as provided below in subsection (b) of this Section 1.05) 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 6.01 hereof) 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 in any reasonable manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security or the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof to the same extent
as the original Holder, in respect of anything done, suffered or omitted to be
done by the Trustee, any Paying Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
Section 1.06. Notices, etc., to the Trustee and the 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:
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed, in
writing, to or with the Trustee at The Bank of New York, 000 Xxxxxxx
Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust Trustee Administration or at any other address previously furnished
in writing to the Holders, the Company by the Trustee; or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose (except as otherwise expressly provided herein)
hereunder if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at WestPoint Xxxxxxx Inc., 1185 Avenue of the
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief Executive
Officer, or at any other address
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previously furnished in writing to the Trustee by the Company.
Section 1.07. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise expressly provided
herein) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice when mailed
to a Holder in the aforesaid manner shall be conclusively deemed to have been
received by such Holder whether or not actually received by such Holder. 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 mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 1.08. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision or requirement of the Trust Indenture Act 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
excluded, as the case may be.
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Section 1.09. 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 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its respective successors and assigns, whether so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture or in the Securities issued
pursuant hereto shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Securities or issued pursuant
hereto, express or implied, shall give to any person (other than the parties
hereto and their successors hereunder, any Paying Agent and the Holders) any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.13. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Section 1.14. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation.
Section 1.15. Independence of Covenants.
All covenants and agreements in this Indenture shall be given
independent effect so that if a particular action or
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condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitations of, another
covenant shall not avoid the occurrence of a Default if such action is taken or
condition exists.
Section 1.16. Exhibits.
All exhibits attached hereto are by this reference made a part
hereof with the same effect as if herein set forth in full.
Section 1.17. Counterparts.
This Indenture may be executed in any number of counterparts, each
of which shall be an original; but such counterparts shall together constitute
but one and the same instrument.
Section 1.18. Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
ARTICLE TWO
SECURITY FORMS
Section 2.01. Form and Dating.
The Initial Securities and the Exchange Securities and the Trustee's
certificate of authentication with respect thereto shall be in substantially the
forms set forth, or referenced, in Exhibit A-1 and Exhibit A-2, respectively,
annexed hereto, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any applicable law
or with the rules of the Depository, any clearing agency or any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution thereof.
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The definitive Securities shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
Each Security shall be dated the date of its authentication. The
terms and provisions contained in the Securities shall constitute, and are
expressly made, a part of this Indenture.
ARTICLE THREE
THE SECURITIES
Section 3.01. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $525,000,000 in
aggregate principal amount of Securities, except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities pursuant to Section 3.03, 3.04, 3.05, 3.06, 9.06, 10.10 or
11.08.
The final Stated Maturity of the Securities shall be June 15, 2005,
and the Securities shall bear interest at the rate of 7 7/8% per annum from the
Issue Date or from the most recent Interest Payment Date to which interest has
been paid, as the case may be, payable on December 15, 1998 and semi-annually
thereafter on June 15 and December 15, in each year, until the principal thereof
is paid or duly provided for. Interest on any overdue principal, interest (to
the extent lawful) or premium, if any, shall be payable on demand.
The Securities shall be redeemable as provided in Article Eleven and
as provided in the Securities.
At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article Four.
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Section 3.02. Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where Securities may be presented for registration of transfer or for exchange
(the "Security Registrar" or "Registrar"), an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where Securities may be presented for payment (the "Paying Agent" or "Agent")
and an office or agency where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Registrar shall
keep a register of the Securities and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" or "Agent" includes any additional paying agent.
The Company may act as its own Paying Agent, except for the purposes of payments
on account of principal on the Securities pursuant to Section 10.10.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which shall incorporate the provisions
of the Trust Indenture Act. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 6.07 hereof.
The Company initially appoints the Trustee as the Registrar and
Paying Agent and agent for service of notices and demands in connection with the
Securities.
Section 3.03. Execution and Authentication.
Two Officers shall execute the Securities on behalf of the Company
by either manual or facsimile signature.
Securities bearing the manual or facsimile signature of individuals
who were at any time the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices on the date of such Securities.
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At any time and from time to time after the execution and delivery
of this Indenture, the Company many deliver Securities executed by the Company
to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as
provided in this Indenture and not otherwise.
A Security shall not be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose until the Trustee manually signs the
certificate of authentication on the Security. The Trustee's signature on such
certificate shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate Initial Securities for original issue
in an aggregate principal amount not to exceed $525,000,000, upon receipt of a
Company Order. In addition, on or prior to the date of the Registered Exchange
Offer, the Trustee or an authenticating agent shall authenticate Exchange
Securities (including any Private Exchange Securities which will be in the form
of Exhibit A-2 but which shall have the restrictive legend contained in Exhibit
A-1) to be issued at the time of the Registered Exchange Offer in the aggregate
principal amount of up to $525,000,000 upon receipt of a Company Order of the
Company. In each case, the Company Order shall specify the amount of Securities
to be authenticated, the names of the persons in which such Securities shall be
registered and the date on which such Securities are to be authenticated and
direct the Trustee to authenticate such Securities together with an Officer's
Certificate certifying that all conditions precedent to the issuance of such
Securities contained herein have been complied with. The aggregate principal
amount of Securities outstanding at any time may not exceed $525,000,000, except
as provided in Section 3.04 hereof.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities on behalf of the Trustee.
Unless limited by the terms of such appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. Such authenticating agent shall have the same authenticating rights and
duties as the Trustee in any dealings hereunder with the Company or with any
Affiliate of the Company.
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The certificates representing the Securities will be issued in fully
registered form, without coupons and only in denominations of $1,000 and any
integral multiple thereof. Except as described below, the Securities will be
deposited with, or on behalf of, the Depository, and registered in the name of
Cede & Co. as the Depository's nominee in the form of a global note certificate
substantially in the form of Exhibit A-1 (the "Global Security").
Securities purchased by or transferred to (i) Institutional
Accredited Investors who are not Qualified Institutional Buyers, (ii) except as
described below, persons outside the United States pursuant to sales in
accordance with Regulation S under the Securities Act or (iii) any other persons
who are not Qualified Institutional Buyers (collectively, "Non-Global
Purchasers") will be issued in registered form without coupons substantially in
the form of Exhibit A-1 (the "U.S. Physical Securities"). Upon the transfer to a
Qualified Institutional Buyer of U.S. Physical Securities initially issued to a
Non-Global Purchaser, such U.S. Physical Security will be exchanged for an
interest in the Global Security or in the Securities in the custody of the
Trustee representing the principal amount of Securities being transferred.
Securities purchased by persons outside the United States pursuant
to sales in accordance with Regulation S under the Securities Act will be
represented upon issuance by a temporary global note certificate substantially
in the form of Exhibit A-1 (the "Offshore Physical Securities" and, together
with the U.S. Physical Securities, the "Physical Securities") which will not be
exchangeable for U.S. Physical Securities until the expiration of the "40-day
restricted period" within the meaning of Rule 903(c)(3) of Regulation S under
the Securities Act. The Offshore Physical Securities will be registered in the
name of, and be held by, an offshore physical security holder (the "Offshore
Physical Security Holder") until the expiration of such 40-day period, at which
time the Offshore Physical Securities will be delivered to the Trustee in
exchange for Securities registered in the names requested by the Offshore
Physical Security Holder. In addition, until the expiration of such 40-day
period, transfers of interests in the Offshore Physical Securities can only be
effected through the Offshore Physical Security Holder in accordance with the
requirements of Section 3.17 hereof.
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Section 3.04. Temporary Securities.
Until definitive Securities are prepared and ready for delivery, the
Company may execute and upon a Company Order the Trustee shall authenticate and
deliver temporary Securities. Temporary Securities shall be substantially in the
form of definitive Securities, in any authorized denominations, but may have
variations that the Company reasonably considers appropriate for temporary
Securities as conclusively evidenced by the Company's execution of such
temporary Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay but in no event
later than the date that the Registered Exchange Offer is consummated. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 10.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of like tenor and of authorized
denominations. Until so exchanged the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities.
Section 3.05. Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 10.02 being sometimes referred
to herein as the "Securities Register") in which, subject to such reasonable
regulations as the Securities Registrar may prescribe, the Company shall provide
for the registration of Securities and of transfers and exchanges of Securities.
The Trustee is hereby initially appointed Security Registrar for the purpose of
registering Securities and transfers of Securities as herein provided.
When Securities are presented to the Registrar or a co-Registrar
with a request from the Holder of such Securities to register the transfer or
exchange for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested; provided that every Security presented or surrendered for
registration of transfer or exchange shall be duly
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endorsed or be accompanied by a written instrument of transfer or exchange in
form satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing. Whenever any Securities are
so presented for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive. No service charge shall be made to the Securityholder for
any registration of transfer or exchange. The Company may require from the
Securityholder payment of a sum sufficient to cover any transfer taxes or other
governmental charge that may be imposed in relation to a transfer or exchange,
but this provision shall not apply to any exchange pursuant to Section 3.09,
10.10 or 9.06 hereof (in which events the Company will be responsible for the
payment of all such taxes which arise solely as a result of the transfer or
exchange and do not depend on the tax status of the Holder). The Trustee shall
not be required to exchange or register the transfer of any Security for a
period of 15 days immediately preceding the first mailing of notice of
redemption of Securities to be redeemed or of any Security selected, called or
being called for redemption except, in the case of any Security where public
notice has been given that such Security is to be redeemed in part, the portion
thereof not to be redeemed.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security of any series claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall execute and upon a Company
Order, the Trustee shall authenticate and deliver a replacement Security of like
tenor and principal amount, bearing a number not contemporaneously outstanding,
if the Holder of such Security furnishes to the Company and to the Trustee
evidence reasonably acceptable to them of the ownership and the destruction,
loss or theft of such Security and an indemnity bond shall be posted, sufficient
in the judgment of the Company or the Trustee, as the case may be, to protect
the Company, the Trustee or any Agent from any loss that any of them may suffer
if such Security is replaced. The Company may charge such Holder for the
Company's expenses
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in replacing such Security (including expenses of the Trustee charged to the
Company) and the Trustee may charge the Company for the Trustee's expenses
(including the reasonable fees and expenses of its agents and counsel) in
replacing such Security.
Every replacement Security issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.07. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date and interest on such
defaulted interest at the then applicable interest rate borne by the Securities,
to the extent lawful (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the Regular Record Date; and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in subsection (a) or
(b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal
to the
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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 subsection (a) 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 actual receipt
by a Responsible Officer of the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company in writing of such
Special Record Date. In the name and at the expense of the Company, the
Trustee 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 its 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 Securities (or
their respective Predecessor Securities) are registered on such Special
Record Date and shall no longer be payable pursuant to the following
subsection (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after written notice given
by the Company to the Trustee of the proposed payment pursuant to this
subsection (b), such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.08. Persons Deemed Owners.
Prior to and at the time of due presentment for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name any Security is registered in the Security
Register as the
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owner of such Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.07) interest on such Security and for
all other purposes whatsoever, whether or not such Security shall be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Section 3.09. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall be delivered to the Trustee and, if not already
cancelled, shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. The Registrar and the Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer or exchange,
redemption or payment. The Trustee and no one else shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section 3.09, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be returned to the Company.
