EXHIBIT
4.1
EXECUTION COPY
The Bon-Ton Department Stores, Inc.
101/4% SENIOR NOTES DUE 2014
_________________________
Dated as of March 6, 2006
_________________________
Trustee
_________________________
CROSS-REFERENCE TABLE*
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Trust Indenture |
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Act Section |
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Indenture Section |
310(a)(1) |
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7.10 |
(a)(2) |
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7.10 |
(a)(3) |
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N.A. |
(a)(4) |
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N.A. |
(a)(5) |
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7.10 |
(b) |
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7.10 |
(c) |
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N.A. |
311(a) |
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7.11 |
(b) |
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7.11 |
(c) |
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N.A. |
312(a) |
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2.06 |
(b) |
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12.03 |
(c) |
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12.03 |
313(a) |
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7.06 |
(b)(1) |
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N.A. |
(b)(2) |
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7.06, 7.07 |
(c) |
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7.06, 12.02 |
(d) |
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7.06 |
314(a)(4) |
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12.05 |
(b) |
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N.A. |
(c)(1) |
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N.A. |
(c)(2) |
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N.A. |
(c)(3) |
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N.A. |
(d) |
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N.A. |
(e) |
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12.05 |
(f) |
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N.A. |
315(a) |
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N.A. |
(b) |
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N.A. |
(c) |
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N.A. |
(d) |
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N.A. |
(e) |
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N.A. |
316(a) (last sentence) |
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N.A. |
(a)(1)(A) |
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N.A. |
(a)(1)(B) |
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6.04 |
(a)(2) |
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N.A. |
(b) |
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N.A. |
(c) |
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12.14 |
317(a)(1) |
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N.A. |
(a)(2) |
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N.A. |
(b) |
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N.A. |
318(a) |
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N.A. |
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* |
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N.A. means not applicable. |
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This Cross-Reference Table is not part of this Indenture. |
TABLE OF CONTENTS
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Page |
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ARTICLE ONE |
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DEFINITIONS AND INCORPORATION |
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BY REFERENCE |
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Section 1.01. |
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Definitions |
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1 |
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Section 1.02. |
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Other Definitions |
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25 |
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Section 1.03. |
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Incorporation by Reference of Trust Indenture Act |
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26 |
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Section 1.04. |
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Rules of Construction |
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26 |
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ARTICLE TWO |
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THE NOTES |
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Section 2.01. |
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Form and Dating |
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27 |
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Section 2.02. |
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Execution and Authentication |
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28 |
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Section 2.03. |
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Methods of Receiving Payments on the Notes |
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28 |
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Section 2.04. |
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Registrar and Paying Agent |
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28 |
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Section 2.05. |
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Paying Agent to Hold Money in Trust |
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29 |
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Section 2.06. |
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Holder Lists |
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29 |
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Section 2.07. |
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Transfer and Exchange |
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29 |
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Section 2.08. |
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Replacement Notes |
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40 |
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Section 2.09. |
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Outstanding Notes |
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40 |
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Section 2.10. |
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Treasury Notes |
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41 |
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Section 2.11. |
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Temporary Notes |
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41 |
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Section 2.12. |
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Cancellation |
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41 |
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Section 2.13. |
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Defaulted Interest |
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42 |
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Section 2.14. |
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CUSIP Numbers |
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42 |
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ARTICLE THREE |
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REDEMPTION AND OFFERS TO PURCHASE |
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Section 3.01. |
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Notices to Trustee |
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42 |
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Section 3.02. |
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Selection of Notes to Be Redeemed |
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42 |
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Section 3.03. |
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Notice of Redemption |
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43 |
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Section 3.04. |
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Effect of Notice of Redemption |
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44 |
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Section 3.05. |
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Deposit of Redemption Price |
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44 |
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Section 3.06. |
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Notes Redeemed in Part |
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44 |
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Section 3.07. |
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Optional Redemption |
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44 |
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Section 3.08. |
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Repurchase Offers |
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45 |
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Section 3.09. |
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No Sinking Fund |
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47 |
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-i-
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ARTICLE FOUR |
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COVENANTS |
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Section 4.01. |
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Payment of Notes |
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47 |
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Section 4.02. |
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Maintenance of Office or Agency |
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47 |
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Section 4.03. |
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Reports |
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48 |
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Section 4.04. |
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Compliance Certificate |
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49 |
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Section 4.05. |
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Taxes |
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49 |
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Section 4.06. |
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Stay, Extension and Usury Laws |
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50 |
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Section 4.07. |
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Restricted Payments |
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50 |
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Section 4.08. |
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Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries |
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53 |
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Section 4.09. |
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Incurrence of Indebtedness |
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54 |
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Section 4.10. |
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Asset Sales |
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57 |
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Section 4.11. |
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Transactions with Affiliates |
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58 |
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Section 4.12. |
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Liens |
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60 |
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Section 4.13. |
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Business Activities |
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60 |
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Section 4.14. |
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Offer to Repurchase upon a Change of Control |
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60 |
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Section 4.15. |
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Designation of Restricted and Unrestricted Subsidiaries |
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61 |
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Section 4.16. |
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Payments for Consent |
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62 |
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Section 4.17. |
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Guarantees |
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63 |
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Section 4.18. |
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Limitation on Issuances and Sales of Equity Interests in Restricted Subsidiaries. |
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63 |
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ARTICLE FIVE |
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Section 5.01. |
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Merger, Consolidation or Sale of Assets |
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63 |
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Section 5.02. |
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Successor Corporation Substituted |
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65 |
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ARTICLE SIX |
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DEFAULTS AND REMEDIES |
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Section 6.01. |
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Events of Default |
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65 |
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Section 6.02. |
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Acceleration |
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67 |
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Section 6.03. |
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Other Remedies |
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67 |
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Section 6.04. |
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Waiver of Past Defaults |
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68 |
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Section 6.05. |
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Control by Majority |
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68 |
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Section 6.06. |
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Limitation on Suits |
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68 |
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Section 6.07. |
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Rights of Holders of Notes to Receive Payment |
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69 |
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Section 6.08. |
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Collection Suit by Trustee |
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69 |
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Section 6.09. |
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Trustee May File Proofs of Claim |
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69 |
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Section 6.10. |
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Priorities |
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70 |
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Section 6.11. |
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Undertaking for Costs |
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70 |
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ARTICLE SEVEN |
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TRUSTEE |
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Section 7.01. |
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Duties of Trustee |
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70 |
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Section 7.02. |
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Certain Rights of Trustee |
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71 |
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Section 7.03. |
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Individual Rights of Trustee |
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72 |
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Section 7.04. |
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Trustee’s Disclaimer |
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72 |
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Section 7.05. |
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Notice of Defaults |
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73 |
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Section 7.06. |
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Reports by Trustee to Holders of the Notes |
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73 |
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Section 7.07. |
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Compensation and Indemnity |
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73 |
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Section 7.08. |
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Replacement of Trustee |
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74 |
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Section 7.09. |
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Successor Trustee by Xxxxxx, Etc. |
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75 |
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Section 7.10. |
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Eligibility; Disqualification |
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75 |
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Section 7.11. |
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Preferential Collection of Claims Against Company |
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75 |
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ARTICLE EIGHT |
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DEFEASANCE AND COVENANT DEFEASANCE |
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Section 8.01. |
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Option to Effect Legal Defeasance or Covenant Defeasance |
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75 |
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Section 8.02. |
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Legal Defeasance and Discharge |
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76 |
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Section 8.03. |
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Covenant Defeasance |
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76 |
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Section 8.04. |
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Conditions to Legal or Covenant Defeasance |
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76 |
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Section 8.05. |
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Deposited Money and Government Securities to Be Held in Trust; |
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78 |
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Other Miscellaneous Provisions. |
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Section 8.06. |
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Repayment to the Company |
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78 |
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Section 8.07. |
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Reinstatement |
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79 |
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ARTICLE NINE |
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AMENDMENT, SUPPLEMENT AND WAIVER |
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Section 9.01. |
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Without Consent of Holders of Notes |
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79 |
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Section 9.02. |
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With Consent of Holders of Notes |
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80 |
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Section 9.03. |
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81 |
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Section 9.04. |
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Revocation and Effect of Consents |
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82 |
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Section 9.05. |
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Notation on or Exchange of Notes |
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82 |
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Section 9.06. |
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Trustee to Sign Amendments, Etc. |
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82 |
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ARTICLE TEN |
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NOTE GUARANTEES |
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Section 10.01. |
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Guarantee |
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82 |
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Section 10.02. |
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Limitation on Guarantor Liability |
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83 |
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Section 10.03. |
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84 |
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Section 10.04. |
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Guarantors May Consolidate, Etc., on Certain Terms |
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84 |
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Section 10.05. |
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Release of Guarantor |
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85 |
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ARTICLE ELEVEN |
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Section 11.01. |
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Satisfaction and Discharge |
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85 |
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Section 11.02. |
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Deposited Money and Government Securities
to Be Held in Trust; Other Miscellaneous Provisions |
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86 |
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ARTICLE TWELVE |
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MISCELLANEOUS |
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Section 12.01. |
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87 |
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Section 12.02. |
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Notices |
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87 |
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Section 12.03. |
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Communication by Holders of Notes with Other Holders of Notes |
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88 |
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Section 12.04. |
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Certificate and Opinion as to Conditions Precedent |
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88 |
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Section 12.05. |
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Statements Required in Certificate or Opinion |
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88 |
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Section 12.06. |
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Rules by Trustee and Agents |
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89 |
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Section 12.07. |
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No Personal Liability of Directors, Officers, Employees and Stockholders |
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89 |
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Section 12.08. |
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Governing Law |
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89 |
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Section 12.09. |
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Consent to Jurisdiction |
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89 |
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Section 12.10. |
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No Adverse Interpretation of Other Agreements |
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90 |
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Section 12.11. |
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Successors |
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90 |
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Section 12.12. |
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Severability |
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90 |
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Section 12.13. |
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Counterpart Originals |
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90 |
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Section 12.14. |
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Acts of Holders |
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90 |
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Section 12.15. |
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91 |
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Section 12.16. |
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Table of Contents, Headings, Etc. |
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91 |
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-iv-
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EXHIBITS |
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Exhibit A
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FORM OF NOTE |
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Exhibit B
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FORM OF CERTIFICATE OF TRANSFER |
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Exhibit C
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FORM OF CERTIFICATE OF EXCHANGE |
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Exhibit D
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FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR |
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Exhibit E
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FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT
GUARANTORS |
-v-
INDENTURE dated as of March 6, 2006 among The Bon-Ton Department Stores, Inc., a Pennsylvania
corporation, the initial Guarantors listed on the signature pages hereto and The Bank of
New York,
a
New York banking corporation, as Trustee. Capitalized terms used in this preamble without
definition shall have the meanings assigned to them in Section 1.01.
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its 101/4% Senior Notes due 2014 to be issued in one or more series
as provided in this Indenture. The initial Guarantors have duly authorized the execution and
delivery of this Indenture to provide for a guarantee of the Notes and of certain of the Company’s
obligations hereunder. All things necessary to make this Indenture a valid agreement of the
Company and the initial Guarantors, in accordance with its terms, have been done.
The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and
for the equal and ratable benefit of the Holders of the Company’s 101/4% Senior Notes due 2014:
ARTICLE ONE
“144A Global Note” means a global note substantially in the form of Exhibit A bearing
the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee, that shall be issued in a denomination
equal to the outstanding principal amount at maturity of the Notes sold in reliance on Rule 144A.
“Acquisition Agreement” means the purchase agreement dated as of October 29, 2005 between Saks
Incorporated and the Parent, as amended or supplemented through the Issue Date.
“Additional Interest” means all additional interest owing on the Notes pursuant to the
Registration Rights Agreement.
“Additional Notes” means an unlimited maximum aggregate principal amount of Notes (other than
the Notes issued on the date hereof) issued under this Indenture in accordance with Sections 2.02
and 4.09.
“Affiliate” of any specified Person means (1) any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person
or (2) any executive officer or director of such specified Person. For purposes of this
definition, “control,” as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or otherwise; provided
that beneficial ownership of 10% or more of the Voting Stock of a Person shall be deemed to be
control. For purposes of this definition, the terms “controlling,” “controlled by” and “under
common control with” shall have correlative meanings.
“Agent” means any Registrar or Paying Agent.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream
that apply to such transfer or exchange.
“Asset Sale” means:
(1) the sale, lease, conveyance or other disposition of any property or assets of the
Parent or any of its Restricted Subsidiaries other than a transaction governed by the
provisions of Section 4.14 and/or Section 5.01; and
(2) the issuance of Equity Interests by any of the Restricted Subsidiaries of the
Parent or the sale by the Parent or any of its Restricted Subsidiaries of Equity Interests
in any of its Subsidiaries (other than directors’ qualifying shares and shares issued to
foreign nationals to the extent required by applicable law).
Notwithstanding the preceding, the following items shall be deemed not to be Asset Sales:
(1) any single transaction or series of related transactions that involves assets
having a Fair Market Value of less than $10.0 million in the aggregate;
(2) the sale, lease, conveyance or other disposition of any property or assets between
or among the Parent and its Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary of the Parent to the
Parent or to another Restricted Subsidiary of the Parent;
(4) the sale, lease, sublease, license or sublicense or consignment of equipment,
inventory, accounts receivable or other assets in the ordinary course of business;
(5) any sale of accounts receivable, or participations therein, in connection with any
Qualified Receivables Transaction;
(6) the licensing of intellectual property to third Persons on reasonable and customary
terms in the ordinary course of business consistent with past practice; provided that such
licensing does not materially interfere with the business of the Parent or any of its
Restricted Subsidiaries;
(7) the sale or other disposition of Cash Equivalents;
(8) dispositions of accounts receivable in connection with the compromise, settlement
or collection thereof in the ordinary course of business or in bankruptcy or similar
proceedings;
(9) a Restricted Payment that is permitted by Section 4.07 and any Permitted
Investment;
(10) any sale or disposition of any property or equipment that has become damaged, worn
out, obsolete or otherwise unsuitable for use in connection with the business of the Parent
or its Restricted Subsidiaries;
-2-
(11) to the extent allowable under Section 1031 of the Internal Revenue Code of 1986,
any exchange of like property (excluding any boot thereon) for use in a Permitted Business;
(12) the unwinding of any Hedging Obligations; and
(13) the creation of a Lien not prohibited by this Indenture.
“Bankruptcy Law” means Title 11 of the United States Code, as amended, or any similar federal
or state law for the relief of debtors.
“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular “person”
(as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to
have beneficial ownership of all securities that such “person” has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and
“Beneficially Owned” shall have corresponding meanings.
“Board of Directors” means:
(1) with respect to a corporation, the board of directors of the corporation or, except
in the context of the definitions of “Change of Control” and “Continuing Directors,” a duly
authorized committee thereof;
(2) with respect to a partnership, the Board of Directors of the general partner of the
partnership or, if the partnership has more than one general partner, the managing general
partner of the partnership; and
(3) with respect to any other Person, the board or committee of such Person serving a
similar function.
“Board Resolution” means a resolution certified by the Secretary or an Assistant Secretary of
the Parent to have been duly adopted by the Board of Directors of the Parent and to be in full
force and effect on the date of such certification.
“Borrowing Base” means, as of any date, an amount equal to the sum of (i) 85% of the net book
value of all inventory owned by the Parent or any of its Restricted Subsidiaries as of the most
recent fiscal quarter for which internal financial statements are available, all calculated on a
consolidated basis and in accordance with GAAP and (ii) 80% of the appraised value of property,
plant and equipment.
“Broker-Dealer” has the meaning set forth in the Registration Rights Agreement.
“Business Day” means any day other than a Legal Holiday.
“Capital Lease Obligation” means, at the time any determination thereof is to be made, the
amount of the liability in respect of a capital lease that would at that time be required to be
capitalized on a balance sheet in accordance with GAAP.
-3-
“Capital Stock” means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or other business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of corporate
stock;
(3) in the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person.
“Cash Equivalents” means:
(1) United States dollars or, in the case of any Restricted Subsidiary organized under
the laws of any jurisdiction outside the United States, such local currencies held by such
Restricted Subsidiary from time to time in the ordinary course of business;
(2) securities issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (provided that the full faith and credit
of the United States is pledged in support thereof), maturing, unless such securities are
deposited to defease any Indebtedness, not more than one year from the date of acquisition;
(3) commercial paper having one of the two highest ratings obtainable from Xxxxx’x
Investors Service, Inc. or Standard & Poor’s Rating Services and in each case maturing
within 90 days after the date of the acquisition thereof;
(4) certificates of deposit and eurodollar time deposits with maturities of one year or
less from the date of the acquisition thereof, bankers’ acceptances with maturities not
exceeding one year and overnight bank deposits, in each case (x) with any commercial bank
organized under the laws of the United States, Canada or the United Kingdom (or any state,
province or territory thereof) or any foreign branch thereof having capital and surplus
aggregating at least $100.0 million or (y) insured by any nation or government, any state,
province, municipality or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory, or administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital ownership or
otherwise, by any of the foregoing, and any department, agency, board, commission, tribunal,
committee or instrumentality of any of the foregoing;
(5) mutual funds substantially all of the assets of which constitute Cash Equivalents
of the kinds described in clauses (1) through (4) of this definition;
(6) deposit accounts in the ordinary course of business with financial institutions (A)
located in the United States of America, Canada or the United Kingdom and (B) located in a
jurisdiction other than the United States of America, Canada or the United Kingdom in an
amount not in excess of $10.0 million in the aggregate; and
(7) fully collateralized repurchase obligations of any commercial bank organized under
the laws of the United States of America or any state thereof having
capital and surplus ag-
-4-
gregating at least $100.0 million, having a term of not more than 30 days, with respect
to securities issued or fully guaranteed by the government of the United States of America.
“Change of Control” means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Parent and its Restricted Subsidiaries,
taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange
Act);
(2) the adoption by the shareholders of the Parent of a plan relating to the
liquidation or dissolution of the Parent;
(3) the Parent (by way of a report or any other filing pursuant to Section 13(d) of the
Exchange Act, proxy, vote, written notice or otherwise) becomes aware of the acquisition by
any “person” or “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act, or any successor provision), including any group acting for the purpose of
acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under
the Exchange Act, or any successor provision), other than the Permitted Holders, in a single
transaction or in a series of related transactions, by way of merger, consolidation or other
business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3
under the Exchange Act, or any successor provision) of 50% or more of the total voting power
of the Voting Stock of the Parent;
(4) the first day on which a majority of the members of the Board of Directors of the
Parent are not Continuing Directors;
(5) the Parent consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into, the Parent, in any such event pursuant to a
transaction in which any of the outstanding Voting Stock of the Parent or such other Person
is converted into or exchanged for cash, securities or other property, other than any such
transaction where (A) the Voting Stock of the Parent outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than Disqualified Stock)
of the surviving or transferee Person constituting a majority of the total voting power of
the outstanding shares of such Voting Stock of such surviving or transferee Person
(immediately after giving effect to such issuance) and (B) immediately after such
transaction, no “person” or “group” (as such terms are used in Section 13(d) and 14(d) of
the Exchange Act) other than a Permitted Holder becomes, directly or indirectly, the
Beneficial Owner of 50% or more of the voting power of the Voting Stock of the surviving or
transferee Person; or
(6) the failure of the Company to be a Wholly Owned Restricted Subsidiary of the
Parent.
“Clearstream” means Clearstream Banking S.A. and any successor thereto.
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means, with respect to any Person, any Capital Stock (other than Preferred
Stock) of such Person, whether outstanding on the Issue Date or issued thereafter.
-5-
“Company” means The Bon-Ton Department Stores, Inc., a Pennsylvania corporation, until a
successor replaces it pursuant to Article Five and thereafter means such successor.
“Consolidated Cash Flow” means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus:
(1) provision for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was deducted in
computing such Consolidated Net Income; plus
(2) Fixed Charges of such Person and its Restricted Subsidiaries for such period, to
the extent that any such Fixed Charges were deducted in computing such Consolidated Net
Income; plus
(3) depreciation, amortization (including amortization of intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period), non-cash asset
impairment charges and other non-cash expenses (excluding, other than in connection with the
Transactions, any such non-cash expense to the extent that it represents an accrual of or
reserve for cash expenses in any future period or amortization of a prepaid cash expense
that was paid in a prior period) of such Person and its Restricted Subsidiaries for such
period to the extent that such depreciation, amortization and other non-cash expenses were
deducted in computing such Consolidated Net Income; minus
(4) non-cash items increasing such Consolidated Net Income for such period, other than
the accrual of revenue consistent with past practice;
in each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the income or profits of, the
Fixed Charges of and the depreciation and amortization and other non-cash expenses of, a Restricted
Subsidiary of the Parent shall be added to Consolidated Net Income to compute Consolidated Cash
Flow of the Parent (A) in the same proportion that the Net Income of such Restricted Subsidiary was
added to compute such Consolidated Net Income of the Parent and (B) only to the extent that a
corresponding amount would be permitted at the date of determination to be dividended or
distributed to the Parent by such Restricted Subsidiary without prior governmental approval (that
has not been obtained), and without direct or indirect restriction pursuant to the terms of its
charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Subsidiary or its stockholders.
