____________________________________________________________
PHILLIPS-VAN HEUSEN CORPORATION
As Issuer
TO
UNION BANK OF CALIFORNIA, N.A.
As Trustee
________________
Indenture
Dated as of April 22, 1998
________________
$150,000,000
9 1/2% Senior Subordinated Notes due May 1, 2008
____________________________________________________________
.....................................
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of August 7, 1997
Trust Indenture Indenture
Act Section Section
Sec. 310(a)(1) ............................... 609
(a)(2) ............................... 609
(a)(3) ............................... Not
Applicable
(a)(4) ............................... Not
Applicable
(b) ............................... 608
610
Sec. 311(a) ............................... 613(a)
(b) ............................... 613(b)
(b)(2) ............................... 703(a)(2)
703(b)
Sec. 312(a) ............................... 701
702(a)
(b) ............................... 702(b)
(c) ............................... 702(c)
Sec. 313(a) ............................... 703(a)
(b) ............................... 703(b)
(c) ............................... 703(a)
703(b)
(d) ............................... 703(c)
Sec. 314(a) ............................... 704
(b) ............................... Not
Applicable
(c)(1) ............................... 102
(c)(2) ............................... 102
(c)(3) ............................... Not
Applicable
(d) ............................... Not
Applicable
(e) ............................... 102
Sec. 315(a) ............................... 601(a)
(b) ............................... 602
703(a)(6)
(c) ............................... 601(b)
(d) ............................... 601(c)
(d)(1) ............................... 601(a)(1)
(d)(2) ............................... 601(c)(2)
(d)(3) ............................... 601(c)(3)
(e) ............................... 514
-i-
Trust Indenture Indenture
Act Section Section
Sec. 316(a) ............................... 101
(a)(1)(A) ............................... 502
512
(a)(1)(B) ............................... 513
(a)(2) ............................... Not
Applicable
(b) ............................... 508
Sec. 317(a)(1) ............................... 503
(a)(2) ............................... 504
(b) ............................... 1003
Sec. 318(a) ............................... 107
______________
Note: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
-ii-
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . .1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions . . . . . . . . . . . . . . . . .1
Act. . . . . . . . . . . . . . . . . . . . . . . . . .2
Affiliate. . . . . . . . . . . . . . . . . . . . . . .2
Agent Member . . . . . . . . . . . . . . . . . . . . .3
Applicable Procedures. . . . . . . . . . . . . . . . .3
Asset Disposition. . . . . . . . . . . . . . . . . . .3
Board of Directors . . . . . . . . . . . . . . . . . .3
Board Resolution . . . . . . . . . . . . . . . . . . .3
Business Day . . . . . . . . . . . . . . . . . . . . .4
Capital Lease Obligation . . . . . . . . . . . . . . .4
Capital Stock. . . . . . . . . . . . . . . . . . . . .4
Cash Equivalents . . . . . . . . . . . . . . . . . . .4
Cedel. . . . . . . . . . . . . . . . . . . . . . . . .5
Closing Date . . . . . . . . . . . . . . . . . . . . .5
Commission . . . . . . . . . . . . . . . . . . . . . .5
Common Stock . . . . . . . . . . . . . . . . . . . . .5
Company. . . . . . . . . . . . . . . . . . . . . . . .5
Company Request/Company Order. . . . . . . . . . . . .5
Consolidated Cash Flow Available for Fixed Charges . .5
Consolidated Cash Flow Coverage Ratio. . . . . . . . .6
Consolidated Fixed Charges . . . . . . . . . . . . . .7
Consolidated Income Tax Expense. . . . . . . . . . . .7
Consolidated Interest Expense. . . . . . . . . . . . .7
Consolidated Net Income. . . . . . . . . . . . . . . .7
Consolidated Net Worth . . . . . . . . . . . . . . . .8
Consolidated Tangible Assets . . . . . . . . . . . . .8
Corporate Trust Office . . . . . . . . . . . . . . . .8
corporation. . . . . . . . . . . . . . . . . . . . . .9
Debt . . . . . . . . . . . . . . . . . . . . . . . . .9
Depositary . . . . . . . . . . . . . . . . . . . . . .9
Designated Senior Debt . . . . . . . . . . . . . . . 10
DTC. . . . . . . . . . . . . . . . . . . . . . . . . 10
Euroclear. . . . . . . . . . . . . . . . . . . . . . 10
Event of Default . . . . . . . . . . . . . . . . . . 10
Exchange Act . . . . . . . . . . . . . . . . . . . . 10
Exchange and Registration Rights Agreement . . . . . 10
Exchange Notes . . . . . . . . . . . . . . . . . . . 10
Exchange Offer . . . . . . . . . . . . . . . . . . . 10
Exchange Registration Statement. . . . . . . . . . . 10
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Page
Global Note. . . . . . . . . . . . . . . . . . . . . 11
Guarantee. . . . . . . . . . . . . . . . . . . . . . 11
Holder . . . . . . . . . . . . . . . . . . . . . . . 11
Incur. . . . . . . . . . . . . . . . . . . . . . . . 11
Indenture. . . . . . . . . . . . . . . . . . . . . . 11
Initial Purchasers . . . . . . . . . . . . . . . . . 12
Interest Payment Date. . . . . . . . . . . . . . . . 12
Interest Rate, Currency or Commodity Price
Agreement. . . . . . . . . . . . . . . . . . . . . . 12
Investment . . . . . . . . . . . . . . . . . . . . . 12
Lien . . . . . . . . . . . . . . . . . . . . . . . . 12
Maturity . . . . . . . . . . . . . . . . . . . . . . 12
Moody's. . . . . . . . . . . . . . . . . . . . . . . 13
Net Available Proceeds . . . . . . . . . . . . . . . 13
New Credit Facility. . . . . . . . . . . . . . . . . 14
Note Purchase Agreement. . . . . . . . . . . . . . . 14
Notes. . . . . . . . . . . . . . . . . . . . . . . . 14
Offer to Purchase. . . . . . . . . . . . . . . . . . 14
Officers' Certificate. . . . . . . . . . . . . . . . 17
Opinion of Counsel . . . . . . . . . . . . . . . . . 17
Original Notes . . . . . . . . . . . . . . . . . . . 17
Outstanding. . . . . . . . . . . . . . . . . . . . . 17
Paying Agent . . . . . . . . . . . . . . . . . . . . 18
Permitted Interest Rate, Currency or Commodity
Price Agreement. . . . . . . . . . . . . . . . . . . 18
Permitted Investments. . . . . . . . . . . . . . . . 19
Person . . . . . . . . . . . . . . . . . . . . . . . 19
Predecessor Note . . . . . . . . . . . . . . . . . . 19
Preferred Stock. . . . . . . . . . . . . . . . . . . 20
Public Equity Offering . . . . . . . . . . . . . . . 20
Receivables. . . . . . . . . . . . . . . . . . . . . 20
Receivables Sale . . . . . . . . . . . . . . . . . . 20
Redeemable Stock . . . . . . . . . . . . . . . . . . 20
Redemption Date. . . . . . . . . . . . . . . . . . . 20
Redemption Price . . . . . . . . . . . . . . . . . . 20
Registration Default . . . . . . . . . . . . . . . . 21
Registration Default Period. . . . . . . . . . . . . 21
Regulation S . . . . . . . . . . . . . . . . . . . . 21
Regulation S Certificate . . . . . . . . . . . . . . 21
Regulation S Global Note . . . . . . . . . . . . . . 21
Regulation S Legend. . . . . . . . . . . . . . . . . 21
Regulation S Notes . . . . . . . . . . . . . . . . . 21
Related Person . . . . . . . . . . . . . . . . . . . 22
Responsible Officer. . . . . . . . . . . . . . . . . 22
Restricted Notes . . . . . . . . . . . . . . . . . . 22
Restricted Notes Certificate . . . . . . . . . . . . 22
Restricted Notes Legend. . . . . . . . . . . . . . . 22
-iv-
Page
Restricted Period. . . . . . . . . . . . . . . . . . 22
Restricted Subsidiary. . . . . . . . . . . . . . . . 22
Rule 144 . . . . . . . . . . . . . . . . . . . . . . 22
Rule 144A. . . . . . . . . . . . . . . . . . . . . . 23
Rule 144A Notes. . . . . . . . . . . . . . . . . . . 23
S&P. . . . . . . . . . . . . . . . . . . . . . . . . 23
Securities Act . . . . . . . . . . . . . . . . . . . 23
Security Register/Security Registrar . . . . . . . . 23
Senior Debt. . . . . . . . . . . . . . . . . . . . . 23
Shelf Registration Statement . . . . . . . . . . . . 24
Special Interest . . . . . . . . . . . . . . . . . . 24
Special Record Date. . . . . . . . . . . . . . . . . 24
Stated Maturity. . . . . . . . . . . . . . . . . . . 24
Subordinated Debt. . . . . . . . . . . . . . . . . . 24
Subsidiary . . . . . . . . . . . . . . . . . . . . . 25
Successor Note . . . . . . . . . . . . . . . . . . . 25
Temporary Cash Investments . . . . . . . . . . . . . 25
Trust Indenture Act. . . . . . . . . . . . . . . . . 27
Trustee. . . . . . . . . . . . . . . . . . . . . . . 27
2023 Debentures. . . . . . . . . . . . . . . . . . . 27
U.S. Person. . . . . . . . . . . . . . . . . . . . . 27
Vice President . . . . . . . . . . . . . . . . . . . 28
Voting Stock . . . . . . . . . . . . . . . . . . . . 28
Wholly Owned Restricted Subsidiary . . . . . . . . . 28
SECTION 102. Compliance Certificates and Opinions . . . 28
SECTION 103. Form of Documents Delivered to Trustee . . 29
SECTION 104. Acts of Holders; Record Date . . . . . . . 30
SECTION 105. Notices, Etc., to Trustee and Company. . . 31
SECTION 106. Notice to Holders; Waiver. . . . . . . . . 32
SECTION 107. Conflict with Trust Indenture Act. . . . . 33
SECTION 108. Effect of Headings and Table of Contents . 33
SECTION 109. Successors and Assigns . . . . . . . . . . 33
SECTION 110. Separability Clause. . . . . . . . . . . . 33
SECTION 111. Benefits of Indenture. . . . . . . . . . . 33
SECTION 112. Governing Law. . . . . . . . . . . . . . . 34
SECTION 113. Legal Holidays . . . . . . . . . . . . . . 34
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Page
ARTICLE TWO
Note Forms
SECTION 201. Forms Generally; Initial Forms of Rule
144A and Regulation S Notes. . . . . . . . 34
SECTION 202. Form of Face of Note . . . . . . . . . . . 36
SECTION 203. Form of Reverse of Note. . . . . . . . . . 40
SECTION 204. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . 45
ARTICLE THREE
The Notes
SECTION 301. Title and Terms. . . . . . . . . . . . . . 46
SECTION 302. Denominations. . . . . . . . . . . . . . . 47
SECTION 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . 47
SECTION 304. Temporary Notes. . . . . . . . . . . . . . 49
SECTION 305. Global Notes . . . . . . . . . . . . . . . 49
SECTION 306. Registration, Registration of Transfer
and Exchange Generally; Restrictions
on Transfer and Exchange; Securities
Act Legends. . . . . . . . . . . . . . . . 51
SECTION 307. Mutilated, Destroyed, Lost and Stolen
Notes. . . . . . . . . . . . . . . . . . . 56
SECTION 308. Payment of Interest; Interest Rights
Preserved. . . . . . . . . . . . . . . . . 57
SECTION 309. Persons Deemed Owners. . . . . . . . . . . 59
SECTION 310. Cancellation . . . . . . . . . . . . . . . 60
SECTION 311. Computation of Interest. . . . . . . . . . 60
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture. . 60
SECTION 402. Application of Trust Money . . . . . . . . 62
ARTICLE FIVE
Remedies
SECTION 501. Events of Default. . . . . . . . . . . . . 62
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Page
SECTION 502. Acceleration of Maturity; Rescission
and Annulment. . . . . . . . . . . . . . . 66
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . 67
SECTION 504. Trustee May File Proofs of Claim . . . . . 68
SECTION 505. Trustee May Enforce Claims Without
Possession of Notes. . . . . . . . . . . . 69
SECTION 506. Application of Money Collected . . . . . . 69
SECTION 507. Limitation on Suits. . . . . . . . . . . . 70
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. . . . . . 71
SECTION 509. Restoration of Rights and Remedies . . . . 71
SECTION 510. Rights and Remedies Cumulative . . . . . . 71
SECTION 511. Delay or Omission Not Waiver . . . . . . . 72
SECTION 512. Control by Holders . . . . . . . . . . . . 72
SECTION 513. Waiver of Past Defaults. . . . . . . . . . 72
SECTION 514. Undertaking for Costs. . . . . . . . . . . 73
SECTION 515. Waiver of Stay or Extension Laws . . . . . 73
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities. . . . 74
SECTION 602. Notice of Defaults . . . . . . . . . . . . 74
SECTION 603. Certain Rights of Trustee. . . . . . . . . 74
SECTION 604. Not Responsible for Recitals or
Issuance of Notes. . . . . . . . . . . . . 76
SECTION 605. May Hold Notes . . . . . . . . . . . . . . 76
SECTION 606. Money Held in Trust. . . . . . . . . . . . 77
SECTION 607. Compensation and Reimbursement . . . . . . 77
SECTION 608. Disqualification; Conflicting Interests. . 78
SECTION 609. Corporate Trustee Required; Eligibility. . 78
SECTION 610. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . . . 78
SECTION 611. Acceptance of Appointment by Successor . . 80
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . 80
SECTION 613. Preferential Collection of Claims
Against Company. . . . . . . . . . . . . . 81
-vii-
Page
ARTICLE SEVEN
Holders' Lists and Reports by
Trustee and Company
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . 81
SECTION 702. Preservation of Information; Communications
to Holders . . . . . . . . . . . . . . . . 82
SECTION 703. Reports by Trustee . . . . . . . . . . . . 82
SECTION 704. Reports by Company . . . . . . . . . . . . 82
SECTION 705. Officers' Certificate with Respect to
Change in Interest Rates . . . . . . . . . 83
ARTICLE EIGHT
Consolidation, Merger, Conveyance,
Transfer or Lease
SECTION 801. Mergers, Consolidations and Certain
Transfers, Leases and Acquisition of
Assets . . . . . . . . . . . . . . . . . . 83
SECTION 802. Successor Substituted. . . . . . . . . . . 84
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . 85
SECTION 902. Supplemental Indentures with Consent
of Holders . . . . . . . . . . . . . . . . 86
SECTION 903. Execution of Supplemental Indentures . . . 87
SECTION 904. Effect of Supplemental Indentures. . . . . 87
SECTION 905. Conformity with Trust Indenture Act. . . . 88
SECTION 906. Reference in Notes to Supplemental
Indentures . . . . . . . . . . . . . . . . 88
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . 88
SECTION 1002. Maintenance of Office or Agency. . . . . . 88
SECTION 1003. Money for Note Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . 89
-viii-
Page
SECTION 1004. Existence. . . . . . . . . . . . . . . . . 91
SECTION 1005. Maintenance of Properties. . . . . . . . . 91
SECTION 1006. Payment of Taxes and Other Claims. . . . . 91
SECTION 1007. Maintenance of Insurance . . . . . . . . . 92
SECTION 1008. Limitation on Consolidated Debt. . . . . . 92
SECTION 1009. Limitation on Senior Subordinated Debt . . 95
SECTION 1010. Limitation on Issuance of Guarantees
of Subordinated Debt . . . . . . . . . . . 95
SECTION 1011. Limitation on Liens. . . . . . . . . . . . 95
SECTION 1012. Limitation on Restricted Payments. . . . . 96
SECTION 1013. Limitations on Dividend and Other Payment
Restrictions Affecting Subsidiaries. . . . 98
SECTION 1014. Limitation on Asset Disposition. . . . . .100
SECTION 1015. Transactions with Affiliates and Related
Persons. . . . . . . . . . . . . . . . . .101
SECTION 1016. Change of Control. . . . . . . . . . . . .102
SECTION 1017. Provision of Financial Information . . . .103
SECTION 1018. Unrestricted Subsidiaries. . . . . . . . .103
SECTION 1019. Statement by Officers as to Default;
Compliance Certificates. . . . . . . . . .104
SECTION 1020. Waiver of Certain Covenants. . . . . . . .105
ARTICLE ELEVEN
Redemption of Notes
SECTION 1101. Right of Redemption. . . . . . . . . . . .105
SECTION 1102. Applicability of Article . . . . . . . . .106
SECTION 1103. Election to Redeem; Notice to Trustee. . .106
SECTION 1104. Selection by Trustee of Notes to Be
Redeemed . . . . . . . . . . . . . . . . .106
SECTION 1105. Notice of Redemption . . . . . . . . . . .107
SECTION 1106. Deposit of Redemption Price. . . . . . . .108
SECTION 1107. Notes Payable on Redemption Date . . . . .108
SECTION 1108. Notes Redeemed in Part . . . . . . . . . .109
ARTICLE TWELVE
Subordination of Notes
SECTION 1201. Notes Subordinate to Senior Debt . . . . .109
SECTION 1202. Payment Over of Proceeds Upon
Dissolution, Etc.. . . . . . . . . . . . .109
SECTION 1203. No Payment When Senior Debt in Default . .111
SECTION 1204. Payment Permitted If No Default. . . . . .113
-ix-
Page
SECTION 1205. Subrogation to Rights of Holders of
Senior Debt. . . . . . . . . . . . . . . .113
SECTION 1206. Provisions Solely to Define Relative
Rights . . . . . . . . . . . . . . . . . .113
SECTION 1207. Trustee to Effectuate Subordination. . . .114
SECTION 1208. No Waiver of Subordination Provisions. . .114
SECTION 1209. Notice to Trustee. . . . . . . . . . . . .115
SECTION 1210. Reliance on Judicial Order or Certificate
of Liquidating Agent . . . . . . . . . . .116
SECTION 1211. Trustee Not Fiduciary for Holders of
Senior Debt. . . . . . . . . . . . . . . .116
SECTION 1212. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's Rights . .117
SECTION 1213. Article Applicable to Paying Agents. . . .117
SECTION 1214. Defeasance of this Article Twelve. . . . .117
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance. . . . . . . . . . . .118
SECTION 1302. Defeasance and Discharge . . . . . . . . .118
SECTION 1303. Covenant Defeasance. . . . . . . . . . . .119
SECTION 1304. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . .119
SECTION 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions . . . . . .122
SECTION 1306. Reinstatement. . . . . . . . . . . . . . .123
-x-
Page
ANNEX A -- Form of Regulation S Certificate. . . . . . . . 1
ANNEX B -- Form of Restricted Securities Certificate. . . .1
ANNEX C -- Form of Unrestricted Securities Certificate. . .1
ANNEX D -- Form of Certification to be Given by Holders of
Beneficial Interest in a Regulation S Temporary Global
Note. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ANNEX E -- Form of Certification to be Given by the
Euroclear Operator or Cedel S.A.. . . . . . . . . . . . . .1
-xi-
INDENTURE, dated as of April 22, 1998, between
Phillips-Van Heusen Corporation, a corporation duly
organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal
office at 1290 Avenue of the Americas, New York, New York
10104 and Union Bank of California, N.A., a national banking
association duly organized and existing under the laws of
the United States of America, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an
issue of its 9 1/2% Senior Subordinated Notes due May 1, 2008
(the "Notes") of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company
has duly authorized the execution and delivery of this
Indenture.