Section 3.10. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 3.11. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, date
established for the payment of Defaulted Interest or Stated Maturity of any
Security shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or of the Securities) payment of principal, premium, if any,
or interest need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date, date established for the payment of
Defaulted Interest or at the Stated Maturity, as the case may be, and no
interest shall accrue with respect to such payment for the period from and after
such Interest Payment Date, Redemption Date, date established for the payment of
Defaulted Interest or Stated Maturity, as the case may be, to the next
succeeding Business Day.
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Section 3.12. CUSIP Number.
The Company in issuing the Securities may use a "CUSIP" number (if
then generally in use), and if so, the Trustee may use the CUSIP numbers in
notices of redemption or exchange as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed in the notice or on the
Securities, and that reliance may be placed only on the other identification
numbers printed on the Securities. The Company shall promptly notify the Trustee
in writing of any change in the CUSIP number of either series of Securities.
Section 3.13. Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, or interest on the Securities, and
shall notify the Trustee of any default by the Company in making any such
payment. Money held in trust by the Paying Agent need not be segregated except
as required by law and in no event shall the Paying Agent be liable for any
interest on any money received by it hereunder. The Company at any time may
require the Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed and the Trustee may at any time during the continuance
of any Event of Default, upon a Company Order to the Paying Agent, require such
Paying Agent to pay forthwith all money so held by it to the Trustee and to
account for any funds disbursed. Upon making such payment, the Paying Agent
shall have no further liability for the money delivered to the Trustee.
Section 3.14. Treasury Securities.
In determining whether the Holders of the required aggregate
principal amount of Securities have concurred in any direction, waiver, consent
or notice, Securities owned by the Company or an Affiliate of the Company shall
be considered as though they are not outstanding, except that for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which a Responsible Officer of the
Trustee actually knows are so owned shall be so considered. The Company shall
notify the Trustee, in writing, when it or any of its Affiliates repurchases or
otherwise acquires Securities, of the aggregate principal amount of such
Securities so repurchased or otherwise acquired.
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Section 3.15. Deposits of Monies.
Prior to 10:30 a.m. New York City time on each Interest Payment
Date, maturity date and Change of Control Purchase Date, the Company shall have
deposited with the Paying Agent in immediately available funds money sufficient
to make cash payments, if any, due on such Interest Payment Date, maturity date
and Change of Control Purchase Date, as the case may be, in a timely manner
which permits the Paying Agent to remit payment to the Holders on such Interest
Payment Date, maturity date and Change of Control Purchase Date, as the case may
be.
Section 3.16. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set forth
in Exhibit B.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Securities may be
transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depository and the provisions of Section 3.17. In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Securities if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for any Global Security and a successor Depositary is not appointed
by the Company within 90 days of such notice or
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(ii) an Event of Default has occurred and is continuing and the Registrar has
received a written request from the Depository to issue Physical Securities.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Securities are to be
issued) reflect on its books and records the date and a decrease in the
principal amount at maturity of the Global Security in an amount equal to the
principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Physical Securities of like tenor and principal amount
of authorized denominations.
(d) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b), the Global Securities
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in the Global Securities, an equal aggregate principal amount at
maturity of Physical Securities of like tenor of authorized denominations.
(e) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to
subparagraphs (b) or (c) of this Section 3.16 shall, except as otherwise
provided by paragraphs (a)(l)(x) and (c) of Section 3.17, bear the legend
regarding transfer restrictions applicable to the Physical Securities set forth
in Exhibit A-1.
(f) The Holder of any Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
Section 3.17. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Security constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
non-U.S. person:
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(1) the Registrar shall register the transfer of any Security
constituting a Restricted Security, whether or not such Security bears the
Private Placement Legend, if (x) the requested transfer is not prior to
the date which is two years (or such shorter period as may be prescribed
by Rule 144(k) under the Securities Act or any successor provision
thereunder) after the later of the original Issue Date of such Security
(or of any Predecessor Security) or the last day on which the Company or
any Affiliate of the Company was the owner of such Security or any
Predecessor Security or (y) (1) in the case of a transfer to a person
purporting to be an Institutional Accredited Investor which is not a QIB
(excluding non-U.S. persons), the proposed transferee has delivered to the
Registrar a certificate substantially in the form of Exhibit C hereto or
(2) in the case of a transfer to a person purporting to be a non-U.S.
person, the proposed transferee has delivered to the Registrar a
certificate substantially in the form of Exhibit D hereto; and
(2) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Security, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (1) above and (y)
instructions given in accordance with the Depository's and the Registrar's
procedures;
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of Outstanding Physical Securities)
a decrease in the principal amount at maturity of a Global Security in an amount
equal to the principal amount at maturity of the beneficial interest in a Global
Security to be transferred, and (b) the Company shall execute and the Trustee
shall authenticate and deliver one or more Physical Securities of like tenor and
principal amount of authorized denominations.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to a person purporting to be a QIB (excluding transfers to
non-U.S. persons):
(1) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for
on the form of Security stating, or has otherwise advised the Company and
the Registrar in writing, that the transfer has been made in com-
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pliance with the exemption from registration under the Securities Act
provided under Rule 144A to a transferee who has signed the certification
provided for on the form of Security stating, or has otherwise advised the
Company and the Registrar in writing, that such transferee represents and
warrants that it is purchasing the Security for its own account or an
account with respect to which it exercises sole investment discretion and
that it and any such account is a QIB within the meaning of Rule 144A, and
is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company
as it has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(2) if the proposed transferee is an Agent Member, and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in the Global Security, upon
receipt by the Registrar of instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall reflect
on the Security Register the date and an increase in the principal amount
at maturity of the Global Security in an amount equal to the principal
amount at maturity of the Physical Securities to be transferred, and the
Trustee shall cancel the Physical Securities so transferred.
(c) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Securities not bearing the Private Placement Legend,
the Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar shall deliver only
Securities that bear the Private Placement Legend unless (i) the circumstances
contemplated by paragraph (a)(l)(x) of this Section 3.17 exist, (ii) there is
delivered to the Registrar an Opinion of Counsel satisfactory to the Company and
the Trustee to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the provisions of
the Securities Act or (iii) such Security has been sold pursuant to an effective
registration statement under the Securities Act.
(d) Other Transfers. If a Holder proposes to transfer a Security
constituting a Restricted Security pursuant to
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any exemption from the registration requirements of the Securities Act other
than as provided for by Section 3.17(a) and (b), the Registrar shall only
register such transfer or exchange if such transferor delivers an Opinion of
Counsel satisfactory to the Company and the Registrar that such transfer is in
compliance with the Securities Act and the terms of this Indenture; provided
that the Company may, based upon the opinion of its counsel, instruct the
Registrar by a Company Order not to register such transfer in any case where the
proposed transferee is not a QIB, non-U.S. person or Institutional Accredited
Investor.
(e) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 3.16 or this Section 3.17
for a period of two years at which time such letters, notices and other written
communications shall be delivered to the Company. The Company shall have the
right to inspect and make copies of all such letters, notices or other written
communications at any time during normal business hours upon the giving of
reasonable prior written notice to the Registrar.
ARTICLE FOUR
DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. Company's Option To Effect Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution, at any time,
with respect to the Securities, elect to have either Section 4.02 or Section
4.03 be applied to all of the Outstanding Securities (the "Defeased
Securities"), upon compliance with the conditions set forth below in this
Article Four.
Section 4.02. Defeasance and Discharge.
Upon the Company's exercise under Section 4.01 of the option
applicable to this Section 4.02, the Company shall be
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deemed to have been discharged from its obligations with respect to the Defeased
Securities 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 Defeased Securities, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 4.05 and the other Sections of
this Indenture referred to in (a) and (b) below, and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, and,
upon Company Request, 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 Defeased Securities to
receive, solely from the trust fund described in Section 4.04 and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, and interest on such Securities when such payments are due, (b) the
Company's obligations with respect to such Defeased Securities under Sections
3.04, 3.05, 3.06, 10.02 and 10.03, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, including, without limitation, the
Trustee's rights under Section 6.07 and (d) this Article Four. Subject to
compliance with this Article Four, the Company may exercise its option under
this Section 4.02 notwithstanding the prior exercise of its option under Section
4.03 with respect to the Securities.
Section 4.03. Covenant Defeasance.
Upon the Company's exercise under Section 4.01 of the option
applicable to this Section 4.03, the Company shall be released from its
obligations under any covenant or provision contained in Sections 10.06 through
10.15 and the provisions of Articles Eight shall not apply, with respect to the
Defeased Securities on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"), and the Defeased Securities
shall thereafter be deemed not to be "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Defeased
Securities, 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 or
Article, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or Article or by
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reason of any reference in any such Section or Article to any other provision
herein or in any other document and such omission to comply shall not constitute
a Default or an Event of Default under Section 5.01(c) or (d), but, except as
specified above, the remainder of this Indenture and such Defeased Securities
shall be unaffected thereby.
Section 4.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 4.02 or Section 4.03 to the Defeased Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.09 who shall agree to comply with the provisions of this
Article Four 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 Securities, (a)
U.S. dollars in an amount, or (b) U.S. Government Obligations which
through the scheduled payment of principal, premium, if any, and interest
in respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an amount, or
(c) a combination thereof, in any such case, 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
interest on the Defeased Securities upon redemption or at the Stated
Maturity of such principal or installment of principal, premium, if any,
or interest; provided, however, that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to said payments with respect to the Securities;
(2) No Default shall have occurred and be continuing on the date of
such deposit or, insofar as Sections 5.01(h), (i) or (j) are concerned, at
any time during the period ending on the ninety-first day after the date
of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
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(3) Neither the Company nor any Subsidiary of the Company is an
"insolvent person" within the meaning of any applicable Bankruptcy Law on
the date of such deposit or at any time during the period ending on the
ninety-first day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such
period);
(4) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities to have a conflicting interest in violation of
Section 6.08 and for purposes of the Trust Indenture Act with respect to
any securities of the Company;
(5) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound;
(6) In the case of an election under Section 4.02, 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 hereof, there has been a
change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
defeasance had not occurred;
(7) In the case of an election under Section 4.03, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred;
(8) The Company shall have delivered to the Trustee, an Opinion of
Counsel to the effect that immediately following the ninety-first day
after the deposit, the trust funds established pursuant to this Article
will not be
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subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally under
any applicable U.S. Federal or state law;
(9) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Company pursuant to its
election under Section 4.02 or 4.03 was not made by the Company with the
intent of preferring the Holders over the other creditors of the Company
or with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others; and
(10) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that (i) all
conditions precedent (other than conditions requiring the passage of time)
provided for relating to either the defeasance under Section 4.02 or the
covenant defeasance under Section 4.03 (as the case may be) have been
complied with as contemplated by this Section 4.04 and (ii) if any other
Indebtedness of the Company shall then be outstanding or committed, such
defeasance or covenant defeasance will not violate the provisions of the
agreements or instruments evidencing such Indebtedness.
Opinions required to be delivered under this Section may have such
qualifications as are customary for opinions of the type required and acceptable
to the Trustee.
Section 4.05. Deposited Money and U.S. Government Obligations To Be
Held in Trust; Other Miscellaneous Provisions.
Subject to the proviso of the last paragraph of Section 10.03, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 4.05, the "Trustee") pursuant to Section 4.04 in respect of the Defeased
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (other than the Company) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee and hold it harmless
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 4.04 or the principal,
premium, if any, and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the
Defeased Securities.