“Consolidated Net Income” means, with respect to any specified Person for any period, the
aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated
basis, determined in accordance with GAAP; provided that:
(1) the Net Income or loss of any Person that is not a Restricted Subsidiary or that is
accounted for by the equity method of accounting shall be included only to the extent of the
amount of dividends or distributions paid in cash to the specified Person or a Restricted
Subsidiary thereof;
(2) the Net Income of any Restricted Subsidiary shall be excluded to the extent that
the declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of
-6-
that Net Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly, by operation
of the terms of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Restricted Subsidiary or its
equityholders;
(3) the Net Income of any Person acquired during the specified period for any period
prior to the date of such acquisition shall be excluded;
(4) the cumulative effect of a change in accounting principles shall be excluded; and
(5) notwithstanding clause (1) above, the Net Income or loss of any Unrestricted
Subsidiary shall be excluded, whether or not distributed to the specified Person or one of
its Subsidiaries.
“Continuing Directors” means, as of any date of determination, those members of the Board of
Directors of the Parent, each of whom:
(1) was a member of such Board of Directors on the Issue Date; or
(2) was nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board of Directors at the
time of such nomination or election.
“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in
Section 12.02 or such other address as to which the Trustee may give notice to the Company.
“Credit Agreement” means that certain Credit Agreement, dated as of the Issue Date, by and
among The Bon-Ton Department Stores, Inc., The Xxxxx-Xxxxxxx Stores Corp., Herberger’s Department
Stores, LLC and Parisian, Inc., the loan parties party thereto, Bank of America, N.A., as Agent,
Banc of America Securities LLC and GE Capital Markets, Inc., as Joint-Lead Arrangers and Joint Book
Runners, General Electric Capital Corporation and Citicorp North America, Inc., as Co-Syndication
Agents, and Xxxxx Fargo Retail Finance LLC and XX Xxxxxx Xxxxx Bank, N.A., as Co-Documentation
Agents, and the other lenders named therein, including any related notes, Guarantees (including the
Guarantee of the Parent), collateral documents, instruments and agreements executed in connection
therewith, and as the same may be amended, restated, modified, renewed, refunded, replaced or
refinanced from time to time, regardless of whether such amendment, restatement, modification,
renewal, refunding, replacement or refinancing is with the same financial institutions or
otherwise.
“Credit Facilities” means one or more debt facilities, mortgage loan facilities and commercial
paper facilities (including, without limitation, the Credit Agreement and the Mortgage Loan
Facility), in each case with banks or other institutional lenders, providing for revolving credit
loans, term loans, receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such receivables),
letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time.
“Custodian” means the Trustee as custodian with respect to the Notes in global form or any
successor entity thereto.
-7-
“Default” means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.
“Definitive Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.07, substantially in the form of Exhibit A, except that
such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of
Interests in the Global Note” attached thereto.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.04 as the Depositary with respect to the Notes, and any and
all successors thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
“Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration
received by the Parent or any of its Restricted Subsidiaries in connection with an Asset Sale that
is so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate, setting
forth the basis of such valuation, less the amount of Cash Equivalents received in connection with
a subsequent sale of such Designated Non-cash Consideration.
“Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option
of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is one year after the date on which the
Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require the Parent to
repurchase such Capital Stock upon the occurrence of a change of control or an asset sale shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that the Parent may not
repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07. The term “Disqualified Stock” shall also include any
options, warrants or other rights that are convertible into Disqualified Stock or that are
redeemable at the option of the holder, or required to be redeemed, prior to the date that is one
year after the date on which the Notes mature.
“Domestic Subsidiary” means any Restricted Subsidiary of the Parent other than a Restricted
Subsidiary that is (1) a “controlled foreign corporation” under Section 957 of the Internal Revenue
Code (a) whose primary operating assets are located outside the United States and (b) that is not
subject to tax under Section 882(a) of the Internal Revenue Code because of a trade or business
within the United States (other than any entity under this clause (1) that Guarantees Indebtedness
of the Parent or any of its other Domestic Subsidiaries) or (2) a Subsidiary of an entity described
in the preceding clause (1).
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).
“Equity Offering” means (i) an offer and sale of Capital Stock (other than Disqualified Stock)
of the Parent pursuant to a registration statement that has been declared effective by the
Commission pursuant to the Securities Act (other than a registration statement on Form S-8 or
otherwise relating to equity securities issuable under any employee benefit plan of the Parent) or
(ii) any private placement
-8-
of Capital Stock (other than Disqualified Stock) of the Parent to any Person other than a
Subsidiary of the Parent.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear system, and any
successor thereto.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Notes” means the Notes issued in the Exchange Offer in accordance with Section
2.07(f).
“Exchange Offer” has the meaning set forth in the Registration Rights Agreement.
“Exchange Offer Registration Statement” has the meaning set forth in the Registration Rights
Agreement.
“Existing Indebtedness” means the aggregate principal amount of Indebtedness of the Parent and
its Restricted Subsidiaries (other than Indebtedness under the Credit Agreement, the Mortgage Loan
Facility or the Notes and the related Note Guarantees) in existence on the Issue Date.
“Fair Market Value” means the price that would be paid in an arm’s-length transaction between
an informed and willing seller under no compulsion to sell and an informed and willing buyer under
no compulsion to buy, as determined in good faith by an executive officer of the Parent.
Notwithstanding the foregoing, (1) if the Fair Market Value exceeds $15.0 million, the
determination of Fair Market Value must be made by the Board of Directors of the Parent and be
evidenced by a Board Resolution attached to an Officers’ Certificate delivered to the Trustee and
(2) if the Fair Market Value exceeds $25.0 million, the determination of Fair Market Value must be
made by the Board of Directors of the Parent and such determination of Fair Market Value must be
based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of
national standing.
“Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the
ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such
Person for such period. In the event that the specified Person or any of its Restricted
Subsidiaries Incurs, repays, repurchases or redeems any Indebtedness or issues, repurchases or
redeems Preferred Stock subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated and on or prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect to such Incurrence, repayment,
repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of Preferred
Stock, and the use of the proceeds therefrom as if the same had occurred at the beginning of such
period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions and dispositions of business entities or property and assets
constituting a division or line of business of any Person that have been made by the
specified Person or any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during the four-quarter
reference period or subsequent to such reference period and on or prior to the Calculation
Date shall be given pro forma effect as if they had occurred on the first day of the
four-quarter reference period and Consolidated Cash Flow for such reference period shall be
calculated on a pro forma basis in accordance with Regulation S-X
-9-
under the Securities Act, but without giving effect to clause (3) of the proviso set
forth in the definition of Consolidated Net Income;
(2) the Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, shall be excluded;
(3) the Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP shall be excluded, but only to the extent that the obligations giving
rise to such Fixed Charges will not be obligations of the specified Person or any of its
Restricted Subsidiaries following the Calculation Date; and
(4) consolidated interest expense attributable to interest on any Indebtedness (whether
existing or being Incurred) computed on a pro forma basis and bearing a floating interest
rate shall be computed as if the rate in effect on the Calculation Date (taking into account
any interest rate option, swap, cap or similar agreement applicable to such Indebtedness if
such agreement has a remaining term in excess of 12 months or, if shorter, at least equal to
the remaining term of such Indebtedness) had been the applicable rate for the entire period.
“Fixed Charges” means, with respect to any specified Person for any period, the sum, without
duplication, of:
(1) the consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation, amortization of
debt issuance costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit (other than trade letters of credit in the ordinary
course of business) or bankers’ acceptance financings, excluding amortization of Transaction
fees and expenses and other debt issuance costs incurred on or prior to the Issue Date; and
net of the effect of all payments made or received pursuant to Hedging Obligations; plus
(2) the consolidated interest of such Person and its Restricted Subsidiaries that was
capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person that is Guaranteed by such
Person or any of its Restricted Subsidiaries or secured by a Lien on assets of such Person
or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon;
plus
(4) the product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of Disqualified Stock or Preferred Stock of such Person or any of its
Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity
Interests (other than Disqualified Stock) of the Person or to the Person or a Restricted
Subsidiary of the Person, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state and local
statutory tax rate of such Person, expressed as a decimal,
in each case, on a consolidated basis and in accordance with GAAP.
“
GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Registered
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Public Accountants, the opinions and pronouncements of the Public Company Accounting Oversight
Board and in the statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect on the Issue Date.
“Global Note Legend” means the legend set forth in Section 2.07(g)(ii), which is required to
be placed on all Global Notes issued under this Indenture.
“Global Notes” means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes, substantially in the form of Exhibit A, issued in accordance
with Section 2.01 or Section 2.07.
“Government Securities” means securities that are direct obligations of the United States of
America for the timely payment of which its full faith and credit are pledged.
“Guarantee” means, as to any Person, a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or indirect, in any manner
including, without limitation, by way of a pledge of assets or through letters of credit or
reimbursement agreements in respect thereof, of all or any part of any Indebtedness of another
Person.
“Guarantors” means:
(1) any existing and future obligors (as borrowers or guarantors) under the Credit
Agreement other than the Company; and
(2) any other Subsidiary that executes a Note Guarantee in accordance with the
provisions of this Indenture;
and their respective successors and assigns until released from their obligations under their Note
Guarantees and this Indenture in accordance with the terms of this Indenture.
“Hedging Obligations” means, with respect to any specified Person, the obligations of such
Person under:
(1) interest rate swap agreements, interest rate cap agreements, interest rate collar
agreements and other agreements or arrangements with respect to interest rates;
(2) commodity swap agreements, commodity option agreements, forward contracts and other
agreements or arrangements with respect to commodity prices; and
(3) foreign exchange contracts, currency swap agreements and other agreements or
arrangements with respect to foreign currency exchange rates.
“Holder” means a Person in whose name a Note is registered.
“
Incur” means, with respect to any Indebtedness, to incur (by merger, conversion, exchange or
otherwise), create, issue, assume, Guarantee or otherwise become directly or indirectly liable for
or with respect to, or become responsible for, the payment of, contingently or otherwise, such
Indebtedness (and “Incurrence” and “Incurred” shall have meanings correlative to the foregoing);
provided that (1) any Indebtedness of a Person existing at the time such Person becomes a
Restricted Subsidiary of the
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Person will be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a
Restricted Subsidiary of the Person and (2) neither the accrual of interest nor the accretion of
original issue discount nor the payment of interest in the form of additional Indebtedness with the
same terms and the payment of dividends on Disqualified Stock or Preferred Stock in the form of
additional shares of the same class of Disqualified Stock or Preferred Stock (to the extent
provided for when the Indebtedness or Disqualified Stock or Preferred Stock on which such interest
or dividend is paid was originally issued) shall be considered an Incurrence of Indebtedness;
provided that in each case the amount thereof is for all other purposes included in the Fixed
Charges and Indebtedness of the Person or such Restricted Subsidiary as accrued.
“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures, surety bonds or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(3) in respect of banker’s acceptances;
(4) in respect of Capital Lease Obligations;
(5) in respect of the balance deferred and unpaid of the purchase price of any property
or services, except any such balance that constitutes an accrued expense or trade payable;
(6) representing Hedging Obligations;
(7) representing Disqualified Stock valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued dividends; or
(8) in the case of a Subsidiary of such Person, representing Preferred Stock valued at
the greater of its voluntary or involuntary maximum fixed repurchase price plus accrued
dividends.
In addition, the term “Indebtedness” includes (x) all Indebtedness of others secured by a Lien
on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified
Person), provided that the amount of such Indebtedness shall be the lesser of (A) the Fair Market
Value of such asset at such date of determination and (B) the amount of such Indebtedness, and (y)
to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of
any other Person. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified
Stock or Preferred Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Stock or Preferred Stock, as applicable, as if such
Disqualified Stock or Preferred Stock were repurchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture.
The amount of the Indebtedness in respect of any Hedging Obligations at any time shall be
equal to the amount payable as a result of the termination of such Hedging Obligations at such
time. The amount of any Indebtedness outstanding as of any date shall be the outstanding balance
at such date of all unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving rise to the
obligation, and shall be:
-12-
(1) the accreted value thereof, in the case of any Indebtedness issued with original
issue discount; and
(2) the principal amount thereof, together with any interest thereon that is more than
30 days past due, in the case of any other Indebtedness.
Notwithstanding the foregoing, Indebtedness will not include any guarantee by the Person or
any of its Restricted Subsidiaries of operating lease obligations that are not Indebtedness.
“Indenture” means this Indenture, as amended or supplemented from time to time.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through
a Participant.
“Initial Purchasers” means Banc of America Securities LLC and Citigroup Global Markets Inc.
“Institutional Accredited Investor” means an institution that is an “accredited investor” as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, which is not also a QIB.
“Investments” means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the form of loans or other extensions of credit
(including Guarantees), advances, capital contributions (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),
purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as investments on a balance
sheet prepared in accordance with GAAP.
If the Person or any of its Restricted Subsidiaries sells or otherwise disposes of any Equity
Interests of any direct or indirect Restricted Subsidiary of the Person such that, after giving
effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the
Person, then the Person shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the Fair Market Value of the Investment in such Subsidiary not sold or
disposed of. The acquisition by the Person or any of its Restricted Subsidiaries of a Person that
holds an Investment in a third Person shall be deemed to be an Investment by the Person or such
Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the
Investment held by the acquired Person in such third Person.
“Issue Date” means the date of original issuance of the Notes under this Indenture.
“
Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in The City
of
New York or at a place of payment are authorized or required by law, regulation or executive
order to remain closed.
“Legended Regulation S Global Note” means a global Note in the form of Exhibit A
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of
and registered in the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount at maturity of the Notes initially sold in reliance on Rule 903 of
Regulation S.
“Letter of Transmittal” means the letter of transmittal to be prepared by the Company and sent
to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.
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“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction.
“Mortgage Loan Facility” means each of those certain Loan Agreements, dated as of the Issue
Date, by and among Bonstores Realty One, LLC and Bank of America, N.A., as lender, and Bonstores
Realty Two, LLC, and Bank of America, N.A., as lender, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection therewith and as the same
may be amended, restated, modified, renewed, refunded, replaced or refinanced from time to time,
regardless of whether such amendment, restatement, modification, renewal, refunding, replacement or
refinancing is with the same financial institutions or otherwise.
“Net Income” means, with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock
dividends, excluding, however:
(1) any gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with: (a) any sale of assets outside the ordinary course of
business of such Person; or (b) the disposition of any securities by such Person or any of
its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any
of its Restricted Subsidiaries;
(2) any extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss;
(3) any non-cash goodwill or intangible asset impairment charges resulting from the
application of Statement of Financial Accounting Standards No. 142;
(4) any non-cash charges related to restructuring, debt retirement and/or store
closings; and
(5) all non-cash expenses related to stock-based compensation plans, including stock
option non-cash expenses.
“
Net Proceeds” means the aggregate cash proceeds, including payments in respect of deferred
payment obligations (to the extent corresponding to the principal, but not the interest component,
thereof) received by the Parent or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of (1) the direct costs relating to such
Asset Sale, including, without limitation, legal, accounting, investment banking and brokerage
fees, and sales commissions, and any relocation expenses incurred as a result thereof, (2) taxes
paid or payable as a result thereof, in each case, after taking into account any available tax
credits or deductions and any tax sharing arrangements, (3) amounts required to be applied to the
repayment of Indebtedness or other liabilities secured by a Lien on the asset or assets that were
the subject of such Asset Sale or required to be paid as a result of such sale, (4) any reserve for
adjustment in respect of the sale price of such asset or assets established in accordance with
GAAP, (5) in the case of any Asset Sale by a Restricted Subsidiary of the Parent, payments to
holders of
-14-
Equity Interests in such Restricted Subsidiary in such capacity (other than such Equity
Interests held by the Parent or any of its Restricted Subsidiaries) to the extent that such payment
is required to permit the distribution of such proceeds in respect of the Equity Interests in such
Restricted Subsidiary held by the Parent or any of its Restricted Subsidiaries and (6) appropriate
amounts to be provided by the Parent or its Restricted Subsidiaries as a reserve against
liabilities associated with such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental matters and liabilities
under any indemnification obligations associated with such Asset Sale, all as determined in
accordance with GAAP; provided that (a) excess amounts set aside for payment of taxes pursuant to
clause (2) above remaining after such taxes have been paid in full or the statute of limitations
therefor has expired and (b) amounts initially held in reserve pursuant to clause (6) no longer so
held, will, in the case of each of subclauses (a) and (b), at that time become Net Proceeds.
“Non-U.S. Person” means a Person who is not a U.S. Person.
“Note Guarantee” means a Guarantee of the Notes pursuant to this Indenture.
“Notes” means the 101/4% Senior Notes due 2014 of the Company issued on the date hereof and any
Additional Notes, including any Exchange Notes. The Notes and the Additional Notes (including any
Exchange Notes), if any, shall be treated as a single class for all purposes under this Indenture.
“Obligations” means any principal, interest, penalties, fees, expenses, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
Indebtedness.
“Offering Memorandum” means the offering memorandum, dated March 2, 2006, relating to the
Company’s 101/4% Senior Notes due 2014.
“Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.
“Officers’ Certificate” means a certificate signed on behalf of the Parent by at least two
Officers of the Parent, one of whom must be the principal executive officer, the principal
financial officer, the treasurer or the principal accounting officer of the Parent, that meets the
requirements of this Indenture.
“Opinion of Counsel” means an opinion from legal counsel (who may be counsel to or an employee
of the Parent) that meets the requirements of this Indenture.
“Parent” means The Bon Ton Stores, Inc., a Pennsylvania corporation, and its successors and
assigns.
“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively (and with respect to
DTC, shall include Euroclear and Clearstream).
“Permitted Business” means any business conducted or proposed to be conducted (as described in
the Offering Memorandum) by the Parent and its Restricted Subsidiaries on the date hereof and other
businesses reasonably related or ancillary thereto.
-15-
“Permitted Holders” means (1) Xxx Xxxxxxxxxx and his immediate family members (as defined by
the National Association of Security Dealers Automatic Quotation system listing requirements) or
the spouses and former spouses (including widows and widowers), heirs or lineal descendants of any
of the foregoing; (2) an estate, trust (including a revocable trust, declaration of trust or a
voting trust), guardianship, other legal representative relationship or custodianship for the
primary benefit of one or more individuals described in clause (1) above or controlled by one or
more individuals described in clause (1) above; (3) a corporation, partnership, limited liability
company, foundation, charitable organization or other entity if a majority of the voting power and,
if applicable, a majority of the value of the equity ownership of such corporation, partnership,
limited liability company, foundation, charitable organization or other entity is directly or
indirectly owned by or for the primary benefit of one or more individuals or entities described in
clauses (1) or (2) above; (4) a corporation, partnership, limited liability company, foundation,
charitable organization or other entity controlled directly or indirectly by one or more
individuals or entities described in clauses (1), (2) or (3) above; and (5) any “person” (within
the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor
provision) acting on behalf of the Parent as underwriter pursuant to an offering that is
temporarily holding securities in connection with such offering.