All things necessary (i) to make the Notes, when
executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid
obligations of the Company and (ii) to make this Indenture a
valid agreement of the Company, all in accordance with their
respective terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Notes by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Notes, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have
the meanings assigned to them in this Article and
include the plural as well as the singular;
(2) all other terms used herein which are
defined in the Trust Indenture Act, either
directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise
defined herein have the meanings assigned to them
in accordance with generally accepted accounting
principles (whether or not such is indicated
herein), and, except as otherwise herein expressly
provided, the term "generally accepted accounting
principles" or GAAP with respect to any
computation required or permitted hereunder shall
mean such accounting principles as are generally
accepted as consistently applied by the Company at
the date of such computation;
(4) unless otherwise specifically set forth
herein, all calculations or determinations of a
Person shall be performed or made on a
consolidated basis in accordance with generally
accepted accounting principles; and
(5) the words "herein", "hereof" and
"hereunder" and other words of similar import
refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six,
are defined in that Article.
"Act", when used with respect to any Holder, has
the meaning specified in Section 104.
"Affiliate" of any Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person. For the
purposes of this definition, "control" when used with respect
to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
-2-
"Agent Member" means any member of, or participant
in, the Depositary.
"Applicable Procedures" means, with respect to any
transfer or transaction involving a Global Note or
beneficial interest therein, the rules and procedures of the
Depositary for such Note, Euroclear and Cedel, in each case
to the extent applicable to such transaction and as in
effect at the time of such transfer or transaction.
"Asset Disposition" by any Person means any transfer,
conveyance, sale, lease or other disposition by such
Person or any of its Restricted Subsidiaries (including any
issuance or sale by a Restricted Subsidiary of Capital Stock
of such Restricted Subsidiary, and including a consolidation
or merger or other sale of any such Restricted Subsidiary
with, into or to another Person in a transaction in which
such Restricted Subsidiary ceases to be a Restricted Subsidiary,
but excluding a disposition by a Restricted Subsidiary
of such Person to such Person or a Wholly Owned Restricted
Subsidiary of such Person or by such Person to a Wholly
Owned Restricted Subsidiary of such Person) of (i) shares of
Capital Stock (other than directors' qualifying shares) or
other ownership interests of a Restricted Subsidiary of such
Person, (ii) substantially all of the assets of such Person
or any of its Restricted Subsidiaries representing a division
or line of business or (iii) other assets or rights of
such Person or any of its Restricted Subsidiaries outside of
the ordinary course of business, provided in each case that
the aggregate consideration to the Company or Restricted
Subsidiary in any single transaction or series of related
transactions for such transfer, conveyance, sale, lease or
other disposition is equal to $20.0 million or more.
"Board of Directors" means either the board of
directors of the Company or any duly authorized committee of
that board. Except as otherwise provided or unless context
otherwise requires, each reference herein to the "Board of
Directors" shall mean the Board of Directors of the Company.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Except as
otherwise expressly provided or unless the context otherwise
-3-
requires, each reference herein to a "Board Resolution"
shall mean a Board Resolution of the Company.
"Business Day" means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York, New York or in the city in
which the Corporate Trust Office is located are authorized
or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means the
obligation to pay rent or other payment amounts under a
lease of (or other Debt arrangements conveying the right to
use) real or personal property of such Person which is
required to be classified and accounted for as a capital
lease or a liability on the face of a balance sheet of such
Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation shall be
the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such
lease may be terminated by the lessee without payment of a
penalty. The principal amount of such obligation shall be
the capitalized amount thereof that would appear on the face
of a balance sheet of such Person in accordance with
generally accepted accounting principles.
"Capital Stock" of any Person means any and all
shares, interests, participations or other equivalents
(however designated) of corporate stock or other equity
participations, including partnership interests, whether
general or limited, of such Person.
"Cash Equivalents" means (i) direct obligations of
the United States of America or any agency thereof having
maturities of not more than one year from the date of
acquisition, (ii) time deposits and certificates of deposit
of any domestic commercial bank of recognized standing
having capital and surplus in excess of $500 million, with
maturities of not more than one year from the date of
acquisition, (iii) repurchase obligations issued by any bank
described in clause (ii) above with a term not to exceed
30 days; (iv) commercial paper rated at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent
thereof by Moody's, in each case maturing within one year
after the date of acquisition and (v) shares of any money
market mutual fund, or similar fund, in each case having
assets in excess of $500 million, which invests
-4-
predominantly in investments of the types describes in
clauses (i) through (iv) above.
"Cedel" means Cedel, S.A. (or any successor
securities clearing agency).
"Closing Date" means April 22, 1998.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under
the Exchange Act, or, if at any time after the execution of
this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such
time.
"Common Stock" of any Person means Capital Stock
of such Person that does not rank prior, as to the payment
of dividends or as to the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding
up of such Person, to shares of Capital Stock of any other
class of such Person.
"Company" means the Person named as the "Company"
in the first paragraph of this instrument until a successor
Person shall have become such pursuant to the applicable
provisions of this Indenture and thereafter "Company" shall
mean such successor Person.
"Company Request" or "Company Order" means a
written request or order signed in the name of the Company
by its Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary and delivered to the
Trustee.
"Consolidated Cash Flow Available for Fixed
Charges" means for any period the Consolidated Net Income of
the Company and its Restricted Subsidiaries for such period
increased by the sum of (i) Consolidated Interest Expense of
the Company and its Restricted Subsidiaries for such period,
plus (ii) Consolidated Income Tax Expense of the Company and
its Restricted Subsidiaries for such period, plus (iii) the
consolidated depreciation and amortization expense included
in the income statement of the Company and its Restricted
Subsidiaries for such period, plus (iv) all other non-cash
items reducing Consolidated Net Income of the Company and
-5-
its Restricted Subsidiaries, less all non-cash items
increasing Consolidated Net Income of the Company and its
Restricted Subsidiaries; provided, however, that there shall
be excluded therefrom the Consolidated Cash Flow Available
for Fixed Charges (if positive) of any Restricted Subsidiary
of the Company (calculated separately for such Restricted
Subsidiary in the same manner as provided above for the
Company) that is subject to a restriction which prevents the
payment of dividends or the making of distributions to the
Company or another Restricted Subsidiary of the Company to
the extent of such restriction.
"Consolidated Cash Flow Coverage Ratio" as of any
date of determination means the ratio of (i) Consolidated
Cash Flow Available for Fixed Charges of the Company and its
Restricted Subsidiaries for the period of the most recently
completed four consecutive fiscal quarters for which
quarterly or annual financial statements are available to
(ii) Consolidated Fixed Charges of the Company and its
Restricted Subsidiaries for such period; provided, however,
that Consolidated Fixed Charges shall be adjusted to give
effect on a pro forma basis to any Debt (other than short-
term Debt Incurred for working capital purposes) that has
been Incurred by the Company or any Restricted Subsidiary
since the beginning of such period that remains outstanding
and to any Debt (other than short-term Debt Incurred for
working capital purposes) that is proposed to be Incurred by
the Company or any Restricted Subsidiary as if in each case
such Debt had been Incurred on the first day of such period
and as if any Debt (other than short-term Debt Incurred for
working capital purposes) that (i) is or will no longer be
outstanding as the result of the Incurrence of any such Debt
or (ii) had been repaid or retired during such period had
not been outstanding as of the first day of such period;
provided further that in making such computation, the
Consolidated Interest Expense of the Company and its
Restricted Subsidiaries attributable to interest on any
proposed Debt bearing a floating interest rate shall be
computed on a pro forma basis as if the rate in effect on
the date of computation had been the applicable rate for the
entire period; and provided further that, in the event the
Company or any of its Restricted Subsidiaries has made Asset
Dispositions or acquisitions of assets not in the ordinary
course of business (including acquisitions of other Persons
by merger, consolidation or purchase of Capital Stock)
during or after such period, such computation shall be made
on a pro forma basis as if the Asset Dispositions or
-6-
acquisitions had taken place on the first day of such
period.
"Consolidated Fixed Charges" for any period means
the sum of (i) Consolidated Interest Expense and (ii) the
consolidated amount of interest capitalized by the Company
and its Restricted Subsidiaries during such period
calculated in accordance with generally accepted accounting
principles.
"Consolidated Income Tax Expense" for any period
means the consolidated provision for income taxes of the
Company and its Restricted Subsidiaries for such period
calculated on a consolidated basis in accordance with
generally accepted accounting principles.
"Consolidated Interest Expense" means for any
period the consolidated interest expense included in a
consolidated income statement (without deduction of interest
income) of the Company and its Restricted Subsidiaries for
such period calculated on a consolidated basis in accordance
with generally accepted accounting principles, including
without limitation or duplication (or, to the extent not so
included, with the addition of), (i) the amortization of
Debt discounts; (ii) any payments or fees with respect to
letters of credit, bankers' acceptances or similar facilities;
(iii) fees with respect to Interest Rate, Currency or
Commodity Price Agreements; (iv) Preferred Stock dividends
of Restricted Subsidiaries of the Company (other than with
respect to Redeemable Stock) declared and paid or payable to
persons other than the Company or any Restricted Subsidiary;
(v) accrued Redeemable Stock dividends of the Company and
its Restricted Subsidiaries payable to persons other than
the Company or any Restricted Subsidiary, whether or not
declared or paid; (vi) interest on Debt guaranteed by the
Company and its Restricted Subsidiaries; and (vii) the
portion of any rental obligation with respect to capitalized
leases allocable to interest expense.
"Consolidated Net Income" for any period means the
consolidated net income (or loss) of the Company and its
Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with generally accepted
accounting principles; provided that there shall be excluded
therefrom (a) the net income (or loss) of any Person
acquired by the Company or a Restricted Subsidiary of the
Company in a pooling-of-interests transaction for any period
-7-
prior to the date of such transaction, (b) the net income
(or loss) of any Person that is not a Subsidiary of the
Company except to the extent of the amount of dividends or
other distributions actually paid to the Company or a
Subsidiary of the Company by such Person during such period,
(c) gains or losses on Asset Dispositions by the Company or
its Restricted Subsidiaries, (d) all extraordinary gains and
extraordinary losses, (e) the cumulative effect of changes
in accounting principles and (f) the tax effect, if any, of
any of the items described in clauses (a) through (e) above;
provided, further, that for purposes of any determination
pursuant to the provisions described under Section 1012
hereof, there shall further be excluded therefrom the net
income (but not net loss) of any Restricted Subsidiary of
the Company that is subject to a restriction which prevents
the payment of dividends or the making of distributions to
the Company or another Restricted Subsidiary of the Company
to the extent of such restriction.
"Consolidated Net Worth" of any Person means the
consolidated stockholders' equity of such Person, determined
on a consolidated basis in accordance with generally
accepted accounting principles, less amounts attributable to
Redeemable Stock of such Person; provided that, with respect
to the Company, adjustments following the date of this
Indenture to the accounting books and records of the Company
in accordance with Accounting Principles Board Opinions
Nos. 16 and 17 (or successor opinions thereto) or otherwise
resulting from the acquisition of control of the Company by
another Person shall not be given effect to.
"Consolidated Tangible Assets" of any Person
means, as of any date, the amount which, in accordance with
GAAP, would be set forth under the caption "Total Assets"
(or any like caption) on a consolidated balance sheet of
such Person and its Restricted Subsidiaries, less all
intangible assets, including, without limitation, goodwill,
organization costs, patents, trademarks, copyrights,
franchises, and research and development costs.
"Corporate Trust Office" means the principal
office of the Trustee at which at any particular time its
corporate trust business shall be administered, which is, at
the date as of which this Indenture is dated, located at 475
Sansome Street, 12th Floor, San Francisco, California 94111.
-8-
"corporation" means a corporation, association,
company, joint-stock company, partnership or business trust.
"Debt" means (without duplication), with respect
to any Person, whether recourse is to all or a portion of
the assets of such Person and whether or not contingent,
(i) every obligation of such Person for money borrowed,
(ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including
obligations Incurred in connection with the acquisition of
property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the
account of such Person, (iv) every obligation of such Person
issued or assumed as the deferred purchase price of property
or services (including securities repurchase agreements but
excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business which are not
overdue or which are being contested in good faith),
(v) every Capital Lease Obligation of such Person, (vi) all
Receivables Sales of such Person, together with any
obligation of such Person to pay any discount, interest,
fees, indemnities, penalties, recourse, expenses or other
amounts in connection therewith, (vii) all Redeemable Stock
issued by such Person, (viii) Preferred Stock of Restricted
Subsidiaries of such Person held by Persons other than such
Person or one of its Wholly Owned Restricted Subsidiaries,
(ix) every obligation under Interest Rate, Currency or
Commodity Price Agreements of such Person and (x) every
obligation of the type referred to in clauses (i) through
(ix) of another Person and all dividends of another Person
the payment of which, in either case, such Person has
Guaranteed or is responsible or liable for, directly or
indirectly, as obligor, Guarantor or otherwise. The
"amount" or "principal amount" of Debt at any time of
determination as used herein represented by (a) any
Receivables Sale, shall be the amount of the unrecovered
capital or principal investment of the purchaser (other than
the Company or a Wholly Owned Restricted Subsidiary of the
Company) thereof, excluding amounts representative of yield
or interest earned on such investment and (b) any Redeemable
Stock, shall be the maximum fixed redemption or repurchase
price in respect thereof.
"Depositary" means, with respect to any Notes, a
clearing agency that is registered as such under the
Exchange Act and is designated by the Company to act as
-9-
Depositary for such Notes (or any successor securities
clearing agency so registered).
"Designated Senior Debt" shall mean (i) so long as
the New Credit Facility is in effect, the obligations of the
Company under the New Credit Facility and (ii) at any time
thereafter, the 2023 Debentures and any other Senior Debt of
the Company permitted under this Indenture, the principal
amount of which at original issuance is $25.0 million or
more and that has been designated by the Company as
Designated Senior Debt.
"DTC" means The Depository Trust Company, a New
York corporation.
"Euroclear" means the Euroclear Clearance System
(or any successor securities clearing agency).
"Event of Default" has the meaning specified in
Section 501.
"Exchange Act" means the Securities Exchange Act
of 1934 as it may be amended and any successor act thereto.
"Exchange and Registration Rights Agreement" means
the Exchange and Registration Rights Agreement, dated as of
April 22, 1998, among the Company, Goldman, Sachs & Co.,
Chase Securities Inc. and Citicorp Securities, Inc., as
representatives of the Initial Purchasers, and the Holders
from time to time as provided therein, as such agreement may
be amended from time to time.
"Exchange Notes" means the Notes issued pursuant
to the Exchange Offer and their Successor Notes.
"Exchange Offer" means an offer made by the
Company pursuant to the Exchange and Registration Rights
Agreement under the effective registration statement under
the Securities Act to exchange securities substantially
identical to Outstanding Notes (except for the differences
provided for herein) for Outstanding Notes.
"Exchange Registration Statement" means a
registration statement of the Company under the Securities
Act registering Exchange Notes for distribution pursuant to
the Exchange Offer.
-10-
"Global Note" means a Note that is registered in
the Security Register in the name of a Depositary or a
nominee thereof.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing, or
having the economic effect of guaranteeing, any Debt of any
other Person (the "primary obligor") in any manner, whether
directly or indirectly, and including, without limitation,
any obligation of such Person, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such
Debt or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the
purpose of assuring the holder of such Debt of the payment
of such Debt, or (iii) to maintain working capital, equity
capital or other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor
to pay such Debt (and "Guaranteed", "Guaranteeing" and
"Guarantor" shall have meanings correlative to the
foregoing); provided, however, that the Guarantee by any
Person shall not include endorsements by such Person for
collection or deposit, in either case, in the ordinary
course of business.
"Holder" means a Person in whose name a Note is
registered in the Security Register.
"Incur" means, with respect to any Debt or other
obligation of any Person, to create, issue, incur (by
conversion, exchange or otherwise), assume, Guarantee or
otherwise become liable in respect of such Debt or other
obligation or the recording, as required pursuant to
generally accepted accounting principles or otherwise, of
any such Debt or other obligation on the balance sheet of
such Person (and "Incurrence", "Incurred", "Incurrable" and
"Incurring" shall have meanings correlative to the
foregoing); provided, however, that a change in generally
accepted accounting principles that results in an obligation
of such Person that exists at such time becoming Debt shall
not be deemed an Incurrence of such Debt.
"Indenture" means this instrument as originally
executed and as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof
including, for all purposes of this instrument and any such
-11-
supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture,
respectively.
"Initial Purchasers" means Goldman, Sachs & Co.,
Chase Securities Inc. and Citicorp Securities, Inc., as
purchasers of the Notes from the Company pursuant to the
Note Purchase Agreement.
"Interest Payment Date" means the Stated Maturity
of an installment of interest on the Notes.