Anything in this Article Four 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 4.04 which, in the opinion of an internationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to a Responsible Officer of 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 4.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 4.02 or 4.03, as the case may
be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
obligations of the Company under this Indenture, the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 4.02 or
4.03, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money and U.S. Government Obligations in accordance
with Section 4.02 or 4.03, as the case may be; provided, however, that if the
Company makes any payment of principal, premium, if any, or interest on any
Security following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money and U.S. Government Obligations held by the Trustee or
Paying Agent.
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ARTICLE FIVE
REMEDIES
Section 5.01. 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
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) default in the payment of any interest on the Securities when it
becomes due and payable, and continuance of any such default for a period
of 30 days; or
(b) default in the payment of the principal of, or premium, if any,
on the Securities issued thereunder, when due, at maturity, upon
redemption, pursuant to an offer to purchase required under this Indenture
pursuant to the Change of Control provisions or otherwise, by acceleration
or otherwise; or
(c) the Company fails to comply with any of its obligations
described in Article Eight or Section 10.10; or
(d) the Company fails to perform or observe any other term, covenant
or agreement contained in the Securities or this Indenture (other than a
default specified in (a), (b) or (c) above) for a period of 45 days after
written notice of such failure requiring the Company to remedy the same
shall have been given (x) to the Company by the Trustee or (y) to the
Company and the Trustee by the Holders of 25% in aggregate principal
amount of the Securities then outstanding; or
(e) default or defaults under one or more agreements, indentures or
instruments under which the Company or any Restricted Subsidiary then has
outstanding Indebtedness in excess of $25 million individually or in the
aggregate and either (a) such Indebtedness is already due and payable in
full or (b) such default or defaults results in the acceleration of the
maturity of such Indebtedness; or
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(f) one or more judgments, orders or decrees for the payment of
money in excess of $25 million (to the extent not covered by insurance),
either individually or, in an aggregate amount, shall be entered against
the Company or any Restricted Subsidiary or any of their respective
properties and shall not be paid, discharged or fully bonded and there
shall have been a period of 60 days during which a stay of enforcement of
such judgment or order, by reason of pending appeal or otherwise, shall
not be in effect; or
(g) the Company or any Significant Subsidiary of the Company
pursuant to or under or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the making of a Bankruptcy Order in an
involuntary case or proceeding or the commencement of any case
against it;
(iii) consents to the appointment of a Custodian of it or for
any substantial part of its property;
(iv) makes a general assignment for the benefit of its
creditors;
(v) files an answer or consent seeking reorganization or
relief;
(vi) shall admit in writing its inability to pay its debts
generally; or
(vii) consents to the filing of a petition in bankruptcy; or
(h) a court of competent jurisdiction in any involuntary case or
proceeding enters a Bankruptcy Order against the Company or any
Significant Subsidiary, and such Bankruptcy Order remains unstayed and in
effect for 60 consecutive days; or
(i) a Custodian shall be appointed out of court with respect to the
Company or any Significant Subsidiary or with respect to all or any
substantial part of the assets or properties of the Company or any
Subsidiary.
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Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If (x) an Event of Default (other than an Event of Default specified
in Section 5.01(g), (h) or (i) with respect to the Company) occurs and is
continuing then the Holders of at least 25% in aggregate principal amount of the
Securities outstanding may, by written notice, and the Security Trustee upon the
request of the Holders of not less than 25% in aggregate principal amount of the
Securities outstanding shall, declare the principal of, premium, if any, and
accrued interest on, all the Securities to be due and payable immediately. Upon
any such declaration such amounts shall become due and payable immediately. If
an Event of Default specified in clause (g), (h) or (i) above with respect to
the Company occurs and is continuing, then the principal of, premium, if any,
and accrued interest on, all the Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder of the Securities. In the event of an acceleration
because an Event of Default set forth in clause (e) above has occurred and is
continuing, such acceleration shall be automatically rescinded and annulled if
the event of default triggering such Event of Default pursuant to clause (e)
shall be remedied, cured by the Company or such Restricted Subsidiary or waived
by the holders of the relevant Indebtedness within 60 days after the
acceleration with respect thereto.
After a declaration of acceleration, the Holders of a majority in
aggregate principal amount of the issue outstanding Securities may, by notice to
the Trustee, rescind such declaration of acceleration if all existing Events of
Default have been cured or waived, other than nonpayment of principal of,
premium, if any, and accrued interest on the Securities, that has become due
solely as a result of the acceleration thereof, and if the rescission of
acceleration would not conflict with any judgment or decree. Past defaults under
this Indenture (except a default in the payment of the principal of, premium, if
any, or interest on any Security issued thereunder or in respect of a covenant
or a provision which cannot be modified or amended without the consent of all
holders of such Securities) may be waived by the Holders of a majority in
aggregate principal amount of the outstanding Securities.
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Section 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if an Event of Default specified in
Section 5.01(a) or 5.01(b) shall have occurred and be continuing, the Company
will, jointly and severally, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal, premium, if any, and interest, with
interest upon the overdue principal, premium, if any, and, to the extent that
payment of such interest shall be legally enforceable, upon overdue installments
of interest, at the rate then borne by the Securities; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company, fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may,
but is not obligated under this paragraph to, at the expense of the Company
institute a judicial proceeding for the collection of the sums so due and unpaid
and may, but is not obligated under this paragraph to, prosecute such proceeding
to judgment or final decree, and may, but is not obligated under this paragraph
to, enforce the same against the Company or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion, but is not obligated under this paragraph to, (i) proceed to
protect and enforce its rights and the rights of the Holders under this
Indenture by such appropriate private or judicial proceedings as the Trustee
shall deem most effectual to protect and enforce such rights, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or
in aid of the exercise of any power granted herein or (ii) proceed to protect
and enforce any other proper remedy. No recovery of any such judgment upon any
property of the Company shall affect or impair any rights, powers or remedies of
the Trustee or the Holders.
Section 5.04. Trustee May File Proofs of Claims.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement,
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adjustment, composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities, including the property of the Company or
of such other obligor or their creditors, the Trustee (irrespective of whether
the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, fees, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian, in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the produc-
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tion thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name and as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, fees, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 5.06. 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, premium, if
any, or interest, upon presentation of the Securities and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.07;
Second: to Holders for interest accrued on the Securities, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Securities for interest;
Third: to Holders for principal and premium, if any, amounts owing
under the Securities, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal
and premium, if any; and
Fourth: the balance, if any, to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to this
Section 5.06.
Section 5.07. Limitation on Suits.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
the Holders of at least 25% in aggregate principal amount of the outstanding
Securities have made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as Trustee,
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such Trustee has failed to institute such proceeding within 60 days after
receipt of such notice and such Trustee has not within such 60-day period
received directions inconsistent with such written request by holders of a
majority in aggregate principal amount of the issue of Securities. Such
limitations do not apply, however, to a suit instituted by a Holder of a
Security for the enforcement of the payment of the principal of, premium, if
any, or accrued interest on, such Security on or after the respective due dates
expressed in such Security.
During the existence of an Event of Default under this Indenture,
the Trustee is required to exercise such rights and powers vested in it under
this Indenture and use the same degree of care and skill in its exercise thereof
as a prudent Person would exercise under the circumstances in the conduct of
such Person's own affairs. Subject to the provisions of this Indenture relating
to the duties of the Trustee, in case an Event of Default shall occur and be
continuing, the Trustee is not under any obligation to exercise any of its
rights or powers under this Indenture at the request or direction of any of the
Holders, unless such Holders shall have offered to such Trustee security or
indemnity satisfactory to it. Subject to certain provisions of this Indenture
concerning the rights of the Trustee, the Holders of a majority in aggregate
principal amount of the applicable issue of outstanding Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee under this Indenture, or exercising any trust,
or power conferred on the Trustee.
It is 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 or any Security 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 or any Security,
except in the manner provided in this Indenture and for the equal and ratable
benefit of all the Holders.
Section 5.08. Unconditional Right of Holders To Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive cash payment of the principal of, premium, if any, and (subject to
Section 3.07 hereof) interest on such Security on the respective Stated
Ma-
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turities expressed in such Security (or, in the case of redemption, on the
respective Redemption Date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the consent of such
Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture or any Security 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 the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, 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 5.10. Rights and Remedies Cumulative.
Except as provided in Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article Five 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 5.12. Control by Majority.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities 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
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trust or power conferred on the Trustee, provided, however, that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture or any Security or expose the Trustee to personal
liability; and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may on behalf of the Holders of all the
Securities waive any past Default hereunder and its consequences, except a
Default
(a) in the payment of the principal of, premium, if any, or interest
on any Security or
(b) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security 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 Event of Default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
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the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of, premium, if any, or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the respective Redemption Dates).
Section 5.15. Waiver of Stay, Extension or Usury 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 or any
usury or other law wherever enacted, now or at any time hereafter in force,
which would prohibit or forgive the Company from paying all or any portion of
the principal of, premium, if any, or interest on the Securities contemplated
herein or in the Securities or 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.
Section 5.16. Unconditional Right of Holders To Institute Certain
Suits.
Notwithstanding any other provision in this Indenture and any other
provision of any Security, the right of any Holder of any Security to receive
payment of the principal of, premium, if any, and interest on such Security on
or after the respective Stated Maturities (or the respective Redemption Dates,
in the case of redemption) expressed in such Security, or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
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ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by provision hereof
are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts
stated therein).
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or
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affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 6.01.
Section 6.02. Notice of Defaults.
Within 60 days after the occurrence of any Default, the Trustee
shall transmit by mail to all Holders, as their names and addresses appear in
the Security Register, notice of such Default hereunder actually known to a
Responsible Officer of the Trustee, unless such Default shall have been cured or
waived; provided, however, that, except in the case of a Default in the payment
of the principal of, premium, if any, or interest on any Security, the Trustee
shall be protected in withholding such notice if and so long as a trust
committee of Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders.
Section 6.03. Certain Rights of Trustee.
Subject to Section 6.01 hereof and the provisions of Section 315 of
the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document (whether in its original or facsimile form)
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 of the Company may be sufficiently
evidenced by a Board Resolution thereof;
(c) the Trustee may consult with counsel of its selection and any
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
in accordance with such advice or Opinion of Counsel;
(d) 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
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have offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by the
Trustee in compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture other
than any liabilities arising out of its own negligence;
(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,
approval, appraisal, bond, debenture, note, coupon, security, other
evidence of indebtedness or other paper or document unless requested in
writing so to do by the Holders of not less than a majority in aggregate
principal amount of the Securities then Outstanding; provided, however,
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require indemnity satisfactory to it against such expenses
or liabilities as a condition to proceeding; the reasonable expenses of
every such investigation shall be paid by the Company or, if paid by the
Trustee or any predecessor Trustee, shall be repaid by the Company upon
demand; provided, further, the Trustee in its discretion may make such
further inquiry or investigation into such facts or matters as it may deem
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 at the sole
cost of the Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation; and
(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.
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Section 6.04. Trustee Not Responsible for Recitals, Dispositions of
Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, 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 Securities except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility and Qualification on Form T-1, if any, to be
supplied to the Company are true and accurate subject to the qualifications set
forth therein. The Trustee shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
Section 6.05. Trustee and Agents May Hold Securities; Collections;
Etc.