“Permitted Investments” means:
(1) any Investment in the Parent or in a Restricted Subsidiary of the Parent;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Parent or any of its Restricted Subsidiaries in a Person, if
as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the Parent; or
(b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into, the
Parent or a Restricted Subsidiary of the Parent;
(4) any Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.10;
(5) Investments to the extent acquired in exchange for the issuance of Equity Interests
(other than Disqualified Stock) of the Parent;
(6) Hedging Obligations that are Incurred for the purpose of fixing, hedging or
swapping interest rate, commodity price or foreign currency exchange rate risk (or to
reverse or amend any such agreements previously made for such purposes), and not for
speculative purposes;
(7) stock, obligations or securities received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with, customers and
suppliers, in each case in the ordinary course of business or received in satisfaction of
judgment;
(8) advances to customers or suppliers in the ordinary course of business that are, in
conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the
bal-
-16-
ance sheet of the Parent or its Restricted Subsidiaries and endorsements for collection
or deposit arising in the ordinary course of business;
(9) commission, payroll, travel and similar advances to officers and employees of the
Parent or any of its Restricted Subsidiaries made consistent with past practices;
(10) Investments by the Parent or a Restricted Subsidiary of the Parent in a
Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person, in
each case, in connection with a Qualified Receivables Transaction;
(11) Investments consisting of the licensing or contribution of intellectual property
in the ordinary course of business;
(12) Loans or advances to employees of the Parent or any of its Restricted
Subsidiaries that are approved in good faith by a majority of the disinterested members of
the Board of Directors of the Parent in an aggregate amount outstanding not to exceed
$5.0 million at any time;
(13) other Investments in any Person other than an Unrestricted Subsidiary (provided
that any such corporation, partnership, joint venture or other entity is not an Affiliate of
the Parent or is an Affiliate of the Parent solely because the Parent, directly or
indirectly, owns Equity Interests in, or controls, such corporation, partnership, joint
venture or other entity) having an aggregate Fair Market Value (measured on the date each
such Investment was made and without giving effect to subsequent changes in value), when
taken together with all other Investments made pursuant to this clause (13) since the date
hereof, not to exceed $25.0 million;
(14) the conveyance on the Issue Date by certain Restricted Subsidiaries of the Issuer
of those real properties described in the Mortgage Loan Facility to Bonstores Realty One,
LLC and Bonstores Realty Two, LLC in exchange for all of the outstanding equity interests
thereof;
(15) the contribution on the Issue Date by the Issuer to Bonstores Holdings One, LLC
and Bonstores Holdings Two, LLC of the equity interests of Bonstores Realty One, LLC and
Bonstores Realty Two, LLC, respectively, received by the Issuer from certain of its
Restricted Subsidiaries in connection with the Mortgage Loan Facility; and
(16) Investments existing on the Issue Date (including, without limitation, Investments
in connection with the Mortgage Loan Facility as in effect on the Issue Date).
“Permitted Liens” means:
(1) Liens securing Obligations in respect of Indebtedness and other amounts under the
Credit Facilities provided the aggregate principal amount of Indebtedness at any time
outstanding does not exceed the sum of (i) the amount of Indebtedness Incurred and
outstanding at such time under Section 4.09(b)(1) plus (ii) the amount of Indebtedness
available for Incurrence at such time under Section 4.09(b)(1);
(2) Liens on the assets of the Parent or any of its Restricted Subsidiaries securing
Indebtedness Incurred under Section 4.09(b)(15);
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(3) Liens in favor of the Parent or any of its Restricted Subsidiaries;
(4) Liens on property of a Person existing at the time such Person is merged with or
into or consolidated with the Parent or any of its Restricted Subsidiaries; provided that
such Liens were in existence prior to the contemplation of such merger or consolidation and
do not extend to any assets other than those of the Person merged into or consolidated with
the Parent or the Restricted Subsidiary;
(5) Liens on property existing at the time of acquisition thereof by the Parent or any
of its Restricted Subsidiaries, provided that such Liens were in existence prior to the
contemplation of such acquisition and do not extend to any property other than the property
so acquired by the Parent or the Restricted Subsidiary;
(6) Liens securing the Notes and the Note Guarantees;
(7) Liens existing on the date of this Indenture;
(8) Liens securing Permitted Refinancing Indebtedness; provided that such Liens do not
extend to any property or assets other than the property or assets that secure the
Indebtedness being refinanced;
(9) Liens on property or assets used to defease or to satisfy and discharge
Indebtedness; provided that (a) the Incurrence of such Indebtedness was not prohibited by
this Indenture and (b) such defeasance or satisfaction and discharge is not prohibited by
this Indenture;
(10) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
Section 4.09(b)(4); provided that any such Lien (i) covers only the assets acquired,
constructed or improved with such Indebtedness and (ii) is created within 180 days of such
acquisition, construction or improvement;
(11) Liens on cash or Cash Equivalents securing Hedging Obligations of the Parent or
any of its Restricted Subsidiaries (a) that are Incurred for the purpose of fixing, hedging
or swapping interest rate, commodity price or foreign currency exchange rate risk (or to
reverse or amend any such agreements previously made for such purposes), and not for
speculative purposes, or (b) securing letters of credit that support such Hedging
Obligations;
(12) Liens incurred or deposits made in the ordinary course of business in connection
with worker’s compensation, unemployment insurance or other social security obligations;
(13) Lien, deposits or pledges to secure the performance of bids, tenders, contracts
(other than contracts for the payment of Indebtedness), leases, or other similar obligations
arising in the ordinary course of business, including Liens in favor of the Trustee under
this Indenture;
(14) survey exceptions, encumbrances, easements or reservations of, or rights of other
for, rights of way, zoning or other restrictions as to the use of properties, and defects in
title which, in the case of any of the foregoing, were not incurred or created to secure the
payment of Indebtedness, and which in the aggregate do no materially adversely affect the
value of such properties or materially impair the use for the purposes of which such
properties are held by the Parent or any of its Restricted Subsidiaries;
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(15) judgment and attachment Liens not giving rise to an Event of Default and notices
of lis pendens and associated rights related to litigation being contested in good faith by
appropriate proceedings and for which adequate reserves have been made;
(16) Liens, deposits or pledges to secure public or statutory obligations, surety,
stay, appeal, indemnity, performance or other similar bonds or obligations; and Liens,
deposits or pledges in lieu of such bonds or obligations, or to secure such bonds or
obligations, or to secure letters of credit in lieu of or supporting the payment of such
bonds or obligations;
(17) Liens in favor of collecting or payor banks having a right of setoff, revocation,
refund or chargeback with respect to money or instruments of the Parent or any Subsidiary
thereof on deposit with or in possession of such bank;
(18) any interest or title of a lessor, licensor or sublicensor in the property subject
to any lease, license or sublicense;
(19) Liens arising from precautionary UCC financing statements regarding operating
leases or consignments;
(20) Liens of franchisors in the ordinary course of business not securing Indebtedness;
(21) Liens for taxes, assessments and governmental charges not yet delinquent or being
contested in good faith and for which adequate reserves have been established to the extent
required by GAAP;
(22) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like
Liens imposed by law, arising in the ordinary course of business and securing obligations
that are not overdue by more than 30 days or are being contested being contested in good
faith by appropriate proceedings and for which adequate reserves have been made;
(23) Liens on specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of bankers’ acceptances issued or created for
the account of such Person to facilitate the purchase, shipment or storage of such inventory
or other goods;
(24) deposits in the ordinary course of business to secure liability to insurance
carriers;
(25) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods in the ordinary
course of business;
(26) Liens (i) of a collection bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodity brokerage amounts incurred in the ordinary course of business
and (iii) in favor of banking institutions arising as a matter of law encumbering deposits
(including the right of set-off) and which are within the general parameters customary in
the banking industry;
(27) Liens on cash and Cash Equivalents to secure letters of credit for the account of
any Person that were in existence prior to, and not in contemplation of, the acquisition of
such
-19-
Person by the Parent or any of its Restricted Subsidiaries pending the replacement
thereof with letters of credit issued under the Credit Agreement; provided that the
aggregate Fair Market Value of all cash and Cash Equivalents subject to such Liens pursuant
to this clause (27) shall not at any time exceed $5.0 million; and
(28) Liens incurred in the ordinary course of business of the Parent or any of its
Restricted Subsidiaries with respect to obligations that do not exceed $25.0 million at any
one time outstanding.
“Permitted Refinancing Indebtedness” means:
(A) any Indebtedness of the Parent or any of its Restricted Subsidiaries (other than
Disqualified Stock) issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund other Indebtedness of the Parent or any of its
Restricted Subsidiaries (other than Disqualified Stock and intercompany Indebtedness);
provided that:
(1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so extended, refinanced, renewed, replaced, defeased
or refunded (plus all accrued and unpaid interest thereon and the amount of any
reasonably determined premium necessary to accomplish such refinancing and such
reasonable expenses incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date equal to
or later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased
or refunded is subordinated in right of payment to the Notes or the Note Guarantees,
such Permitted Refinancing Indebtedness has a final maturity date equal to or later
than the final maturity date of the Notes and is subordinated in right of payment to
the Notes or the Note Guarantees, as applicable, on terms at least as favorable,
taken as a whole, to the Holders of Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced, defeased
or refunded;
(4) if the Indebtedness being extended, refinanced, renewed, replaced, defeased
or refunded is pari passu in right of payment with the Notes or any Note Guarantees,
such Permitted Refinancing Indebtedness is pari passu with, or subordinated in right
of payment to, the Notes or such Note Guarantees; and
(5) such Indebtedness is Incurred by either (a) the Restricted Subsidiary that
is the obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded or (b) the Parent; and
(B) any Disqualified Stock of the Parent or any of its Restricted Subsidiaries issued
in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace
or refund Indebtedness or other Disqualified Stock of the Parent or any of its Restricted
Subsidiaries
-20-
(other than Indebtedness or Disqualified Stock held by the Parent or any of its
Restricted Subsidiaries); provided that:
(1) the liquidation or face value of such Permitted Refinancing Indebtedness
does not exceed the principal amount (or accreted value, if applicable) of the
Indebtedness, or the liquidation or face value of the Disqualified Stock, as
applicable, so extended, refinanced, renewed, replaced or refunded (plus all accrued
and unpaid interest or dividends thereon and the amount of any reasonably determined
premium necessary to accomplish such refinancing and such reasonable expenses
incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final redemption date equal
to or later than the final maturity or redemption date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness or Disqualified Stock being extended, refinanced,
renewed, replaced or refunded;
(3) such Permitted Refinancing Indebtedness has a final redemption date equal
to or later than the final maturity date of the Notes and is subordinated in right
of payment to the Notes, on terms at least as favorable, taken as a whole, to the
Holders of Notes as those contained in the documentation governing the Indebtedness
or Disqualified Stock being extended, refinanced, renewed, replaced or refunded;
(4) such Permitted Refinancing Indebtedness is not redeemable at the option of
the holder thereof or mandatorily redeemable prior to the final maturity or
redemption date of the Indebtedness or Disqualified Stock being extended,
refinanced, renewed, replaced or refunded; and
(5) such Disqualified Stock is issued by either (a) the Restricted Subsidiary
that is the obligor on the Indebtedness or the issuer of the Disqualified Stock
being extended, refinanced, renewed, replaced or refunded or (b) the Parent.
“Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.
“Preferred Stock” means, with respect to any Person, any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect to dividends or
redemptions upon liquidation.
“Private Placement Legend” means the legend set forth in Section 2.07(g)(i) to be placed on
all Notes issued under this Indenture except where otherwise permitted by the provisions of this
Indenture.
“
Purchase Money Note” means a promissory note evidencing a line of credit, or evidencing other
Indebtedness, owed to the Parent or any of its Restricted Subsidiaries in connection with a
Qualified Receivables Transaction, which note shall be repaid from cash available to the maker of
such note, other than amounts required to be established as reserves pursuant to agreement, amounts
paid to
-21-
investors in respect of interest, principal and other amounts owing to such investors and
amounts paid in connection with the purchase of newly generated receivables.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Receivables Transaction” means any transaction or series of transactions that may
be entered into by the Parent or of its Restricted Subsidiaries pursuant to which the Parent or
such Restricted Subsidiary may sell, convey or otherwise transfer to a Receivables Subsidiary, any
accounts receivable (whether now existing or arising in the future) of the Parent or such
Restricted Subsidiary and any asset related thereto, including, without limitation, all collateral
securing such accounts receivable, and all Guarantees or other obligations in respect of such
accounts receivable, proceeds of such accounts receivable and other assets that are customarily
transferred, or in respect of which security interests are customarily granted, in connection with
an asset securitization transaction involving accounts receivable.
“Receivables Subsidiary” means a Subsidiary of the Parent (other than a Guarantor) that
engages in no activities other than in connection with the financing of accounts receivables and
that is designated by the Board of Directors of the Parent (as provided below) as a Receivables
Subsidiary (a) no portion of the Indebtedness or any other Obligations (contingent or otherwise) of
which (i) is guaranteed by the Parent or any other Restricted Subsidiary of the Parent (excluding
Guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to
Standard Securitization Undertakings), (ii) is recourse to or obligates the Parent or any other
Restricted Subsidiary of the Parent in any way other than pursuant to Standard Securitization
Undertakings or (iii) subjects any property or asset of the Parent or any other Restricted
Subsidiary of the Parent, directly or indirectly, contingently or otherwise to the satisfaction
thereof, other than pursuant to Standard Securitization Undertakings, (b) with which neither the
Parent nor any other Restricted Subsidiary of the Parent has any material contract, agreement,
arrangement or understanding (except in connection with a Purchase Money Note or Qualified
Receivables Transaction) other than on terms no less favorable to the Parent or such other
Restricted Subsidiary of the Parent than those that might be obtained at the time from Persons that
are not Affiliates of the Parent, other than fees payable in the ordinary course of business in
connection with servicing accounts receivable, and (c) to which neither the Parent nor any other
Restricted Subsidiary of the Parent has any obligation to maintain or preserve such entity’s
financial condition or cause such entity to achieve a certain level of operating results. Any such
designation by the Board of Directors of the Parent shall be evidenced to the Trustee by filing
with the Trustee a certified copy of the resolution of the Board of Directors of the Parent giving
effect to such designation and an Officers’ Certificate certifying, to the best of such officer’s
knowledge and belief after consulting with counsel, that such designation complied with the
foregoing conditions.
“Registration Rights Agreement” means (1) with respect to the Notes issued on the Issue Date,
the Registration Rights Agreement, to be dated the date hereof, among the Company, the Guarantors,
Banc of America Securities LLC and Citigroup Global Markets Inc. and (2) with respect to any
Additional Notes, any registration rights agreement between the Company, the Guarantors and the
other parties thereto relating to the registration by the Company of such Additional Notes under
the Securities Act.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Legended Regulation S Global Note or an Unlegended
Regulation S Global Note, as appropriate.
-22-
“Replacement Assets” means (1) non-current assets that shall be used or useful in a Permitted
Business or (2) substantially all the assets of a Permitted Business or a majority of the Voting
Stock of any Person engaged in a Permitted Business that shall become on the date of acquisition
thereof a Restricted Subsidiary of such Person.
“Responsible Officer,” when used with respect to the Trustee, means any officer within the
Corporate Trust Office of the Trustee (or any successor group of the Trustee) or any other officer
of the Trustee customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such person’s knowledge of and familiarity with
the particular subject.
“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.
“Restricted Global Note” means a Global Note bearing the Private Placement Legend.
“Restricted Investment” means an Investment other than a Permitted Investment.
“Restricted Period” means the 40-day distribution compliance period as defined in Regulation
S.
“Restricted Subsidiary” of a Person means any Subsidiary of such Person that is not an
Unrestricted Subsidiary.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Shelf Registration Statement” means the Shelf Registration Statement as defined in the
Registration Rights Agreement.
“Significant Subsidiary” means any Subsidiary that would constitute a “significant subsidiary”
within the meaning of Article 1 of Regulation S-X of the Securities Act.
“Standard Securitization Undertaking” means representations, warrantees, covenants and
indemnities entered into by the Parent or any of its Restricted Subsidiaries, which in the good
faith judgment of the Board of Directors of the Parent, are reasonably customary in an accounts
receivable transaction.
“Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which such payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness, and shall not include any
contingent obliga-
-23-
tions to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof. The Stated Maturity of any intercompany Indebtedness
payable upon demand shall be the date of demand of payment under such Indebtedness.
“Subsidiary” means, with respect to any specified Person:
(1) any corporation, association, limited liability company or other business entity of
which more than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination thereof);
and
(2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are such Person or one or more Subsidiaries of such Person (or any combination
thereof).
“TIA” means the Trust Indenture Act of 1939, as in effect on the date on which this Indenture
is qualified under the TIA.
“Total Assets” means the total amount of all assets of the Parent and its Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP as shown on the most
recent balance sheet of the Parent.
“
Trustee” means The Bank of
New York until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Unlegended Regulation S Global Note” means a permanent global Note substantially in the form
of Exhibit A bearing the Global Note Legend, that has the “Schedule of Exchanges of
Interests in the Global Note” attached thereto, deposited with or on behalf of and registered in
the name of the Depositary or its nominee and issued upon expiration of the Restricted Period.
“Unrestricted Definitive Note” means one or more Definitive Notes that do not bear and are not
required to bear the Private Placement Legend.
“Unrestricted Global Note” means a permanent Global Note substantially in the form of
Exhibit A that bears the Global Note Legend, that has the “Schedule of Exchanges of
Interests in the Global Note” attached thereto, deposited with or on behalf of and registered in
the name of the Depositary, representing a series of Notes, and that does not bear the Private
Placement Legend.
“Unrestricted Subsidiary” means (1) as of the Issue Date, each of Bonstores Holdings One, LLC,
Bonstores Holdings Two, LLC, Bonstores Realty One, LLC, Bonstores Realty Two, LLC, The Bon-Ton
Properties-Eastview G.P., Inc., The Bon-Ton Properties-Marketplace G.P., Inc., The Bon-Ton
Properties-Irondequoit G.P., Inc., The Bon-Ton Properties-Greece Ridge G.P., Inc., The Bon-Ton
Properties-Eastview, L.P., The Bon-Ton Properties-Marketplace, L.P., The Bon-Ton Properties-
Irondequoit, L.P., and The Bon-Ton Properties-Greece Ridge, L.P., and any Subsidiaries of the
foregoing, and (2) any Subsidiary of the Parent (other than the Company) that is designated by the
Board of Directors of the Parent as an Unrestricted Subsidiary pursuant to a Board Resolution in
compliance with Section 4.15 and any Subsidiary of such Subsidiary.
“U.S. Person” means a U.S. person as defined in Rule 902(k) under the Securities Act.
-24-
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the Board of Directors of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the number of
years (calculated to the nearest one-twelfth) that shall elapse between such date and the
making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
“Wholly Owned Restricted Subsidiary” of any specified Person means a Restricted Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares or Investments by foreign nationals mandated by applicable law) shall
at the time be owned by such Person or by one or more Wholly Owned Restricted Subsidiaries of such
Person.
|
|
|
|
|
|
|
Defined in |
|
Term |
|
Section |
|
“Act” |
|
|
12.14 |
|
“Affiliate Transaction” |
|
|
4.11 |
(a) |
“Asset Sale Offer” |
|
|
4.10 |
|
“Authentication Order” |
|
|
2.02 |
|
“Change of Control Offer” |
|
|
4.14 |
|
“Change of Control Payment” |
|
|
4.14 |
|
“Change of Control Payment Date” |
|
|
4.14 |
|
“Covenant Defeasance” |
|
|
8.03 |
|
“DTC” |
|
|
2.01 |
(c) |
“Event of Default” |
|
|
6.01 |
|
“Excess Proceeds” |
|
|
4.10 |
|
“Excess Proceeds Trigger Date” |
|
|
4.10 |
|
“Legal Defeasance” |
|
|
8.02 |
|
“Offer Amount” |
|
|
3.08 |
|
“Offer Period” |
|
|
3.08 |
|
“offshore transaction” |
|
|
2.07 |
|
“Paying Agent” |
|
|
2.04 |
|
“Payment Default” |
|
|
6.01 |
|
“Permitted Debt” |
|
|
4.09 |
|
“Purchase Date” |
|
|
3.08 |
|
“Registrar” |
|
|
2.04 |
|
“Related Proceedings” |
|
|
12.09 |
|
“Repurchase Offer” |
|
|
3.08 |
|
“Restricted Payments” |
|
|
4.07 |
|
“Specified Courts” |
|
|
12.09 |
|
-25-
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
“indenture securities” means the Notes and the Guarantees;
“indenture security Holder” means a Holder of a Note;
“indenture to be qualified” means this Indenture;
“indenture trustee” or “institutional trustee” means the Trustee; and
“obligor” on the Notes means the Company, the Guarantors and any successor obligor upon
the Notes or the Guarantees.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c) “or” is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) “herein”, “hereof” and other words of similar import refer to this Indenture as a
whole and not to any particular Section, Article or other subdivision;
(f) all references to Sections or Articles or Exhibits refer to Sections or Articles or
Exhibits of or to this Indenture unless otherwise indicated; and
(g) references to sections of or rules under the Securities Act shall be deemed to
include substitute, replacement or successor sections or rules adopted by the Commission
from time to time.
-26-
ARTICLE TWO
Section 2.01. Form and Dating.