"Interest Rate, Currency or Commodity Price
Agreement" of any Person means any forward contract, futures
contract, swap, option or other financial agreement or
arrangement (including, without limitation, caps, floors,
collars and similar agreements) relating to, or the value of
which is dependent upon, interest rates, currency exchange
rates or commodity prices or indices (excluding contracts
for the purchase or sale of goods in the ordinary course of
business).
"Investment" by any Person means any direct or
indirect loan, advance or other extension of credit or
capital contribution to (by means of transfers of cash or
other property to others or payments for property or
services for the account or use of others, or otherwise) to,
or purchase or acquisition of Capital Stock, bonds, notes,
debentures or other securities or evidence of Debt issued by
any other Person, including any payment on a Guarantee of
any obligation of such other Person.
"Lien" means, with respect to any property or
assets, any mortgage or deed of trust, pledge, hypothecation,
assignment, Receivables Sale, deposit arrangement,
security interest, lien, charge, easement (other than any
easement not materially impairing usefulness or
marketability), encumbrance, preference, priority or other
security agreement or preferential arrangement of any kind
or nature whatsoever on or with respect to such property or
assets (including, without limitation, any conditional sale
or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Maturity", when used with respect to any Note,
means the date on which the principal of such Note becomes
-12-
due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc.
"Net Available Proceeds" from any Asset Disposi-
tion by any Person means cash or readily marketable cash
equivalents received (including by way of sale or discount-
ing of a note, installment receivable or other receivable,
but excluding any other consideration received in the form
of assumption by the acquiree of Debt or other obligations
relating to such properties or assets) therefrom by such
Person, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses Incurred
and all federal, state, provincial, foreign and local taxes
required to be accrued as a liability as a consequence of
such Asset Disposition, (ii) all payments made by such
Person or its Restricted Subsidiaries on any Debt which is
secured by such assets in accordance with the terms of any
Lien upon or with respect to such assets or which must by
the terms of such Lien, or in order to obtain a necessary
consent to such Asset Disposition or by applicable law, be
repaid out of the proceeds from such Asset Disposition,
(iii) all distributions and other payments made to minority
interest holders in Restricted Subsidiaries of such Person
or joint ventures as a result of such Asset Disposition and
(iv) appropriate amounts to be provided by such Person or
any Restricted Subsidiary thereof, as the case may be, as a
reserve in accordance with generally accepted accounting
principles against any liabilities associated with such
assets and retained by such Person or any Restricted
Subsidiary thereof, as the case may be, after such Asset
Disposition, including, without limitation, liabilities
under any indemnification obligations and severance and
other employee termination costs associated with such Asset
Disposition, in each case as determined by the Board of
Directors, in its reasonable good faith judgment evidenced
by a resolution of the Board of Directors filed with the
Trustee; provided, however, that any reduction in such
reserve following the consummation of such Asset Disposition
will be treated for all purposes of the Indenture and the
Notes as a new Asset Disposition at the time of such
reduction with Net Available Proceeds equal to the amount of
such reduction.
-13-
"New Credit Facility" means the senior secured
revolving credit facility in the aggregate principal amount
of $325.0 million between the Company, The Chase Manhattan
Bank, as administrative and collateral agent, Citibank USA,
Inc., as documentation agent, and certain other lenders, as
it may be amended or restated from time to time, and any
renewal, extension, refinancing, refunding or replacement
thereof, in whole or in part.
"Note Purchase Agreement" means the Purchase
Agreement, dated as of April 22, 1998, between the Company
and the Initial Purchasers, as such agreement may be amended
from time to time.
"Notes" means notes designated in the first
paragraph of the RECITALS OF THE COMPANY and includes the
Exchange Notes.
"Offer to Purchase" means a written offer (the
"Offer") sent by the Company by first class mail, postage
prepaid, to each Holder at his address appearing in the
Security Register on the date of the Offer offering to
purchase up to the principal amount of Notes specified in
such Offer at the purchase price specified in such Offer (as
determined pursuant to this Indenture). Unless otherwise
required by applicable law, the Offer shall specify an
expiration date (the "Expiration Date") of the Offer to
Purchase which shall be, subject to any contrary
requirements of applicable law, not less than 30 days or
more than 60 days after the date of such Offer and a
settlement date (the "Purchase Date") for purchase of Notes
within five Business Days after the Expiration Date. The
Company shall notify the Trustee at least 15 Business Days
(or such shorter period as is acceptable to the Trustee)
prior to the mailing of the Offer of the Company's
obligation to make an Offer to Purchase, and the Offer shall
be mailed by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
The Offer shall contain information concerning the business
of the Company and its Restricted Subsidiaries which the
Company in good faith believes will enable such Holders to
make an informed decision with respect to the Offer to
Purchase (which at a minimum will include (i) the most
recent annual and quarterly financial statements and
"Management's Discussion and Analysis of Financial Condition
and Results of Operations" contained in the documents
required to be filed with the Trustee pursuant to
-14-
Section 1017 (which requirements may be satisfied by
delivery of such documents together with the Offer), (ii) a
description of material developments in the Company's
business subsequent to the date of the latest of such
financial statements referred to in clause (i) (including a
description of the events requiring the Company to make the
Offer to Purchase), (iii) if applicable, appropriate pro
forma financial information concerning the Offer to Purchase
and the events requiring the Company to make the Offer to
Purchase and (iv) any other information required by
applicable law to be included therein. The Offer shall
contain all instructions and materials necessary to enable
such Holders to tender Notes pursuant to the Offer to
Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant
to which the Offer to Purchase is being made;
(2) the Expiration Date and the Purchase
Date;
(3) the aggregate principal amount of the
Outstanding Notes offered to be purchased by the
Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which
such has been determined pursuant to the Section
hereof requiring the Offer to Purchase) (the
"Purchase Amount");
(4) the purchase price to be paid by the
Company for each $1,000 aggregate principal amount
of Notes accepted for payment (as specified
pursuant to this Indenture) (the "Purchase
Price");
(5) that the Holder may tender all or any
portion of the Notes registered in the name of
such Holder and that any portion of a Note
tendered must be tendered in an integral multiple
of $1,000 principal amount;
(6) the place or places where Notes are to
be surrendered for tender pursuant to the Offer to
Purchase;
(7) that interest on any Note not tendered
or tendered but not purchased by the Company
-15-
pursuant to the Offer to Purchase will continue to
accrue;
(8) that on the Purchase Date the Purchase
Price will become due and payable upon each Note
accepted for payment pursuant to the Offer to
Purchase and that interest thereon shall cease to
accrue on and after the Purchase Date;
(9) that each Holder electing to tender a
Note pursuant to the Offer to Purchase will be
required to surrender such Note at the place or
places specified in the Offer prior to the close
of business on the Expiration Date (such Note
being, if the Company or the Trustee so requires,
duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in
writing);
(10) that Holders will be entitled to
withdraw all or any portion of Notes tendered if
the Company (or their Paying Agent) receives, not
later than the close of business on the Expiration
Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the
principal amount of the Note the Holder tendered,
the certificate number of the Note the Holder
tendered and a statement that such Holder is
withdrawing all or a portion of his tender;
(11) that (a) if Notes in an aggregate
principal amount less than or equal to the
Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the
Company shall purchase all such Notes and (b) if
Notes in an aggregate principal amount in excess
of the Purchase Amount are tendered and not
withdrawn pursuant to the Offer to Purchase, the
Company shall purchase Notes having an aggregate
principal amount equal to the Purchase Amount on a
pro rata basis (with such adjustments as may be
deemed appropriate so that only Notes in
denominations of $1,000 or integral multiples
thereof shall be purchased); and
-16-
(12) that in the case of any Holder whose
Note is purchased only in part, the Company shall
execute, and the Trustee shall authenticate and
deliver to the Holder of such Note without service
charge, a new Note or Notes, of any authorized
denomination as requested by such Holder, in an
aggregate principal amount equal to and in
exchange for the unpurchased portion of the Note
so tendered.
Any Offer to Purchase shall be governed by and effected in
accordance with the Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed
by the Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee. Unless the context otherwise
requires, each reference herein to an "Officers'
Certificate" shall mean an Officers' Certificate of the
Company.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, and who shall
be reasonably acceptable to the Trustee.
"Original Notes" means all Notes other than
Exchange Notes.
"Outstanding", when used with respect to Notes,
means, as of the date of determination, all Notes there-
tofore authenticated and delivered under this Indenture,
except:
(i) Notes theretofore canceled by the
Trustee or delivered to the Trustee for
cancellation;
(ii) Notes for whose payment or redemption
money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders
of such Notes; provided that, if such Notes are to
be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision
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therefor satisfactory to the Trustee has been
made; and
(iii) Notes which have been transferred
pursuant to Section 306 or in exchange for or in
lieu of which other Notes have been authenticated
and delivered pursuant to this Indenture, other
than any such Notes in respect of which there
shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a
bona fide purchaser in whose hands such Notes are
valid obligations of the Company;
provided, however, that in determining whether the Holders
of the requisite principal amount of the Outstanding Notes
have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Notes owned by the
Company or any Affiliate of the Company shall be disregarded
and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the
Trustee knows to be so owned shall be so disregarded. Notes
so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act
with respect to such Notes and that the pledgee is not the
Company or any other obligor upon the Notes or any Affiliate
of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the
Company to pay the principal of (and premium, if any) or
interest on any Notes on behalf of the Company.
"Permitted Interest Rate, Currency or Commodity
Price Agreement" of any Person means any Interest Rate,
Currency or Commodity Price Agreement entered into with one
or more financial institutions in the ordinary course of
business that is designed to protect such Person against
fluctuations in interest rates or currency exchange rates
with respect to Debt Incurred and which shall have a
notional amount no greater than the payments due with
respect to the Debt being hedged thereby, or in the case of
currency or commodity protection agreements, against currency
exchange rate or commodity price fluctuations in the
ordinary course of business relating to then existing
financial obligations or then existing or forecast production
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or for purchase of products for resale and not for
purposes of speculation.
"Permitted Investments" means (i) an Investment in
the Company or a Wholly-Owned Restricted Subsidiary of the
Company; (ii) an Investment in Pyramid Sportswear; provided,
however, that as a result thereof the Company owns not less
than a majority interest in Pyramid Sportswear; (iii) an
Investment in a Person, if such Person or a Subsidiary of
such Person will, as a result of the making of such
Investment and all other contemporaneous related
transactions, become a Wholly-Owned Restricted Subsidiary of
the Company or be merged or consolidated with or into or
transfer or convey all or substantially all its assets to
the Company or a Wholly-Owned Restricted Subsidiary of the
Company; (iv) a Temporary Cash Investment; (v) stock,
obligations or securities received in settlement of debts
owing to the Company or a Restricted Subsidiary of the
Company as a result of bankruptcy or insolvency proceedings
or upon the foreclosure, perfection, enforcement or agree-
ment in lieu of foreclosure of any Lien in favor of the
Company or a Restricted Subsidiary of the Company;
(vi) Investments in the Notes; (vii) Investments in Permit-
ted Interest Rate, Currency or Commodity Price Agreements;
(viii) advances to employees of the Company made in the
ordinary course of business and (ix) entry into and
Investments in joint ventures, partnerships and other
Persons engaged or proposing to engage in businesses related
to those conducted by the Company or any Restricted
Subsidiary of the Company, in an amount not to exceed
$15 million.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company,
trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Predecessor Note" of any particular Note means
every previous Note evidencing all or a portion of the same
debt as that evidenced by such particular Note; and, for the
purposes of this definition, any Note authenticated and
delivered under Section 307 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or
stolen Note.
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"Preferred Stock", of any Person, means Capital
Stock of such Person of any class or classes (however
designated) that ranks prior, as to the payment of dividends
or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such
Person, to shares of Capital Stock of any other class of
such Person.
"Public Equity Offering" means an underwritten
primary public offering of Common Stock of the Company
pursuant to an effective registration statement under the
Securities Act of 1933, as amended.
"Receivables" means receivables, chattel paper,
instruments, documents or intangibles evidencing or relating
to the right to payment of money.
"Receivables Sale" of any Person means any sale of
Receivables of such Person (pursuant to a purchase facility
or otherwise), other than in connection with a disposition
of the business operations of such Person relating thereto
or a disposition of defaulted Receivables for purposes of
collection and not as a financing arrangement.
"Redeemable Stock" of any Person means any Capital
Stock of such Person that by its terms (or by the terms of
any security into which it is convertible or for which it is
exchangeable) or otherwise (including upon the occurrence of
an event) matures or is required to be redeemed (pursuant to
any sinking fund obligation or otherwise) or is convertible
into or exchangeable for Debt or is redeemable at the option
of the holder thereof, in whole or in part, at any time
prior to the final Stated Maturity of the Notes; provided
that "Redeemable Stock" shall not include any Capital Stock
that is payable at maturity, or upon required redemption or
redemption at the option of the holder thereof, or that is
automatically convertible or exchangeable, solely in or into
Common Stock of such Person.
"Redemption Date", when used with respect to any
Note to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Note to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
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"Registration Default" means the occurrence of any
of the following events: (i) the Company has not filed the
Exchange Registration Statement or Shelf Registration
Statement on or before the date on which such registration
statement is required to be filed pursuant to the Exchange
and Registration Rights Agreement, (ii) the Exchange
Registration Statement or Shelf Registration Statement has
not become effective or been declared effective by the
Commission on or before the date on which such registration
statement is required to become or be declared effective
under the requirements of the Exchange and Registration
Rights Agreement, (iii) the Exchange Offer has not been
completed within 30 Business Days after the initial
effective date of the Exchange Registration Statement
relating to the Exchange Offer (if the Exchange Offer is
then required to be made under the Exchange and Registration
Rights Agreement) or (iv) any Exchange Registration
Statement or Shelf Registration Statement required to be
filed pursuant the Exchange and Registration Rights
Agreement is filed and declared effective but shall
thereafter either be withdrawn by the Company or shall
become subject to an effective stop order issued pursuant to
Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as
specifically permitted herein) without being succeeded
immediately by an additional registration statement filed
and declared effective.
"Registration Default Period" means any period
during which a Registration Default has occurred and is
continuing.
"Regulation S" means Regulation S under the
Securities Act.
"Regulation S Certificate" means a certificate
substantially in the form set forth in Annex A.
"Regulation S Global Note" has the meaning
specified in Section 201.
"Regulation S Legend" means a legend substantially
in the form of the legend required in the form of Note set
forth in Section 202 to be placed upon Regulation S Notes.
"Regulation S Notes" means all Notes required
pursuant to Section 306(c) to bear a Regulation S Legend.
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"Related Person" of any Person means any other
Person directly or indirectly owning (a) 5% or more of the
Outstanding Common Stock of such Person (or in the case of a
Person that is not a corporation, 5% or more of the equity
interest in such Person) or (b) 5% or more of the combined
voting power of the Voting Stock of such Person.
"Responsible Officer", when used with respect to
the Trustee, means the chairman or any vice-chairman of the
board of directors, the chairman or any vice-chairman of the
executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president,
the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or
any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed
by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Notes" means all Notes required
pursuant to Section 306(c) to bear a Restricted Notes
Legend. Such term includes the Restricted Global Notes.
"Restricted Notes Certificate" means a certificate
substantially in for form set forth in Annex B.
"Restricted Notes Legend" means a legend
substantially in the form of the legend required in the form
of Note set forth in Section 202 to be placed upon a
Restricted Note.
"Restricted Period" means the period of 40
consecutive days beginning on the later of (i) the day on
which Notes are first offered to persons other than
distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the Closing Date.
"Restricted Subsidiary" means any Subsidiary,
whether existing on or after the date of this Indenture,
unless such Subsidiary is an Unrestricted Subsidiary.
"Rule 144" means Rule 144 under the Securities Act.
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"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Notes" means the Notes purchased by the
Initial Purchasers from the Company pursuant to the Note
Purchase Agreement, other than the Regulation S Notes.
"S&P" means Standard & Poor's Ratings Group, a
division of McGraw-Hill, Inc.
"Securities Act" means the Securities Act of 1933,
as it may be amended and any successor act thereto.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 306(a).
"Senior Debt" means (i) the principal of (and
premium, if any) and interest (including interest accruing
on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding)
on, and penalties and any obligation of the Company for
reimbursement, indemnities, fees and expenses relating to,
the New Credit Facility and (ii) every reimbursement
obligation of the Company with respect to letters of credit,
bankers' acceptances or similar facilities issued for the
account of the Company and (iii) the principal of (and pre-
mium, if any) and interest on Debt of the Company for money
borrowed, whether Incurred on or prior to the date of
original issuance of the Notes or thereafter, and any
amendments, renewals, extensions, modifications, refinanc-
ings and refundings of any such Debt and (iv) Permitted
Interest Rate, Currency or Commodity Price Agreements
entered into with respect to Debt described in clauses (i),
(ii) and (iii) above; provided, however, that the following
shall not constitute Senior Debt: (1) any Debt as to which
the terms of the instrument creating or evidencing the same
provide that such Debt is not superior in right of payment
to the Notes, (2) any Debt which is subordinated in right of
payment in any respect to any other Debt of the Company,
(3) Debt evidenced by the Notes, (4) any Debt owed to a
Person when such Person is a Subsidiary of the Company,
(5) any obligation of the Company arising from Redeemable
Stock of the Company, (6) that portion of any Debt which is
Incurred in violation of the Indenture and (7) Debt which,
when Incurred and without respect to any election under
Section 1111(b) of Title 11, United States Code, is without
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recourse to the Company. If any Senior Debt is disallowed,
avoided or subordinated pursuant to the provisions of
Section 548 of Title 11, United States Code, or any
applicable state fraudulent conveyance law, such Senior Debt
nevertheless will constitute Senior Debt.
"Shelf Registration Statement" means a shelf
registration statement under the Securities Act filed by the
Company, if required by, and meeting the requirements of,
the Exchange and Registration Rights Agreement, registering
Original Notes for resale.
"Special Interest" has the meaning specified in
the form of Notes set forth in Section 202.
"Special Record Date" for the payment of any
Defaulted Interest means a date fixed by Trustee pursuant to
Section 308.
"Stated Maturity", when used with respect to any
Note or any installment of interest thereon, means the date
specified in such Note as the fixed date on which the
principal of such Note or such installment of interest is
due and payable.