The Trustee, any Paying Agent, Security Registrar or any other agent
of the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities, with the same rights it would have if it were not the
Trustee, Paying Agent, Security Registrar or such other agent and, subject to
Sections 6.08 and 6.13 hereof and Sections 310 and 311 of the Trust Indenture
Act, may otherwise deal with the Company and receive, collect, hold and retain
collections from the Company with the same rights it would have if it were not
the Trustee, Paying Agent, Security Registrar or such other agent.
Section 6.06. Money Held in Trust.
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required herein
or by law. The Trustee shall not be under any liability for interest on any
moneys received by it hereunder.
Section 6.07. Compensation and Indemnification of Trustee and Its
Prior Claim.
The Company covenants and agrees: (a) to pay to the Trustee from
time to time, and the Trustee shall be entitled to, compensation for all
services rendered by it hereunder
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(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) as the Company and the Trustee
shall, from time to time, agree in writing; (b) to reimburse the Trustee and
each predecessor Trustee upon its request for all reasonable expenses, fees,
disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including the reasonable
compensation, fees, and the expenses and disbursements of its counsel and of all
agents and other persons not regularly in its employ), except any such expense,
disbursement or advance as may arise from its negligence, bad faith or willful
misconduct; and (c) to indemnify the Trustee and each predecessor Trustee for,
and to hold it harmless against, any and all loss, liability, claim, damage, or
expense (including taxes other than taxes based upon the income of the Trustee)
incurred without negligence, bad faith or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including
enforcement of this Section 6.07. The obligations of the Company under this
Section to compensate and indemnify the Trustee and each predecessor Trustee and
to pay or reimburse the Trustee and each predecessor Trustee for expenses, fees,
disbursements and advances shall constitute an additional obligation hereunder
and shall survive the satisfaction and discharge of this Indenture. To secure
the obligations of the Company to the Trustee under this Section 6.07, the
Trustee shall have a prior Lien upon all property and funds held or collected by
the Trustee as such, except funds and property paid by the Company held in trust
for the benefit of the Holders of Securities.
Section 6.08. Conflicting Interests.
The Trustee shall be subject to and comply with the provisions of
Section 310(b) of the Trust Indenture Act.
Section 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Trust Indenture Act Sections 310(a)(1) and (2)
and which shall have a combined capital and surplus of at least $50,000,000, and
have a Corporate Trust Office in the Borough of Manhattan in The City of New
York, State of New York. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of any Federal, state,
territorial or District of Columbia supervising or examining authority, then for
the pur
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poses of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 6.10. Resignation and Removal; Appointment of Successor
Trustee.
(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 6.11.
(b) The Trustee, or any trustee or trustees hereinafter appointed,
may at any time resign by giving written notice thereof to the Company at
least 20 Business Days prior to the date of such proposed resignation. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument executed by authority of the Board of
Directors of the Company, a copy of which shall be delivered to the resigning
Trustee and a copy to the successor Trustee. If an instrument of acceptance by
a successor Trustee shall not have been delivered to the Trustee within 20
Business Days after the giving of such notice of resignation, the resigning
Trustee may, or any Holder who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of
a successor Trustee. Such court may thereupon, after such notice, if any, as
it may deem proper, appoint a successor Trustee.
(c) The Trustee may be removed at any time by an Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act in accordance with Section 6.08 hereof
after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 6.09 hereof
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 or
rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 5.14, the Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint 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 of its Board of Directors, shall promptly appoint
a successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders of the Securities and accepted appointment in the
manner hereinafter provided, the Holder of any Security who has been a bona fide
Holder for at least six months may, subject to Section 5.14, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
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Section 6.11. 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 as if originally named as
Trustee hereunder; but, nevertheless, on the written request of the Company or
the successor Trustee, upon payment of any and all amounts due it pursuant to
Section 6.07, such retiring Trustee shall duly assign, transfer and deliver to
the successor Trustee all moneys and property at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
Trustee all the rights, powers, duties and obligations of the retiring Trustee.
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 and powers. Any Trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such Trustee to secure any amounts then due it pursuant to the provisions of
Section 6.07.
No successor Trustee with respect to the Securities shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor Trustee shall be eligible to act as Trustee under this
Article.
Upon acceptance of appointment by any successor Trustee as provided
in this Section 6.11, the successor shall give notice thereof to the Holders of
the Securities, by mailing such notice to such Holders at their addresses as
they shall appear on the Security Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.10. If the Company fails to give such notice within 10 days after acceptance
of appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Company.
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Section 6.12. Merger, Conversion, Amalgamation, Consolidation or
Succession to Business
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or amalgamated, or any corporation resulting
from any merger, conversion, amalgamation or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided such corporation shall be
eligible under this Article to serve as Trustee hereunder.
In case at the time such successor to the Trustee under this Section
6.12 shall succeed to the trusts created by this Indenture any of the Securities
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor Trustee
and deliver such Securities so authenticated; and, in case at that time any of
the Securities shall not have been authenticated, any successor to the Trustee
under this Section 6.12 may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor Trustee; and in all
such cases such certificate shall have the full force which it is anywhere in
the Securities or in this Indenture provided that the certificate of the Trustee
shall have been authenticated.
Section 6.13. Trustee's Application for Instructions from the
Company
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
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in response to such application concerning the action to be taken or omitted.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Preservation of Information; Company To Furnish
Trustee Names and Addresses of Holders.
(a) The Trustee shall preserve the names and addresses of the
Securityholders and otherwise comply with Section 312(a) of the Trust Indenture
Act. If the Trustee is not the Registrar, the Company shall furnish or cause the
Registrar to furnish to the Trustee before each Interest Payment Date, and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of the Securityholders. Neither the Company nor the Trustee shall be under any
responsibility with regard to the accuracy of such list.
(b) The Company will furnish or cause to be furnished to the
Trustee:
(i) 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
(ii) at such other times as the Trustee may request in writing,
within 30 days after 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;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished pursuant to this Subsection 7.01(b).
Section 7.02. Communications of Holders.
Holders may communicate with other Holders with respect to their
rights under this Indenture or under the Securities pursuant to Section 312(b)
of the Trust Indenture Act. The Company and the Trustee and any and all other
persons bene-
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fited by this Indenture shall have the protection afforded by Section 312(c) of
the Trust Indenture Act.
Section 7.03. Reports by Trustee.
Within 60 days after June 1 of each year commencing with the first
June 1 following the date of this Indenture, the Trustee shall mail to all
Holders, as their names and addresses appear in the Security Register, a brief
report dated as of such June 1, in accordance with, and to the extent required
under Section 313 of the Trust Indenture Act. At the time of its mailing to
Holders, a copy of each such report shall be filed by the Trustee with the
Company, the Commission and with each stock exchange on which the Securities are
listed. The Company shall notify the Trustee when the Securities are listed on
any stock exchange or delisted therefrom.
Section 7.04. Reports by Company.
The Company will file with each Trustee, within 15 days after filing
with the Commission, copies of the annual and quarterly reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) which
the Company files with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act. If the Company is no longer subject to these periodic reporting
requirements of the Exchange Act, it will nonetheless continue to file reports
with the Trustee as if it were subject to such periodic reporting requirements.
Regardless of whether the Company is required to furnish such reports to its
stockholders pursuant to the Exchange Act, the Company shall cause such reports
containing financial information to be mailed to the Holders within 15 days
after filing such report with the Commission. Such financial information shall
include annual reports containing consolidated financial statements and notes
thereto, together with an opinion thereon expressed by an independent public
accounting firm, management's discussion and analysis of financial condition and
results of operations as well as quarterly reports containing unaudited
condensed consolidated financial statements for the first three quarters of each
fiscal year.
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance
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with any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer's Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 8.01. Company May Consolidate, etc., Only on Certain Terms.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, consolidate with or merge with or into any other Person or
sell, assign, convey, lease or transfer all or substantially all of its
properties and assets in a single transaction or through a series of
transactions, if such transaction or series of transactions would result in a
sale, conveyance, lease, transfer or other disposition of all or substantially
all of the properties and assets of the Company and the Restricted Subsidiaries,
taken as a whole, unless: (i) the resulting, surviving or transferee Person (the
"Surviving entity") shall be a corporation organized and existing under the laws
of the United States or any State thereof or the District of Columbia; (ii) the
surviving entity shall expressly assume, by supplemental indenture executed and
delivered to the Trustee, in form and substance reasonably satisfactory to the
Trustee, all of the obligations of the Company under this Indenture and the
Securities and the Registration Rights Agreements; (iii) immediately after
giving effect to such transaction or series of transactions on a pro forma basis
(including, without limitation, giving effect to any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such transaction
or series of transactions), no Default shall have occurred and be continuing
under this Indenture; (iv) the Company or the surviving entity (if the
transaction or series of transactions involves the Company) shall have delivered
to the Trustee under this Indenture an Officer's Certificate and an Opinion of
Counsel, stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such transaction
or series of transactions, each such supplemental indenture complies with this
covenant and that all conditions precedent in this Indenture relating to the
transaction or series of transactions have been satisfied; and (v) the Company
or the surviving entity (if the transaction or series of transactions involves
the Company) shall immediately after giving effect to such transaction or se-
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xxxx of transactions on pro forma basis (including, without limitation, giving
effect to any Indebtedness incurred or anticipated to be incurred in connection
with or in respect of the transaction or series of transactions) be permitted to
incur $1.00 of additional Indebtedness under clause (j) of Section 10.11 and
other applicable restrictions on additional Indebtedness.
Section 8.02. Successor Substituted.
Upon any consolidation or merger of the Company or any transfer of
all or substantially all of the assets of the Company in accordance with the
foregoing, in which the Company is not the continuing corporation, the successor
corporation formed by such a consolidation or into which the Company is merged
or to which such transfer is made, shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture and the
Securities and the Registration Rights Agreements, with the same effect as if
such successor corporation had been named as the Company therein; and
thereafter, except in the case of (a) a lease or (b) any sale, assignment,
conveyance, transfer, lease or other disposition to a Restricted Subsidiary of
the Company, the Company shall be discharged from all obligations and covenants
under this Indenture and the Securities.
For all purposes of this Indenture and the Securities (including the
provision of this Section 8.02 and the covenants described in Sections 10.11 and
10.13), Subsidiaries of any Surviving Entity shall, upon such transaction or
series of related transactions, become Restricted Subsidiaries unless and until
designated as Unrestricted Subsidiaries pursuant to and in accordance with
Section 10.14.
ARTICLE NINE
SUPPLEMENTAL INDENTURES AND WAIVERS
Section 9.01. Supplemental Indentures, Agreements and Waivers
Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form and substance
satisfactory to the Trustee, or waiver for any of the following purposes:
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(a) 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 Securities;
(b) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company, as applicable, herein, in the Securities, as the case may be;
(c) to cure any ambiguity, to correct or supplement any provision
herein, in the Securities which may be defective or inconsistent with any
other provision herein or to make any other provisions with respect to
matters or questions arising under this Indenture and the Securities;
provided, however, that, in each case, such provisions shall not
materially adversely affect the interests of the Holders;
(d) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 9.05 hereof or otherwise;
(e) to evidence and provide the acceptance of the appointment of a
successor Trustee hereunder; or
(f) to mortgage, pledge, hypothecate or grant a security interest in
any property or assets in favor of the Trustee for the benefit of the
Holders as security for the payment and performance of the Indenture
Obligations;
provided, however, that the Company has delivered to the Trustee an Opinion of
Counsel stating that such change, agreement or waiver does not materially
adversely affect the interests or legal rights of any Holders.