(a) General. The Notes and the Trustee’s certificate of authentication shall be substantially
in the form of Exhibit A. The Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes shall be issued in registered form without interest coupons in minimum denominations of
$1,000 and integral multiples of $1,000 in excess thereof.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture, and the Company, the Guarantors and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be substantially in the form of
Exhibit A (and shall include the Global Note Legend thereon and the “Schedule of Exchanges
of Interests in the Global Note” attached thereto). Notes issued in definitive form shall be
substantially in the form of Exhibit A (but without the Global Note Legend thereon and
without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global
Note shall represent such of the outstanding Notes as shall be specified therein and each shall
provide that it represents the aggregate principal amount of outstanding Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in
the aggregate principal amount of outstanding Notes represented thereby shall be made by the
Trustee or, if the Custodian and the Trustee are not the same Person, by the Custodian at the
direction of the Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.07 hereof.
(c) Regulation S Global Notes. Notes offered and sold in reliance on Regulation S shall be
issued initially in the form of the Legended Regulation S Global Note, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for The
Depository Trust Company (“
DTC”) in
New York,
New York, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf
of Euroclear or Clearstream, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. Following the termination of the Restricted Period, beneficial interests in
the Legended Regulation S Global Note may be exchanged for beneficial interests in Unlegended
Regulation S Global Notes pursuant to Section 2.07 and the Applicable Procedures. Simultaneously
with the authentication of Unlegended Regulation S Global Notes, the Trustee shall cancel the
Legended Regulation S Global Note or reduce the aggregate principal amount thereof, as appropriate.
The aggregate principal amount of the Regulation S Global Notes may from time to time be increased
or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee,
as the case may be, in connection with transfers of interest as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating
Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear”
-27-
and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of
Clearstream shall be applicable to transfers of beneficial interests in the Regulation S Global
Notes that are held by Participants through Euroclear or Clearstream.
Section 2.02. Execution and Authentication.
At least one Officer of the Company shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of the Trustee. Such
signature shall be conclusive evidence that the Note has been authenticated under this Indenture.
The aggregate principal amount of Notes which may be authenticated and delivered under this
Indenture is unlimited.
The Company may, subject to Article Four of this Indenture and applicable law, issue
Additional Notes under this Indenture, including Exchange Notes. The Notes issued on the Issue
Date and any Additional Notes subsequently issued shall be treated as a single class for all
purposes under this Indenture.
At any time and from time to time after the execution of this Indenture, the Trustee shall,
upon receipt of a written order of the Company signed by an Officer of the Company (an
“Authentication Order”), authenticate Notes for original issue in an aggregate principal amount
specified in such Authentication Order; provided that the Trustee shall be entitled to receive,
upon Trustee’s request, an Officers’ Certificate and an Opinion of Counsel of the Company in
connection with such authentication of such Notes.. The Authentication Order shall specify the
amount of Notes to be authenticated and the date on which the Notes are to be authenticated.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of
the Company.
Section 2.03. Methods of Receiving Payments on the Notes.
If a Holder has given wire transfer instructions to the Company, the Company shall pay all
principal, interest and premium and Additional Interest, if any, on that Holder’s Notes in
accordance with those instructions. All other payments on Notes shall be made at the office or
agency of the Paying Agent and Registrar within the City and State of
New York unless the Company
elects to make interest payments by check mailed to the Holders at their addresses set forth in the
register of Holders.
Section 2.04. Registrar and Paying Agent.
(a) The Company shall maintain a registrar with an office or agency where Notes may be
presented for registration of transfer or for exchange (“
Registrar”) and a paying agent with an
office or agency where Notes may be presented for payment (“
Paying Agent”). The Registrar shall
keep a register of the Notes and of their transfer and exchange. The Company may appoint one or
more
-28-
co-registrars and one or more additional paying agents. The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may
change any Paying Agent or Registrar without prior notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the
Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall
act as such. The Parent or any of its Subsidiaries may act as Paying Agent or Registrar.
(b) The Company initially appoints DTC to act as Depositary with respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to
act as Custodian with respect to the Global Notes.
The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal, premium or Additional Interest, if any, or interest
on the Notes, and shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Parent or one of its Subsidiaries) shall have no further liability for the money. If the Parent or
one of its Subsidiaries acts as Paying Agent, it shall segregate and hold in a separate trust fund
for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the
Notes.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days 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 Holders of Notes and the Company shall otherwise comply
with TIA Section 312(a).
(a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes shall be
exchanged by the Company for Definitive Notes if (i) DTC (A) notifies the Company that it is
unwilling or unable to continue as Depositary for the Global Notes and the Company fails to appoint
a successor Depositary within 90 days after receiving such notice or (B) has ceased to be a
clearing agency registered under the Exchange Act, and in each case the Company fails to appoint a
successor Depositary within 90 days after becoming aware of such condition; or (ii) the Company, at
its option, notifies the Trustee in writing that it elects to cause the issuance of Definitive
Notes in exchange for Global Notes (in whole but not in part);
provided that in no event shall the
Legended Regulation S Global Note be exchanged by the Company for
-29-
Definitive Notes other than in accordance with Section 2.07(c)(ii). Upon the occurrence of
any of the preceding events in (i) or (ii) above, Definitive Notes shall be issued in such names as
the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.08 and 2.11 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this
Section 2.07 or Section 2.08 or 2.11 hereof, shall be authenticated and delivered in the form of,
and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.07(a); however, beneficial interests in a Global Note may be transferred
and exchanged as provided in Section 2.07(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Legended Regulation S Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note. No written orders or instructions
shall be required to be delivered to the Registrar to effect the transfers described in this
Section 2.07(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.07(b)(i) above, the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2) instructions given
in accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer or exchange
referred to in (1) above;
provided that in no event shall Definitive Notes be issued upon
the transfer or exchange of beneficial interests in the Legended Regulation S Global Note
other than in accordance with Section 2.07(c)(ii). Upon consummation of an Exchange Offer
by the Company in accordance with Section 2.07(f), the requirements of this Section
2.07(b)(ii) shall be deemed to have been satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal delivered by the holder of such
beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes contained in
-30-
this Indenture and the Notes or otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount at maturity of the relevant Global Notes pursuant
to Section 2.07(i).
(iii) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.07(b)(ii) above and the Registrar
receives the following:
(A) if the transferee shall take delivery in the form of a beneficial interest
in the 144A Global Note, then the transferor must deliver a certificate in the form
of Exhibit B, including the certifications in item (1) thereof; and
(B) if the transferee shall take delivery in the form of a beneficial interest
in a Legended Regulation S Global Note, then the transferor must deliver a
certificate in the form of Exhibit B, including the certifications in item
(2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any Holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.07(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal (1) it is not
an affiliate (as defined in Rule 144) of the Company, (2) it is not engaged in, and
does not intend to engage in, and has no arrangement or understanding with any
Person to participate in, a distribution of the Exchange Notes to be issued in the
Exchange Offer and (3) it is acquiring the Exchange Notes in its ordinary course of
business;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the form
of Exhibit C, including the certifications in item (1)(a) thereof;
or
(2) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B, including the certifications in item (4) thereof;
-31-
and, in each such case set forth in this subparagraph (D), if the Registrar or the
Company so requests or if the Applicable Procedures so require, an opinion of
counsel in form reasonably acceptable to the Registrar and the Company to the effect
that such exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an
Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global
Note.
(i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any
holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note, a certificate from such
holder in the form of Exhibit C, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred to a QIB in accordance with Rule
144A under the Securities Act, a certificate to the effect set forth in Exhibit B,
including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of the Securities
Act other than that listed in subparagraph (B) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3)(b) thereof, if applicable; or
(D) if such beneficial interest is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B, including the
certifications in item (3)(a) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.07(i) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.07(c) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of such beneficial interest
shall instruct the Registrar through in-
-32-
structions from the Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant
to this Section 2.07(c)(i) shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Beneficial Interests in Legended Regulation S Global Note to Definitive Notes. A
beneficial interest in the Legended Regulation S Global Note may not be exchanged for a Definitive
Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior
to the expiration of the Restricted Period, except in the case of a transfer pursuant to an
exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that (1) it is not an affiliate (as defined in Rule 144) of
the Company, (2) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any Person to participate in, a distribution of the
Exchange Notes to be issued in the Exchange Offer and (3) it is acquiring the Exchange Notes
in its ordinary course of business;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Definitive Note that does not
bear the Private Placement Legend, a certificate from such Holder in the form of
Exhibit C, including the certifications in item (1)(b) thereof; or
(2) if the Holder of such beneficial interest in a Restricted Global Note
proposes to transfer such beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Note that does not bear the Private Placement
Legend, a certificate from such Holder in the form of Exhibit B, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar or the Company
so requests or if the Applicable Procedures so require, an opinion of counsel in form
reasonably acceptable to the Registrar and the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
-33-
(iv) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If
any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such
beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions
set forth in Section 2.07(b)(ii), the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section 2.07(i), and the Company shall
execute and the Trustee shall authenticate and deliver to the Person designated in the instructions
a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for
a beneficial interest pursuant to this Section 2.07(c)(iv) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the Depositary and the Participant
or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.07(c)(iv) shall not bear the Private Placement Legend.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any
Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in
a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon
receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for
a beneficial interest in a Restricted Global Note, a certificate from such Holder in the
form of Exhibit C, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB in accordance with
Rule 144A, a certificate to the effect set forth in Exhibit B, including the
certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an
“offshore transaction” in accordance with Rule 903 or Rule 904, a certificate to the effect
set forth in Exhibit B, including the certifications in item (2) thereof; or
(D) if such Restricted Definitive Note is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit B, including the
certifications in item (3)(a) thereof,
the Trustee shall cancel the Restricted Definitive Note, and increase or cause to be increased the
aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global
Note, in the case of clause (B) above, the 144A Global Note, and in the case of clause (C) above,
the Regulation S Global Note.
-34-
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal (1)
it is not an affiliate (as defined in Rule 144) of the Company, (2) it is not engaged in,
and does not intend to engage in, and has no arrangement or understanding with any Person to
participate in, a distribution of the Exchange Notes to be issued in the Exchange Offer and
(3) it is acquiring the Exchange Notes in its ordinary course of business;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Note proposes to exchange such
Note for a beneficial interest in the Unrestricted Global Note, a certificate from
such Holder in the form of Exhibit C, including the certifications in item
(1)(c) thereof; or
(2) if the Holder of such Restricted Definitive Note proposes to transfer such
Note to a Person who shall take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate from such Holder in the form
of Exhibit B, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar or the Company
so request or if the Applicable Procedures so require, an opinion of counsel in form
reasonably acceptable to the Registrar and the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.07(d)(ii),
the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A
Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Unrestricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time.
Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount
of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected
pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global
Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so
transferred.
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(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.07(e), the
Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional certifications, documents
and information, as applicable, required pursuant to the following provisions of this Section
2.07(e):
(A) if the transfer shall be made pursuant to Rule 144A under the Securities
Act, then the transferor must deliver a certificate in the form of Exhibit
B, including the certifications in item (1) thereof; and
(B) if the transfer shall be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if applicable.
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that (1) it is not an affiliate (as defined in Rule 144) of
the Company, (2) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any Person to participate in, a distribution of
the Exchange Notes to be issued in the Exchange Offer and (3) it is acquiring the
Exchange Notes in its ordinary course of business;
(B) any such transfer is effected pursuant to the Shelf Registration Statement
in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Note proposes to
exchange such Note for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C, including the certifications
in item (1)(d) thereof; or
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(2) if the Holder of such Restricted Definitive Note proposes to
transfer such Note to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such Holder in the
form of Exhibit B, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests, an opinion of counsel in form reasonably acceptable to the Company to the
effect that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the Securities
Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of
Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such
a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02, the Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of the beneficial interests in
the Restricted Global Notes tendered for acceptance by Persons that certify in the applicable
Letters of Transmittal that (x) they are not affiliates (as defined in Rule 144) of the Company,
(y) they are not engaged in, and do not intend to engage in, and have no arrangement or
understanding with any Person to participate in, a distribution of the Exchange Notes to be issued
in the Exchange Offer and (z) they are acquiring the Exchange Notes in their ordinary course of
business and (ii) Unrestricted Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and the Trustee shall
deliver to the Persons designated by the Holders of Restricted Global Notes so accepted the
Unrestricted Global Notes issued and authenticated in accordance with the preceding sentence in the
appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all Global Notes and
Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable
provisions of this Indenture:
(i) Private Placement Legend. Except as permitted below, each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS
NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, THE REGIS-
-37-
TRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH THE BON-TON DEPARTMENT STORES, INC.
OR ANY AFFILIATE OF THE BON-TON DEPARTMENT STORES, INC. WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) (THE “RESALE RESTRICTION
TERMINATION DATE”) ONLY (A) TO THE BON-TON STORES, INC. OR ANY OF ITS
SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
(“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHTS OF THE BON-TON
STORES, INC., THE BON-TON DEPARTMENT STORES, INC. AND THE TRUSTEE PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR TO THE END
OF THE 40 DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE
RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.07 (and all Notes issued in exchange therefor or substitution thereof) shall not
bear the Private Placement Legend.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND
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IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I)
THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (III)
THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE CONDITIONS AND
PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE
INDENTURE (AS DEFINED HEREIN).
(i) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be
returned to or retained and canceled by the Trustee in accordance with Section 2.12 hereof. At any
time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who shall take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who shall take delivery
thereof in the form of a beneficial interest in another Global Note, such other Global Note shall
be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by
the Depositary at the direction of the Trustee to reflect such increase.
(i) To permit registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Global Notes and Definitive Notes upon the Company’s order or at the
Registrar’s request.
(ii) No service charge shall be made to a Holder of a beneficial interest in a Global Note or
to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar governmental charges
payable upon exchange or transfer pursuant to Sections 2.11, 3.06, 3.08, 4.10, 4.14 and 9.05).
(iii) The Registrar shall not be required to register the transfer of or exchange any Note
selected for redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part.
-39-
(iv) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid and legally binding obligations of
the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to register the transfer of or to exchange
any Notes during a period beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 and ending at the close of business on the day
of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in part, (C) to register
the transfer of or to exchange a Note between a record date and the next succeeding interest
payment date or (D) to register the transfer of or to exchange a Note tendered and not withdrawn in
connection with a Change of Control Offer or an Asset Sale Offer.
(vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any
Agent and the Company may deem and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be
affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the
provisions of Section 2.02.
(viii) All certifications, certificates and Opinions of Counsel required to be submitted to
the Registrar pursuant to this Section 2.07 to effect a registration of transfer or exchange may be
submitted by facsimile.
(a) If any mutilated Note is surrendered to the Trustee or the Company or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue
and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if
the Trustee’s and the Company’s requirements are met. If required by the Trustee or the Company,
an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee
and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
(b) Every replacement Note is an additional obligation of the Company and shall be entitled to
all of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.
(a) The Notes outstanding at any time are all the Notes authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation, those reductions in the interest
in a Global Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section 2.10, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds the Note; however,
Notes held by the Com-
-40-
pany or a Subsidiary of the Company shall not be deemed to be outstanding for purposes of
Section 3.07(b).
(b) If a Note is replaced pursuant to Section 2.08, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser
or protected purchaser.
(c) If the principal amount of any Note is considered paid under Section 4.01, it ceases to be
outstanding and interest on it ceases to accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate
of any of the foregoing) holds, on a redemption date or maturity date, money sufficient to pay
Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer
outstanding and shall cease to accrue interest.
In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the
Company, shall be considered as though 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
Notes that a responsible officer of the Trustee actually knows are so owned shall be so
disregarded.
(a) Until certificates representing Notes are ready for delivery, the Company may prepare and
the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of Definitive Notes but may have variations that
the Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Notes in exchange for temporary Notes.
(b) Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.
The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and shall dispose of
canceled Notes in accordance with its procedures for the disposition of canceled securities in
effect as of the date of such disposition (subject to the record retention requirement of the
Exchange Act). The Trustee shall provide the Company a list of all Notes that have been canceled
from time to time as requested by the Company. The Company may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for cancellation.
-41-
If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date of the proposed
payment. The Company shall fix or cause to be fixed each such special record date and payment
date, provided that no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name and at the expense of
the Company) shall mail or cause to be mailed to Holders a notice that states the special record
date, the related payment date and the amount of such interest to be paid.
The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if
so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the Notes, and any such
redemption shall not be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in the “CUSIP” numbers.
ARTICLE THREE
If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07, it shall furnish to the Trustee, at least 30 days but not more than 60 days before a
redemption date, an Officers’ Certificate setting forth (i) the clause of this Indenture pursuant
to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount of Notes
to be redeemed and (iv) the redemption price.
(a) If less than all of the Notes are to be redeemed at any time, the Trustee shall select the
Notes to be redeemed among the Holders of the Notes in compliance with the requirements of the
principal national securities exchange or the Nasdaq Stock Market, as the case may be, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance
with any other method the Trustee shall deem fair and appropriate. In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption.
(b) The Trustee shall promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the principal amount at
maturity thereof to be redeemed. No Notes in amounts of $1,000 or less shall be redeemed in part.
Notes and
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portions of Notes selected shall be in amounts of $1,000 or whole multiples of $1,000; except
that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes
held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided in
the preceding sentence, provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
(a) At least 30 days but not more than 60 days before a redemption date, the Company shall
mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address, except that redemption notices may be mailed more
than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction and discharge of this Indenture.
The notice shall identify the Notes to be redeemed (including the CUSIP number) and shall
state:
(i) the redemption date;
(ii) the redemption price;
(iii) if any Note is being redeemed in part, the portion of the principal amount at
maturity of such Note to be redeemed and that, after the redemption date upon surrender of
such Note, a new Note or Notes in principal amount equal to the unredeemed portion of the
original Note shall be issued in the name of the Holder thereof upon cancellation of the
original Note;
(iv) the name and address of the Paying Agent;
(v) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price and become due on the date fixed for redemption;
(vi) that, unless the Company defaults in making such redemption payment, interest, if
any, on Notes called for redemption ceases to accrue on and after the redemption date;
(vii) the paragraph of the Notes and/or Section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; and
(viii) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.
(b) At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense; provided, however, that the Company shall have delivered to the Trustee,
at least 45 days prior to the redemption date, an Officers’ Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice as provided in
Section 3.03(a). The notice, if mailed in the manner provided herein shall be presumed to have
been given, whether or not the Holder receives such notice.
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Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price.
Interest, if any, on Notes called for redemption ceases to accrue on and after the redemption date,
unless the Company defaults in making the applicable redemption payment. A notice of redemption
may not be conditional.
(a) Not later than 10:00 a.m. Eastern Time on the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption price of and
accrued and unpaid interest and Additional Interest, if any, on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any money deposited
with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued and unpaid interest and Additional Interest, if any, on all Notes
to be redeemed.
(b) If the Company complies with the provisions of the preceding paragraph, on and after the
redemption date, interest shall cease to accrue on the Notes or the portions of Notes called for
redemption. If a Note is redeemed on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be paid to the Person in
whose name such Note was registered at the close of business on such record date. If any Note
called for redemption shall not be so paid upon surrender for redemption because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal
from the redemption date until such principal is paid and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01.
Upon surrender and cancellation of a Note that is redeemed in part, the Company shall issue
and the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered. No Notes in denominations of
$1,000 or less shall be redeemed in part.
(a) Except as set forth in paragraph (b) of this Section 3.07, the Company shall not have the
option to redeem the Notes prior to March 15, 2010. On or after March 15, 2010, the Company may
redeem all or a part of the Notes upon not less than 30 nor more than 60 days’ notice, at the
redemption prices (expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest and Additional Interest, if any, thereon, to the applicable redemption date, if
redeemed during the twelve-month period beginning on March 15 of the years indicated below:
|
|
|
|
|
Year |
|
Percentage |
|
2010 |
|
|
105.125 |
% |
2011 |
|
|
102.563 |
% |
2012 and thereafter |
|
|
100.000 |
% |
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(b) At any time prior to March 15, 2009, the Company may redeem up to 35% of the
aggregate principal amount of Notes issued hereunder (including any Additional Notes) at a
redemption price of 110.250% of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, thereon to the redemption date, with the net cash proceeds of one or
more Equity Offerings; provided that (1) at least 65% of the aggregate principal amount of Notes
issued under this Indenture (including any Additional Notes) remains outstanding immediately after
the occurrence of such redemption (excluding Notes held by the Parent or its Subsidiaries); and (2)
the redemption must occur within 60 days of the date of the closing of such Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be made in accordance with the
provisions of Sections 3.01 through 3.06.
In the event that, pursuant to Section 4.10 or Section 4.14, the Company shall be required to
commence an offer to all Holders to purchase all or a portion of their respective Notes (a
“Repurchase Offer”), it shall follow the procedures specified in such Sections and, to the extent
not inconsistent therewith, the procedures specified below.