"Subordinated Debt" means Debt of the Company as
to which the payment of principal of (and premium, if any)
and interest and other payment obligations in respect of
such Debt shall be subordinate to the prior payment in full
of the Notes to at least the following extent: (i) no
payments of principal of (or premium, if any) or interest on
or otherwise due in respect of such Debt may be permitted
for so long as any default in the payment of principal (or
premium, if any) or interest on the Notes exists; (ii) in
the event that any other default that with the passing of
time or the giving of notice, or both, would constitute an
event of default exists with respect to the Notes, upon
notice by 25% or more in principal amount of the Notes to
the Trustee, the Trustee shall have the right to give notice
to the Company and the holders of such Debt (or trustees or
agents therefor) of a payment blockage, and thereafter no
payments of principal of (or premium, if any) or interest on
or otherwise due in respect of such Debt may be made for a
period of 179 days from the date of such notice; and
(iii) such Debt may not (x) provide for payments of
principal of such Debt at the stated maturity thereof or by
way of a sinking fund applicable thereto or by way of any
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mandatory redemption, defeasance, retirement or repurchase
thereof by the Company (including any redemption, retirement
or repurchase which is contingent upon events or
circumstances, but excluding any retirement required by
virtue of acceleration of such Debt upon an event of default
thereunder), in each case prior to the final Stated Maturity
of the Notes or (y) permit redemption or other retirement
(including pursuant to an offer to purchase made by the
Company) of such other Debt at the option of the holder
thereof prior to the final Stated Maturity of the Notes,
other than a redemption or other retirement at the option of
the holder of such Debt (including pursuant to an offer to
purchase made by the Company) which is conditioned upon a
change of control of the Company pursuant to provisions
substantially similar to those contained in Section 1016
hereof (and which shall provide that such Debt will not be
repurchased pursuant to such provisions prior to the
Company's repurchase of the Notes required to be repurchased
by the Company pursuant to the provisions described under
Section 1016).
"Subsidiary" of any Person means (i) a corporation
more than 50% of the combined voting power of the
outstanding Voting Stock of which is owned, directly or
indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or
more Subsidiaries thereof or (ii) any other Person (other
than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or
more other Subsidiaries thereof, directly or indirectly, has
at least a majority ownership and power to direct the
policies, management and affairs thereof.
"Successor Note" of any particular Note means
every Note issued after, and evidencing all or a portion of
the same debt as that evidenced by, such particular Note;
and, for the purpose of this definition, any Note
authenticated and delivered under Section 307 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Note.
"Temporary Cash Investments" means any Investment
in the following kinds of instruments: (A) readily
marketable obligations issued or unconditionally guaranteed
as to principal and interest by the United States of America
or by any agency or authority controlled or supervised by
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and acting as an instrumentality of the United States of
America if, on the date of purchase or other acquisition of
any such instrument by the Company or any Restricted
Subsidiary of the Company, the remaining term to maturity or
interest rate adjustment is not more than two years;
(B) obligations (including, but not limited to, demand or
time deposits, bankers' acceptances and certificates of
deposit) issued or guaranteed by a depository institution or
trust company incorporated under the laws of the United
States of America, any state thereof or the District of
Columbia, provided that (1) such instrument has a final
maturity not more than one year from the date of purchase
thereof by the Company or any Restricted Subsidiary of the
Company and (2) such depository institution or trust company
has at the time of the Company's or such Restricted
Subsidiary's Investment therein or contractual commitment
providing for such Investment, (x) capital, surplus and
undivided profits (as of the date such institution's most
recently published financial statements) in excess of
$100 million and (y) the long-term unsecured debt
obligations (other than such obligations rated on the basis
of the credit of a Person other than such institution) of
such institution, at the time of the Company's or such
Restricted Subsidiary's Investment therein or contractual
commitment providing for such Investment, are rated in the
highest rating category of both S&P and Moody's;
(C) commercial paper issued by any corporation, if such
commercial paper has, at the time of the Company's or any
Restricted Subsidiary's Investment therein or contractual
commitment providing for such Investment credit ratings of
at least A-1 by S&P and P-1 by Moody's; (D) money market
mutual or similar funds having assets in excess of
$100 million; (E) readily marketable debt obligations issued
by any corporation, if at the time of the Company's or
Restricted Subsidiary's Investment therein or contractual
commitment providing for such Investment (1) the remaining
term to maturity is not more than two years and (2) such
debt obligations are rated in one of the two highest rating
categories of both S&P and Moody's; (F) demand or time
deposit accounts used in the ordinary course of business
with commercial banks the balances in which are at all times
fully insured as to principal and interest by the Federal
Deposit Insurance Corporation or any successor thereto; and
(G) to the extent not otherwise included herein, Cash
Equivalents. In the event that either S&P or Moody's ceases
to publish ratings of the type provided herein, a
replacement rating agency shall be selected by the Company
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with the consent of the Trustee, and in each case the rating
of such replacement rating agency most nearly equivalent to
the corresponding S&P or Moody's rating, as the case may be,
shall be used for purposes hereof.
"Trust Indenture Act" means the Trust Indenture
Act of 1939 as in force at the date as of which this instrument
was executed, except as provided in Section 905;
provided, however, that in the event the Trust Indenture Act
of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee"
in the first paragraph of this instrument until a successor
Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall
mean such successor Trustee.
"2023 Debentures" means the Company's 7.75%
Debentures due 2023.
"U.S. Person" means (i) any individual resident in
the United States, (ii) any partnership or corporation
organized or incorporated under the laws of the United
States, (iii) any estate of which an executor or
administrator is a U.S. Person (other than an estate
governed by foreign law and of which at least one executor
or administrator is a non-U.S. Person who has sole or shared
investment discretion with respect to its assets), (iv) any
trust of which any trustee is a U.S. Person (other than a
trust of which at least one trustee is a non-U.S. Person who
has sole or shared investment discretion with respect to its
assets and no beneficiary of the trust (and no settlor if
the Trust is revocable) is a U.S. Person), (v) any agency or
branch of a foreign entity located in the United States,
(vi) any non-discretionary or similar account (other than an
estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. Person, (vii) any discretionary
or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an
individual) resident in the United States (other than such
an account held for the benefit or account of a non-U.S.
Person), (viii) any partnership or corporation organized or
incorporated under the laws of a foreign jurisdiction and
formed by a U.S. Person principally for the purpose of
investing in securities not registered under the Securities
-27-
Act (unless it is organized or incorporated, and owned, by
accredited investors within the meaning of Rule 501(a) under
the Securities Act who are not natural persons, estates or
trusts); provided, however, that the term "U.S. Person" does
not include (A) a branch or agency of a U.S. Person that is
located and operating outside the United States for valid
business purposes as a locally regulated branch or agency
engaged in the banking or insurance business, (B) any
employee benefit plan established and administered in
accordance with the law, customary practices and
documentation of a foreign country and (C) the international
organizations set forth in Section 902(o)(7) of Regulation S
under the Securities Act and any other similar international
organizations, and their agencies, affiliates and pension
plans.
"Vice President", when used with respect to the
Company or the Trustee, means any vice president, whether or
not designated by a number or a word or words added before
or after the title "vice president".
"Voting Stock" of any Person means Capital Stock
of such Person which ordinarily has voting power for the
election of directors (or persons performing similar
functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power
by reason of any contingency.
"Wholly Owned Restricted Subsidiary" of any Person
means a Restricted Subsidiary of such Person all of the
outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the
time be owned by such Person or by one or more Wholly Owned
Restricted Subsidiaries of such Person or by such Person and
one or more Wholly Owned Restricted Subsidiaries of such
Person.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to
the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be
given by an officer of the Company, or an Opinion of
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Counsel, if to be given by counsel, and shall comply with
the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture shall include:
(1) a statement that each individual signing
such certificate or opinion has read such covenant
or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and
scope of the examination or investigation upon
which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each
such individual, he has made such examination or
investigation as is necessary to enable him to
express an informed opinion as to whether or not
such covenant or condition has been complied with;
and
(4) a statement as to whether, in the
opinion of each such individual, such condition or
covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to
be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representa-
tions by, counsel, unless such officer knows, or in the
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exercise of reasonable care should know, that the
certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based
are erroneous. Any such certificate or opinion of counsel
may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the informa-
tion with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in
the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be con-
solidated and form one instrument.
SECTION 104. Acts of Holders; Record Date.
(a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person
or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be proved by
the affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law
to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged
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to him the execution thereof. Where such execution is by a
signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems
sufficient.
(c) The Company may, in the circumstances
permitted by the Trust Indenture Act, fix any day as the
record date for the purpose of determining the Holders
entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or
taken by Holders. If not set by the Company prior to the
first solicitation of a Holder made by any Person in respect
of any such action, or, in the case of any such vote, prior
to such vote, the record date for any such action or vote
shall be the 30th day (or, if later, the date of the most
recent list of Holders required to be provided pursuant to
Section 701) prior to such first solicitation or vote, as
the case may be. With regard to any record date, only the
Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant
action.
(d) The ownership of Notes shall be proved by the
Security Register.
(e) Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the
Holder of any Note shall bind every future Holder of the
same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made
upon such Note.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with,
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(1) the Trustee by any Holder or by the
Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in
writing and mailed, first-class postage prepaid,
or sent by facsimile to or with the Trustee at its
Corporate Trust Office, Attention: Corporate
Trust, or
(2) the Company by the Trustee or by any
Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class
postage prepaid, or sent by facsimile to the
Company addressed to it at the address of its
principal office specified in the first paragraph
of this instrument or at any other address
previously furnished in writing to the Trustee by
the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to
Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears
in the Security Register, not later than the latest date (if
any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived
in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such
notification as shall be made with the approval of the
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Trustee shall constitute a sufficient notification for every
purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act, that
is required under such Act to be part of and govern this
Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified
or excluded, the latter provision shall be deemed to apply
to this Indenture as so modified or to be excluded, as the
case may be. Until such time as this Indenture shall be
qualified under the Trust Indenture Act, this Indenture, the
Company and the Trustee shall be deemed for all purposes
hereof to be subject to and governed by the Trust Indenture
Act to the same extent as would be the case if this
Indenture were so qualified on the date hereof.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the
Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by
the Company shall bind its successors and assigns, whether
so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the
Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
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SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express
or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the holders
of Senior Debt and the Holders of Notes, any benefit or any
legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. Governing Law.
This Indenture and the Notes shall be governed by
and construed in accordance with the laws of the State of
New York; provided, however, that the standard of
performance by the Trustee of its duties hereunder shall be
governed by the laws of the State of California.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date, Purchase Date or Stated Maturity of any
Note shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Notes) payment
of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on
the Interest Payment Date, Redemption Date or Purchase Date,
or at the Stated Maturity, as the case may be, provided that
no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Purchase Date or
Stated Maturity, as the case may be.
ARTICLE TWO
Note Forms
SECTION 201. Forms Generally; Initial Forms of Rule 144A
and Regulation S Notes.
The Notes and the Trustee's certificates of
authentication shall be in substantially the forms set forth
in this Article, with such appropriate insertions,
omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such
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letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers
executing such Notes, as evidenced by their execution of the
Notes.
The definitive Notes to be endorsed thereon shall
be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or
may be produced in any other manner permitted by the rules
of any securities exchange on which the Notes may be listed,
all as determined by the officers executing such Notes, as
evidenced by their execution thereof.
Upon their original issuance, Rule 144A Notes
shall be issued in the form of one or more Global Notes
without interest coupons registered in the name of DTC, as
Depositary, or its nominee and deposited with the Trustee,
as custodian for DTC, in New York, New York, for credit by
DTC to the respective accounts of beneficial owners of the
Notes represented thereby (or such other accounts as they
may direct). Such Global Notes, together with their
Successor Notes which are Global Notes other than the
Restricted Global Note are collectively herein called the
"Regulation S Global Note".
Upon their original issuance, Regulation S Notes
(herein called the "Regulation S Temporary Global Note")
shall be issued in the form of a single temporary Global
Note without coupons registered in the name of DTC, as
Depositary, or its nominee and deposited with the Trustee at
its Corporate Trust Office, as custodian for DTC, for credit
to Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear, and Cedel to the
respective accounts of beneficial owners of the Notes
represented thereby (or such other accounts as they may
direct) in accordance with the rules thereof.
Beneficial interests in the Regulation S Temporary
Global Note may only be held through Euroclear and Cedel
until such interests are exchanged for corresponding
interests in an unrestricted Global Note as provided in the
next sentence. A holder of a beneficial interest in the
Regulation S Temporary Global Note must provide written
certification to Euroclear or CEDEL, as the case may be,
that the beneficial owner of the interest in such Global
-35-
Note is not a U.S. Person (an "Owner Securities
Certification"), and Euroclear or CEDEL, as the case may be,
must provide to the Trustee a similar certificate in the
form set form in Annex C (a "Depositary Securities
Certification"), prior to (i) the payment of interest with
respect to such holder's beneficial interest in the
Regulation S Temporary Global Note and (ii) any exchange of
such beneficial interest for a beneficial interest in the
Regulation S Global Note.
SECTION 202. Form of Face of Note.
[If the Note is a Restricted Note, then insert --
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHOM THE
TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES
ACT ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO
INSTITUTIONAL ACCREDITED INVESTORS IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL
OTHER APPLICABLE SECURITIES LAWS.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF
THE ISSUER THAT THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THIS NOTE WILL NOT BE ACCEPTED FOR REGISTRATION OF
TRANSFER UNLESS THE REGISTRAR OR TRANSFER AGENT IS SATISFIED
THAT THE RESTRICTIONS ON TRANSFER SET FORTH ABOVE HAVE BEEN
COMPLIED WITH, ALL AS PROVIDED IN THE INDENTURE.]
[If the Note is a Global Note, then insert -- THIS
NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE
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EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO
TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED,
IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.]
[If the Note is a Global Note and The Depository
Trust Company is to be the Depositary therefor, then insert
- -- UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[If the Note is a Regulation S Note, then insert -
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933 , AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OF BENEFIT OF, ANY U.S. PERSON, UNLESS THIS
NOTE IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
[If the Note is a Regulation S Temporary Global
Note, then insert --THIS NOTE IS A REGULATION S TEMPORARY
GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO
HEREINAFTER. INTERESTS IN THIS REGULATION S TEMPORARY
GLOBAL NOTE MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON
PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD (AS DEFINED
IN THE INDENTURE) EXCEPT IN CERTAIN LIMITED CIRCUMSTANCES IN
ACCORDANCE WITH THE TERMS OF THE INDENTURE.]
PHILLIPS-VAN HEUSEN CORPORATION
9 1/2% SENIOR SUBORDINATED NOTES DUE 2008
[If Restricted Global Note - CUSIP No. ____________]
[If Regulation S Temporary Global Note - CUSIP No.
[____________]
[If Regulation S Global Note - ISIN No. [____________]]
No. __________ $________
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Phillips-Van Heusen Corporation, a corporation
duly organized and existing under the laws of Delaware
(herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to
________________, or registered assigns, the principal sum
of ______________ Dollars (such amount the "principal
amount" of this Note) [if the Note is a Global Note, then
insert -- , or such other principal amount (which, when
taken together with the principal amounts of all other
Outstanding Notes, shall not exceed $150,000,000 in the
aggregate at any time) as may be set forth in the records of
the Trustee hereinafter referred to in accordance with the
Indenture,] on May 1, 2008 and to pay interest thereon from
April 22, 1998, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for,
semi-annually on May 1 and November 1 in each year,
commencing November 1, 1998, at the rate of 9 1/2% per annum,
until the principal hereof is paid or made available for
payment; provided that, if any Registration Default occurs
under the Exchange and Registration Rights Agreement, then
the per annum interest rate on the applicable principal
amount will increase for the period from and including the
date of the occurrence of the Registration Default to but
excluding such date as no Registration Default is in effect
(at which time the interest rate will be reduced to its
initial rate) at a per annum rate of 0.5% for the first 90-
day period following the occurrence of such Registration
Default, and by an additional 0.5% thereafter (up to a
maximum of 1.0%) (such additional interest being hereafter
referred to as "Special Interest"), and provided, further,]
that any amount of interest on this Note which is overdue
shall bear interest (to the extent that payment thereof
shall be legally enforceable) at the rate per annum then
borne by this Note from the date such amount is due to the
day it is paid or made available for payment, and such
overdue interest shall be payable on demand.
The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record
Date for such interest, which shall be the April 15 or
October 15 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date [if the Note
is an Original Note, then insert --, provided that any
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accrued and unpaid interest (including Special Interest) on
this Note upon the issuance of an Exchange Note in exchange
for this Note shall cease to be payable to the Holder hereof
and shall be payable on the next Interest Payment Date for
such Exchange Note to the Holder thereof on the related
Regular Record Date]. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable
to the Holder on the relevant Regular Record Date and may
either be paid to the Person in whose name this Note (or one
or more Predecessor Notes) is registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Notes not less than 10
days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in said Indenture.
Interest on this Note shall be computed on the basis set
forth in the Indenture.
Payment of the principal of (and premium, if any)
and any such interest on this Note will be made at the
office or agency of the Company in the Borough of Manhattan,
The City of New York, New York, maintained for such purpose
and at any other office or agency maintained by the Company
for such purpose, in such coin or currency of the United
States of America as at the time of payment is legal tender
for payment of public and private debts; provided, however,
that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security
Register; provided further that all payments of the
principal (and premium, if any) and interest on Notes, the
Holders of which have given wire transfer instructions to
the Company or its agent at least 10 Business Days prior to
the applicable payment date will be required to be made by
wire transfer of immediately available funds to the accounts
specified by such Holders in such instructions.
Notwithstanding the foregoing, the final payment of
principal shall be payable only upon surrender of this Note
to the Trustee.
Reference is hereby made to the further provisions
of this Note set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if
set forth at this place.
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Unless the certificate of authentication hereon
has been executed by the Trustee referred to on the reverse
hereof by manual signature, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated:
PHILLIPS-VAN HEUSEN CORPORATION
[SEAL]
By___________________________________
Attest:
______________________________
SECTION 203. Form of Reverse of Note.