Section 9.02. Supplemental Indentures, Agreements and Waivers with
Consent of Holders.
With the written consent of the Holders of not less than a majority
in aggregate principal amount of the Outstanding Securities delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto
satisfactory to the Trustee for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
the Securities, or of modifying in any manner the rights of the Holders under
this Indenture or
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the Securities. The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may waive compliance by the Company with
any provision of this Indenture or the Securities. However, no such supplemental
indenture, agreement or instrument, including any waiver pursuant to Section
5.13, shall, without the written consent or waiver of the Holder of each
Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, alter the redemption provisions of the Securities or
this Indenture, or change the coin or currency in which any Security or
any premium or the accrued interest thereon is payable, or impair the
right to institute suit for the enforcement of any payment after the
Stated Maturity thereof (or, in the case of a purchase pursuant to Section
10.10 of this Indenture, on or after the applicable purchase date, as the
case may be);
(b) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any 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) or consent provided for in this
Indenture or with respect to any Security;
(c) modify any of the provisions of this Section 9.02 or Sections
5.13 and 5.16, except to increase any such percentage, if applicable
thereto, or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Security affected thereby;
(d) consent to the assignment or transfer by the Company of any of
their rights and obligations under this Indenture, the Securities;
(e) following either (x) the mailing of a notice of a Change of
Control Offer or (y) the failure to mail such notice prior to the date set
forth in the first paragraph of Section 10.10, in either case, following
satisfaction of the condition precedent to the mailing of such notice as
set forth in Section 10.10, alter the Company's obligation to purchase
Securities as a result thereof in accor
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dance with this Indenture or waive any default in the performance thereof;
(f) adversely affect the ranking of the Securities in a manner
adverse to any Holder;
(g) impair the right to institute suit for the enforcement of any
payment on or with respect to the Securities; or
(h) change the currency in which such Securities or any premium or
the interest thereon is payable.
Upon the written request of the Company accompanied by a copy of a
Board Resolution authorizing the execution of any such supplemental indenture or
other agreement, instrument or waiver, and upon the filing with the Trustee of
evidence of the consent of Holders as aforesaid, the Trustee shall join with the
Company in the execution of such supplemental indenture or other agreement,
instrument or waiver.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture or other
agreement, instrument or waiver, but it shall be sufficient if such Act shall
approve the substance thereof.
Section 9.03. Execution of Supplemental Indentures, Agreements and
Waivers.
In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement, instrument or waiver permitted by this
Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01 hereof) shall be fully protected in relying upon, an Opinion of Counsel and
an Officers' Certificate from each obligor under the Securities entering into
such supplemental indenture, agreement, instrument or waiver, each stating that
the execution of such supplemental indenture, agreement, instrument or waiver
(a) is authorized or permitted by this Indenture and (b) does not violate the
provisions of any agreement or instrument evidencing any other Indebtedness of
the Company or any Subsidiary of the Company. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture, agreement, instrument
or waiver which affects the Trustee's own rights, duties or immunities under
this Indenture, the Securities or otherwise.
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Section 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article
Nine, this Indenture and/or the Securities shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture
and/or the Securities, as the case may be, for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
Section 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Nine
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors of the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee upon a Company Order in exchange for Outstanding Securities.
Section 9.07. Record Date.
The Company may, but shall not be obligated to, fix, a record date
for the purpose of determining the Holders entitled to consent to any
supplemental indenture, agreement or instrument or any waiver, and shall
promptly notify the Trustee of any such record date. If a record date is fixed
those persons who were Holders at such record date (or their duly designated
proxies), and only those persons, shall be entitled to consent to such
supplemental indenture, agreement or instrument or waiver or to revoke any
consent previously given, whether or not such persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
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Section 9.08. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if a notation of the consent is not made
on any Security. However, any such Holder, or subsequent Holder, may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
An amendment or waiver shall become effective in accordance with its terms and
thereafter bind every Holder.
ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of, premium,
if any, and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
Section 10.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan in The City of
New York, State of New York, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
office of the Trustee at its Corporate Trust Office will be such office or
agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
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The Company may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York, State of New York)
where the Securities may be presented or surrendered for any or all such
purposes, and may from time to time rescind such designation; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in The City of New York, State
of New York for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and any change in the location
of any such other office or agency.
Section 10.03. Money for Security Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of, premium, if any, or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Holders entitled thereto a sum sufficient to pay the principal, 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.
If the Company is not acting as Paying Agent, the Company will, on
or before each due date of the principal of, premium, if any, or interest on,
any Securities, deposit with a Paying Agent a sum in same day funds sufficient
to pay the principal, premium, if any, or interest so becoming due, such sum to
be held in trust for the benefit of the Holders entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of such action or any failure so to act.
If the Company is not acting as Paying Agent, the Company will cause
each Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent will agree with the Trustee, subject to
the provisions of this Section 10.03, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities in trust for the benefit of the
Holders entitled thereto until such sums shall be paid to such Holders or
otherwise disposed of as herein provided;
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(b) give the Trustee notice of any Default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal of, premium, if any, or interest on the Securities;
(c) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and
liabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent will 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, premium, if
any, or interest on any Security and remaining unclaimed for two years after
such principal, premium, if any, or interest has become due and payable shall be
paid to the Company upon receipt of a Company Request therefor, or (if then held
by the Company) will be discharged from such trust; and the Holder of such
Security will 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, will thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and the
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining shall be repaid to the Company.
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Section 10.04. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory), licenses and franchises of the
Company and each of the Restricted Subsidiaries; provided, however, that the
Company will not be required to preserve any such right, license or franchise if
the Board of Directors of the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
the Restricted Subsidiaries as a whole and that the loss thereof is not adverse
in any material respect to the Holders; provided, further, that the foregoing
will not prohibit a sale, transfer or conveyance of a Subsidiary of the Company
or any of its assets in compliance with the terms of this Indenture.
Section 10.05. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed (i) upon the Company or any of its
Subsidiaries or (ii) upon the income, profits or property of the Company or any
of the Restricted Subsidiaries and (b) all material lawful claims for labor,
materials and supplies, which, if unpaid, could reasonably be expected to become
a Lien upon the property of the Company or any of the Restricted Subsidiaries;
provided, however, that the Company will not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicable or validity is being contested in good faith by appropriate
proceedings properly instituted and diligently conducted.
Section 10.06. Maintenance of Properties.
The Company will cause all material properties owned by the Company
or any of the Restricted Subsidiaries or used or held for use in the conduct of
their respective businesses to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section 10.06
will prevent the Company from discontinuing the maintenance of any of such
properties if such discontinuance
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is, in the judgment of the Company, desirable in the conduct of its business or
the business of any of the Restricted Subsidiaries and is not disadvantageous in
any material respect to the Holders.
Section 10.07. Insurance.
The Company will at all times keep all of its and the Restricted
Subsidiaries' properties which are of an insurable nature insured with insurers,
believed by the Company in good faith to be financially sound and responsible,
against loss or damage to the extent that property of similar character is
usually and customarily so insured by corporations similarly situated and owning
like properties.
Section 10.08. Books and Records.
The Company will, and will cause each of the Restricted Subsidiaries
to, keep proper books of record and account, in which full and correct entries
will be made of all financial transactions and the assets and business of the
Company and each Restricted Subsidiary of the Company in accordance with GAAP.
Section 10.09. Provision of Financial Statements.
Whether or not the Company has a class of securities registered
under the Exchange Act, the Company will supply, at their own expense, to each
Holder of the Securities and file with the Trustee within fifteen days after the
Company is required to file the same with the Commission, copies of the annual
reports and quarterly reports and of the information, documents and other
reports which the Company may be required to file with the Commission pursuant
to Section 13(a), 13(c) or 15(d) of the Exchange Act. The Company will also
comply with the other provisions of Section 314(a) of the Trust Indenture Act.
Section 10.10. Change of Control Triggering Event.
In the event of a Change of Control Triggering Event (the date of
such occurrence being the "Change of Control Date"), the Company will notify the
Holders in writing of such occurrence and will make an offer to purchase (the
"Change of Control Offer"), on a business day (the "Change of Control Payment
Date") not later than 90 days following the Change of Control Date, all
Securities then outstanding at a purchase price equal to 101% of the principal
amount thereof plus accrued and
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unpaid interest, if any, to the Change of Control Payment Date. Notice of a
Change of Control Offer shall be mailed by the Company to the Holders not less
than 30 days nor more than 45 days before the Change of Control Payment Date.
The Change of Control Offer is required to remain open for at least 20 business
days and until the close of business on the Change of Control Payment Date.
The notice, which shall govern the terms of the Change of Control
Offer, shall include such disclosures as are required by law and shall state:
(a) that the Change of Control Offer is being made pursuant to this
Section 10.10 and that all Securities tendered into the Change of Control
Offer will be accepted for payment;
(b) the purchase price (including the amount of accrued interest, if
any) for each Security, the Change of Control Purchase Date and the date
on which the Change of Control Offer expires;
(c) that any Security not tendered for payment will continue to
accrue interest in accordance with the terms thereof;
(d) that, unless the Company shall default in the payment of the
purchase price, any Security accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest after the Change of
Control Purchase Date;
(e) that Holders electing to have Securities purchased pursuant to a
Change of Control Offer will be required to surrender their Securities to
the Paying Agent at the address specified in the notice prior to 5:00
p.m., New York City time, on the Change of Control Purchase Date and must
complete any form letter of transmittal proposed by the Company and
acceptable to the Trustee and the Paying Agent;
(f) that Holders of Securities will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New York
City time, on the Change of Control Purchase Date, a facsimile
transmission or letter setting forth the name of the Holders, the
principal amount of Securities the Holders delivered for purchase, the
Security certificate number (if any) and a statement
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that such Holder is withdrawing his election to have such Securities
purchased;
(g) that Holders whose Securities are purchased only in part will be
issued Securities of like tenor equal in principal amount to the
unpurchased portion of the Securities surrendered;
(h) the instructions that Holders must follow in order to tender
their Securities; and
(i) information concerning the business of the Company, the most
recent annual and quarterly reports of the Company filed with the
Commission pursuant to the Exchange Act (or, if the Company is not
required to file any such reports with the Commission, the comparable
reports prepared pursuant to Section 10.09), a description of material
developments in the Company's business, information with respect to pro
forma historical financial information after giving effect to such Change
of Control and such other information concerning the circumstances and
relevant facts regarding such Change of Control and Change of Control
Offer as would, in the good faith judgment of the Company, be material to
a Holder of Securities in connection with the decision of such Holder as
to whether or not it should tender Securities pursuant to the Change of
Control Offer.
On the Change of Control Purchase Date, the Company will (i) accept
for payment Securities or portions thereof tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent money, in immediately
available funds, sufficient to pay the purchase price of all Securities or
portions thereof so tendered and accepted and (iii) deliver to the Trustee the
Securities so accepted together with an Officers' Certificate setting forth the
Securities or portions thereof tendered to and accepted for payment by the
Company. The Paying Agent will promptly mail or deliver to the Holders of
Securities so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly authenticate and mail or deliver to such Holders a new
Security of like tenor equal in principal amount to any unpurchased portion of
the Security surrendered. Any Securities not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company will
publicly announce the results of the Change of Control Offer not later than the
first Business Day following the Change of Control Purchase Date.