The Repurchase Offer shall remain open for a period of no less than 30 days and no more than
60 days following its commencement, except to the extent that a longer period is required by
applicable law (the “Offer Period”). No later than three Business Days after the termination of
the Offer Period (the “Purchase Date”), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.10 or 4.14 hereof (the “Offer Amount”) or, if less
than the Offer Amount has been tendered, all Notes tendered in response to the Repurchase Offer.
Payment for any Notes so purchased shall be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a
Note is registered at the close of business on such record date, and no additional interest shall
be payable to Holders who tender Notes pursuant to the Repurchase Offer.
Upon the commencement of a Repurchase Offer, the Company shall send, by first class mail, a
notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice shall
contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to
the Repurchase Offer. The Repurchase Offer shall be made to all Holders. The notice, which shall
govern the terms of the Repurchase Offer, shall state:
(i) that the Repurchase Offer is being made pursuant to this Section 3.08 and Section
4.10 or Section 4.14 hereof, and the length of time the Repurchase Offer shall remain open;
(ii) the Offer Amount, the purchase price and the Purchase Date;
(iii) that any Note not tendered or accepted for payment shall continue to accrue
interest and Additional Interest, if any;
(iv) that, unless the Company defaults in making such payment, any Note (or portion
thereof) accepted for payment pursuant to the Repurchase Offer shall cease to accrue
interest and Additional Interest, if any, after the Purchase Date;
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(v) that Holders electing to have a Note purchased pursuant to a Repurchase Offer may
elect to have Notes purchased in integral multiples of $1,000 only;
(vi) that Holders electing to have a Note purchased pursuant to any Repurchase Offer
shall be required to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the
Company, a depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;
(vii) that Holders shall be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder delivered for purchase and a
statement that such Xxxxxx is withdrawing his election to have such Note purchased;
(viii) that, if the aggregate amount of Notes surrendered by Holders exceeds the Offer
Amount, the Trustee shall, subject in the case of a Repurchase Offer made pursuant to
Section 4.10 to the provisions of Section 4.10, select the Notes to be purchased in
compliance with the requirements of the principal national securities exchange or the Nasdaq
Stock Market, as the case may be, on which the Notes are listed or, if the Notes are not so
listed, on a pro rata basis (with such adjustments as may be deemed appropriate by the
Trustee so that only Notes in denominations of $1,000, or integral multiples thereof, shall
be purchased); and
(ix) that Holders whose Notes were purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer).
On the Purchase Date, the Company shall, to the extent lawful, subject in the case of a
Repurchase Offer made pursuant to Section 4.10 to the provisions of Section 4.10, accept for
payment on a pro rata basis to the extent necessary, the Offer Amount of Notes (or portions
thereof) tendered pursuant to the Repurchase Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, and shall deliver to the Trustee an Officers’ Certificate stating
that such Notes (or portions thereof) were accepted for payment by the Company in accordance with
the terms of this Section 3.08. The Company, the Depositary or the Paying Agent, as the case may
be, shall promptly (but in any case not later than three days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price of Notes tendered by such
Holder, as the case may be, and accepted by the Company for purchase, and the Company shall, if
applicable, promptly issue a new Note in a principal amount at maturity equal to any unpurchased
portion of the Note surrendered. The Trustee, upon written request from the Company shall
authenticate and mail or deliver such new Note to such Holder. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the respective Holder thereof. The Company shall
publicly announce the results of the Repurchase Offer on the Purchase Date.
The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws or regulations are
applicable in connection with the repurchase of the Notes pursuant to a Repurchase Offer. To the
extent that the provisions of any securities laws or regulations conflict with this Section 3.08 or
Section 4.10 or 4.14, the Company shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under this Section 3.08 or Section 4.10 or
4.14 by virtue of such compliance.
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The Company is not required to make mandatory redemption or sinking fund payments with respect
to the Notes.
ARTICLE FOUR
(a) The Company shall pay or cause to be paid the principal of, premium, if any, and interest
on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other than the Company or
one of its Subsidiaries, holds as of 12:00 p.m. (noon) Eastern Time on the due date money deposited
by the Company in immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. The Company shall pay all Additional Interest,
if any, in the same manner on the dates and in the amounts set forth in the Registration Rights
Agreement.
(b) The Company shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest, and Additional Interest (without regard to any applicable grace period) at the same rate
to the extent lawful.
(a) The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or
agency (which may be an office of the Trustee or Registrar or agent of the Trustee or Registrar)
where Notes may be surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee.
(b) The Company may also from time to time designate one or more other offices or agencies
where the Notes may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations;
provided,
however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of
New York for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.
(c) The Company hereby designates the Corporate Trust Office of the Trustee as one such office
or agency of the Company in accordance with Section 2.04 of this Indenture.
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(a) The Company will furnish to the Trustee and, upon request, to beneficial owners and
prospective investors a copy of all of the information and reports referred to in clauses (1) and
(2) below within the time periods specified in the Commission’s rules and regulations:
(1) all quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were
required to file such Forms, including a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and, with respect to the annual information only, a
report on the annual financial statements by the Company’s certified independent
accountants; and
(2) all current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports;
provided that, if the Commission has accepted any of the Company’s reports as provided in this
Section 4.03(a) and such reports have been made available to the public on the Commission’s XXXXX
system (or any similar successor system), the Company will have no obligations to furnish such
report to the Trustee, beneficial owners or prospective investors.
Whether or not required by the Commission, the Company will comply with the periodic reporting
requirements of the Exchange Act and will file the reports specified in this Section 4.03(a) with
the Commission within the time periods specified above unless the Commission will not accept such a
filing. The Company agrees that it will not take any action for the purpose of causing the
Commission not to accept any such filings. If, notwithstanding the foregoing, the Commission will
not accept the Company’s filings for any reason, the Company will post the reports referred to in
the preceding paragraph on its website within the time periods that would apply if the Company were
required to file those reports with the Commission.
(b) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries (other
than Unrestricted Subsidiaries that, when taken together with all other Unrestricted Subsidiaries,
are “minor” within the meaning of Rule 3-10 of Regulation S-X), then the quarterly and annual
financial information required by this Section 4.03 shall include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes thereto, or in
“Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the
financial condition and results of operations of the Company and its Restricted Subsidiaries
separate from the financial condition and results of operations of the Unrestricted Subsidiaries of
the Company.
(c) Notwithstanding any provision of this Section 4.03, for so long as the Company would be
permitted pursuant to the rules of the Commission to satisfy any requirement to file Forms 10-Q and
10-K (assuming for such purpose that the Company is required to file such reports) by means of the
Parent’s filing such reports, the Company shall not be required to separately file with the
Commission or furnish to the Trustee the reports specified in Section 4.03(a) for so long as the
Parent actually files such reports in accordance with the Commission’s rules, but in any event
containing disclosure comparable to the disclosure required by Section 4.03(a), if applicable. In
addition, the Company and the Guarantors have agreed that, for so long as any Notes remain
outstanding, they will furnish to the Holders and to prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
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(d) Delivery of such reports, information and documents to the Trustee pursuant to such
provisions is for informational purposes only and the Trustee’s receipt of such shall not
constitute
constructive notice of any information contained therein or determinable from information
contained therein, including the Company’s compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officers’ Certificates).
(a) The Company and each Guarantor (to the extent that such Guarantor is so required under the
TIA) shall deliver to the Trustee, within 120 days after the end of each fiscal year, an Officers’
Certificate stating that a review of the activities of the Parent and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officers with a view to
determining whether the Company and Guarantors have kept, observed, performed and fulfilled their
obligations under this Indenture, and further stating, as to each such Officer signing such
certificate, that to his or her knowledge, the Company and Guarantors have kept, observed,
performed and fulfilled their obligations under this Indenture and are not in default in the
performance or observance of any of the terms, provisions and conditions of this Indenture (or, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company and the Guarantors are
taking or propose to take with respect thereto) and that to his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a description of the
event and what action the Company and the Guarantors are taking or propose to take with respect
thereto.
(b) So long as not contrary to the then current recommendations of the American Institute of
Certified Public Accountants or the Public Company Accounting Oversight Board, the year-end
financial statements delivered pursuant to Section 4.03(a)(i) above (or if delivery of such
financial statements is not required pursuant to Section 4.03(c), the year-end financial statements
of the Parent) shall be accompanied by a written statement of the Company’s independent registered
public accounting firm (which shall be a firm of established national reputation) that in making
the examination necessary for certification of such financial statements, nothing has come to their
attention that would lead them to believe that the Company or the Guarantors have failed to comply
with the provisions of Article Four or Article Five hereof insofar as they relate to accounting
matters or, if an event of noncompliance has come to their attention, specifying the nature and
period of existence thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee,
within five Business Days after any Officer becomes aware of any Default or Event of Default, an
Officers’ Certificate specifying such Default or Event of Default and what action the Company and
the Guarantors are taking or propose to take with respect thereto.
The Parent shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency,
any taxes, assessments, and governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
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The Company and each of the Guarantors covenant (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force,
that may affect the covenants or the performance of this Indenture; and Company and each of
the Guarantors (to the extent that it may lawfully do so) hereby expressly waive all benefit or
advantage of any such law, and covenants that it shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
(a) The Parent will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly:
(1) declare or pay (without duplication) any dividend or make any other payment
or distribution on account of the Parent’s or any of its Restricted Subsidiaries’
Equity Interests (including, without limitation, any payment in connection with any
merger or consolidation involving the Parent or any of its Restricted Subsidiaries)
or to the direct or indirect holders of the Parent’s or any of its Restricted
Subsidiaries’ Equity Interests in their capacity as such (other than dividends,
payments or distributions (x) payable in Equity Interests (other than Disqualified
Stock) of the Parent or (y) to the Parent or a Restricted Subsidiary of the Parent);
(2) purchase, redeem or otherwise acquire or retire for value (including,
without limitation, in connection with any merger or consolidation involving the
Parent) any Equity Interests of the Parent or any of its Restricted Subsidiaries
held by Persons other than the Parent or any of its Wholly Owned Restricted
Subsidiaries;
(3) make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is subordinated to the
Notes or the Note Guarantees, except (a) a payment of interest or principal at the
Stated Maturity thereof or (b) the purchase, repurchase, redemption, defeasance or
other acquisition or retirement of any such Indebtedness in anticipation of
satisfying a sinking fund obligation, principal installment or final maturity, in
each case due within one year of the date of such purchase, repurchase, redemption,
defeasance or other acquisition or retirement; or
(4) make any Restricted Investment,
(all such payments and other actions set forth in Section 4.07(a)(1) through (4) above being
collectively referred to as “Restricted Payments”) unless, at the time of and after giving effect
to such Restricted Payment:
(i) no Default or Event of Default shall have occurred and be continuing or
would occur as a consequence thereof;
(ii) the Parent would, at the time of such Restricted Payment and after giving
pro forma effect thereto as if such Restricted Payment had been made at the
beginning of the applicable four-quarter period, have been permitted to Incur at
least $1.00 of addi-
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tional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in Section 4.09(a); and
(iii) such Restricted Payment, together with the aggregate amount of all other
Restricted Payments made by the Parent and its Restricted Subsidiaries after the
Issue
Date (excluding Restricted Payments permitted by clauses (2), (3), (4), (5),
(6) and (9) of Section 4.07(b), is less than the sum, without duplication, of:
(a) 50% of the Consolidated Net Income of the Parent for the period
(taken as one accounting period) from the beginning of the last fiscal
quarter commencing prior to the Issue Date to the end of the Parent’s most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated
Net Income for such period is a deficit, less 100% of such deficit), plus
(b) 100% of the aggregate net cash proceeds received by the Parent
since the Issue Date as a contribution to its common equity capital or from
the issue or sale of Equity Interests (other than Disqualified Stock) of the
Parent or from the Incurrence of Indebtedness of the Parent that has been
converted into or exchanged for such Equity Interests (other than Equity
Interests sold to, or Indebtedness held by, a Subsidiary of the Parent),
plus
(c) with respect to Restricted Investments made by the Parent and its
Restricted Subsidiaries after the Issue Date, an amount equal to the net
reduction in such Restricted Investments in any Person resulting from
repayments of loans or advances, or other transfers of assets, in each case
to the Parent or any of its Restricted Subsidiaries or from the net cash
proceeds from the sale of any such Restricted Investment (except, in each
case, to the extent any such payment or proceeds are included in the
calculation of Consolidated Net Income), from the release of any Guarantee
(except to the extent any amounts are paid under such Guarantee) or from
redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries, not
to exceed, in each case, the amount of Restricted Investments previously
made by the Parent or any of its Restricted Subsidiaries in such Person or
Unrestricted Subsidiary after the Issue Date.
(b) The provisions of Section 4.07(a) shall not prohibit (so long as, in the case of Section
4.07(b)(7), (8) and (10) below, no Default has occurred and is continuing or would be caused
thereby):
(1) the payment of any dividend within 60 days after the date of declaration thereof,
if at said date of declaration such payment would have complied with the provisions of this
Indenture;
(2) the payment of any dividend by a Restricted Subsidiary of the Parent to the holders
of its Common Stock on a pro rata basis;
(3) the redemption, repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the
Parent or any of its Restricted Subsidiaries in exchange for, or out of the net cash
proceeds of a
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contribution to the common equity of the Parent or a substantially concurrent
sale (other than to a Subsidiary of the Parent) of, Equity Interests (other than
Disqualified Stock) of the Parent; provided that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, retirement, defeasance or other
acquisition shall be excluded from Section 4.07(a)(3)(b);
(4) the repayment, defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an
Incurrence of Permitted Refinancing Indebtedness;
(5) Investments acquired as a capital contribution to, or in exchange for, or out of
the net cash proceeds of a substantially concurrent offering of, Equity Interests (other
than Disqualified Stock) of the Parent; provided that the amount of any such net cash
proceeds that are utilized for any such acquisition or exchange shall be excluded from
Section 4.07(a)(3)(b);
(6) the purchase, repurchase, redemption, acquisition or retirement for value of any
Capital Stock of the Parent upon the exercise of warrants, options or similar rights if such
Capital Stock constitutes all or a portion of the exercise price or is surrendered in
connection with satisfying any federal or state income tax obligation incurred in connection
with such exercise; provided that no cash payment in respect of such purchase, repurchase,
redemption, acquisition, retirement or exercise shall be made by the Parent or any of its
Restricted Subsidiaries;
(7) payments to the Parent to permit the Parent, and the use by the Parent of such
payments, to redeem Equity Interests of the Parent held by any current or former employee,
officer, director or consultant of the Parent (or any of its Restricted Subsidiaries) or
their respective estates, spouses, former spouses or family members pursuant to the terms of
any employee equity subscription agreement, stock option agreement or similar agreement
entered into in the ordinary course of business; provided that the aggregate price paid for
all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will
not exceed $3.0 million;
(8) payments to the Parent to permit the Parent, and the use by the Parent of such
payments, to declare and pay cash dividends on the Parent’s issued and outstanding Common
Stock in an amount not to exceed $0.24 per share (as adjusted for stock splits and similar
transactions after the Issue Date) per fiscal year;
(9) the payment of cash in lieu of the issuance of fractional shares of Equity
Interests upon conversion or exchange of securities convertible into or exchangeable for
Equity Interests of the Parent; provided that any such cash payment shall not be for the
purpose of evading the limitations of this Section 4.07 (as determined in good faith by the
Board of Directors of the Parent); and
(10) other Restricted Payments not otherwise permitted pursuant to this Section 4.07 in
an aggregate principal amount since the Issue Date not to exceed $40.0 million.
(c) The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on
the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or
issued to or by the Parent or such Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment. Not later than the date of making any Restricted Payment (other than (x) the
declaration and payment of cash dividends on the Parent’s Common Stock in amounts not exceeding the
amounts set
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forth in Section 4.07(b)(8) or (y) any Restricted Payments pursuant to Section
4.07(b)(6) or (9)) or any series of related Restricted Payments in an amount in excess of $1.0
million, the Parent shall deliver to the Trustee an Officers’ Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the calculations required by
this Section 4.08 were computed, together with a copy of any opinion or appraisal required by this
Indenture.
(a) The Parent will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock (or with respect
to any other interest or participation in, or measured by, its profits) to the Company or
any of its Restricted Subsidiaries or pay any liabilities owed to the Company or any of its
Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries.
(b) However, the restrictions in Section 4.08(a) shall not apply to encumbrances or
restrictions:
(1) existing under, by reason of or with respect to the Credit Agreement, Existing
Indebtedness or any other agreements in effect on the Issue Date and any amendments,
modifications, restatements, renewals, extensions, supplements, refundings, replacements or
refinancings thereof, provided that the encumbrances and restrictions in any such
amendments, modifications, restatements, renewals, extensions, supplements, refundings,
replacements or refinancings are no more restrictive, taken as a whole, than those contained
in the Credit Agreement, Existing Indebtedness or such other agreements, as the case may be,
as in effect on the Issue Date;
(2) set forth in this Indenture, the Notes and the Note Guarantees;
(3) existing under, by reason of or with respect to applicable law;
(4) with respect to any Person or the property or assets of a Person acquired by the
Parent or any of its Restricted Subsidiaries existing at the time of such acquisition and
not incurred in connection with or in contemplation of such acquisition, which encumbrance
or restriction is not applicable to any Person or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so acquired and any
amendments, modifications, restatements, renewals, extensions, supplements, refundings,
replacements or refinancings thereof, provided that the encumbrances and restrictions in any
such amendments, modifications, restatements, renewals, extensions, supplements, refundings,
replacements or refinancings are no more restrictive, taken as a whole, than those in effect
on the date of the acquisition;
(5) in the case of Section 4.08(a)(3):
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(A) restricting in a customary manner the subletting, assignment or transfer of
any property or asset that is a lease, license, conveyance or contract or similar
property or asset,
(B) existing by virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of the Parent or any of
its Restricted Subsidiaries not otherwise prohibited by this Indenture or
(C) arising or agreed to in the ordinary course of business, not relating to
any Indebtedness, and that do not, individually or in the aggregate, detract from
the value of property or assets of the Parent and its Restricted Subsidiaries taken
as a whole in any manner material to the Parent and its Restricted Subsidiaries
taken as a whole;
(6) existing under, by reason of or with respect to any agreement for the sale or other
disposition of all or substantially all of the Capital Stock of, or property and assets of,
a Restricted Subsidiary that restrict distributions by that Restricted Subsidiary pending
such sale or other disposition;
(7) restrictions on cash or other deposits or net worth imposed by customers or
required by insurance, surety or bonding companies, in each case, under contracts entered
into in the ordinary course of business; and
(8) any Purchase Money Note, or other Indebtedness or contractual requirements of a
Receivables Subsidiary in connection with a Qualified Securitization Transaction; provided
that such restrictions only apply to such Receivables Subsidiary.
(a) The Parent will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, Incur any Indebtedness; provided, however, that the Parent or any of its Restricted
Subsidiaries may Incur Indebtedness if the Fixed Charge Coverage Ratio for the Parent’s most
recently ended four full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is Incurred would have been at
least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been Incurred at the beginning of such
four-quarter period.