This Note is one of a duly authorized issue of
Notes of the Company designated as its 9 1/2% Senior
Subordinated Notes due May 1, 2008 (herein called the
"Notes"), limited in aggregate principal amount to
$150,000,000, issued and to be issued under an Indenture,
dated as of April 22, 1998 (herein called the "Indenture",
which term shall have the meaning assigned to it in such
instrument), between the Company and Union Bank of
California, N.A., as Trustee (herein called the "Trustee",
which term includes any successor trustee under the
Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a state-
ment of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and
the Holders of the Notes and of the terms upon which the
Notes are, and are to be, authenticated and delivered.
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The Notes will be subject to redemption, at the
option of the Company, in whole or in part, at any time on
or after May 1, 2003 and prior to maturity, upon not less
than 30 nor more than 60 days' notice mailed to each Holder
of Notes to be redeemed at such Holder's address appearing
in the Security Register, in amounts of $1,000 or an
integral multiple of $1,000, at the following Redemption
Prices (expressed as percentages of the principal amount)
plus accrued interest to but excluding the Redemption Date
(subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date), if
redeemed during the 12-month period beginning May 1 of the
years indicated:
Year Redemption
Price
2003. . . . . . . . . . . . . . . . . . 104.750%
2004. . . . . . . . . . . . . . . . . . 103.167%
2005. . . . . . . . . . . . . . . . . . 101.583%
2006 and thereafter . . . . . . . . . . 100.000%
In addition, if on or before May 1, 2001 the
Company receives net proceeds from the sale of its Common
Stock in one or more Public Equity Offerings, the Company
may, at its option use an amount equal to all or a portion
of any such net proceeds to redeem Notes in an aggregate
principal amount of up to 33 1/3% of the original aggregate
principal amount of the Notes, provided, however, that Notes
having a principal amount equal to at least 66 2/3% of the
original aggregate principal amount of the Notes remain
outstanding after such redemption. Such redemption must
occur on a Redemption Date within 90 days of such sale and
upon not less than 30 nor more than 60 days' notice mailed
to each Holder of Notes to be redeemed at such Holder's
address appearing in the Security Register, in amounts of
$1,000 or an integral multiple of $1,000, at a redemption
price of 109.50% of the principal amount of the Notes plus
accrued interest to but excluding the Redemption Date
(subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date).
If less than all the Notes are to be redeemed, the
Trustee shall select, in such manner as it shall deem fair
-41-
and appropriate, the particular Notes to be redeemed or any
portion thereof that is an integral multiple of $1,000.
The Notes do not have the benefit of any sinking
fund obligations.
The Indenture provides that, subject to certain
conditions, if (i) certain Net Available Proceeds are
available to the Company as a result of Asset Dispositions
or (ii) a Change of Control occurs, the Company shall be
required to make an Offer to Purchase for all or a specified
portion of the Notes.
In the event of redemption or purchase pursuant to
an Offer to Purchase of this Note in part only, a new Note
or Notes of like tenor for the unredeemed or unpurchased
portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing,
the principal of all the Notes may be declared due and
payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance
at any time of (i) the entire indebtedness of this Note
having been paid or discharged or (ii) certain restrictive
covenants and Events of Default with respect to this Note
having occurred, in each case upon compliance with certain
conditions set forth therein.
The Notes shall be subordinated in right of
payment to Senior Debt of the Company as provided in the
Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification
of the rights and obligations of the Company and the rights
of the Holders of the Notes under the Indenture at any time
by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the
Notes at the time Outstanding. The Indenture also contains
provisions permitting the Holders of a majority in aggregate
principal amount of the Notes at the time Outstanding, on
behalf of the Holders of all the Notes, to waive compliance
by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their
-42-
consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder
and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation
of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of
the Indenture, the Holder of this Note shall not have the
right to institute any proceeding with respect to the
Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall
have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Notes, the
Holders of not less than 25% in aggregate principal amount
of the Notes at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect
of such Event of Default as Trustee and offered the Trustee
reasonable indemnity and the Trustee shall not have received
from the Holders of a majority in aggregate principal amount
of Notes at the time Outstanding a direction inconsistent
with such request and shall have failed to institute any
such proceeding for 60 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not
apply to certain suits described in the Indenture, including
any suit instituted by the Holder of this Note for the
enforcement of any payment of principal hereof or any
premium (if any) or interest hereon on or after the
respective due dates expressed herein (or, in the case of
redemption, on or after the Redemption Date or, in the case
of any purchase of this Note required to be made pursuant to
an Offer to Purchase, on the Purchase Date).
No reference herein to the Indenture and no
provision of this Note or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of (and premium, if any)
and interest on this Note at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to
certain limitations therein set forth, the transfer of this
Note is registrable in the Security Register, upon surrender
of this Note for registration of transfer at the office or
agency of the Company in the Borough of Manhattan, The City
of New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company
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and the Note Registrar duly executed by, the Holder hereof
or his attorney duly authorized in writing, and thereupon
one or more new Notes, of authorized denominations and for
the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes are issuable only in registered form
without coupons in denominations of $1,000 principal amount
and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set
forth, Notes are exchangeable for a like aggregate principal
amount of Notes of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment of this Note for
registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in
whose name this Note is registered as the owner hereof for
all purposes (subject to the provisions hereof with respect
to determination of the Person to whom interest is payable),
whether or not this Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
Interest on this Note shall be computed on the
basis of a 360-day year of twelve 30-month days.
All terms used in this Note which are defined in
the Indenture shall have the meanings assigned to them in
the Indenture.
The Indenture and this Note shall be governed by
and construed in accordance with the laws of the State of
New York; provided, however, that the standard of
performance by the Trustee of its duties hereunder shall be
governed by the laws of the State of California.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased
in its entirety by the Company pursuant to Section 1014 or
1016 of the Indenture, check the box:
___
/__/
If you want to elect to have only a part of this
Note purchased by the Company pursuant to Section 1014 or
1016 of the Indenture, state the principal amount of this
Note you want to elect to have so purchased by the Company:
$___________
Dated:______________ Your Signature:____________________
(Sign exactly as name
appears on the other
side of this Note)
Signature Guarantee:________________________________________
Notice: Signature(s) must be guaranteed
by an "eligible guarantor institution"
meeting the requirements of the Trustee,
which requirements will include membership
or participation in STAMP or such other
"signature guarantee program" as may be
determined by the Trustee in addition to,
or in substitution for STAMP, all in
accordance with the Securities Exchange
Act of 1934, as amended.
SECTION 204. Form of Trustee's Certificate of
Authentication.
This is one of the Notes referred to in the
within-mentioned Indenture.
___________________
as Trustee
By ____________________
Authorized Officer
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ARTICLE THREE
The Notes
SECTION 301. Title and Terms.
The aggregate principal amount of Notes which may
be authenticated and delivered under this Indenture is
limited to $150,000,000 except for Notes authenticated and
delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 304,
305, 306, 906 or 1108 or in connection with an Offer to
Purchase pursuant to Sections 1014 and 1016.
The Notes shall be known and designated as the
"9 1/2% Senior Subordinated Notes due May 1, 2008" of the
Company. Their Stated Maturity shall be May 1, 2008 and
they shall bear interest at the rate of 9 1/2% per annum, from
April 22, 1998 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, as the
case may be, payable semi-annually on May 1 and November 1,
commencing November 1, 1998, until the principal thereof is
paid or made available for payment provided, if any Registration
Default occurs under the Exchange and Registration
Rights Agreement, then the per annum interest rate on the
applicable principal amount will increase for the period
from and including the date of occurrence of the Registra-
tion Default to but excluding such date as no Registration
Default is in effect (at which time the interest rate will
be reduced to its initial rate) by a per annum rate of 0.5%
for the first 90-day period following the occurrence of such
Registration Default, and by an additional 0.5% thereafter
(up to a maximum of 1.0%).
The principal of (and premium, if any) and
interest on the Notes shall be payable at the office or
agency of the Company in the Borough of Manhattan, The City
of New York maintained for such purpose and at any other
office or agency maintained by the Company for such purpose;
provided, however, that at the option of the Company payment
of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in
the Security Register.
The Notes shall be subject to repurchase by the
Company pursuant to an Offer to Purchase as provided in
Sections 1014 and 1016.
-46-
The Notes shall be redeemable as provided in
Article Eleven.
The Notes shall be subordinated in right of
payment to Senior Debt of the Company as provided in Article
Twelve.
The Notes shall be subject to defeasance at the
option of the Company as provided in Article Thirteen.
Unless the context otherwise requires, the Original
Notes and the Exchange Notes shall constitute one series
for all purposes under the Indenture, including with respect
to any amendment, waiver, acceleration or other Act of
Holders, redemption or Offer to Purchase.
SECTION 302. Denominations.
The Notes shall be issuable only in registered
form without coupons and only in denominations of $1000 and
integral multiples thereof.
SECTION 303. Execution, Authentication, Delivery
and Dating.
The Notes shall be executed on behalf of the
Company by its Chairman of the Board, its President or one
of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the
Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such
Notes or did not hold such offices at the date of such
Notes.
At any time and from time to time after the
execution and delivery of this Indenture, the Company may
deliver Notes executed by the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Notes; and the Trustee
-47-
in accordance with such Company Order shall authenticate and
deliver such Notes as in this Indenture provided and not
otherwise.
At any time and from time to time after the
execution and delivery of this Indenture and after the
effectiveness of a registration statement under the
Securities Act with respect thereto, the Company may deliver
Exchange Notes executed by the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Exchange Notes and a
like principal amount of Original Notes for cancellation in
accordance with this Article Three of this Indenture, and
the Trustee in accordance with the Company Order shall
authenticate and deliver such Notes. Prior to
authenticating such Exchange Notes, and accepting any
additional responsibilities under this Indenture in relation
to such Notes, the Trustee shall be entitled to receive, if
requested, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating in
substance:
(a) that all conditions hereunder precedent to
the authentication and delivery of such Exchange Notes
have been complied with and that such Exchange Notes,
when such Notes have been duly authenticated and
delivered by the Trustee (and subject to any other
conditions specified in such Opinion of Counsel), have
been duly issued and delivered and will constitute
valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors'
rights and to general equity principles; and
(b) that the issuance of the Exchange Notes in
exchange for Original Notes has been effected in
compliance with the Securities Act.
Each Note shall be dated the date of its
authentication.
No Note shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose
unless there appears on such Note a certificate of
authentication substantially in the form provided for herein
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executed by the Trustee by manual signature, and such
certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly
authenticated and delivered hereunder.
SECTION 304. Temporary Notes.
Pending the preparation of definitive Notes, the
Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Notes, which Notes
are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Notes in lieu of
which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the
officers executing such Notes may determine, as evidenced by
their execution thereof.
If temporary Notes are issued, the Company will
cause definitive Notes to be prepared without unreasonable
delay. After the preparation of definitive Notes, the
temporary Notes shall be exchangeable for definitive Notes,
upon surrender of the temporary Notes at any office or
agency of the Company designated pursuant to Section 1002,
without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes the Company
shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive
Notes of authorized denominations. Until so exchanged the
temporary Notes shall in all respects be entitled to the
same benefits under this Indenture as definitive Notes.
SECTION 305. Global Notes.
(a) Each Global Note authenticated under this
Indenture shall be registered in the name of the Depositary
designated by the Company for such Global Note or a nominee
thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Note
shall constitute a single Note for all purposes of this
Indenture.
(b) Notwithstanding any other provision in this
Indenture, no Global Note may be exchanged in whole or in
part for Notes registered, and no transfer of a Global Note
in whole or in part may be registered, in the name of any
Person other than the Depositary for such Global Note or a
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nominee thereof unless (i) such Depositary (A) has notified
the Company that it is unwilling or unable to continue as
Depositary for such Global Note or (B) has ceased to be a
clearing agency registered as such under the Exchange Act,
and in either case the Company fails to appoint a successor
Depositary within 90 days, (ii) the Company executes and
delivers to the Trustee a Company Order stating that it
elects to cause the issuance of the Notes in certificated
form and that all Global Notes shall be exchanged in whole
for Securities that are not Global Notes (in which case such
exchange shall be effected by the Trustee) or (iii) there
shall have occurred and be continuing an Event of Default or
any Event which after notice or lapse of time or both would
be an Event of Default with respect to the Notes.
(c) If any Global Note is to be exchanged for
other Notes or canceled in whole, it shall be surrendered by
or on behalf of the Depositary or its nominee to the
Trustee, as Security Registrar, for exchange or cancellation
as provided in this Article Three. If any Global Note is to
be exchanged for other Notes or canceled in part, or if
another Note is to be exchanged in whole or in part for a
beneficial interest in any Global Note, then either (i) such
Global Note shall be so surrendered for exchange or
cancellation as provided in this Article Three or (ii) the
principal amount thereof shall be reduced or increased by an
amount equal to the portion thereof to be so exchanged or
canceled, or equal to the principal amount of such other
Note to be so exchanged for a beneficial interest therein,
as the case may be, by means of an appropriate adjustment
made on the records of the Trustee, as Security Registrar,
whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its
records. Upon any such surrender or adjustment of a Global
Note, the Trustee shall, subject to Section 306(c) and as
otherwise provided in this Article Three, authenticate and
deliver any Notes issuable in exchange for such Global Note
(or any portion thereof) to or upon the order of, and
registered in such names as may be directed by, the
Depositary or its authorized representative. Upon the
request of the Trustee in connection with the occurrence of
any of the events specified in the preceding paragraph, the
Company shall promptly make available to the Trustee a rea-
sonable supply of Notes that are not in the form of Global
Notes. The Trustee shall be entitled to rely upon any
order, direction or request of the Depositary or its
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authorized representative which is given or made pursuant to
this Article Three if such order, direction or request is
given or made in accordance with the Applicable Procedures.
(d) Every Note authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu
of, a Global Note or any portion thereof, whether pursuant
to this Article Three or otherwise, shall be authenticated
and delivered in the form of, and shall be, a Global Note,
unless such Note is registered in the name of a Person other
than the Depositary for such Global Note or a nominee
thereof.
(e) The Depositary or its nominee, as registered
owner of a Global Note, shall be the Holder of such Global
Note for all purposes under the Indenture and the Notes, and
owners of beneficial interests in a Global Note shall hold
such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a
Global Note will be shown only on, and the transfer of such
interest shall be effected only through, records maintained
by the Depositary or its nominee or its Agent Members.
SECTION 306. Registration, Registration of Transfer and
Exchange Generally; Restrictions on Transfer
and Exchange; Securities Act Legends.
(a) Registration, Registration of Transfer and
Exchange Generally. The Company shall cause to be kept at
the Corporate Trust Office of the Trustee a register (the
register maintained in such office and in any other office
or agency of the Company designated pursuant to Section 1002
being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide
for the registration of Notes and of transfers and exchanges
of Notes. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Notes and
transfers and exchanges of Notes as herein provided. Such
Security Register shall distinguish between Original Notes
and Exchange Notes.
Upon surrender for registration of transfer of any
Note at an office or agency of the Company designated
pursuant to Section 1002 for such purpose, and provided that
the other requirements of this Section 306 have been
satisfied, the Company shall execute, and the Trustee shall
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authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes of any
authorized denominations, of a like aggregate principal
amount and bearing such restrictive legends as may be
required by this Indenture.
At the option of the Holder, and subject to the
other provisions of this Section 306, Notes may be exchanged
for other Notes of any authorized denominations, of a like
aggregate principal amount and bearing such restrictive
legends as may be required by this Indenture upon surrender
of the Notes to be exchanged at any such office or agency.
Whenever any Notes are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate
and deliver, the Notes which the Holder making the exchange
is entitled to receive.
All Notes issued upon any registration of transfer
or exchange of Notes shall be the valid obligations of the
Company, evidencing the same debt, and (except for the
differences between Original Notes and Exchange Notes
provided for herein) entitled to the same benefits under
this Indenture, as the Notes surrendered upon such
registration of transfer or exchange.
Every Note presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Note
Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registra-
tion of transfer or exchange of Notes, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Sections 303, 304, 305,
306, 906, 1016, 1017 or 1109 not involving any transfer.
The Company shall not be required (i) to issue,
register the transfer of, or exchange any Note during a
period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of Notes
selected for redemption under Section 1105 and ending at the
close of business on the day of such mailing, or (ii) to
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register the transfer of or exchange any Note so selected
for redemption, in whole or in part, except the unredeemed
portion of any Note being redeemed in part.
(b) Certain Transfers and Exchanges. Notwith-
standing any other provision of this Indenture or the Notes,
transfers and exchanges of Notes and beneficial interests in
a Global Note of the kinds specified in this Section 306(b)
shall be made only in accordance with this Section 306(b).
(i) Restricted Global Note to Regulation S
Temporary Global Note or Regulation S Global Note. If the
owner of a beneficial interest in the Restricted Global Note
wishes at any time to transfer such interest to a Person who
wishes to acquire the same in the form of a beneficial
interest in the Regulation S Temporary Global Note (if
before the expiration of the Restricted Period) or in
the Regulation S Global Note (if thereafter), such
transfer may be effected only in accordance with the
provisions of this Clause (b)(i) subject to the
Applicable Procedures. Upon receipt by the Trustee, as
Security Registrar, of (A) an order given by the
Depositary or its authorized representative directing
that a beneficial interest in the Regulation S
Temporary Global Note or Regulation S Temporary Global
Note or Regulation S Global Note (as applicable) in a
specified principal amount be credited to a specified
Agent Member's account and that a beneficial interest
in the Restricted Global Note in an equal principal
amount be debited from another specified Agent Member's
account and (B) a Regulation S Certificate, satisfactory
to the Trustee and duly executed by the owner
of such beneficial interest in the Restricted Global
Note or his attorney duly authorized in writing, then
the Trustee, as Security Registrar but subject to
Clause (b)(iv) below, shall reduce the principal amount
of the Restricted Global Note and increase the
principal amount of the Regulation S Temporary Global
Note or Regulation S Global Note (as applicable) by
such specified principal amount as provided in Section
305(c).