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The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act, and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to a
Change of Control Offer. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Section 10.10, the
Company will comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section 10.10 by
virtue thereof.
Section 10.11. Limitation on Additional Indebtedness.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, incur any Indebtedness (including any Acquired Indebtedness)
except for:
(a) the Securities;
(b) Indebtedness (including letters of credit) of the Company and
the Restricted Subsidiaries under the Senior Credit Facility in an
aggregate principal amount not to exceed $800 million;
(c) Indebtedness of the Company and the Restricted Subsidiaries
incurred pursuant to Interest Rate Protection Obligations and foreign
exchange contracts, currency swaps or similar agreements;
(d) Indebtedness between and among the Company and the Restricted
Subsidiaries or between and among any of the Restricted Subsidiaries;
(e) Capitalized Lease Obligations and Purchase Money Indebtedness of
the Company and the Restricted Subsidiaries, in each case with respect to
the acquisition after the Issue Date of Productive Assets;
(f) Indebtedness of the Company and the Restricted Subsidiaries
resulting from the endorsement of negotiable instruments in the ordinary
course of business;
(g) replacements, renewals, refinancings and extensions of
Indebtedness outstanding on the Issue Date (other than any Indebtedness to
be repaid or retired with the net proceeds from the sale of the
Securities) and Indebtedness incurred or permitted in compliance with
clauses (a), (e) and (i) of this Section 10.11; provided that the
principal amount of Indebtedness incurred pursuant to this
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clause (g) (or, if such Indebtedness provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof, the original issue price of such
Indebtedness) shall not exceed the sum of the principal amount of
Indebtedness so refinanced (or, if such Indebtedness provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof, the original issue
price of such Indebtedness, plus any accreted value attributable thereto
since the original issuance of such Indebtedness), plus the amount of any
premium required to be paid in connection with such replacement, renewal,
refinancing or extension pursuant to the terms of such Indebtedness or the
amount of any premium reasonably determined by the Company or the
Restricted Subsidiary, as applicable, as necessary to accomplish such
replacement, renewal, refinancing or extension by means of a tender offer
or privately negotiated purchase, plus the amount of fees and expenses in
connection therewith;
(h) unsecured Indebtedness of the Company and the Restricted
Subsidiaries not exceeding $100 million in aggregate principal amount
outstanding at any time;
(i) Indebtedness of the Company and the Restricted Subsidiaries
secured by a Lien on accounts receivable of the Company and the Restricted
Subsidiaries in an aggregate principal amount not to exceed 85% of the
face amount of outstanding accounts receivable of the Company and such
Restricted Subsidiaries; and
(j) other Indebtedness of the Company and the Restricted
Subsidiaries, if at the time of and after giving pro forma effect to the
incurrence of such Indebtedness (including the application of the proceeds
thereof) and any Asset Acquisitions and any Asset Sales that occurred
during the period beginning four full fiscal quarters immediately prior to
such incurrence as though such events occurred on the first day of such
period, the Consolidated EBITDA Coverage Ratio for such four fiscal
quarter period of the Company is equal to or greater than 1.75:1.0.
For purposes of determining compliance with this Section 10.11 in
the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness permitted by this Section 10.11, the Company in its
sole discretion shall classify such item of Indebtedness and only be required
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to include the amount of such Indebtedness as one of such types.
Section 10.12. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, within 95 days after
the end of each fiscal year of the Company ending after the date hereof, a
written statement signed by the chairman or a chief executive officer, the
principal financial officer or principal accounting officer of the Company,
stating (i) that a review of the activities of the Company during the preceding
fiscal year has been made under the supervision of the signing officers with a
view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture, and (ii) that, to the knowledge
of each officer signing such certificate, the Company has kept, observed,
performed and fulfilled each and every covenant and condition contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions, conditions and covenants hereof (or, if a Default shall have
occurred, describing all such Defaults of which such officers may have
knowledge, their status and what action the Company is taking or proposes to
take with respect thereto).
(b) When any Default has occurred and is continuing, or if the
Trustee or any Holder or the trustee for or the holder of any other evidence of
Indebtedness of the Company or any Restricted Subsidiary gives any notice or
takes any other action with respect to a claimed default (other than with
respect to Indebtedness (other than Indebtedness evidenced by the Securities) in
the principal amount of less than $5,000,000), the Company will promptly notify
a Responsible Officer of the Trustee of such Default, notice or action and will
deliver to the Trustee by registered or certified mail or by telegram, or
facsimile transmission followed by hard copy by registered or certified mail an
Officers' Certificate specifying such event, notice or other action within five
Business Days after the Company becomes aware of such occurrence and what action
the Company is taking or proposes to take with respect thereto.
Section 10.13. Limitation on Liens.
The Company and the Restricted Subsidiaries will not, directly or
indirectly, incur any consensual Lien to secure Indebtedness, other than
Permitted Liens, upon any of their property or assets owned or acquired on or
after the Issue Date unless (i) where such Lien secures Indebtedness ranking
pari passu with the applicable Securities, excluding Indebtedness under the
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Senior Credit Facility, all payments due under this Indenture and the Securities
are secured on an equal and ratable basis with the obligations so secured until
such time as such obligation is no longer secured by a Lien, or (ii) where such
Lien secures Subordinated Indebtedness, the Securities are secured by a Lien on
such property or assets that is senior in priority to the Lien securing such
Subordinated Indebtedness. Any Lien which secures the Securities shall
automatically and unconditionally be released upon the release or discharge of
the Lien which resulted in the creation of such Lien with respect to the
Securities, except a discharge or release by or as a result of foreclosure on
the subject collateral.
Section 10.14. Limitation on Designations of Unrestricted
Subsidiaries.
The Company may designate after the Issue Date any Subsidiary as an
"Unrestricted Subsidiary" under this Indenture (a "Designation") only if:
(a) no Default shall have occurred and be continuing at the time of
or after giving effect to such Designation; and
(b) the Company would be permitted under this Indenture to incur
$1.00 of additional Indebtedness pursuant to clause (j) of Section 10.11
at the time of such Designation (assuming the effectiveness of such
Designation).
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(a) no Default shall have occurred and be continuing at the time of
and after giving effect to such Revocation; and
(b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at
such time, have been permitted to be incurred for all purposes of this
Indenture.
All Designations and Revocations must be evidenced by Board
Resolutions delivered to the Trustee together with an Officers' Certificate
certifying compliance with the foregoing provisions. Any Receivables Subsidiary
shall at all times be an Unrestricted Subsidiary and each of WPSI Inc. and
Alamac Sub Holdings Inc. shall initially constitute an Unrestricted Subsidiary.
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Section 10.15. Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, enter into after the Issue Date any arrangement with any Person
providing for the leasing to the Company or any such Restricted Subsidiary of
any real or tangible personal property (except for leases between or among the
Company and any of the Restricted Subsidiaries), which property has been or is
to be sold or transferred by the Company or such Restricted Subsidiary to such
Person in contemplation of such leasing (a "Sale/Leaseback Transaction"), unless
(a) the Company or such Restricted Subsidiary would be entitled under either
clause (g) of Section 10.11 or would be entitled under clause (j) of Section
10.11 to incur Indebtedness in an amount equal to the Attributable Indebtedness
with respect to such arrangement and (b) the gross proceeds of any such sale are
at least equal to the Fair Market Value of such property.
Section 10.16. 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 and any other
obligor on the Securities will furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
(including any covenants compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with, and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents,
certificates and/or opinions is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture will include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements
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or opinions contained in such certificate or opinion are based;
(iii) 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 such covenant or condition
has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 10.17. Application of Fall Away Covenants.
If no Default has occurred and is continuing, after the ratings
assigned to the Securities by any two of the Rating Agencies are equal to or
higher than BBB- and Baa3, or the equivalents thereof, as applicable (the
"Investment Grade Ratings"), and notwithstanding that the Securities may later
cease to have an Investment Grade Rating, the Company and the Restricted
Subsidiaries will not be subject to the provisions of this Indenture governing
such Securities described in Section 10.11, clause (b) of the first paragraph of
Section 10.14 and clause (v) of the first paragraph of Section 8.01(a).
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 11.01. Right of Redemption.
The Securities will be redeemable, in whole or in part, at the
option of the Company at 100% of the principal amount thereof plus the
Make-Whole Premium, together with all accrued and unpaid interest thereon. The
Securities are not subject to redemption through the operation of a sinking
fund.
Section 11.02. Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article.
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Section 11.03. Election To Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 11.01 shall be evidenced by a Board Resolution and an Officers'
Certificate. In case of any redemption at the election of the Company, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice period shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the principal
amount of Securities to be redeemed.
Section 11.04. Selection by Trustee of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed at any time,
selection of such Securities for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are then listed or, if the Securities are not
then listed on a national securities exchange, on pro rata basis, by lot or by
such method as the Trustee shall deem fair and appropriate. Notice of redemption
shall be mailed by first-class mail at least 30 but not more than 60 days prior
to the redemption date to each Holder of the Securities to be redeemed at its
registered address. If any Security is to be redeemed in part only, the notice
of redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the redemption
date, interest will cease to accrue on the Securities or portions thereof called
for redemption.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for partial redemption and the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
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Section 11.05. Notice of Redemption.
Notice of redemption will 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 Securities to be redeemed, at the address of such Holder
appearing in the Security Register.
All notices of redemption will fully identify the Securities and
will state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities are to be redeemed,
the identification of the particular Securities to be redeemed;
(iv) in the case of a Security to be redeemed in part, the principal
amount of such Security to be redeemed and that after the Redemption Date
upon surrender of such Security, a new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof shall
be issued;
(v) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(vi) that on the Redemption Date the Redemption Price shall become
due and payable upon each such Security or portion thereof, and that
(unless the Company shall default in payment of the Redemption Price)
interest thereon shall cease to accrue on and after said date;
(vii) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(viii) the CUSIP number relating to such Securities; and
(ix) the paragraph of the Securities pursuant to which the
Securities are being redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company will be given by the Company or, at
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the Company's written request, by the Trustee in the name and at the expense of
the Company.
The notice if mailed in the manner herein provided will be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part will not affect the validity of the proceedings for the redemption of
any other Security.
Section 11.06. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company will 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 10.03) an
amount of money in same day funds sufficient to pay the Redemption Price of, and
accrued interest on, all the Securities or portions thereof which are to be
redeemed on that date.
Section 11.07. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed will, 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) such Securities
will cease to bear interest. Upon surrender of any such Security for redemption
in accordance with said notice, such Security will be paid by the Company at the
Redemption Price; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as such on
the relevant Regular Record Dates according to the terms and the provisions of
Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate then borne by
such Security.
Section 11.08. Securities Redeemed or Purchased in Part.