(b) Section 4.09 (a) will not prohibit the Incurrence of any of the following items of
Indebtedness (collectively, “Permitted Debt”):
(1) the Incurrence by the Company or any Guarantor, in the capacity of a borrower or a
guarantor, of Indebtedness under Credit Facilities, in an aggregate principal amount at any
one time outstanding pursuant to this clause (1) (with letters of credit being deemed to
have a principal amount equal to the maximum potential liability of the Parent and its
Restricted Subsidiaries thereunder) not to exceed the greater of (x) $1,260.0 million and
(y) the Borrowing Base on such date of Incurrence;
(2) the Incurrence of Existing Indebtedness;
(3) the Incurrence by the Company and the Guarantors of Indebtedness represented by the
Notes and the related Note Guarantees to be issued on the Issue Date;
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(4) the Incurrence by the Parent or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money obligations,
in each case, Incurred for the purpose of financing all or any part of the purchase price or
cost of construction or improvement of property, plant or equipment used in the business of
the Parent or such Restricted Subsidiary, in an aggregate principal amount, including all
Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness
Incurred pursuant to this clause (4), not to exceed at any time outstanding the greater of
(x) $40.0 million and (y) 1.75% of the Parent’s Total Assets on such date of Incurrence;
(5) the Incurrence by the Parent or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund,
refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted
by this Indenture to be Incurred under Section 4.09(a) or clauses (2), (3), (4), (5), or
(15) of this Section 4.09(b);
(6) the Incurrence by the Parent or any of its Restricted Subsidiaries of intercompany
Indebtedness owing to and held by the Parent or any of its Restricted Subsidiaries;
provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness, such
Indebtedness must be unsecured and expressly subordinated to the prior payment in
full in cash of all Obligations with respect to the Notes, in the case of the
Company, or the Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an
unsubordinated promissory note, unless the obligor under such Indebtedness is the
Company or a Guarantor;
(c) (i) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than the Parent or any of its
Restricted Subsidiaries and (ii) any sale or other transfer of any such Indebtedness
to a Person that is not either the Parent or any of its Restricted Subsidiaries will
be deemed, in each case, to constitute an Incurrence of such Indebtedness by the
Parent or such Restricted Subsidiary, as the case may be, that was not permitted by
this Section 4.09(b)(6);
(7) the Guarantee by the Company or any Guarantor of Indebtedness of the Parent or a
Restricted Subsidiary of the Parent that was permitted to be Incurred by another provision
of this Section 4.09;
(8) the Incurrence by the Parent or any of its Restricted Subsidiaries of Hedging
Obligations that are Incurred for the purpose of fixing, hedging or swapping interest rate,
commodity price or foreign currency exchange rate risk (or to reverse or amend any such
agreements previously made for such purposes), and not for speculative purposes, and that do
not increase the Indebtedness of the obligor outstanding at any time other than as a result
of fluctuations in interest rates, commodity prices or foreign currency exchange rates or by
reason of fees, indemnities and compensation payable thereunder;
(9) the Incurrence by the Parent or any of its Restricted Subsidiaries of Indebtedness
arising from agreements providing for indemnification, adjustment of purchase price or
similar
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obligations, or Guarantees or letters of credit, surety bonds or performance bonds
securing any obligations of the Parent or any of its Restricted Subsidiaries pursuant to
such agreements, in any case Incurred in connection with the disposition of any business,
assets or Capital Stock of any Restricted Subsidiary (other than Guarantees of Indebtedness
Incurred by any Person acquiring all or any portion of such business, assets or Capital
Stock of such Restricted Subsidiary for the purpose of financing such acquisition), so long
as the principal amount does not exceed the gross proceeds actually received by the Parent
or any of its Restricted Subsidiaries in connection with such disposition;
(10) the Incurrence by the Parent or any of its Restricted Subsidiaries of Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or
similar instrument drawn against insufficient funds in the ordinary course of business, provided,
however, that such Indebtedness is extinguished within five Business Days of its Incurrence;
(11) the Incurrence by the Parent or any of its Restricted Subsidiaries of Indebtedness
constituting reimbursement obligations with respect to letters of credit in respect of
workers’ compensation claims or self-insurance obligations or bid, performance or surety
bonds (in each case other than for an obligation for borrowed money);
(12) the Incurrence by the Parent or any of its Restricted Subsidiaries of Indebtedness
constituting reimbursement obligations with respect to letters of credit issued in the
ordinary course of business; provided that, upon the drawing of such letters of credit or
the Incurrence of such Indebtedness, such obligations are reimbursed within 30 days
following such drawing or Incurrence;
(13) the Incurrence by the Parent or any of its Restricted Subsidiaries of Indebtedness
to the extent that the net proceeds thereof are promptly deposited to defease or to satisfy
and discharge the Notes;
(14) the Incurrence of any Indebtedness by a Receivables Subsidiary that is not
recourse to the Parent or any other Restricted Subsidiary of the Parent (other than Standard
Securitization Undertakings) incurred in connection with a Qualified Receivables
Transaction; or
(15) the Incurrence by the Parent or any of its Restricted Subsidiaries of additional
Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance
or replace any Indebtedness Incurred pursuant to this Section 4.09(b)(15), not to exceed
$50.0 million.
For purposes of determining compliance with this Section 4.09, in the event that any proposed
Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in
clauses (1) through (15) of Section 4.09(a), or is entitled to be Incurred pursuant to Section
4.09(a), the Parent will be permitted to classify such item of Indebtedness at the time of its
Incurrence in any manner that complies with this Section 4.09. In addition, any Indebtedness
originally classified as Incurred pursuant to clauses (1) through (15) of Section 4.09(b) may later
be reclassified by the Parent such that it will be deemed as having been Incurred pursuant to
another of such clauses to the extent that such reclassified Indebtedness could be incurred
pursuant to such new clause at the time of such reclassification. Notwithstanding the foregoing,
Indebtedness under the Credit Agreement outstanding on the Issue Date shall be deemed to have been
Incurred on such date in reliance on the exception provided by Section 4.09(b)(1) of the definition
of Permitted Debt.
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(c) Notwithstanding any other provision of this Section 4.09, the maximum amount of
Indebtedness that may be Incurred pursuant to this Section 4.09 will not be deemed to be exceeded
with respect to any outstanding Indebtedness due solely to the result of fluctuations in the
exchange rates of currencies.
(d) Neither the Parent nor the Company will Incur any Indebtedness that is subordinate or
junior in right of payment to any other Indebtedness of the Parent or the Company, respectively,
unless it is subordinate in right of payment to the Notes to the same extent. The Parent will not
permit any Guarantor to Incur any Indebtedness that is subordinate or junior in right of payment to
any other Indebtedness of such Guarantor unless it is subordinate in right of payment to such
Guarantor’s Note Guarantee to the same extent. For purposes of the foregoing, no Indebtedness will
be deemed to be subordinated in right of payment to any other Indebtedness of the Company or any
Guarantor, as applicable,
solely by reason of any Liens or Guarantees arising or created in respect thereof or by virtue
of the fact that the holders of any secured Indebtedness have entered into intercreditor agreements
giving one or more of such holders priority over the other holders in the collateral held by them.
(a) The Parent will not, and will not permit any of its Restricted Subsidiaries to, consummate
an Asset Sale unless:
(1) the Parent (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the Fair Market Value of the
assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration therefor received by the Parent or such
Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a
combination of the foregoing. For purposes of this Section 4.10(a)(2), each of the
following shall be deemed to be cash:
(A) any liabilities (as shown on the Parent’s or such Restricted Subsidiary’s
most recent balance sheet) of the Parent or such Restricted Subsidiary (other than
contingent liabilities, Indebtedness that is by its terms pari passu with, or
subordinated to, the Notes or any Note Guarantee and liabilities to the extent owed
to the Parent or any Affiliate of the Parent) that are assumed by the transferee of
any such assets or Equity Interests pursuant to a written assignment and assumption
agreement that releases the Parent or such Restricted Subsidiary from further
liability therefor;
(B) any securities, notes or other obligations received by the Parent or such
Restricted Subsidiary from such transferee that are converted by the Parent or such
Restricted Subsidiary into cash within 180 days after the date of such Asset Sale
(to the extent of the cash received in that conversion); and
(C) any Designated Non-cash Consideration received by the Parent or such
Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value,
taken together with all other Designated Non-cash Consideration received pursuant to
this clause (C) that is at that time outstanding, not to exceed the greater of (x)
1.5% of the Parent’s Total Assets as of the date of receipt of such Designated
Non-cash
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Consideration and (y) $35.0 million (with the Fair Market Value of each
item of Designated Non-cash Consideration being measured at the time received and
without giving effect to subsequent changes in value).
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may
apply such Net Proceeds at its option:
(1) to repay Indebtedness secured by such assets;
(2) to purchase Replacement Assets (or enter into a binding agreement to purchase such
Replacement Assets; provided that (x) such purchase is consummated within 60 days after the
date of such binding agreement and (y) if such purchase is not consummated within the period
set forth in subclause (x), the Net Proceeds not so applied will be deemed to be Excess
Proceeds (as defined below)); or
(3) any combination of the foregoing.
Pending the final application of any such Net Proceeds, the Parent may temporarily reduce revolving
credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by
this Indenture.
(c) On the 366th day after an Asset Sale or such earlier date, if any, as the Company
determines not to apply the Net Proceeds relating to such Asset Sale as set forth under Section
4.10(b) (each such date being referred as an “Excess Proceeds Trigger Date”), such aggregate amount
of Net Proceeds that has not been applied on or before the Excess Proceeds Trigger Date as
permitted under Section 4.10(b) (“Excess Proceeds”) will be applied by the Company to make an offer
(an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari
passu with the Notes or any Note Guarantee containing provisions similar to those set forth in this
Indenture with respect to offers to purchase with the proceeds of sales of assets, to purchase the
maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out
of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the
principal amount of the Notes and such other pari passu Indebtedness plus accrued and unpaid
interest and Additional Interest, if any, to the date of purchase, and will be payable in cash.
(d) The Company may defer the Asset Sale Offer until there are aggregate unutilized Excess
Proceeds equal to or in excess of $25.0 million resulting from one or more Asset Sales, at which
time the entire unutilized amount of Excess Proceeds (not only the amount in excess of $25.0
million) will be applied as provided in Section 4.10(c). If any Excess Proceeds remain after
consummation of an Asset Sale Offer, such Excess Proceeds may be used for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, then the
Notes and such other pari passu Indebtedness will be purchased on a pro rata basis based on the
principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each
Asset Sale Offer, the Excess Proceeds subject to such Asset Sale will no longer be deemed to be
Excess Proceeds.
(a) The Parent will not, and will not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into, make, amend, renew or extend any transaction,
con-
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tract, agreement, understanding, loan, advance or Guarantee with, or for the benefit of, any
Affiliate (each, an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Parent or
the relevant Restricted Subsidiary than those that would have been obtained in a comparable
arm’s-length transaction by the Parent or such Restricted Subsidiary with a Person that is
not an Affiliate of the Parent or any of its Restricted Subsidiaries; and
(2) the Parent delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $15.0 million, a Board
Resolution set forth in an Officers’ Certificate certifying that such Affiliate
Transaction or series of related Affiliate Transactions complies with this Section
4.11(a) and that such Affiliate Transaction or series of related Affiliate
Transactions has been approved by a majority of the disinterested members of the
Board of Directors of the Parent; and
(B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $25.0 million, an
opinion as to the fairness to the Parent or such Restricted Subsidiary of such
Affiliate Transaction or series of related Affiliate Transactions from a financial
point of view issued by an independent accounting, appraisal or investment banking
firm of national standing.
(b) The following items shall not be deemed to be Affiliate Transactions and, therefore, will
not be subject to Section 4.11(a):
(1) transactions between or among the Parent and/or its Restricted Subsidiaries;
(2) payment of reasonable and customary fees to, and reasonable and customary
indemnification and similar payments on behalf of, directors of the Parent or any of its
Restricted Subsidiaries;
(3) Restricted Payments that are permitted by Section 4.07;
(4) any sale of Capital Stock (other than Disqualified Stock) of the Parent;
(5) transactions pursuant to agreements or arrangements in effect on the Issue Date and
described in the Offering Memorandum (including, without limitation, the Mortgage Loan
Facility as in effect on the Issue Date), or any amendment, modification, or supplement
thereto or replacement thereof, as long as such agreement or arrangement, as so amended,
modified, supplemented or replaced, taken as a whole, is not more disadvantageous to the
Parent and its Restricted Subsidiaries than the original agreement or arrangement in
existence on the Issue Date;
(6) any employment, consulting, service or termination agreement, or reasonable and
customary indemnification arrangements, entered into by the Parent or any of its Restricted
Subsidiaries with officers and employees of the Parent or any of its Restricted Subsidiaries
that are Affiliates of the Parent and the payment of compensation to such officers and
employees (including amounts paid pursuant to employee benefit plans, employee stock option
or similar plans), so long as
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such agreement or payment has been approved by a majority of
the disinterested members of the Board of Directors of the Parent (or by the Parent’s
Compensation Committee so long as such committee satisfies applicable independence tests
under federal securities laws and the primary exchange or the Nasdaq Stock Market, as the
case may be, on which the Parent’s Common Stock is listed);
(7) transactions with a Person that is an Affiliate of the Parent solely because the
Parent, directly or indirectly, owns Equity Interests in, or controls, such Person; and
(8) commission, payroll, travel and similar advances to officers and employees of the
Parent or any of its Restricted Subsidiaries made consistent with past practices.
The Parent will not, and will not permit any of its Restricted Subsidiaries to, create, incur,
assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than
Permitted Liens) upon any of their property or assets, now owned or hereafter acquired, unless all
payments due under this Indenture and the Notes are secured on an equal and ratable basis with the
obligations so secured (or, in the case of Indebtedness subordinated to the Notes or the related
Note Guarantees, prior or
senior thereto, with the same relative priority as the Notes will have with respect to such
subordinated Indebtedness) until such time as such obligations are no longer secured by a Lien.
The Parent will not, and will not permit any Restricted Subsidiary thereof to, engage in any
business other than Permitted Businesses, except to such extent as would not be material to the
Parent and its Restricted Subsidiaries taken as a whole.
(a) If a Change of Control occurs, each Holder of Notes will have the right to require the
Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that
Holder’s Notes pursuant to an offer by the Company (a “Change of Control Offer”) at an offer price
(a “Change of Control Payment”) in cash equal to not less than 101% of the aggregate principal
amount of Notes repurchased plus accrued and unpaid interest and Additional Interest, if any,
thereon, to the date of repurchase (the “Change of Control Payment Date,” which date will be no
earlier than the date of such Change of Control). No later than 30 days following any Change of
Control, the Company shall mail a notice to each Holder describing the transaction or transactions
that constitute the Change of Control and offering to repurchase Notes on the Change of Control
Payment Date specified in such notice, which date will be no earlier than 30 days and no later than
60 days from the date such notice is mailed, pursuant to the procedures described in Section 3.08
(including the notice required thereby). The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent
such laws and regulations are applicable in connection with the repurchase of the Notes as a result
of a Change of Control. To the extent that the provisions of any securities laws or regulations
conflict with the Change of Control provisions of this Indenture, the Company will comply with the
applicable securities laws or regulations and will not be deemed to have breached its obligations
under the Change of Control provisions of this Indenture by virtue of such compliance.
(b) On the Change of Control Payment Date, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the
Change of Control Offer;
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(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with
an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof
being purchased by the Company.
(c) The Paying Agent will promptly mail or wire transfer to each Holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail
(or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to
any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be
in a principal amount of $1,000 or an integral multiple thereof.
(d) The Company will publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.
(e) The Company will not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 4.14 and all other
provisions of this Indenture applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(a) The Board of Directors of the Parent may designate any Restricted Subsidiary of the Parent
(other than the Company) to be an Unrestricted Subsidiary; provided that:
(1) any Guarantee by the Parent or any of its Restricted Subsidiaries of any
Indebtedness of the Subsidiary being so designated will be deemed to be an Incurrence of
Indebtedness by the Parent or such Restricted Subsidiary (or both, if applicable) at the
time of such designation, and such Incurrence of Indebtedness would be permitted under
Section 4.09;
(2) the aggregate Fair Market Value of all outstanding Investments owned by the Parent
and its Restricted Subsidiaries in the Subsidiary being so designated (including any
Guarantee by the Parent or any of its Restricted Subsidiaries of any Indebtedness of such
Subsidiary) will be deemed to be a Restricted Investment made as of the time of such
designation, and such Investment would be permitted to be made under Section 4.07;
(3) such Subsidiary does not hold any Liens on any property of the Parent or any of its
Restricted Subsidiaries;
(4) the Subsidiary being so designated:
(A) is not party to any agreement, contract, arrangement or understanding with
the Parent or any of its Restricted Subsidiaries unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to the
Parent or such Restricted Subsidiary than those that might be obtained at the time
from Persons who are not Affiliates of the Parent;
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(B) is a Person with respect to which neither the Parent nor any of its
Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for
additional Equity Interests or (ii) to maintain or preserve such Person’s financial
condition or to cause such Person to achieve any specified levels of operating
results; and
(C) has not Guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Parent or any of its Restricted Subsidiaries,
except to the extent such Guarantee or credit support would be released upon such
designation; and
(5) no Default or Event of Default would be in existence following such designation.
(b) Any designation of a Restricted Subsidiary of the Parent as an Unrestricted Subsidiary
shall be evidenced to the Trustee by filing with the Trustee the Board Resolution giving effect to
such designation and an Officers’ Certificate certifying that such designation complied with the
preceding conditions and was permitted by this Indenture. If, at any time, any Unrestricted
Subsidiary would fail to meet any of the preceding requirements, it will thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness, Investments, or Liens
on the property, of such Subsidiary will be deemed to be Incurred or made by a Restricted
Subsidiary of the Parent as of such date and, if
such Indebtedness, Investments or Liens are not permitted to be Incurred or made as of such
date under this Indenture, the Parent will be in default under this Indenture.
(c) The Board of Directors of the Parent may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that:
(1) such designation will be deemed to be an Incurrence of Indebtedness by a Restricted
Subsidiary of the Parent of any outstanding Indebtedness of such Unrestricted Subsidiary and
such designation will only be permitted if such Indebtedness is permitted under Section
4.09, calculated on a pro forma basis as if such designation had occurred at the beginning
of the applicable four-quarter reference period;
(2) all outstanding Investments owned by such Unrestricted Subsidiary will be deemed to
be made as of the time of such designation and such designation will only be permitted if
such Investments would be permitted under Section 4.07;
(3) all Liens upon property or assets of such Unrestricted Subsidiary existing at the
time of such designation would be permitted under Section 4.12; and
(4) no Default or Event of Default would be in existence following such designation.
The Parent will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes
for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of
this Indenture or the Notes unless such consideration is offered to be paid and is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
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The Parent will not permit any of its Restricted Subsidiaries, directly or indirectly, to
Guarantee or pledge any assets to secure the payment of any other Indebtedness of the Parent or any
Domestic Subsidiary unless such Restricted Subsidiary is a Guarantor or simultaneously executes and
delivers to the Trustee a supplemental indenture substantially in the form of Exhibit E
hereto, accompanied by an Officers’ Certificate and an Opinion of Counsel, providing for the
Guarantee of the payment of the Notes by such Restricted Subsidiary, which Guarantee shall be
senior to or pari passu with such Subsidiary’s Guarantee of such other Indebtedness.
The Parent will not transfer, convey, sell or otherwise dispose of, and will not permit any of
its Restricted Subsidiaries to, issue, transfer, convey, sell or otherwise dispose of any Equity
Interests in any Restricted Subsidiary of the Parent to any Person (other than the Parent or a
Restricted Subsidiary of the Parent or, if necessary, shares of its Capital Stock constituting
directors’ qualifying shares or issuances of shares of Capital Stock of foreign Restricted
Subsidiaries to foreign nationals, to the extent required by applicable law), except sales of
Equity Interests of a Restricted Subsidiary of the Parent by the Parent or a Restricted Subsidiary
thereof; provided that (x) the Parent or such Restricted Subsidiary selling such Equity Interests
complies with Section 4.10, (y) any sales of Preferred Stock of a Restricted Subsidiary that result
in such Preferred Stock being held by a Person other than the Parent or a Restricted
Subsidiary thereof will be deemed to be an Incurrence of Indebtedness and must comply with
Section 4.09 and (z) if, immediately after giving effect to such issuance, transfer, conveyance,
sale or other disposition, such Restricted Subsidiary would no longer constitute a Restricted
Subsidiary, any Investment in such Person remaining after giving effect to such issuance or sale
would have been permitted to be made under Section 4.07 if made on the date of such issuance or
sale.
ARTICLE FIVE
(a) Neither the Parent nor The Bon-Ton Corp. will, directly or indirectly: (1) consolidate or
merge with or into another Person (whether or not the Parent or The Bon-Ton Corp., as the case may
be, is the surviving corporation) or (2) sell, assign, transfer, convey or otherwise dispose of all
or substantially all of the properties and assets of the Parent or the Parent and its Subsidiaries
taken as a whole, or The Bon-Ton Corp. or The Bon-Ton Corp. and its Subsidiaries taken as a whole,
as the case may be, in one or more related transactions, to another Person, unless:
(1) either: (a) the Parent or The Bon-Ton Corp., as the case may be, is the surviving
corporation; or (b) the Person formed by or surviving any such consolidation or merger (if
other than the Parent or The Bon-Ton Corp., as the case may be) or to which such sale,
assignment, transfer, conveyance or other disposition will have been made (i) is a
corporation organized or existing under the laws of the United States, any state thereof or
the District of Columbia and (ii) assumes all the obligations of the Parent or The Bon-Ton
Corp., as the case may be, under its Note Guarantee, this Indenture and the Registration
Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
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(2) immediately after giving effect to such transaction, no Default or Event of Default
exists;
(3) the Parent or The Bon-Ton Corp., as the case may be, or the Person formed by or
surviving any such consolidation or merger (if other than the Parent), or to which such
sale, assignment, transfer, conveyance or other disposition shall have been made, will, on
the date of such transaction after giving pro forma effect thereto and any related financing
transactions as if the same had occurred at the beginning of the applicable four-quarter
period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 4.09(a);
(4) the Parent or The Bon-Ton Corp., as the case may be, will have by amendment to its
Note Guarantee confirmed that its Note Guarantee will apply to the obligations of the Parent
or The Bon-Ton Corp., as the case may be, or the surviving Person in accordance with the
Notes and this Indenture; and
(5) the Parent or The Bon-Ton Corp., as the case may be, delivers to the Trustee an
Officers’ Certificate (attaching the arithmetic computation to demonstrate compliance with
clause (3) above) stating that such transaction and such agreement comply with this Section
5.01 and that all conditions precedent provided for herein relating to such transaction have
been complied with.