(ii) Regulation S Temporary Global Note to
Restricted Global Note. If the owner of a beneficial interest
in the Regulation S Temporary Global Note wishes at any time
to transfer such interest to a Person who wishes to acquire
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the same in the form of a beneficial interest in the
Restricted Global Note, such transfer may be effected
only in accordance with this Clause (b)(ii) and subject
to the Applicable Procedures. Upon receipt by the
Trustee, as Security Registrar, of (A) an order given
by the Depositary or its authorized representative
directing that a beneficial interest in the Restricted
Global Note in a specified principal amount be credited
to a specified Agent Member's account and that a
beneficial interest in the Regulation S Temporary
Global Note in an equal principal amount be debited
from another specified Agent Member's account and (B) a
Restricted Notes Certificate, satisfactory to the
Trustee and duly executed by the owner of such
beneficial interest in the Regulation S Temporary
Global Note or his attorney duly authorized in writing,
then the Trustee, as Security Registrar, shall reduce
the principal amount of the Regulation S Temporary
Global Note and increase the principal amount of the
Restricted Global Note by such specified principal
amount as provided in Section 305(c).
(iii) Exchanges between Global Note and Non-Global
Note. A beneficial interest in a Global Note may be exchanged
for a Note that is not a Global Note as provided in Section
305, provided that, if such interest is a beneficial
interest in the Restricted Global Note, or if such
interest is a beneficial interest in the Regulation S
Temporary Global Note, then such interest shall be
exchanged for a Restricted Note (subject in each case
to Section 306(c)).
(iv) Regulation S Temporary Global Note to be Held
Through Euroclear or Cedel during Restricted Period. The
Company shall use its best efforts to cause the Depositary to
ensure that beneficial interests in the Regulation S Temporary
Global Note may be held only in or through accounts
maintained at the Depositary by Euroclear or Cedel (or
by Agent Members acting for the account thereof), and
no person shall be entitled to effect any transfer or
exchange that would result in any such interest being
held otherwise than in or through such an account;
provided that this Clause (b)(iv) shall not prohibit
any transfer or exchange of such an interest in
accordance with Clause (b)(ii) above.
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(c) Securities Act Legends. Rule 144A Notes and
their respective Successor Notes shall bear a Restricted
Notes Legend, and Regulation S Notes and their Successor
Notes shall bear a Regulation S Legend, subject to the
following:
(i) subject to the following Clauses of this Section
306(c), a Note or any portion thereof which is exchanged, upon
transfer or otherwise, for a Global Note or any portion
thereof shall bear the Securities Act Legend borne by such
Global Note while represented thereby;
(ii) subject to the following Clauses of this
Section 306(c), a new Note which is not a Global Note and is
issued in exchange for another Note (including a Global Note)
or any portion thereof, upon transfer or otherwise, shall
bear the Securities Act Legend borne by such other
Note, provided that, if such new Note is required
pursuant to Section 306(b)(iii) to be issued in the
form of a Restricted Note, it shall bear a Restricted
Notes Legend and, if such new Note is so required to be
issued in the form of a Regulation S Note, it shall
bear a Regulation S Legend;
(iii) Exchange Notes shall not bear a Securities Act
Legend;
(iv) at any time after the Notes may be freely
transferred without registration under the Securities Act or
without being subject to transfer restrictions pursuant to the
Securities Act, a new Note which does not bear a
Securities Act Legend may be issued in exchange for or
in lieu of a Note (other than a Global Note) or any
portion thereof which bears such a legend if the
Trustee has received an Unrestricted Notes Certificate,
satisfactory to the Trustee and duly executed by the
Holder of such legended Note or his attorney duly
authorized in writing, and after such date and receipt
of such certificate, the Trustee shall authenticate and
deliver such a new Note in exchange for or in lieu of
such other Note as provided in this Article Three;
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(v) a new Note which does not bear a Securities Act
Legend may be issued in exchange for or in lieu of a Note
(other than a Global Note) or any portion thereof which bears
such a legend if, in the Company's judgment, placing such a
legend upon such new Note is not necessary to ensure
compliance with the registration requirements of the
Securities Act, and the Trustee, at the direction of
the Company, shall authenticate and deliver such a new
Note as provided in this Article Three; and
(vi) notwithstanding the foregoing provisions of
this Section 306(c), a Successor Note of a Note that does not
bear a particular form of Securities Act Legend shall not bear
such form of legend unless the Company has reasonable
cause to believe that such Successor Note is a
"restricted security" within the meaning of Rule 144,
in which case the Trustee, at the direction of the
Company, shall authenticate and deliver a new Note
bearing a Restricted Notes Legend in exchange for such
Successor Note as provided in this Article Three.
SECTION 307. Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Note of
like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction,
loss or theft of any Note and (ii) such security or
indemnity as may be required by either of them to save each
of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that
such Note has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed,
lost or stolen Note, a new Note of like tenor and principal
amount and bearing a number not contemporaneously
outstanding.
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In case any such mutilated, destroyed, lost or
stolen Note has become or is about to become due and
payable, the Company in its discretion may, instead of
issuing a new Note, pay such Note.
Upon the issuance of any new Note under this
Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Note issued pursuant to this Section in
lieu of any destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Note
shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued
hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes.
SECTION 308. Payment of Interest; Interest
Rights Preserved.
Interest on any Note which is payable, and is
punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that
Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such
interest.
Any interest on any Note which is payable, but is
not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in Clause (1) or (2)
below:
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(1) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose
names the Notes (or their respective Predecessor
Notes) are registered at the close of business on
a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Note and the
date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date
of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date
and, in the name and at the expense of the
Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class
postage prepaid, to each Holder at his address as
it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been
so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Notes (or their
respective Predecessor Notes) are registered at
the close of business on such Special Record Date
and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any
Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any
securities exchange on which the Notes may be
listed, and upon such notice as may be required by
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such exchange, if, after notice given by the
Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this
Section, each Note delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of
any other Note shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other
Note.
SECTION 309. Persons Deemed Owners.
Prior to due presentment of a Note for registra-
tion of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose
name such Note is registered as the owner of such Note for
the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 308) interest on
such Note and for all other purposes whatsoever, whether or
not such Note be overdue, and none of the Company, the
Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee or any agent of
the Company or the Trustee shall have any responsibility or
liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests
of a Note in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interests. Notwithstanding the foregoing, with respect to
any Note in global form, nothing herein shall prevent the
Company or the Trustee, or any agent of the Company or the
Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any Depositary (or
its nominee), as a Holder, with respect to such Note in
global form or impair, as between such Depositary and owners
of beneficial interests in such Note in global form, the
operation of customary practices governing the exercise of
the rights of such Depositary (or its nominee) as Holder of
such Note in global form.
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SECTION 310. Cancellation.
All Notes surrendered for payment, redemption,
registration of transfer or exchange or any Offer to
Purchase pursuant to Section 1014 or 1016 shall, if
surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by
it. The Company may at any time deliver to the Trustee for
cancellation any Notes previously authenticated and
delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Notes so delivered shall be
promptly canceled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes
canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Notes held by the
Trustee shall be disposed of as directed by a Company Order.
SECTION 311. Computation of Interest.
Interest on the Notes shall be computed on the
basis of a 360 day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect
(except as to (i) rights of registration of transfer and
exchange and the Company's right of optional redemption,
(ii) substitution of apparently mutilated, defaced,
destroyed, lost or stolen Notes, (iii) rights of Holders to
receive payment of principal and interest on the Notes,
(iv) rights, obligations and immunities of the Trustee under
the Indenture, (v) rights of the Holders of the Notes as
beneficiaries of the Indenture with respect to any property
deposited with the Trustee payable to all or any of them and
(vi) obligations of the Company under Section 610(e)), and
the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when
(1) either
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(A) all Notes theretofore
authenticated and delivered (other than
(i) Notes which have been destroyed,
lost or stolen and which have been
replaced or paid as provided in
Section 307 and (ii) Notes for whose
payment money has theretofore been
deposited in trust or segregated and
held in trust by the Company and there-
after repaid to the Company or
discharged from such trust, as provided
in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all such Notes not theretofore
delivered to the Trustee for
cancellation
(i) have become due and
payable, or
(ii) will become due and
payable at their Stated Maturity
within one year, or
(iii) are to be called for
redemption within one year under
arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the
name, and at the expense, of the
Company,
and the Company, in the case of (i),
(ii) or (iii) above, has deposited or
caused to be deposited with the Trustee
as trust funds in trust for the purpose
an amount sufficient to pay and dis-
charge the entire indebtedness on such
Notes not theretofore delivered to the
Trustee for cancellation, for principal
(and premium, if any) and interest to
the date of such deposit (in the case of
Notes which have become due and payable)
or to the Stated Maturity or Redemption
Date, as the case may be;
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(2) the Company has paid or caused to be
paid all other sums payable hereunder by the
Company; and
(3) the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions
precedent herein provided for relating to the
satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture pursuant to this Article Four, the obligations of
the Company to the Trustee under Section 607 and, if money
shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations
of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of
Section 1003, all money deposited with the Trustee pursuant
to Section 401 shall be held in trust uninvested and applied
by it, in accordance with the provisions of the Notes and
this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and
interest for whose payment such money has been deposited
with the Trustee but such money need not be separated from
other funds except to the extent required by law.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means
any one of the following events (whatever the reason for
such Event of Default and whether it shall be occasioned by
the provisions of Article Twelve or be voluntary or
involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order,
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rule or regulation of any administrative or governmental
body):
(1) failure to pay the principal of (or
premium, if any, on) any Note at its
Maturity; or
(2) failure to pay any interest upon any
Note when it becomes due and payable,
and continuance of such default for a
period of 30 days; or
(3) default in the payment of principal and
interest on Notes required to be
purchased by the Company pursuant to an
Offer to Purchase as described in
Section 1014 herein and Section 1016
herein when due and payable; or
(4) failure to perform or comply with the
provisions of Section 801; or
(5) failure to perform any other covenant or
agreement of the Company in this
Indenture or Notes (other than a covenant
or warranty a default in whose
performance or whose breach is elsewhere
in this Section specifically dealt
with), and continuance of such default
or breach for a period of 60 days after
there has been given, by registered or
certified mail, to the Company by the
Trustee or to the Company and the
Trustee by the Holders of at least 25%
in principal amount of the Outstanding
Notes a written notice specifying such
default or breach and requiring it to be
remedied and stating that such notice is
a "Notice of Default" hereunder; or
(6) default under the terms of any
instrument evidencing or securing Debt
for money borrowed by the Company or any
Restricted Subsidiary having an
outstanding principal amount of
$5.0 million individually or in the
aggregate which default results in the
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acceleration of the payment of such
indebtedness or constitutes the failure
to pay such indebtedness when due; or
(7) a final judgment or judgments (not
subject to appeal) for the payment of
money are entered against the Company or
any Restricted Subsidiary of the Company
in an amount in excess of $5.0 million
by a court or courts of competent jurisdiction,
which judgments remain undischarged or
unstayed for a period of
60 days after the date on which the
right to appeal all such judgments has
expired; or
(8) the entry by a court having jurisdiction
in the premises of (A) a decree or order
for relief in respect of the Company or
any Restricted Subsidiary of the Company
in an involuntary case or proceeding
under any applicable Federal or State
bankruptcy, insolvency, reorganization
or other similar law or (B) a decree or
order adjudging the Company or any such
Restricted Subsidiary a bankrupt or
insolvent, or approving as properly
filed a petition seeking reorganization,
arrangement, adjustment or composition
of or in respect of the Company or any
such Restricted Subsidiary under any
applicable Federal or State law, or
appointing a custodian, receiver,
liquidator, assignee, trustee,
sequestrator or other similar official
of the Company or any such Restricted
Subsidiary of any substantial part of
the property of the Company or any such
Restricted Subsidiary, or ordering the
winding up or liquidation of the affairs
of the Company or any such Subsidiary,
and the continuance of any such decree
or order for relief or any such other
decree or order unstayed and in effect
for a period of 60 consecutive days; or
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(9) the commencement by the Company or any
Restricted Subsidiary of the Company of
a voluntary case or proceeding under any
applicable Federal or State bankruptcy,
insolvency, reorganization or other
similar law or of any other case or
proceeding to be adjudicated a bankrupt
or insolvent, or the consent by the
Company or any such Restricted
Subsidiary to the entry of a decree or
order for relief in respect of the
Company or any Restricted Subsidiary of
the Company in an involuntary case or
proceeding under any applicable Federal
or State bankruptcy, insolvency,
reorganization or other similar law or
to the commencement of any bankruptcy or
insolvency case or proceeding against
the Company or any Restricted Subsidiary
of the Company, or the filing by the
Company or any such Restricted
Subsidiary of a petition or answer or
consent seeking reorganization or relief
under any applicable Federal or State
law, or the consent by the Company or
any such Restricted Subsidiary to the
filing of such petition or to the
appointment of or taking possession by a
custodian, receiver, liquidator,
assignee, trustee, sequestrator or
similar official of the Company or any
Restricted Subsidiary of the Company of
any substantial part of the property of
the Company or any Restricted Subsidiary
of the Company, or the making by the
Company or any Restricted Subsidiary of
the Company of an assignment for the
benefit of creditors, or the admission
by the Company or any such Restricted
Subsidiary in writing of its inability
to pay its debts generally as they
become due, or the taking of corporate
action by the Company or any such
Restricted Subsidiary in furtherance of
any such action.
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SECTION 502. Acceleration of Maturity; Rescission
and Annulment.
If an Event of Default (other than an Event of
Default specified in Section 501(8) or (9)) occurs and is
continuing, then and in every such case the Trustee or the
Holders of not less than 25% in aggregate principal amount
of the Outstanding Notes may declare all of the Notes to be
due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon
any such declaration such principal and any accrued
interest, if any, shall become immediately due and payable.
If an Event of Default specified in Section 501(8) or (9)
occurs, the principal and any accrued interest on the Notes
then Outstanding shall ipso facto become immediately due and
payable without any declaration or other Act on the part of
the Trustee or any Holder.
At any time after such a declaration of acceleration
has been made and before a judgment or decree for payment
of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a
majority in aggregate principal amount of the Outstanding
Notes, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with
the Trustee a sum sufficient to pay
(A) all overdue interest on all
Notes,
(B) the principal of (and premium,
if any, on) any Notes which have become
due otherwise than by such declaration
of acceleration (including any Notes
required to have been purchased on the
Purchase Date pursuant to an Offer to
Purchase made by the Company) and, to
the extent that payment of such interest
is lawful, interest thereon at the rate
provided by the Notes,
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(C) to the extent that payment of
such interest is lawful, interest upon
overdue interest at the rate provided by
the Notes, and
(D) all sums paid or advanced by
the Trustee hereunder and the reasonable
compensation, expenses, disbursements
and advances of the Trustee, its agents
and counsel;
and
(2) all Events of Default, other than the
non-payment of the principal of Notes which have
become due solely by such declaration of
acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any
interest on any Note when such interest becomes
due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the
principal of (or premium, if any, on) any Note at
the Maturity thereof or, with respect to any Note
required to have been purchased pursuant to an
Offer to Purchase made by the Company, at the
Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Notes, the whole amount
then due and payable on such Notes for principal (and
premium, if any) and interest, and, to the extent that
payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and
on any overdue interest, at the rate provided by the Notes,
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if any, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of col-
lection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial pro-
ceeding for the collection of the sums so due and unpaid,
may prosecute such proceeding to judgment or final decree
and may enforce the same against the Company or any other
obligor upon the Notes and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the
Notes, wherever situated.
If an Event of Default occurs and is continuing,
the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders by such
appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the
Company or any other obligor upon the Notes, or upon the
property of the Company or its creditors, the Trustee shall
be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized
to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount
due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
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counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes
or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 505. Trustee May Enforce Claims Without
Possession of Notes.
All rights of action and claims under this Inden-
ture or the Notes may be prosecuted and enforced by the
Trustee without the possession of any of the Notes or the
production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the
Notes in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Notes
and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts
due the Trustee under Section 607; and
SECOND: To the extent provided in
Article Twelve, to the holders of Senior Debt
in accordance with Article Twelve; and
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THIRD: To the payment of the amounts
then due and unpaid for principal of (and
premium, if any) and interest on the Notes in
respect of which or for the benefit of which
such money has been collected, ratably,
without preference or priority of any kind,
according to the amounts due and payable on
such Notes for principal (and premium, if
any) and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Note shall have any right to
institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written
notice to the Trustee of a continuing Event of
Default;
(2) the Holders of not less than 25% in
aggregate principal amount of the Outstanding
Notes shall have made written request to the
Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to
the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its
receipt of such notice, request and offer of
indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such
written request has been given to the Trustee
during such 60-day period by the Holders of a
majority in aggregate principal amount of the
Outstanding Notes;
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it being understood and intended that no one or more Holders
shall have any right in any manner whatever by virtue of, or
by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders, or to
obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and
ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Note shall have the right,
which is absolute and unconditional, to receive payment of
the principal of (and premium, if any) and (subject to
Section 306) interest on such Note on the respective Stated
Maturities expressed in such Note (or, in the case of
redemption, on the Redemption Date or in the case of an
Offer to Purchase made by the Company and required to be
accepted as to such Note, on the Purchase Date) and to
institute suit for the enforcement of any such payment, and
such rights shall not be impaired without the consent of
such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Inden-
ture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the
Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or
stolen Notes in the last paragraph of Section 307, no right
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or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder of any Note to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the
case may be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal
amount of the Outstanding Notes shall have the right to
direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee,
provided that
(1) such direction shall not be in conflict
with any rule of law or with this Indenture, and
(2) the Trustee may take any other action
deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in
aggregate principal amount of the Outstanding Notes may on
behalf of the Holders of all the Notes waive any past
default hereunder and its consequences, except a default
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(1) in the payment of the principal of (or
premium, if any) or interest on any Note
(including any Note which is required to have been
purchased pursuant to an Offer to Purchase which
has been made by the Company), or
(2) in respect of a covenant or provision
hereof which under Article Ten cannot be modified
or amended without the consent of the Holder of
each Outstanding Note affected.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and
may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture
Act; provided, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in
any suit instituted by the Company.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as
though no such law had been enacted.