Any Security which is to be redeemed or purchased only in part shall
be surrendered to the Paying Agent at the
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office or agency maintained for such purpose pursuant to Section 10.02 (with, if
the Company, the Security Registrar or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to, the Company,
the Security Registrar or the Trustee duly executed by the Holder thereof or
such Holder's attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to,
and in exchange for, the unredeemed portion of the principal of the Security so
surrendered that is not redeemed or purchased.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 12.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to
surviving rights or registration of transfer or exchange of Securities herein
expressly provided for) and the Trustee, on written demand of and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when either
(a) all Securities theretofore authenticated and delivered (other
than (A) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.06 hereof and (B) Securities 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 10.03) have been delivered to the
Trustee for cancellation; or
(b) (i) all such Securities not theretofore delivered to the Trustee
for cancellation have become due and payable and the Company has irrevocably
deposited or caused to be deposited with the Trustee in trust an amount of money
in dollars sufficient to pay and discharge the entire Indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for the
principal of, premium, if any, and interest to the date of such deposit;
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(ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee (i) irrevocable
instructions to apply the deposited money toward payment of the Securities
at the Stated Maturities and the Redemption Dates thereof, and (ii) an
Officers' Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (a)(ii) of this
Section 12.01, the obligations of the Trustee under Section 12.02 and the last
paragraph of Section 10.03 shall survive such satisfaction and discharge.
Section 12.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03,
all money deposited with the Trustee pursuant to Section 12.01 shall be held in
trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the persons entitled thereto, of the principal of, premium, if
any, and interest on the Securities for whose payment such money has been
deposited with the Trustee.
101
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
WESTPOINT XXXXXXX INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Executive Vice President -
Finance and Chief Financial
Officer
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President and Secretary
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Vice President
102
EXHIBIT A-1
[Form of Security].
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
"OFFSHORE TRANSACTION" PURSUANT TO REGULATION S, (2) AGREES THAT IT WILL NOT
PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD AS PERMITTED BY
RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS
SECURITY) OR THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY OR ANY PREDECESSOR OF THIS SECURITY OR (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE
RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, PURSUANT TO RULE 904 OF
REGULATION S, (E) TO AN ACCREDITED INVESTOR THAT IS ACQUIRING THE SECURITIES FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR
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(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
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WESTPOINT XXXXXXX, INC.
-----------------
7 7/8% SENIOR NOTES DUE 2005
CUSIP No. __________
No. ___________ $
WESTPOINT XXXXXXX INC., a corporation incorporated under the laws of
the State of Delaware (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________ or registered assigns, the
principal sum of _______________ Dollars on June 15, 2005, at the office or
agency of the Company referred to below, and to pay interest thereon on June 15
and December 15 (each an "Interest Payment Date"), of each year, commencing on
December 15, 1998, accruing from the Issue Date or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, at the rate
of 7 7/8% per annum, until the principal hereof is paid or duly provided for.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in the Indenture referred to on
the reverse hereof, be paid to the person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the June
1 or December 1 (each a "Regular Record Date"), whether or not a Business Day,
as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid, or duly provided for, and interest on such defaulted
interest at the then applicable interest rate borne by the Securities, to the
extent lawful, shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid to the person in whose name this Security (or one
or more Predecessor Securities) 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 of which shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
ex-
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105
change on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in such Indenture.
Payment of the principal of, premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan in The City of New York, State of New York,
or at such other office or agency of the Company as may be maintained 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 payment of interest may be made at the option of the Company by
check mailed to the address of the person entitled thereto as such address shall
appear on the Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof.
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106
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security 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.
Dated: WESTPOINT XXXXXXX INC.
By:_______________________________________
Name:
Title:
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107
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the 7 7/8% Senior Notes due 2005, Series A, referred
to in the within-mentioned Indenture.
Dated: ________________________
THE BANK OF NEW YORK,
as Trustee
By:____________________________
Authorized Signatory
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108
[REVERSE OF SECURITY]
1. Indenture. This Security is one of a duly authorized issue of
Securities of the Company designated as its 7 7/8% Senior Notes due 2005, Series
A (herein called the "Initial Securities"). The Securities are limited (except
as otherwise provided in the Indenture referred to below) in aggregate principal
amount to $525,000,000, which may be issued under an indenture (herein called
the "Indenture") dated as of June 9, 1998, by and among the Company and The Bank
of New York, 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, obligations and immunities thereunder of
the Company, the Trustee and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. The
Securities include the Initial Securities, the Private Exchange Securities and
the Exchange Securities, issued in exchange for the Initial Securites pursuant
to the Registration Rights Agreement. The Initial Securities and the Exchange
Securities are treated as a single class of securities under the Indenture.
All capitalized terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) (the "TIA"), as in effect on the date of
the Indenture. Notwithstanding anything to the contrary herein, the Securities
are subject to all such terms, and Holders of Securities are referred to the
Indenture and the TIA for a statement of such terms.
No reference herein to the Indenture and no provisions of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Security at the times, place, and rate, and in the
coin or currency, herein prescribed.
2. Registration Rights. Pursuant to the Registration Rights
Agreement by and among the Company and the Initial
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Purchasers, the Company will be obligated to consummate an exchange offer
pursuant to which the Holder of this Security shall have the right to exchange
this Security for 7 7/8% Senior Notes due 2005, Series B, of the Company (herein
called the "Exchange Securities"), which have been registered under the
Securities Act, in like principal amount and having identical terms as the
Securities (other than as set forth in this paragraph). The Holders of
Securities shall be entitled to receive certain additional interest payments in
the event such exchange offer is not consummated and upon certain other
conditions, all pursuant to and in accordance with the terms of the Registration
Rights Agreement.
3. Redemption. The Securities will be redeemable, in whole or in
part, at the option of the Company at 100% of the principal amount thereof plus
the Make-Whole Premium, together with all accrued and unpaid interest thereon.
The Securities are not subject to redemption through the operation of a sinking
fund.
If less than all of the Securities are to be redeemed at any time,
selection of such Securities for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are the listed or, if the Securities are not
then listed on a national securities exchange, on pro forma basis, by lot or by
such method as the Trustee shall deem fair and appropriate. Notice of redemption
shall be mailed by first-class mail at least 30 but not more than 60 days prior
to the redemption date to each Holder of the Securities to be redeemed at its
registered address. If any Security is to be redeemed in part only, the notice
of redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the redemption
date, interest will cease to accrue on the Securities or portions thereof called
for redemption.
4. Offers to Purchase. Section 10.10 of the Indenture provides that
upon the occurrence of a Change of Control Triggering Event, and subject to
certain conditions and limitations contained therein, the Company shall make an
offer to purchase all or a portion of the Securities in accordance with the
procedures set forth in the Indenture.
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5. Defaults and Remedies. If an Event of Default occurs and is
continuing, the principal of all of the Outstanding Securities, plus all accrued
and unpaid interest, if any, to and including the date the Securities are paid,
may be declared due and payable in the manner and with the effect provided in
the Indenture.
6. Defeasance. The Indenture contains provisions (which provisions
apply to this Security) for defeasance at any time of (a) the entire
indebtedness of the Company and (b) certain restrictive covenants and related
Defaults and Events of Default, in each case upon compliance by the Company with
certain conditions set forth therein.
7. Amendments and Waivers. The Indenture permits, with certain
exceptions as provided therein, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past Defaults under the Indenture and this Security and
their consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security 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 Security.
8. Denominations, Transfer and Exchange. The Securities are issuable
only in registered form without coupons in denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Securities are exchangeable for a like
aggregate principal amount of Securities of a different authorized denomination,
as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the of-
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fice or agency of the Company maintained for such purpose in the Borough of
Manhattan in The City of New York, State of New York, or at such other office or
agency of the Company as may be maintained for such purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Securities, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
9. Persons Deemed Owners. Prior to and at the time of due
presentment of this Security 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 Security is registered as the owner hereof for all purposes,
whether or not this Security shall be overdue, and neither the Company, the
Trustee nor any agent shall be affected by notice to the contrary.
10. Termination of Certain Covenants. After the Securities have been
assigned an Investment Grade Rating by any two of the Rating Agencies, and
notwithstanding that the Securities may later cease to have an Investment Grade
Rating, the Company and the Restricted Subsidiaries will no longer be subject to
the provisions of Sections 10.11, clause (b) of the first paragraph of Section
10.14 and clause (v) of the first paragraph of Section 8.01(a) of the Indenture;
provided, that no Default has occurred and is continuing at the time the
Securities have been assigned such rating.
11. GOVERNING LAW. THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to:
WestPoint Xxxxxxx Inc., 1185 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
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ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's social security or tax ID number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably
appoint
________________________________________________________________________________
agent to transfer this Security on the books of the Company. The agent
may substitute another to act for such agent.
In connection with any transfer of this Security occurring prior to
the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the Securities
Act of 1933, as amended (the "Securities Act"), covering resales of this
Security (which effectiveness shall not have been suspended or terminated at the
date of the transfer) and (ii) the date two years (or such shorter period of
time as permitted by Rule 144 under the Securities Act or any successor
provision thereunder) after the later of the original issuance date appearing on
the face of this Security (or any Predecessor Security) or the last date on
which the Company or any Affiliate of the Company was the owner of this Security
(or any Predecessor Security), the undersigned confirms that it has not utilized
any general solicitation or general advertising in connection with the transfer
and that:
[Check One]
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[ ] (a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act provided by
Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in accordance
with (a) above and documents, including (i) a transferee
certificate substantially in the form of Exhibit C to the
Indenture in the case of a transfer to non-QIB Accredited
Investors or (ii) a transferor certificate substantially in
the form of Exhibit D to the Indenture in the case of a
transfer pursuant to Regulation S, are being furnished which
comply with the conditions of transfer set forth in this
Security and the Indenture.
If none of the foregoing boxes is checked and, in the case of (b) above, if the
appropriate document is not attached or otherwise furnished to the Trustee, the
Trustee or Registrar shall not be obligated to register this Security in the
name of any person other than the Holder hereof unless and until the conditions
to any such transfer of registration set forth herein and in Section 3.17 of the
Indenture shall have been satisfied.
________________________________________________________________________________
Date: ____________________ Your signature:___________________________________
(Sign exactly as your name
appears on the other side of
this Security)
By:________________________________
NOTICE: To be executed
by an executive officer
Signature Guarantee:____________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on
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114
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A (including the
information specified in Rule 144A(d)(4)) or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:____________________ ________________________________
NOTICE: To be executed by
an executive officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant
to Section 10.10 of the Indenture, check the appropriate box:
Section 10.10 [ ]
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 10.10 of the Indenture, state the amount:
$______________
Date: ______________________ Your signature:________________________________
(Sign exactly as your name
appears on the other side of
this Security)
By:_____________________________
NOTICE: To be executed
by an executive officer
Signature Guarantee:____________________
X-0-00
000
Xxxxxxx X-0
XXXXXXXXX XXXXXXX INC.
-----------------
7 7/8% SENIOR NOTES DUE 2005
CUSIP No. __________
No. ___________ $
WESTPOINT XXXXXXX INC., a corporation incorporated under the laws of
the State of Delaware (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________ or registered assigns, the
principal sum of _______________ Dollars on June 15, 2005, at the office or
agency of the Company referred to below, and to pay interest thereon on June 15
and December 15 (each an "Interest Payment Date"), of each year, commencing on
December 15, 1998, accruing from the Issue Date or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, at the rate
of 7 7/8% per annum, until the principal hereof is paid or duly provided for.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in the Indenture referred to on
the reverse hereof, be paid to the person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the June
1 or December 1 (each a "Regular Record Date"), whether or not a Business Day,
as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid, or duly provided for, and interest on such defaulted
interest at the then applicable interest rate borne by the Securities, to the
extent lawful, shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid to the person in whose name this Security (or one
or more Predecessor Securities) 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 of which shall be given to Holders of Securities not less
than 10 days prior to such Special Rec-
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ord Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in such Indenture.