(b) Section 5.01(a)(2), (3) and (5) above will not apply to any merger, consolidation or sale,
assignment, transfer, conveyance or other disposition of assets between or among the Parent or The
Bon-Ton Corp. and any of its Restricted Subsidiaries if, in the good faith determination of the
Board of Directors of the Parent or The Bon-Ton Corp., as the case may be, the sole purpose of the
transaction is to reincorporate the Parent or The Bon-Ton Corp., as the case may be, in another
state of the United States. Upon any consolidation or merger, or any sale, assignment, transfer,
conveyance or other disposition of all or substantially all of the assets of the Parent or the
Parent and its Restricted Subsidiaries taken as a whole or The Bon-Ton Corp. or The Bon-Ton Corp.
and its Restricted Subsidiaries taken as a whole, in accordance with this Section 5.01, the
successor corporation formed by such consolidation or into or with which the Parent or The Bon-Ton
Corp., as the case may be, is merged or to which such sale, assignment, transfer, conveyance or
other disposition is made will succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, assignment, transfer, conveyance or other disposition, the
provisions of this Indenture referring to the “the Parent” or “The Bon-Ton Corp.” will refer
instead to the successor corporation and not to the Parent or The Bon-Ton Corp., as the case may
be), and may exercise every right and power of, the Parent or The Bon-Ton Corp. under this
Indenture with the same effect as if such successor Person had been named as a Guarantor in this
Indenture. In any such event (other than any transfer by way of lease), the Parent or The Bon-Ton
Corp., as the case may be, will be released and discharged from all liabilities and obligations in
respect of the Notes and this Indenture and the predecessor may be dissolved, wound up or
liquidated at any time thereafter. Section 5.01(a)(3) above will not apply to any merger,
consolidation or sale, assignment, transfer, conveyance or other disposition of assets between or
among the Parent and any of its Restricted Subsidiaries.
(c) The Company will not, directly or indirectly: (1) consolidate or merge with or into
another Person (whether or not the Company is the surviving corporation) or (2) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the properties and assets of
the Company or the Company and its Restricted Subsidiaries taken as a whole, in one or more related
transactions, to another Person, unless:
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(1) either: (a) the Company is the surviving corporation; or (b) the Person formed by
or surviving any such consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, conveyance or other disposition will have been made (i) is a
corporation organized or existing under the laws of the United States, any state thereof or
the District of Columbia and (ii) assumes all the obligations of the Company under the
Notes, this Indenture and the Registration Rights Agreement pursuant to agreements
reasonably satisfactory to the Trustee;
(2) immediately after giving effect to such transaction, no Default or Event of Default
exists;
(3) each Guarantor, unless such Guarantor is the Person with which the Company has
entered into a transaction under this Section 5.01, will have by amendment to its Note
Guarantee confirmed that its Note Guarantee will apply to the obligations of the Company or
the surviving Person in accordance with the Notes and this Indenture; and
(4) the Company delivers to the Trustee an Officers’ Certificate stating that such
transaction and such agreement comply with this Section 5.01 and that all conditions
precedent provided for herein relating to such transaction have been complied with.
(d) Section 5.01(a)(2) and (4) above will not apply to any merger, consolidation or sale,
assignment, transfer, conveyance or other disposition of assets between or among the Parent and any
of its Restricted Subsidiaries if, in the good faith determination of the Board of Directors of the
Company, the sole purpose of the transaction is to reincorporate the Company in another state of
the United States.
Upon any consolidation or merger, or any sale, assignment, transfer, conveyance or other
disposition of all or substantially all of the assets of the Company or the Company and its
Restricted Subsidiaries taken as a whole, in accordance with Section 5.01, the successor
corporation formed by such consolidation or into or with which the Company is merged or to which
such sale, assignment, transfer, conveyance or other disposition is made will succeed to, and be
substituted for (so that from and after the date of such consolidation, merger, sale, assignment,
transfer, conveyance or other disposition, the provisions of this Indenture referring to the
“Company” will refer instead to the successor corporation and not to the Company), and may exercise
every right and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company in this Indenture. In any such event (other than
any transfer by way of lease), the predecessor Company will be released and discharged from all
liabilities and obligations in respect of the Notes and this Indenture and the predecessor Company
may be dissolved, wound up or liquidated at any time thereafter.
ARTICLE SIX
(a) Each of the following is an “Event of Default”:
(i) default for 30 days in the payment when due of interest on, or Additional Interest
with respect to, the Notes;
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(ii) default in payment when due (whether at maturity, upon acceleration, redemption or
otherwise) of the principal of, or premium, if any, on the Notes;
(iii) failure by the Parent or any of its Restricted Subsidiaries to comply with
Section 4.10, Section 4.14 or Section 5.01;
(iv) failure by the Parent or any of its Restricted Subsidiaries for 45 days after
written notice by the Trustee or Holders representing 25% or more of the aggregate principal
amount of Notes outstanding to comply with any of the other agreements in this Indenture;
(v) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness for money borrowed by the
Parent or any of its Restricted Subsidiaries (or the payment of which is Guaranteed by the
Parent or any of its Restricted Subsidiaries) whether such Indebtedness or Guarantee now
exists, or is created after the Issue Date, if that default:
(A) is caused by a failure to make any payment when due at the final maturity
of such Indebtedness (a “Payment Default”); or
(B) results in the acceleration of such Indebtedness prior to its express
maturity,
and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates $25.0 million or more;
(vi) failure by the Parent or any of its Restricted Subsidiaries to pay final judgments
(to the extent such judgments are not paid or covered by insurance provided by a reputable
carrier that has the ability to perform and has acknowledged coverage in writing)
aggregating in excess of $25.0 million, which judgments are not paid, discharged or stayed
for a period of 60 days after such judgments have become final and non-appealable;
(vii) except as permitted by this Indenture, any Note Guarantee of the Parent, The
Bon-Ton Corp. or a Guarantor that is a Significant Subsidiary, or the Note Guarantees of any
group of Guarantors that, taken together, would constitute a Significant Subsidiary, shall
be held in any judicial proceeding to be unenforceable or invalid or shall cease for any
reason to be in full force and effect or any Guarantor, or any Person acting on behalf of
any Guarantor, shall deny or disaffirm its obligations under its Note Guarantee; and
(viii) the Parent, any Guarantor or any Significant Subsidiary of the Parent (or any
Restricted Subsidiaries that together would constitute a Significant Subsidiary) pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an involuntary
case,
(C) makes a general assignment for the benefit of its creditors, or
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(D) generally is not paying its debts as they become due; and
(ix) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(A) is for relief against the Parent, any Guarantor or any Significant
Subsidiary of the Parent (or any Restricted Subsidiaries that together would
constitute a Significant Subsidiary), in an involuntary case; or
(B) appoints a custodian of the Parent, any Guarantor or any Significant
Subsidiary of the Parent (or any Restricted Subsidiaries that together would
constitute a Significant Subsidiary) or for all or substantially all of the property
of the Parent, any Guarantor or any Significant Subsidiary of the Parent (or any
Restricted Subsidiaries that together would constitute a Significant Subsidiary); or
(C) orders the liquidation of the Parent, any Guarantor or any Significant
Subsidiary of the Parent (or any Restricted Subsidiaries that together would
constitute a Significant Subsidiary);
and the order or decree remains unstayed and in effect for 60 consecutive days.
(a) In the case of an Event of Default under Section 6.01(a)(viii) or (ix), with respect to
the Parent, any Guarantor or any Significant Subsidiary of the Parent (or any Restricted
Subsidiaries that together would constitute a Significant Subsidiary), all outstanding Notes will
become due and payable immediately without further action or notice. If any other Event of Default
occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable immediately by notice in writing to the Company
specifying the Event of Default(s).
(b) In the case of any Event of Default occurring by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the intention of avoiding
payment of the premium that the Company would have had to pay if the Company then had elected to
redeem the Notes pursuant to Section 3.07, an equivalent premium shall also become and be
immediately due and payable to the extent permitted by law upon the acceleration of the Notes.
(c) If an Event of Default occurs during any time that the Notes are outstanding, by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the Company with the
intention of avoiding the prohibition on redemption of the Notes, then the premium specified in
Section 3.07(a) shall also become immediately due and payable to the extent permitted by law upon
the acceleration of the Notes.
(a) If an Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal, premium, if any, interest, and Additional Interest, if
any, with respect to, the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
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(b) The Trustee may maintain a proceeding even if it does not possess any of the Notes or does
not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a
Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right
or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to
the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences hereunder except a continuing Default or Event of Default in the
payment of interest or Additional Interest on, or the principal of, the Notes.
The Company shall deliver to the Trustee an Officers’ Certificate stating that the requisite
percentage of Holders have consented to such waiver and attaching copies of such consents. In case
of any such waiver, the Company, the Trustee and the Holders shall be restored to their former
positions and rights hereunder and under the Notes, respectively. This Section 6.04 shall be in
lieu of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is hereby
expressly excluded from this Indenture and the Notes, as permitted by the TIA. Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.
The Holders of a majority in principal amount of the then outstanding Notes will have the
right to direct the time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee. However, the Trustee may refuse to follow
any direction that conflicts
with law or this Indenture, that may involve the Trustee in personal liability, or that the Trustee
determines in good faith may be unduly prejudicial to the rights of Holders of Notes not joining in
the giving of such direction and may take any other action it deems proper that is not inconsistent
with any such direction received from Holders of Notes.
(a) A Holder may not pursue any remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives the Trustee written notice of a continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of outstanding Notes
make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee
against any costs, liability or expense;
(iv) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and
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(v) during such 60-day period, the Holders of a majority in aggregate principal amount
of the outstanding Notes do not give the Trustee a direction that is inconsistent with the
request.
(b) A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of
a Note or to obtain a preference or priority over another Holder of a Note.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of the principal of, premium or Additional Interest, if any, or interest on, such
Note or to bring suit for the enforcement of any such payment, on or after the due date expressed
in the Notes, shall not be impaired or affected without the consent of the Holder.
If an Event of Default specified in Section 6.01(a)(i) or (a)(ii) occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company and the Guarantors for the whole amount of principal of, premium, if any,
interest, and Additional Interest, if any, remaining unpaid on the Notes and interest on overdue
principal and premium, if any, and, to the extent lawful, interest and Additional Interest, if any,
and 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.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to any of the
Company or Guaran
tors (or any other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other securities or property
payable or deliverable on any such claims 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 to the Trustee
any amount due to 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 7.07. To the
extent that the payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under Section 7.07 out of the
estate in any such proceeding shall be denied for any reason, payment of the same shall be secured
by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and
other properties that the Holders may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
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(a) If the Trustee collects any money pursuant to this Article Six, it shall pay out the money
in the following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 7.07,
including payment of all compensation, expense and liabilities incurred, and all advances
made, by the Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, interest and Additional Interest, if any, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for principal,
premium, if any, interest, and Additional Interest, if any, respectively; and
Third: to the Company or to such party as a court of competent jurisdiction shall
direct.
(b) The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.
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 or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than ten percent in principal amount of the then outstanding Notes.
ARTICLE SEVEN
Except to the extent, if any, provided otherwise in the TIA (as from time to time in effect):
(a) If 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 its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
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(ii) 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. However, the Trustee shall
examine the certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this Section
7.01;
(ii) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant
to Section 6.05.
(d) Whether or not therein expressly so provided, every provision of this Indenture
that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this
Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own
funds or incur any liability. The Trustee shall be under no obligation to exercise any of
its rights and powers under this Indenture at the request or direction of any Holders,
unless such Holder shall have offered to the Trustee security and indemnity satisfactory to
it against any loss, costs, liability or expense that might be incurred by it in connection
with the request or direction.
(f) Money held in trust by the Trustee need not be segregated from other funds except
to the extent required by law.
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection from liability in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within the rights or powers conferred upon it by this
Indenture.
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(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company shall be sufficient if signed by an Officer of the Company.
(f) 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 unless such Holders shall
have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such
event is sent to the Trustee in accordance with Section 12.02, and such notice references the
Notes.
(h) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney 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;
(i) In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;
(j) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the
Trustee in each of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder; and
(k) The Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may become a creditor of, or otherwise deal with, the Company or any of its Affiliates with the
same rights it would have if it were not Trustee. However, in the event that the Trustee acquires
any conflicting interest as described in the Trust Indenture Act of 1939 (as in effect at such
time), it must eliminate such conflict within 90 days, apply to the SEC for permission to continue
as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee is also
subject to Sections 7.10 and 7.11.
The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture, it shall not be accountable for the Company’s use of the proceeds from
the Notes or any money paid to the Company or upon the Company’s direction under any provision of
this Indenture, it shall not be responsible for the use or application of any money received by any
Paying
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Agent other than the Trustee, and it shall not be responsible for any statement or recital
herein or any statement in the Notes or any other document in connection with the sale of the Notes
or pursuant to this Indenture other than its certificate of authentication.
If a Default or Event of Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to Holders of Notes a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default relating to the payment
of principal or interest or Additional Interest on any Note, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.
(a) Within 60 days after each May 15 beginning with the May 15 following the date hereof, and
for so long as Notes remain outstanding, the Trustee shall mail to the Holders of the Notes a brief
report dated as of such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months preceding the reporting date,
no report need be transmitted). The Trustee also shall comply with TIA Section 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to the Holders of Notes shall be mailed
to the Company and filed with the SEC and each stock exchange on which the Notes are listed in
accordance with TIA Section 313(d). The Company shall promptly notify the Trustee when the Notes
are listed on any stock exchange or any delisting thereof.
(a) The Company shall pay to the Trustee from time to time such compensation for its
acceptance of this Indenture and services hereunder in accordance with a written schedule provided
by the Trustee to the Company. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the Trustee promptly
upon written request (which request shall be accompanied by the underlying invoices in reasonable
detail) for all reasonable disbursements, advances and expenses incurred or made by it in addition
to the compensation for its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee’s agents and counsel.
(b) The Company and the Guarantors shall indemnify the Trustee against any and all losses,
liabilities, damages, claims or expenses, including taxes (other than those based upon or
determined by the income or gross or net receipts of the trustee) incurred by it arising out of or
in connection with the acceptance or administration of its duties under this Indenture, including
the costs and expenses of enforcing this Indenture against the Company and the Guarantors
(including this Section 7.07) and defending itself against any claim (whether asserted by either of
the Company or any Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any such loss, liability
or expense may be attributable to its negligence, bad faith or willful misconduct. The Trustee
shall notify the Company and the Guarantors promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations
hereunder,
provided that the failure of the Trustee to so notify the Com-
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pany and Guarantors shall
not relieve the Company and Guarantors of their obligations hereunder except to the extent the
Company and the Guarantors are actually prejudiced thereby. The Company shall defend the claim and
the Trustee shall cooperate in the defense. The Company need not pay for any settlement made
without its consent.
(c) The obligations of the Company and the Guarantors under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture and resignation or removal of the Trustee.
(d) To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a
Lien prior to the Notes on all money or property held or collected by the Trustee, except that held
in trust to pay principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture and resignation or removal of the Trustee.
(e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Sections 6.01(a)(viii) and (ix) hereof occurs, the expenses and the compensation for the
services (including the fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law.
(f) The Trustee shall comply with the provisions of TIA Section 313(b)(2) to the extent
applicable.
(a) A resignation or removal of the Trustee and appointment of a successor Trustee shall
become effective only upon the successor Trustee’s acceptance of appointment as provided in this
Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged from the trust hereby
created by so notifying the Company. The Holders of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in
writing. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(iii) a custodian or public officer takes charge of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for
any reason, the Company shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
(d) If a successor Xxxxxxx does not take office within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in
principal amount of the then outstanding Notes may petition, at the expense of the Company, any
court of competent jurisdiction for the appointment of a successor Trustee.
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(e) If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.07. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company’s obligations under Section 7.07 shall continue for the benefit of the
retiring Trustee.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another Person, the successor Person without any further act shall
be the successor Trustee.
There shall at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trust powers, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $50.0
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements of TIA Sections
310(a)(1), (2) and (5). The Trustee is subject to TIA Section 310(b).
The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section
311(a) to the extent indicated therein. The Trustee hereby waives any right to set off any claim
that it may have against the Company in any capacity (other than as Trustee and Paying Agent)
against any of the assets of the Company held by the Trustee; provided, however, that if the
Trustee is or becomes a lender of any other Indebtedness permitted hereunder to be pari passu with
the Notes, then such waiver shall not apply to the extent of such Indebtedness.
ARTICLE EIGHT
The Company may, at the option of its Board of Directors evidenced by a Board Resolution set
forth in an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 be
applied to all outstanding Notes upon compliance with the conditions set forth below in this
Article Eight.
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Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from its obligations with respect to all outstanding
Notes and all obligations of the Guarantors shall be deemed to have been discharged with respect to
their obligations under the Note Guarantees on the date the conditions set forth below are
satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the
Company and the Guarantors shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes and Note Guarantees, respectively, which shall thereafter be
deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all their other obligations under
such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section 8.04, and as more
fully set forth in such Section, payments in respect of the principal of, premium, if any, interest
and Additional Interest, if any, on such Notes when such payments are due, (b) the Company’s
obligations with respect to such Notes under Article Two concerning issuing temporary Notes,
registration of Notes and mutilated, destroyed, lost or stolen Notes and the Company’s obligations
under Section 4.02, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and the Company’s and the Guarantors’ obligations in connection therewith and (d) this Article
Eight. Subject to compliance with this Article Eight, the Company may exercise its option under
this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth
in Section 8.04 hereof, be released from their obligations under the covenants contained in
Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 5.01(a)(3) and
5.01(c)(3) with respect to the outstanding Notes on and after the date the conditions set forth in
Section 8.04 are satisfied (hereinafter,
“Covenant Defeasance”), and the Notes shall thereafter be deemed not “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 (it being understood that such Notes shall not be deemed
outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Notes, the Company and the Guarantors may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event of Default under
Section 6.01, but, except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby. In addition, upon the Company’ exercise under Section 8.01 of the option
applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section
8.04, Sections 6.01(a)(iii) through (vii) shall not constitute Events of Default.
The following shall be the conditions to the application of either Section 8.02 or 8.03 to the
outstanding Notes:
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(i) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent registered public accounting firm, to pay the principal of,
or interest and premium and Additional Interest, if any, on the outstanding Notes on the
Stated Maturity or on the applicable redemption date, as the case may be, and the Company
must specify whether the Notes are being defeased to maturity or to a particular redemption
date;
(ii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee
an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Company
has received from, or there has been published by, the Internal Revenue Service a ruling or
(b) since the Issue Date, there has been a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal 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 Legal Defeasance had not occurred;
(iii) in the case of Covenant Defeasance, the Company shall have delivered to the
Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;
(iv) no Default or Event of Default shall have occurred and be continuing either: (a)
on the date of such deposit; or (b) insofar as Events of Default from bankruptcy or
insolvency events are concerned, at any time in the period ending on the 91st day after the
date of deposit;
(v) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under any material agreement or instrument to which
the Parent or any of its Subsidiaries is a party or by which the Parent or any of its
Subsidiaries is bound;
(vi) the Company must have delivered to the Trustee an Opinion of Counsel to the effect
that (1) assuming no intervening bankruptcy of the Company or any Guarantor between the date
of deposit and the 91st day following the deposit and assuming that no Holder is an
“insider” of the Company under applicable bankruptcy law, after the 91st day following the
deposit, the trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights generally, including
Section 547 of the United States Bankruptcy Code, and (2) the creation of the defeasance
trust does not violate the Investment Company Act of 1940;
(vii) the Company must deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Notes over
the other creditors of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others;
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(viii) if the Notes are to be redeemed prior to their Stated Maturity, the Company must
deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified
redemption date; and
(ix) the Company must deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
(a) Subject to Section 8.06, all money and non-callable Government Securities (including the
proceeds thereof) deposited with the Trustee pursuant to Section 8.04 in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of
all sums due and to become due thereon in respect of principal, premium and Additional Interest, if
any, and interest, but such money need not be segregated from other funds except to the extent
required by law.