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ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
Except during the continuance of an Event of
Default, the duties and responsibilities of the Trustee
shall be as provided by the Indenture. During the existence
of an Event of Default, the Trustee will exercise such
rights and powers vested in it under the Indenture and use
the same degree of care and skill in its exercise as a
prudent person would exercise under the circumstances in the
conduct of such person's own affairs. Notwithstanding the
foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any
default hereunder as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any
default of the character specified in Section 501(4), no
such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Sec-
tion, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of
Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting upon
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any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document believed by it to be genuine and to have
been signed or presented by the proper party or
parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order and any
resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and
the written advice of such counsel or any Opinion
of Counsel shall be full and complete
authorization and protection in respect of any
action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in
it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the
Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be
incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make
any investigation into the facts or matters stated
in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may
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make such further inquiry or investigation into
such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to
examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents
or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on
the part of any agent or attorney appointed with
due care by it hereunder; and
(h) the Trustee shall not be deemed to have
notice of a "default" as defined in Section 602,
or an Event of Default as defined in Section 501
hereof, unless and until it has actual knowledge
thereof at its Corporate Trust Office.
SECTION 604. Not Responsible for Recitals or
Issuance of Notes.
The recitals contained herein and in the Notes,
except the Trustee's certificates of authentication, shall
be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes. The Trustee
shall not be accountable for the use or application by the
Company of Notes or the proceeds thereof.
SECTION 605. May Hold Notes.
The Trustee, any Paying Agent, any Note Registrar
or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Notes
and, subject to Sections 608 and 613, may otherwise deal
with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Note Registrar or such other
agent.
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SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time
such compensation as shall be agreed to in writing
by the Company and the Trustee for all services
rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard
to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided
herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in
accordance with any provision of this Indenture
(including the reasonable compensation and the
expenses and disbursements of its agents and
counsel), except any such expense, disbursement or
advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Trustee for, and to
hold it harmless against, any loss, liability or
expense (other than taxes based on the income of
the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection
with the acceptance or administration of this
trust, including the costs and expenses of
defending itself against any claim or liability in
connection with the exercise or performance of any
of its powers or duties hereunder.
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SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such conflict or resign, to
the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
which shall be a Person that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined capi-
tal and surplus of at least $50,000,000 and its Corporate
Trust Office in the Borough of Manhattan, The City of New
York. If such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus
of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment
of Successor.
(a) No resignation or removal of the Trustee and
no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving
written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act
of the Holders of a majority in aggregate principal amount
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of the Outstanding Notes, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 608 after written request therefor by the
Company or by any Holder who has been a bona fide
Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible
under Section 609 and shall fail to resign after
written request therefor by the Company or by any
such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer
shall take charge or control of the Trustee or of
its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolu-
tion may remove the Trustee, or (ii) subject to Section 514,
any Holder who has been a bona fide Holder of a Note for at
least six months may, on behalf of himself and all others
similarly situated, petition any court of competent juris-
diction for the removal of the Trustee and the appointment
of a successor Trustee.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in
the office of Trustee for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor
Trustee shall be appointed by Act of the Holders of a
majority in aggregate principal amount of the Outstanding
Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in
the manner hereinafter provided, any Holder who has been a
bona fide Holder of a Note for at least six months may, on
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behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation
and each removal of the Trustee and each appointment
of a successor Trustee to all Holders in the manner provided
in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust
Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall
execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on request of the Company or the suc-
cessor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts
of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder. Upon request of
any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
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trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Notes
shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated
with the same effect as if such successor Trustee had itself
authenticated such Notes.
SECTION 613. Preferential Collection of Claims
Against Company.
If and when the Trustee shall be or become a
creditor of the Company (or any other obligor upon the
Notes), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders.
The Company will furnish or cause to be furnished
to the Trustee
(a) semi-annually, not more than 15 days
after each Regular Record Date, a list, in such
form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such
Regular Record Date, and
(b) at such other times as the Trustee may
request in writing, within 30 days after the
receipt by the Company of any such request, a list
of similar form and content as of a date not more
than 15 days prior to the time such list is
furnished;
excluding from any such list names and addresses received by
the Trustee in its capacity as Note Registrar.
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SECTION 702. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses
of Holders contained in the most recent list furnished to
the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity
as Note Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a
new list so furnished.
(b) The rights of Holders to communicate with
other Holders with respect to their rights under this
Indenture or under the Notes and the corresponding rights
and duties of the Trustee, shall be provided by the Trust
Indenture Act.
(c) Every Holder of Notes, by receiving and
holding the same, agrees with the Company and the Trustee
that neither the Company nor the Trustee nor any agent of
either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of
Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant
thereto.
(b) A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee
with each stock exchange upon which the Notes are listed,
with the Commission and with the Company. The Company will
notify the Trustee when the Notes are listed on any stock
exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents
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and other reports, and such summaries thereof, as may
be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant to such Act; provided
that any such information, documents or reports required to
be filed with Commission pursuant to Section 13 or 15(d) of
the Exchange Act shall be filed with the Trustee within 30
days after the same is so required to be filed with the
Commission.
SECTION 705. Officers' Certificate with Respect to
Change in Interest Rates.
Within five days after the day on which any
Special Interest begins accruing, and within five days after
any Special Interest ceases to accrue, the Company shall
deliver an Officers' Certificate to the Trustee stating the
interest rate thereupon in effect for the applicable Notes
(if any are Outstanding) and the date on which such rate
became effective.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Mergers, Consolidations and Certain
Transfers, Leases and Acquisition
of Assets.
The Company shall not, in a single transaction or
a series of related transactions, (i) consolidate with or
merge into any other Person or permit any other Person to
consolidate with or merge into the Company or (ii) directly
or indirectly, transfer, sell, lease or otherwise dispose of
all or substantially all of its assets unless: (1) in a
transaction in which the Company does not survive or in
which the Company sells, leases or otherwise disposes of all
or substantially all of its assets, the successor entity to
the Company is organized under the laws of the United States
of America or any State thereof or the District of Columbia
and shall expressly assume, by a supplemental indenture
executed and delivered to the Trustee in form satisfactory
to the Trustee, all of the Company's obligations under the
Indenture; (2) immediately before and after giving effect to
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such transaction and treating any Debt which becomes an
obligation of the Company or a Restricted Subsidiary as a
result of such transaction as having been Incurred by the
Company or such Restricted Subsidiary at the time of the
transaction, no Event of Default or event that with the
passing of time or the giving of notice, or both, would
constitute an Event of Default shall have occurred and be
continuing; (3) immediately after giving effect to such
transaction, the Consolidated Net Worth of the Company (or
other successor entity to the Company) is equal to or
greater than that of the Company immediately prior to the
transaction; (4) immediately after giving effect to such
transaction and treating any Debt which becomes an
obligation of the Company or a Restricted Subsidiary as a
result of such transaction as having been Incurred by the
Company or such Restricted Subsidiary at the time of the
transaction, the Company (including any successor entity to
the Company) could Incur at least $1.00 of additional Debt
pursuant to the provisions of the Indenture described in the
first paragraph under Section 1008 hereof; and (5) the
Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel (which Opinion of
Counsel may rely, as to factual matters, on such Officer's
Certificate), each stating that such consolidation, merger,
conveyance, transfer, lease or acquisition and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture, complies with this
Article and that all conditions precedent herein provided
for relating to such transaction have been complied with,
and, with respect to such Officer's Certificate, setting
forth the manner of determination of the Consolidated Net
Worth and the ability to Incur Debt in accordance with
Clause (4) of Section 801, of the Company or, if applicable,
of the Successor Company as required pursuant to the
foregoing.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or
merger of the Company into, any other Person or any
transfer, conveyance, sale, lease or other disposition of
all or substantially all of the properties and assets of the
Company as an entirety in accordance with Section 801, the
Successor Company shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor
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Person had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person shall
be relieved of all obligations and covenants under this
Indenture and the Notes.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holders, the Company,
when authorized by a Board Resolution of the Company, and
the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another
Person to the Company and the assumption by any
such successor of the covenants of the Company
herein and in the Notes; or
(2) to add to the covenants of the Company
for the benefit of the Holders, or to surrender
any right or power herein conferred upon the
Company; or
(3) to secure the Notes pursuant to the
requirements of Section 1011 or otherwise; or
(4) to comply with any requirements of the
Commission in order to effect and maintain the
qualification of this Indenture under the Trust
Indenture Act; or
(5) to cure any ambiguity, to correct or
supplement any provision herein which may be
inconsistent with any other provision herein, or
to make any other provisions with respect to
matters or questions arising under this Indenture
which shall not be inconsistent with the provi-
sions of this Indenture, provided such action
pursuant to this Clause (5) shall not adversely
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affect the interests of the Holders in any mate-
rial respect.
SECTION 902. Supplemental Indentures with
Consent of Holders.
With the consent of the Holders of not less than a
majority in principal amount of the Outstanding Notes, by
Act of said Holders delivered to the Company and the Trus-
tee, the Company, when authorized by a Board Resolution of
the Company, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding
Note affected thereby,
(1) change the Stated Maturity of the
principal of, or any instalment of interest on,
any Note, or reduce the principal amount thereof
or the rate of interest thereon or any premium
payable thereon, or change the place of payment
where, or the coin or currency in which, any Note
or any premium or the interest thereon is payable,
or impair the right to institute suit for the
enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or, in
the case of an Offer to Purchase which has been
made, on or after the applicable Purchase Date),
or
(2) reduce the percentage in principal
amount of the Outstanding Notes, the consent of
whose Holders is required for any such
supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance
with certain provisions of this Indenture or
certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this
Section, Section 513 or Section 1020, except to
increase any such percentage or to provide that
certain other provisions of this Indenture cannot
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be modified or waived without the consent of the
Holder of each Outstanding Note affected thereby,
or
(4) modify any of the provisions of this
Indenture relating to the subordination of the
Notes in a manner adverse to the Holders, or
(5) following the mailing of an Offer with
respect to an Offer to Purchase pursuant to
Sections 1014 and 1016, modify the provisions of
this Indenture with respect to such Offer to
Purchase in a manner materially adverse to such
Holder.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient
if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by a
Board Resolution authorizing the execution of any supplemental
indenture, the Trustee shall join the Company in the
execution of any supplemental indenture authorized or
permitted by this Indenture and shall make any further
appropriate agreements and stipulations as may be contained
therein. In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall
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form a part of this Indenture for all purposes; and every
Holder of Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to
this Article shall conform to the requirements of the Trust
Indenture Act.
SECTION 906. Reference in Notes to
Supplemental Indentures.
Notes authenticated and delivered after the
execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Notes so modified as to conform, in
the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Notes.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal
of (and premium, if any) and interest on the Notes in
accordance with the terms of the Notes and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency where
Notes may be presented or surrendered for payment, where
Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the
Company in respect of the Notes and this Indenture may be
served. The Company will give prompt written notice to the
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Trustee of the location, and any change in the location, of
such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate
one or more other offices or agencies (in or outside the
Borough of Manhattan, The City of New York) where the Notes
may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations;
provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to
maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Company will
give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location
of any such other office or agency.
SECTION 1003. Money for Note Payments to Be Held
in Trust.
If the Company shall at any time act as its own
Paying Agent, it will, on or before each due date of the
principal of or interest on any of the Notes, segregate and
hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action
or failure so to act.
Whenever the Company shall have one or more Paying
Agents, it will, prior to each due date of the principal of
(and premium, if any) or interest on any Notes, deposit with
a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
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The Company will cause each Paying Agent other
than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment
of the principal of (and premium, if any) or
interest on Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default
by the Company (or any other obligor upon the
Notes) in the making of any payment of principal
(and premium, if any) or interest; and
(3) at any time during the continuance of
any such default, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be
held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent;
and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment
of the principal of (and premium, if any) or interest on any
Note and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request,
or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying
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Agent, before being required to make any such repayment, may
at the expense of the Company cause to be published once, in
a newspaper published in the English language, customarily
published on each Business Day and of general circulation in
The City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep
in full force and effect its existence, rights (charter and
statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or
franchise if the Board of Directors in good faith shall
determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or
useful in the conduct of its business or the business of any
Subsidiary of the Company to be maintained and kept in good
condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at
all times; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the operation
or maintenance of any of such properties if such discontinuance
is, as determined by the Board of Directors in good
faith, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
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SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be
paid or discharged, before the same shall become delinquent,
(1) all taxes, assessments and governmental charges levied
or imposed upon the Company or any of its Subsidiaries or
upon the income, profits or property of the Company or any
of its Subsidiaries, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become
a lien upon the property of the Company or any of its
Subsidiaries; provided, however, that the Company shall not
be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good
faith by appropriate proceedings.
SECTION 1007. Maintenance of Insurance.
The Company shall, and shall cause its Subsidiaries
to, keep at all times all of their properties which
are of an insurable nature insured against loss or damage
with insurers believed by the Company to be responsible to
the extent that property of similar character is usually so
insured by corporations similarly situated and owning like
properties in accordance with good business practice. The
Company shall, and shall cause its Subsidiaries to, use an
amount equal to not less than the proceeds from any such
insurance policy to repair, replace or otherwise restore the
property to which such proceeds relate.
SECTION 1008. Limitation on Consolidated Debt.
The Company shall not, and shall not permit any
Restricted Subsidiary of the Company to, Incur any Debt
unless immediately after giving pro forma effect to the
Incurrence of such Debt and the receipt and application of
the proceeds thereof, the Consolidated Cash Flow Coverage
Ratio of the Company would be greater than 2.0 to 1 for any
Incurrence of Debt prior to May 1, 2001, and 2.5 to 1 for
any Incurrence of Debt thereafter.
Notwithstanding the foregoing paragraph, the
Company may, and may permit any Restricted Subsidiary, to
Incur the following Debt:
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(i) Debt under the New Credit Facility in an
aggregate principal amount at any one time not to
exceed $325.0 million, less any amounts by which
any revolving credit facility commitments under
the New Credit Facility are permanently reduced
pursuant to Section 1014 (so long as and to the
extent that any required payments in connection
therewith are actually made);
(ii) the original issuance by the Company of
the Debt evidenced by the Notes (including any
Exchange Notes);
(iii) Debt (other than Debt described in
another clause of this paragraph) outstanding on
the date of original issuance of the Notes after
giving effect to the application of the proceeds
of the Notes, as described in Schedule I hereto;
(iv) Debt owed by the Company to any Wholly
Owned Restricted Subsidiary of the Company or Debt
owed by a Restricted Subsidiary of the Company to
the Company or a Wholly Owned Restricted
Subsidiary of the Company; provided, however, that
upon either (A) the transfer or other disposition
by such Wholly Owned Restricted Subsidiary or the
Company of any Debt so permitted to a Person other
than the Company or another Wholly Owned
Restricted Subsidiary of the Company or (B) the
issuance (other than directors' qualifying
shares), sale, lease, transfer or other
disposition of shares of Capital Stock (including
by consolidation or merger) of such Wholly Owned
Restricted Subsidiary to a Person other than the
Company or another such Wholly Owned Restricted
Subsidiary, the provisions of this Clause (iv)
shall no longer be applicable to such Debt and
such Debt shall be deemed to have been Incurred at
the time of such transfer or other disposition;
(v) Debt consisting of Permitted Interest
Rate, Currency or Commodity Price Agreements;
(vi) Debt which is exchanged for or the
proceeds of which are used to refinance or refund,
or any extension or renewal of, outstanding Debt
Incurred pursuant to the preceding paragraph or
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clauses (ii) or (iii) of this paragraph (each of
the foregoing, a "refinancing") in an aggregate
principal amount not to exceed the principal
amount of the Debt so refinanced plus the amount
of any premium required to be paid in connection
with such refinancing pursuant to the terms of the
Debt so refinanced or the amount of any premium
reasonably determined by the Company as necessary
to accomplish such refinancing by means of a
tender offer or privately negotiated repurchase,
plus the expenses of the Company or the Restricted
Subsidiary, as the case may be, incurred in
connection with such refinancing; provided,
however, that (A) Debt the proceeds of which are
used to refinance the Notes or Debt which is pari
passu with or subordinate in right of payment to
the Notes shall only be permitted if (x) in the
case of any refinancing of the Notes or Debt which
is pari passu to the Notes, the refinancing Debt
is made pari passu to the Notes or subordinated to
the Notes, and (y) in the case of any refinancing
of Debt which is subordinated to the Notes, the
refinancing Debt constitutes Subordinated Debt;
(B) the refinancing Debt by its terms, or by the
terms of any agreement or instrument pursuant to
which such Debt is issued, (1) does not provide
for payments of principal of such Debt at the
stated maturity thereof or by way of a sinking
fund applicable thereto or by way of any mandatory
redemption, defeasance, retirement or repurchase
thereof (including any redemption, defeasance,
retirement or repurchase which is contingent upon
events or circumstances, but excluding any
retirement required by virtue of acceleration of
such Debt upon any event of default thereunder),
in each case prior to the stated maturity of the
Debt being refinanced and (2) does not permit
redemption or other retirement (including pursuant
to an offer to purchase) of such debt at the
option of the holder thereof prior to the final
stated maturity of the Debt being refinanced),
other than a redemption or other retirement at the
option of the holder of such Debt (including
pursuant to an offer to purchase) which is
conditioned upon provisions substantially similar
to those described under Sections 1014 and 1016;
and (C) in the case of any refinancing of Debt
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Incurred by the Company, the refinancing Debt may
be Incurred only by the Company, and in the case
of any refinancing of Debt Incurred by a
Restricted Subsidiary, the refinancing Debt may be
Incurred only by such Restricted Subsidiary;
provided, further, that Debt Incurred pursuant to
this clause (vi) may not be Incurred more than
45 days prior to the application of the proceeds
to repay the Debt to be refinanced; and
(vii) Debt not otherwise permitted to be
Incurred pursuant to Clauses (i) through (vi)
above, which, together with any other outstanding
Debt Incurred pursuant to this Clause (vii), has
an aggregate principal amount not in excess of
$50.0 million at any time outstanding.
SECTION 1009. Limitation on Senior Subordinated Debt.
The Company shall not Incur any Debt which by its
terms is both (i) subordinated in right of payment to any
Senior Debt and (ii) senior in right of payment to the
Notes.
SECTION 1010. Limitation on Issuance of Guarantees
of Subordinated Debt.
The Company shall not permit any Restricted
Subsidiary, directly or indirectly, to assume, guarantee or
in any other manner become liable with respect to any Debt
of the Company that by its terms is pari passu or junior in
right of payment to the Notes.