Payment of the principal of, premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan in The City of New York, State of New York,
or at such other office or agency of the Company as may be maintained 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 payment of interest may be made at the option of the Company by
check mailed to the address of the person entitled thereto as such address shall
appear on the Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof.
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118
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security 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.
Dated: WESTPOINT XXXXXXX INC.
By:_____________________________
Name:
Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the 7 7/8% Senior Notes due 2005, Series B, referred
to in the within-mentioned Indenture.
Dated: _______________________
THE BANK OF NEW YORK,
as Trustee
By:____________________________
Authorized Signatory
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120
REVERSE OF SECURITY
1. Indenture. This Security is one of a duly authorized issue of
Securities of the Company designated as its 7 7/8% Senior Notes due 2005, Series
B (herein called the "Exchange Securities"). The Securities are limited (except
as otherwise provided in the Indenture referred to below) in aggregate principal
amount to $525,000,000, which may be issued under an indenture (herein called
the "Indenture") dated as of June 9, 1998, by and among the Company and The Bank
of New York, 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, obligations and immunities thereunder of
the Company, the Trustee and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. The
Securities include the Initial Securities, the Private Exchange Securities and
the Exchange Securities, issued in exchange for the Initial Securities pursuant
to the Registration Rights Agreement. The Initial Securities and the Exchange
Securities are treated as a single class of securities under the Indenture.
All capitalized terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) (the "TIA"), as in effect on the date of
the Indenture. Notwithstanding anything to the contrary herein, the Securities
are subject to all such terms, and Holders of Securities are referred to the
Indenture and the TIA for a statement of such terms.
No reference herein to the Indenture and no provisions of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Security at the times, place, and rate, and in the
coin or currency, herein prescribed.
2. Redemption. The Securities will be redeemable, in whole or in
part, at the option of the Company at 100% of
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121
the principal amount thereof plus the Make-Whole Premium, together with all
accrued and unpaid interest thereon. The Securities are not subject to
redemption through the operation of a sinking fund.
If less than all of the Securities are to be redeemed at any time,
selection of such Securities for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are the listed or, if the Securities are not
then listed on a national securities exchange, on pro forma basis, by lot or by
such method as the Trustee shall deem fair and appropriate. Notice of redemption
shall be mailed by first-class mail at least 30 but not more than 60 days prior
to the redemption date to each Holder of the Securities to be redeemed at its
registered address. If any Security is to be redeemed in part only, the notice
of redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the redemption
date, interest will cease to accrue on the Securities or portions thereof called
for redemption.
3. Offers to Purchase. Section 10.10 of the Indenture provides that
upon the occurrence of a Change of Control Triggering Event, and subject to
certain conditions and limitations contained therein, the Company shall make an
offer to purchase all or a portion of the Securities in accordance with the
procedures set forth in the Indenture.
4. Defaults and Remedies. If an Event of Default occurs and is
continuing, the principal of all of the Outstanding Securities, plus all accrued
and unpaid interest, if any, to and including the date the Securities are paid,
may be declared due and payable in the manner and with the effect provided in
the Indenture.
5. Defeasance. The Indenture contains provisions (which provisions
apply to this Security) for defeasance at any time of (a) the entire
indebtedness of the Company and (b) certain restrictive covenants and related
Defaults and Events of Default, in each case upon compliance by the Company with
certain conditions set forth therein.
A-2-6
122
6. Amendments and Waivers. The Indenture permits, with certain
exceptions as provided therein, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past Defaults under the Indenture and this Security and
their consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security 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 Security.
7. Denominations, Transfer and Exchange. The Securities are issuable
only in registered form without coupons in denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Securities are exchangeable for a like
aggregate principal amount of Securities of a different authorized denomination,
as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
the Borough of Manhattan in The City of New York, State of New York, or at such
other office or agency of the Company as may be maintained for such purpose,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Securities, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any
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123
tax or other governmental charge payable in connection therewith.
8. Persons Deemed Owners. Prior to and at the time of due
presentment of this Security 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 Security is registered as the owner hereof for all purposes,
whether or not this Security shall be overdue, and neither the Company, the
Trustee nor any agent shall be affected by notice to the contrary.
9. Termination of Certain Covenants. After the Securities have been
assigned an Investment Grade Rating by any two of the Rating Agencies, and
notwithstanding that the Securities may later cease to have an Investment Grade
Rating, the Company and the Restricted Subsidiaries will no longer be subject to
the provisions of Sections 10.11, clause (b) of the first paragraph of Section
10.14 and clause (v) of the first paragraph of Section 8.01(a) of the Indenture;
provided, that no Default has occurred and is continuing at the time the
Securities have been assigned such rating.
10. GOVERNING LAW. THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to:
WestPoint Xxxxxxx Inc., 1185 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
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ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's social security or tax ID number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably
appoint
________________________________________________________________________________
agent to transfer this Security on the books of the Company. The agent
may substitute another to act for such agent.
Date: ____________________ Your signature: ________________________________
(Sign exactly as your name
appears on the other side of
this Security)
By:_____________________________
NOTICE: To be executed
by an executive officer
Signature Guarantee:____________________
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125
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant
to Section 10.10 of the Indenture, check the box: [ ]
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 10.10 of the Indenture, state the amount:
$______________
Date: ____________________ Your signature: ________________________________
(Sign exactly as your name
appears on the other side of
this Security)
By:_____________________________
NOTICE: To be executed
by an executive officer
Signature Guarantee:____________________
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126
EXHIBIT B
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Security authenticated and delivered hereunder shall bear
a legend (which would be in addition to any other legends required in the case
of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED 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.
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127
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
WestPoint Xxxxxxx Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
In connection with our proposed purchase of $ aggregate principal
amount of the 7 7/8% Senior Notes due 2005 (the "Securities") of WestPoint
Xxxxxxx Inc. (the "Company"), we confirm that:
1. We understand that the Securities have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), and, unless
so registered, may not be sold except as permitted in the following
sentence. We agree on our own behalf and on behalf of any investor account
for which we are purchasing Securities to offer, sell or otherwise
transfer such Securities prior to (x) the date which is two years (or such
shorter period of time as permitted by Rule 144 under the Securities Act)
after the later of the date of original issue of the Securities and (y)
such later date, if any, as may be required by any subsequent change in
applicable law (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) so long as the Securities are
eligible for resale pursuant to Rule 144A under the Securities Act, to a
person we reasonably believe is a "qualified institutional buyer" under
Rule 144A (a "QIB") that purchases for its own account or for the account
of a QIB and to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) pursuant to offers and sales that occur outside
the United States to "foreign purchasers" (as defined below) in offshore
transactions meeting the requirements of Rule 904 of Regulation S under
the Securities Act, (e) to an institutional "accredited investor" within
the meaning of sub-
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128
paragraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act (an
"Accredited Investor") that is purchasing for its own account or for the
account of such an institutional "accredited investor," or (f) pursuant to
any other available exemption from the registration requirements of the
Securities Act, subject, in each of the foregoing cases, to any
requirement of law that the disposition of our property or the property of
such investor account or accounts be at all times within our or their
control and to compliance with any applicable state securities laws. The
foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Notes
is proposed to be made pursuant to clause (c) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from
the transferee substantially in the form of this letter to the Trustee,
which shall provide, among other things, that the transferee is an
Accredited Investor within the meaning of subparagraph (a)(1), (2), (3) or
(7) of Rule 501 under the Securities Act and that it is acquiring such
Securities for investment purposes and not for distribution in violation
of the Securities Act. Each purchaser acknowledges that the Company, the
Trustee and the Transfer Agent and Registrar reserve the right prior to
any offer, sale or other transfer prior to the Resale Restriction
Termination Date of the Securities pursuant to clause (d), (e) or (f)
above to require the delivery of an opinion of counsel, certification
and/or other information satisfactory to the Company and the Trustee.
2. We are an Accredited Investor or a QIB purchasing Notes for our
own account or for the account of one or more Accredited Investors, and we
are acquiring the Securities for investment purposes and not with a view
to, or for offer or sale in connection with, any distribution in violation
of the Securities Act or the securities laws of any state of the United
States and we have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Securities, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its investment in
the Securities for an indefinite period.
3. We are acquiring the Securities purchased by us for our own
account or for one or more accounts as to each
C-2
129
of which we exercise sole investment discretion and we and any such
account are (a) a QIB, aware that the sale is being made in reliance on
Rule 144A under the Securities Act, (b) an Accredited Investor, or (c) a
person other than a U.S. person ("foreign purchasers"), which term shall
include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for foreign beneficial owners (other than
an estate or trust) in offshore transactions meeting the requirements of
Rules 903 and 904 of Regulation S under the Securities Act.
4. We have received a copy of the Offering Memorandum and
acknowledge that we have had access to such financial and other
information, and have been afforded the opportunity to ask such questions
of representatives of the Company and receive answers thereto, as we deem
necessary in order to verify the information contained in the Offering
Memorandum.
5. We are not purchasing the Securities for or on behalf of, and
will not transfer the Securities to, any pension or welfare plan (as
defined in Section 3 of ERISA, except as may be permitted under ERISA and
as described under "Notice to Investors" in the Offering Memorandum.
6. In the event that we purchase any Securities, we will acquire
Securities having an outstanding principal amount of at least $250,000 for
our own account and $250,000 for each account for which we are acting.
We understand that the Trustee and the Transfer Agent will not be
required to accept for registration of transfer any Securities acquired by us,
except upon presentation of evidence satisfactory to the Company and the Trustee
that the foregoing restrictions on transfer have been complied with. We further
understand that the Securities purchased by us will be in the form of definitive
physical certificates and that such certificates will bear a legend reflecting
the substance of this paragraph. We further agree to provide to any person
acquiring any of the Securities from us a notice advising such person that
transfers of such Securities are restricted as stated herein and that
certificates representing such Securities will bear a legend to that effect.
We represent that you, the Company, the Trustee and others are
entitled to rely upon the truth and accuracy of our acknowledgements,
representations and agreements set forth
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130
herein, and we agree to notify you promptly in writing if any of our
acknowledgements, representations or agreements herein cease to be accurate and
complete. You are also irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
We represent to you that we have full power to make the foregoing
acknowledgements, representations and agreements on our own behalf and on behalf
of any investor account for which we are acting as fiduciary agent.
As used herein, the terms "offshore transaction," "United States"
and "U.S. person" have the respective meanings given to them in Regulation S
under the Securities Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
(Name of Purchaser)
By:________________________________
Date:______________________________
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name:______________________________
Address:______________________________
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131
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
______________, ____
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Trustee Administration
Re: WestPoint Xxxxxxx Inc.
(the "Company") 7 7/8% Senior Notes due 2005
(the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal amount
at maturity of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
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132
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities; and
(6) if the circumstances set forth in Rule 904(c) under the
Securities Act are applicable, we have complied with the additional
conditions therein, including (if applicable) sending a confirmation or
other notice stating that the Securities may be offered and sold during
the restricted period specified in Rule 903(c)(2) or (3), as applicable;
in accordance with the provisions of Regulation S; pursuant to
registration of the Securities under the Securities Act; or pursuant to an
available exemption from the registration requirements under the
Securities Act.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:____________________
Authorized Signature
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