(b) The Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to
Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding Notes.
(c) Anything in this Article Eight to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon the request of the Company any money or non-callable
Government Securities held by it as provided in Section 8.04 which, in the opinion of a nationally
recognized firm of independent registered public accounting firm expressed in a written
certification thereof delivered to the Trustee (which may be the opinion delivered under Section
8.04(a)), are in excess of the amount thereof that would then be required to be deposited to effect
an equivalent Legal Defeasance or Covenant Defeasance.
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, interest, or Additional Interest, if
any, on any Note and remaining unclaimed for two years after such principal, and premium, if any,
interest, or
Additional Interest, if any, has become due and payable shall be paid to the Company on its
request or (if then held by the Company) shall be discharged from such trust; and the Holder of
such Note shall thereafter look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the reasonable 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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If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
Government Securities in accordance with Section 8.02 or 8.03, 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 Company’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
and, in the case of a Legal Defeasance, the Guarantors’ obligations under their respective Note
Guarantees shall be revised and reinstated as though no deposit had occurred pursuant to Section
8.02, in each case until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 8.02 or 8.03, as the case may be; provided, however, that, if the
Company makes any payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE NINE
Section 9.01. Without Consent of Holders of Notes.
(a) Notwithstanding Section 9.02, the Company, the Guarantors and the Trustee may amend or
supplement this Indenture or the Notes without the consent of any Holder of a Note:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or in place of certificated
Notes;
(iii) to provide for the assumption of the Company’s or Guarantor’s obligations to
Holders of Notes in the case of a merger or consolidation or sale of all or substantially
all of the Company’s or such Guarantor’s assets;
(iv) to make any change that would provide any additional rights or benefits to the
Holders of Notes or that does not adversely affect the legal rights under the Indenture of
any such Holder;
(v) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act of 1939;
(vi) to comply with Section 4.17;
(vii) to comply with the rules of any applicable securities depositary;
(viii) to evidence and provide for the acceptance of appointment by a successor
Trustee; or
(ix) to provide for the issuance of Additional Notes in accordance with this Indenture.
Upon the request of the Company accompanied by a Board Resolution authorizing the execution of
any such amended or supplemental Indenture, and upon receipt by the Trustee of an Offi-
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cers’ Certificate and Opinion of Counsel, the Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the terms of this Indenture and to
make any further appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental indenture that affects
its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
(a) Except as otherwise provided in this Section 9.02, the Company, the Guarantors and the
Trustee may amend or supplement this Indenture or the Notes with the consent of the Holders of at
least a majority in principal amount of the Notes then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes),
and, subject to Sections 6.04 and 6.07, any existing Default or Event of Default or compliance with
any provision of this Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including Additional Notes, if any)
(including, without limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes).
(b) The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any supplemental indenture hereto. If a record date
is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided that unless such consent shall have become effective by
virtue of the requisite percentage having been obtained prior to the date which is 90 days after
such record date, any such consent previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
(c) Upon the request of the Company accompanied by a Board Resolution authorizing the
execution of any such amendment or supplement to this Indenture, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02(b), the
Trustee shall join with the Company in the execution of such amendment or supplement unless such
amendment or supplement directly affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated
to, enter into such amendment or supplement.
(d) It shall not be necessary for the consent of the Holders of Notes under this Section 9.02
to approve the particular form of any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.
(e) After an amendment, supplement or waiver under this Section becomes effective, the Company
shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
Subject to Sections 6.04 and 6.07, the Holders of a majority in aggregate principal amount of the
then outstanding Notes (including Additional Notes, if any) may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes. However, without the
consent of each Holder affected, an amendment or waiver under this Section 9.02 may not (with
respect to any Notes held by a non-consenting Holder):
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(i) reduce the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;
(ii) reduce the principal of or change the fixed maturity of any Note or alter the
provisions, or waive any payment, with respect to the redemption of the Notes other than
provisions relating to Sections 4.10 and 4.14 (except to the extent provided in clause (ix)
below);
(iii) reduce the rate of or change the time for payment of interest on any Note;
(iv) waive a Default or Event of Default in the payment of principal of, or interest or
premium, or Additional Interest, if any, on the Notes (except a rescission of acceleration
of the Notes by the Holders of at least a majority in aggregate principal amount of the
Notes and a waiver of the payment default that resulted from such acceleration);
(v) make any Note payable in money other than U.S. dollars;
(vi) make any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders of Notes to receive payments of principal of, or interest
or premium or Additional Interest, if any, on the Notes;
(vii) release any Guarantor from any of its obligations under its Note Guarantee or
this Indenture, except in accordance with the terms of this Indenture;
(viii) impair the right to institute suit for the enforcement of any payment on or with
respect to the Notes or the Note Guarantees;
(ix) amend, change or modify the obligation of the Company to make and consummate an
Asset Sale Offer with respect to any Asset Sale in accordance with Section 4.10 after the
obligation to make such Asset Sale Offer has arisen, or the obligation of the Company to
make and consummate a Change of Control Offer in the event of a Change of Control in
accordance with Section 4.14 after such Change of Control has occurred, including, in each
case, amending, changing or modifying any definition relating thereto;
(x) except as otherwise permitted under Section 4.17 and Section 5.01, consent to the
assignment or transfer by the Company or any Guarantor of any of its rights or Obligations
under this Indenture;
(xi) amend or modify any of the provisions of this Indenture or the related definitions
affecting the ranking of the Notes or any Note Guarantee in any manner adverse to the
Holders of the Notes or any Note Guarantee; and
(xii)make any change in the preceding amendment and waiver provisions.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be set forth in a document
that complies with the TIA as then in effect.
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Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes.
(a) The Trustee may place an appropriate notation about an amendment, supplement or waiver on
any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
(b) Failure to make the appropriate notation or issue a new Note shall not affect the validity
and effect of such amendment, supplement or waiver.
The Trustee shall sign any amendment or supplement to this Indenture or any Note authorized
pursuant to this Article Nine if the amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. The Company may not sign an amendment or
supplemental indenture or Note until its Board of Directors approves it. In executing any
amendment or supplement or Note, the Trustee shall be entitled to receive and (subject to Section
7.01) shall be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel
stating that the execution of such amendment or supplement is authorized or permitted by this
Indenture.
ARTICLE TEN
(a) Subject to this Article Ten, each of the Guarantors hereby, jointly and severally, and
fully and unconditionally, guarantees to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the obligations of the Company hereunder or
thereunder, that: (i) the principal of, premium, if any, and interest and Additional Interest, if
any, on the Notes will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest
and Additional Interest, if any, on the Notes, if lawful (subject in all cases to any applicable
grace period provided herein), and all other obligations of the Company to the Holders or the
Trustee hereunder or thereunder will be promptly paid in full, all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, the same will be promptly paid in full when due in accordance with
the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed for whatever reason, the Guarantors shall be
jointly and sev-
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erally obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that, to the maximum extent permitted under applicable law,
their obligations hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Subject to Section 6.06, each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that this Note Guarantee shall not be discharged except by complete performance of
the obligations contained in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to any of the Company or the Guarantors, any amount paid by any of them to the Trustee or
such Holder, the Note Guarantee provided for herein, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(d) Each Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of
all Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Six for the purposes of the
Note Guarantee provided for herein, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event
of any declaration of acceleration of such Obligations as provided in Article Six hereof, such
obligations (whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of the Note Guarantee provided for herein. The Guarantors shall have
the right to seek contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Note Guarantee provided for herein.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state law
prohibiting shareholder distributions by an insolvent subsidiary to the extent applicable to its
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum
amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor
that are relevant under such laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article Ten, result in the obligations of such
Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an
unlawful distribution.
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(a) If an Officer whose signature is on this Indenture no longer holds that office at the time
the Trustee authenticates the Note, the Note Guarantee provided for herein shall be valid
nevertheless.
(b) The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Note Guarantee provided for herein on behalf of the Guarantors.
(c) If required by Section 4.17, the Parent shall cause its Subsidiaries to execute
supplemental indentures to this Indenture providing for additional Note Guarantees in accordance
with Section 4.17 and this Article Ten, to the extent applicable.
(a) A Guarantor may not sell or otherwise dispose of all or substantially all of its assets
to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving
Person), another Person, other than the Company or another Guarantor, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default
exists; and
(ii) either:
(A) the Person acquiring the property in any such sale or disposition or the
Person formed by or surviving any such consolidation or merger (if other than the
Guarantor) is organized or existing under the laws of the United States, any state
thereof or the District of Columbia and assumes all the obligations of that
Guarantor under this Indenture, its Note Guarantee and the Registration Rights
Agreement pursuant to a supplemental indenture reasonably satisfactory to the
Trustee; or
(B) such sale or other disposition or consolidation or merger complies with
Section 4.10.
(b) In case of any such consolidation, merger, sale or conveyance and, if applicable, upon the
assumption by the successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the Note Guarantee and the due and punctual
performance of all of the covenants and conditions of this Indenture to be performed by a
Guarantor, such successor Person shall succeed to and be substituted for a Guarantor with the same
effect as if it had been named herein as a Guarantor. All the Note Guarantees so issued shall in
all respects have the same legal rank and benefit under this Indenture as the Note Guarantees
theretofore and thereafter issued in accordance with the terms of this Indenture as though all of
such Note Guarantees had been issued at the date of the execution hereof.
(c) Except as set forth in Article Five, and notwithstanding clauses (i) and (ii) of Section
10.04(a), nothing contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Company or another Guarantor, or shall
prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
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(a) The Note Guarantee of a Guarantor shall be released:
(i) if such Guarantor is not a guarantor of any other Indebtedness of the Company
(other than if such Guarantor no longer guarantees any Indebtedness of the Company as a
result of payment under any Guarantee of any such Indebtedness by any Guarantor); provided
that a Guarantor shall not be permitted to be released from its Note Guarantee if it is an
obligor with respect to Indebtedness that would not, under Section 4.09 be permitted to be
incurred by a Restricted Subsidiary that is not a Guarantor;
(ii) in connection with any sale or other disposition of all of the Capital Stock of
such Guarantor to a Person that is not (either before or after giving effect to such
transaction) a Restricted Subsidiary of the Parent, if the sale of all such Capital Stock of
that Guarantor complies with Section 4.10;
(iii) if the Parent properly designates any Restricted Subsidiary that is a Guarantor
as an Unrestricted Subsidiary under this Indenture;
(iv) upon satisfaction and discharge of the Notes as set forth under Section 11.01 or
upon defeasance of the Notes as set forth under Article 8; or
(v) solely in the case of a Note Guarantee created pursuant to Section 4.17, upon the
release or discharge of the Guarantee which resulted in the creation of such Note Guarantee
pursuant to Section 4.17, except a discharge or release by or as a result of payment under
such Guarantee.
(b) Any Guarantor not released from its obligations under its Note Guarantee shall remain
liable for the full amount of principal of and interest and Additional Interest, if any, on the
Notes and for the other obligations of any Guarantor under this Indenture as provided in this
Article Ten.
ARTICLE ELEVEN
Section 11.01. Satisfaction and Discharge.
(a) This Indenture shall be discharged and shall cease to be of further effect as to all Notes
issued hereunder, when:
(i) either:
(A) all Notes that have been authenticated (except lost, stolen or destroyed
Notes that have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company) have been
delivered to the Trustee for cancellation; or
(B) (i) all Notes that have not been delivered to the Trustee for cancellation
have become due and payable by reason of the making of a notice of redemption or
otherwise or will become due and payable within one year and the Company or any
Guaran-
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tor has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts as will be
sufficient without consideration of any reinvestment of interest, to pay and
discharge the entire indebtedness on the Notes not delivered to the Trustee for
cancellation for principal, premium and Additional Interest, if any, and accrued
interest to the date of maturity or redemption;
(ii) no Default or Event of Default shall have occurred and be continuing on the date
of such deposit or shall occur as a result of such deposit and such deposit will not result
in a breach or violation of, or constitute a default under, any other instrument to which
the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(iii) the Company or any Guarantor has paid or caused to be paid all sums payable by it
under this Indenture and not provided for by the deposit required by clause (i) above; and
(iv) the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at maturity or the
redemption date, as the case may be.
(b) In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel
to the Trustee stating that all conditions precedent to satisfaction and discharge have been
satisfied.
(c) Notwithstanding the above, the Trustee shall pay to the Company from time to time upon its
request any cash or Government Securities held by it as provided in this section which, in the
opinion of a nationally recognized firm of independent registered public accounting firm expressed
in a written certification delivered to the Trustee, are in excess of the amount thereof that would
then be required to be deposited to effect a satisfaction and discharge under this Article Eleven.
(d) After the conditions to discharge contained in this Article Eleven have been satisfied,
and the Company has paid or caused to be paid all other sums payable hereunder by the Company, and
delivered to the Trustee an Officers’ Certificate and Opinion of Counsel, each stating that all
conditions precedent to satisfaction and discharge have been satisfied, the Trustee upon written
request shall acknowledge in writing the discharge of the obligations of the Company and the
Guarantors under this Indenture (except for those surviving obligations specified Section 11.01).
Section 11.02. Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions.
Subject to Section 11.03 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee pursuant to Section 11.01 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders
of such Notes of all sums due and to become due thereon in respect of principal, premium and
Additional Interest, 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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ARTICLE TWELVE
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA Section 318(c), the imposed duties shall control.
Section 12.02. Notices.
(a) Any notice or communication by the Company or any Guarantor, on the one hand, or the
Trustee, on the other hand, to the other, is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested), facsimile or
overnight air courier guaranteeing next day delivery, to the others’ address:
If to the Company and/or any Guarantor:
The Bon-Ton Department Stores, Inc.
0000 X. Xxxxxx Xxxxxx
P.O. Box 2821
York, Pennsylvania 17405
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Administration
(b) The Company, the Guarantors or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
(c) All notices and communications (other than those sent to Holders) shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; three Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if
telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
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(d) Any notice or communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
(e) 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 on such waiver.
(f) In case by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder.
(g) If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
(h) If the Company mails a notice or communication to Holders, it shall mail a copy to the
Trustee and each Agent at the same time.
Section 12.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and any
other Person shall have the protection of TIA Section 312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:
(i) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and
(ii) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05 hereof) stating that, in the
opinion of such counsel (who may rely upon an Officers’ Certificate as to matters of fact),
all such conditions precedent and covenants have been satisfied.
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall
comply with the provisions of TIA Section 314(e) and shall include:
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(i) a statement that the Person making such certificate or opinion has read such
covenant or condition;
(ii) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
No director, officer, employee, incorporator, stockholder, member, manager or partner of the
Company or any Guarantor, as such, shall have any liability for any obligations of the Company or
the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. This waiver and release are part of the
consideration for issuance of the Notes. The waiver may not be effective to waive liabilities
under the federal securities laws.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE
NOTES.
Any legal suit, action or proceeding arising out of or based upon this Indenture or the
transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts of
the United States of America located in the City of New York or the courts of the State of New York
in each case located in the City of New York (collectively, the “Specified Courts”), and each party
irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. Service of any process, summons, notice or document by mail (to the extent allowed
under any applicable statute or rule of court) to such party’s address set forth above shall be
effective service of process for any suit, action or other proceeding brought in any such court.
The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,
action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and
agree not to plead or claim in any such court has been brought in an inconvenient forum.
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This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or any of its Subsidiaries or of any other Person. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
All agreements of the Company in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors. All agreements of each
Guarantor in this Indenture shall bind such Guarantor’s successors, except as otherwise provided in
Section 10.04.
In case any provision in this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
This Indenture may be executed in two or more counterparts, each one of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by the Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders in person or by
agents duly appointed in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company if made in the manner provided in this Section
12.14.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to such witness, notary or officer the execution
thereof. Where such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof of authority. The
fact and date of the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) Notwithstanding anything to the contrary contained in this Section 12.14, the principal
amount and serial numbers of Notes held by any Holder, and the date of holding the same, shall be
proved by the register of the Notes maintained by the Registrar as provided in Section 2.04.
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(d) If the Company shall solicit from the Holders of the Notes any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by
or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), such
record date shall be the record date specified in or pursuant to such resolution, which shall be a
date not earlier than the date 30 days prior to the first solicitation of Holders generally in
connection therewith or the date of the most recent list of Holders forwarded to the Trustee prior
to such solicitation pursuant to Section 2.06 and not later than the date such solicitation is
completed. If such a record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of the then outstanding Notes have
authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the then outstanding Notes shall be computed as
of such record date; provided that no such authorization, agreement or consent by the Holders on
such record date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than eleven months after the record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note
issued upon the registration or transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.
(f) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Note may do so itself with regard to all or any part of the principal
amount of such Note or by one or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such principal amount.
Nothing in this Indenture, the Notes or the Note Guarantees, express or implied, shall give to
any Person, other than the parties hereto, any Paying Agent, any Registrar and its successors
hereunder, and the Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
[SIGNATURE PAGES FOLLOW]
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THE BON-TON DEPARTMENT STORES, INC. |
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/S/ XXXXX X. XXXXXXXXXX |
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Xxxxx X. Xxxxxxxxxx |
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Vice Chairman and Chief Administrative Officer |
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THE BON-TON STORES, INC. |
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/S/ XXXXX X. XXXXXXXXXX |
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Xxxxx X. Xxxxxxxxxx |
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Vice Chairman and Chief Administrative Officer |
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THE BON-TON CORP. |
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/S/ XXXXXX X. XXXXX |
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Xxxxxx X. Xxxxx |
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President and Secretary |
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THE BON-TON GIFTCO, INC. |
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/S/ XXXXX X. XXXXXXXXXX |
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Xxxxx X. Xxxxxxxxxx |
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Vice President and Assistant Secretary |
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THE BON-TON STORES OF LANCASTER, INC. |
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/S/ XXXXX X. XXXXXXXXXX |
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Xxxxx X. Xxxxxxxxxx |
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Vice President and Chief Financial Officer |
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THE BON-TON TRADE CORP. |
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/S/ XXXXXX X. XXXXX |
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Xxxxxx X. Xxxxx |
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President and Secretary |
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THE XXXXX-XXXXXXX STORES CORP. |
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/S/ XXXXX X. XXXXXXXXXX |
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Xxxxx X. Xxxxxxxxxx |
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Vice Chairman and Chief Administrative Officer |
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XXXXX-XXXXXXX WEST XXXXXXXX, INC. |
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/S/ XXXXX X. XXXXXXXXXX |
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Xxxxx X. Xxxxxxxxxx |
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Vice Chairman and Chief Administrative Officer |
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XXXXX-XXXXXXX HOLDINGS, INC. |
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/S/ XXXXX X. XXXXXXXXXX |
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Xxxxx X. Xxxxxxxxxx |
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Vice President |
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XXXXX-XXXXXXX OPERATIONS, LLC |
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By: The Xxxxx-Xxxxxxx Stores Corp., |
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its managing member |
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/S/ XXXXX X. XXXXXXXXXX |
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Xxxxx X. Xxxxxxxxxx |
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Vice Chairman and Chief Administrative Officer |
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HERBERGER’S DEPARTMENT STORES, LLC |
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/S/ XXXXX X. XXXXXXXXXX |
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Xxxxx X. Xxxxxxxxxx |
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Senior Vice President and Chief Administrative Officer |
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PARISIAN, INC. |
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/S/ XXXXX X. XXXXXXXXXX |
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Xxxxx X. Xxxxxxxxxx |
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Senior Vice President and Chief Administrative
Officer |
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XXXXX’X, INC. |
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/S/ XXXXX X. XXXXXXXXXX |
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Xxxxx X. Xxxxxxxxxx |
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Senior Vice President and Chief Administrative
Officer |
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SAKS DISTRIBUTION CENTERS, INC. |
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/S/ XXXXX X. XXXXXXXXXX |
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Xxxxx X. Xxxxxxxxxx |
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Senior Vice President and Chief Administrative
Officer |
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MCRIL, LLC |
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/S/ XXXXX X. XXXXXXXXXX |
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Xxxxx X. Xxxxxxxxxx |
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Senior Vice President and Chief Administrative
Officer |
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THE BANK OF NEW YORK, as Trustee
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By: |
/S/ XXXXXX X. XXXXXXXXXX
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Name: |
Xxxxxx X. Xxxxxxxxxx |
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Title: |
Assistant Vice President |
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