SECTION 1011. Limitation on Liens.
The Company shall not, and shall not permit any
Subsidiary to, create, incur, assume or suffer to exist any
Lien on or with respect to any property or assets of the
Company or any such Restricted Subsidiary now owned or
hereafter acquired to secure Debt which is pari passu with
or subordinated in right of payment to the Notes without
making, or causing such Restricted Subsidiary to make,
effective provision for securing the Notes (and, if the
Company shall so determine, any other Debt of the Company
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which is not subordinate to the Notes or of such Restricted
Subsidiary) (x) equally and ratably with such Debt as to
such property or assets for so long as such Debt shall be so
secured or (y) in the event such Debt is Debt of the Company
which is subordinate in right of payment to the Notes, prior
to such Debt as to such property for so long as such Debt
will be so secured. The foregoing restrictions shall not
apply to Liens in respect of Debt existing at the date of
this Indenture or to: (i) Liens securing only the Notes;
(ii) Liens in favor of the Company or a Wholly Owned
Restricted Subsidiary; or (iii) Liens to secure Debt
incurred to extend, renew, refinance or refund (or
successive extensions, renewals, refinancings or
refundings), in whole or in part, any Debt secured by Liens
referred to in the foregoing clause (i) so long as such Lien
does not extend to any other property and the principal
amount of Debt so secured is not increased except as
otherwise permitted under Clause (vi) of Section 1008.
SECTION 1012. Limitation on Restricted Payments.
The Company (i) shall not, directly or indirectly,
declare or pay any dividend or make any distribution
(including any payment in connection with any merger or
consolidation derived from assets of the Company or any
Restricted Subsidiary) in respect of its Capital Stock or to
the holders thereof, excluding any dividends or
distributions by the Company payable solely in shares of its
Capital Stock (other than Redeemable Stock) or in options,
warrants or other rights to acquire its Capital Stock (other
than Redeemable Stock), (ii) shall not, and shall not permit
any Restricted Subsidiary to, purchase, redeem, or otherwise
acquire or retire for value (a) any Capital Stock of the
Company or any Related Person of the Company or (b) any
options, warrants or other rights to acquire shares of
Capital Stock of the Company or any Related Person of the
Company or any securities convertible or exchangeable into
shares of Capital Stock of the Company or any Related Person
of the Company, (iii) shall not make, or permit any
Restricted Subsidiary to make, any Investment other than a
Permitted Investment, and (iv) shall not, and shall not
permit any Restricted Subsidiary to, redeem, repurchase,
defease or otherwise acquire or retire for value prior to
any scheduled maturity, repayment or sinking fund payment
Debt of the Company which is subordinate in right of payment
to the Notes (each of clauses (i) through (iv) being a
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"Restricted Payment") if: (1) an Event of Default, or an
event that with the passing of time or the giving of notice,
or both, would constitute an Event of Default, shall have
occurred and is continuing or would result from such
Restricted Payment, or (2) after giving pro forma effect to
such Restricted Payment as if such Restricted Payment had
been made at the beginning of the applicable four-fiscal-
quarter period, the Company could not Incur at least $1.00
of additional Debt pursuant to the terms of the Indenture
described in the first paragraph of Section 1008 hereof;
provided that in connection with regular quarterly dividends
on the Company's Common Stock (not to exceed $7.5 million in
the aggregate) declared or payable prior to January 31,
1999, the Company's pro forma capacity to Incur additional
Debt shall be computed on a basis that excludes the non-
recurring charges recorded during the Company's 1997 fiscal
year, or (3) upon giving effect to such Restricted Payment,
the aggregate of all Restricted Payments from the date of
issuance of the Notes exceeds the sum of: (a) 50% of
cumulative Consolidated Net Income (or, in the case Consol-
idated Net Income shall be negative, less 100% of such
deficit) of the Company since the date of issuance of the
Notes through the last day of the last full fiscal quarter
ending immediately preceding the date of such Restricted
Payment for which quarterly or annual financial statements
are available (taken as a single accounting period); plus
(b) 100% of the aggregate net proceeds received by the
Company after the date of original issuance of the Notes,
including the fair market value of property other than cash
(determined in good faith by the Board of Directors as
evidenced by a resolution of the Board of Directors filed
with the Trustee), from the issuance and sale (other than to
a Restricted Subsidiary) of Capital Stock (other than
Redeemable Stock) of the Company, options, warrants or other
rights to acquire Capital Stock (other than Redeemable
Stock) of the Company and Debt of the Company that has been
converted into or exchanged for Capital Stock (other than
Redeemable Stock and other than by or from a Restricted
Subsidiary) of the Company after the date of original
issuance of the Notes, provided that any such net proceeds
received by the Company from an employee stock ownership
plan financed by loans from the Company or a Restricted
Subsidiary of the Company shall be included only to the
extent such loans have been repaid with cash on or prior to
the date of determination; plus (c) $40.0 million. Prior to
the making of any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate setting
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forth the computations by which the determinations required
by clauses (2) and (3) above were made and stating that no
Event of Default, or event that with the passing of time or
the giving of notice, or both, would constitute an Event of
Default, has occurred and is continuing or will result from
such Restricted Payment.
Notwithstanding the foregoing, so long as no Event
of Default, or event that with the passing of time or the
giving of notice, or both, would constitute an Event of
Default, shall have occurred and is continuing or would
result therefrom, (i) the Company may pay any dividend on
Capital Stock of any class within 60 days after the
declaration thereof if, on the date when the dividend was
declared, the Company could have paid such dividend in
accordance with the foregoing provisions; (ii) the Company
may refinance any Debt otherwise permitted by clause (vi) of
the second paragraph under Section 1008 above or solely in
exchange for or out of the net proceeds of the substantially
concurrent sale (other than from or to a Restricted Subsid-
iary or from or to an employee stock ownership plan financed
by loans from the Company or a Restricted Subsidiary of the
Company) of shares of Capital Stock (other than Redeemable
Stock) of the Company, provided that the amount of net
proceeds from such exchange or sale shall be excluded from
the calculation of the amount available for Restricted
Payments pursuant to the preceding paragraph; (iii) the
Company may purchase, redeem, acquire or retire any shares
of Capital Stock of the Company solely in exchange for or
out of the net proceeds of the substantially concurrent sale
(other than from or to a Restricted Subsidiary or from or to
an employee stock ownership plan financed by loans from the
Company or a Restricted Subsidiary of the Company) of shares
of Capital Stock (other than Redeemable Stock) of the
Company; and (iv) the Company or a Restricted Subsidiary may
purchase or redeem any Debt from Net Available Proceeds to
the extent permitted under Section 1014. Any payment made
pursuant to clause (i) or (iii) of this paragraph shall be a
Restricted Payment for purposes of calculating aggregate
Restricted Payments pursuant to the preceding paragraph.
SECTION 1013. Limitations on Dividend and Other Payment
Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create or
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otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Restricted
Subsidiary of the Company (i) to pay dividends (in cash or
otherwise) or make any other distributions in respect of its
Capital Stock or pay any Debt or other obligation owed to
the Company or any other Restricted Subsidiary; (ii) to make
loans or advances to the Company or any other Restricted
Subsidiary; or (iii) to transfer any of its property or
assets to the Company or any other Restricted Subsidiary.
Notwithstanding the foregoing, the Company may, and may
permit any Restricted Subsidiary to, suffer to exist any
such encumbrance or restriction (a) pursuant to any
agreement in effect on the date of original issuance of the
Notes; (b) pursuant to an agreement relating to any Debt
Incurred by a Person (other than a Restricted Subsidiary of
the Company existing on the date of original issuance of the
Notes or any Restricted Subsidiary carrying on any of the
businesses of any such Restricted Subsidiary) prior to the
date on which such Person became a Restricted Subsidiary of
the Company and outstanding on such date and not Incurred in
anticipation of becoming a Restricted Subsidiary, which
encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the
Person so acquired; (c) pursuant to an agreement effecting
a renewal, refunding or extension of Debt Incurred pursuant
to an agreement referred to in clause (a) or (b) above,
provided, however, that the provisions contained in such
renewal, refunding or extension agreement relating to such
encumbrance or restriction are no more restrictive in any
material respect than the provisions contained in the
agreement the subject thereof, as determined in good faith
by the Board of Directors and evidenced by a resolution of
the Board of Directors filed with the Trustee; (d) pursuant
to an agreement relating to Debt of a Restricted Subsidiary
that is not materially more restrictive than customary
provisions in comparable financing arrangements and which
the Board of Directors determines (as evidenced by a
resolution of the Board of Directors filed with the Trustee)
will not materially impair the Company's ability to make
payments under the Notes; (e) in the case of clause (iii)
above, restrictions contained in any security agreement
(including a capital lease) securing Debt of a Restricted
Subsidiary otherwise permitted under this Indenture, but
only to the extent such restrictions restrict the transfer
of the property subject to such security agreement; (f) in
the case of clause (iii) above, customary nonassignment
provisions entered into in the ordinary course of business
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consistent with past practices in leases and other contracts
to the extent such provisions restrict the transfer or
subletting of any such lease or the assignment of rights
under any such contract; (g) any restriction with respect to
a Restricted Subsidiary of the Company imposed pursuant to
an agreement which has been entered into for the sale or
disposition of all or substantially all of the Capital Stock
or assets of such Restricted Subsidiary, provided that
consummation of such transaction would not result in an
Event of Default or an event that, with the passing of time
or the giving of notice or both, would constitute an Event
of Default, that such restriction terminates if such
transaction is closed or abandoned and that the closing or
abandonment of such transaction occurs within one year of
the date such agreement was entered into; or (h) such
encumbrance or restriction is the result of applicable
corporate law or regulation relating to the payment of
dividends or distributions.
SECTION 1014. Limitation on Asset Disposition.
The Company shall not, and shall not permit any
Restricted Subsidiary to, make any Asset Disposition in one
or more related transactions unless: (i) the Company or the
Restricted Subsidiary, as the case may be, receives consid-
eration for such disposition at least equal to the fair
market value for the assets sold or disposed of as deter-
mined by the Board of Directors in good faith and evidenced
by a resolution of the Board of Directors filed with the
Trustee; (ii) at least 85% of the consideration for such
disposition consists of cash or readily marketable cash
equivalents or the assumption of Debt (other than Debt that
is subordinated to the Notes) relating to such assets and
release from all liability on the Debt assumed; and
(iii) all Net Available Proceeds, less any amounts invested
or committed to be invested within 365 days of such
disposition in assets related to the business of the Company
or applied to permanently repay Senior Debt, are applied
within 365 days of such disposition (1) first, to the
permanent repayment or reduction of Senior Debt then
outstanding under any agreements or instruments which would
require such application or prohibit payments pursuant to
clause (2) following, (2) second, to the extent of remaining
Net Available Proceeds, to make an Offer to Purchase
Outstanding Notes at 100% of their principal amount plus
accrued interest to the date of purchase and, to the extent
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required by the terms thereof, any other Debt of the Company
that is pari passu with the Notes at a price no greater than
100% of the principal amount thereof plus accrued interest
to the date of purchase, and (3) third, to the extent of any
remaining Net Available Proceeds, to any other use as determined
by the Company which is not otherwise prohibited by
this Indenture.
SECTION 1015. Transactions with Affiliates and
Related Persons.
The Company shall not, and shall not permit any
Restricted Subsidiary of the Company to, enter into any
transaction (or series of related transactions) with an
Affiliate or Related Person of the Company (other than the
Company or a Wholly Owned Restricted Subsidiary of the
Company), including any Investment, either directly or
indirectly, unless such transaction is on terms no less
favorable to the Company or such Restricted Subsidiary than
those that could be obtained in a comparable arm's-length
transaction with an entity that is not an Affiliate or
Related Person. For any transaction that involves in excess
of $5,000,000, a majority of the disinterested members of
the Board of Directors shall determine that the transaction
satisfies the above criteria and shall evidence such a
determination by a Board Resolution filed with the Trustee.
For any transaction that involves in excess of $10,000,000,
the Company shall also obtain an opinion from a nationally
recognized expert with experience in appraising the terms
and conditions of the type of transaction (or series of
related transactions) for which the opinion is required
stating that such transaction (or series of related
transactions) is on terms no less favorable to the Company
or such Restricted Subsidiary than those that could be
obtained in a comparable arm's-length transaction with an
entity that is not an Affiliate or Related Person of the
Company, which opinion shall be filed with the Trustee.
Notwithstanding anything to the contrary contained
in this Indenture, the foregoing provisions shall not apply
to (i) transactions with any employee, officer or director
of the Company or any of its Restricted Subsidiaries pursuant
to employee benefit plans or compensation arrangements
or agreements entered into in the ordinary course of business,
(ii) purchases or sales of goods or services in the
ordinary course of business, or (iii) transactions with any
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Affiliate or Related Person of the Company in which such
Affiliate or Related Person acquires or purchases the capital
stock of the Company or any Restricted Subsidiary at
fair market value.
SECTION 1016. Change of Control.
Within 60 days of the occurrence of a Change of
Control, the Company will be required to make an Offer to
Purchase all Outstanding Notes at a purchase price equal to
101% of their principal amount plus accrued interest to but
excluding the date of purchase. A "Change of Control" will
be deemed to have occurred at such time as either (a) any
Person (other than a Permitted Holder) or any Persons acting
together that would constitute a "group" (a "Group") for
purposes of Section 13(d) of the Exchange Act, or any
successor provision thereto (other than Permitted Holders),
together with any Affiliates or Related Persons thereof,
shall beneficially own (within the meaning of Rule 13d-3
under the Exchange Act, or any successor provision thereto),
directly or indirectly, at least 50% of the aggregate voting
power of all classes of Voting Stock of the Company (for the
purposes of this clause (a) a person shall be deemed to
beneficially own the Voting Stock of a corporation that is
beneficially owned (as defined above) by another corporation
(a "parent corporation"), if such person beneficially owns
(as defined above) at least 50% of the aggregate voting
power of all classes of Voting Stock of such parent
corporation); or (b) any Person or Group (other than
Permitted Holders), together with any Affiliates or Related
Persons thereof, shall succeed in having a sufficient number
of its nominees elected to the Board of Directors of the
Company such that such nominees, when added to any existing
director remaining on the Board of Directors of the Company
after such election who was a nominee of or is an Affiliate
or Related Person of such Person or Group, will constitute a
majority of the Board of Directors of the Company; or
(c) the Company shall, directly or indirectly, transfer,
sell, lease or otherwise dispose of all or substantially all
of its assets; or (d) there shall be adopted a plan of
liquidation or dissolution of the Company; provided,
however, that a transaction effected to create a holding
company of the Company, (i) pursuant to which the Company
becomes a wholly-owned Subsidiary of such holding company,
and (ii) as a result of which the holders of Capital Stock
of such holding company are substantially the same as the
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holders of Capital Stock of the Company immediately prior to
such transaction, shall not be deemed to involve a "Change
of Control".
In the event that the Company makes an Offer to
Purchase the Notes, the Company intends to comply with any
applicable securities laws and regulations, including any
applicable requirements of Section 14(e) of, and Rule 14e-1
under, the Exchange Act.
SECTION 1017. Provision of Financial Information.
For so long as any of the Notes are outstanding,
the Company shall file with the Commission the annual
reports, quarterly reports and other documents which the
Company is required to file with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act or any successor
provisions thereto.
SECTION 1018. Unrestricted Subsidiaries.
The Company may designate any Subsidiary of the
Company to be an "Unrestricted Subsidiary" as provided below
in which event such Subsidiary and each other Person that is
then or thereafter becomes a Subsidiary of such Subsidiary
will be deemed to be an Unrestricted Subsidiary.
"Unrestricted Subsidiary" means (1) any Subsidiary
designated as such by the Board of Directors as set forth
below where (a) neither the Company nor any of its other
Subsidiaries (other than another Unrestricted Subsidiary)
(i) provides credit support for, or any Guarantee of, any
Debt of such Subsidiary or any Subsidiary of such Subsidiary
(including any undertaking, agreement or instrument
evidencing such Debt) or (ii) is directly or indirectly
liable for any Debt of such Subsidiary or any Subsidiary of
such Subsidiary, and (b) no default with respect to any Debt
of such Subsidiary or any Subsidiary of such Subsidiary
(including any right which the holders thereof may have to
take enforcement action against such Subsidiary) would
permit (upon notice, lapse of time or both) any holder of
any other Debt of the Company and its Subsidiaries (other
than another Unrestricted Subsidiary) to declare a default
on such other Debt or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity
and (2) any Subsidiary of an Unrestricted Subsidiary. The
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Board of Directors may designate any Subsidiary to be an
Unrestricted Subsidiary unless such Subsidiary owns any
Capital Stock of, or owns or holds any Lien on any property
of, any other Subsidiary of the Company which is not a
Subsidiary of the Subsidiary to be so designated or
otherwise an Unrestricted Subsidiary, provided that either
(x) the Subsidiary to be so designated has total assets of
$1,000 or less or (y) immediately after giving effect to
such designation, the Company could Incur at least $1.00 of
additional Debt pursuant to the first paragraph under
Section 1008 hereof and provided, further, that the Company
could make a Restricted Payment in an amount equal to the
greater of the fair market value and book value of such
Subsidiary pursuant to Section 1012 hereof and such amount
is thereafter treated as a Restricted Payment for the
purpose of calculating the aggregate amount available for
Restricted Payments thereunder.
SECTION 1019. Statement by Officers as to Default;
Compliance Certificates.
(a) The Company will deliver to the Trustee,
within 90 days after the end of each fiscal quarter of the
Company ending after the date hereof an Officers' Certificate,
stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions
of Section 801 or Sections 1004 to 1018, inclusive,
and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may
have knowledge.
(b) The Company shall deliver to the Trustee, as
soon as possible and in any event within 10 days after the
Company becomes aware or should reasonably become aware of
the occurrence of an Event of Default or an event which,
with notice or the lapse of time or both, would constitute
an Event of Default, an Officers' Certificate setting forth
the details of such Event of Default or default, and the
action which the Company proposes to take with respect
thereto.
(c) The Company shall deliver to the Trustee
within 90 days after the end of each fiscal year a written
statement by the Company's independent public accountants
stating (A) that their audit examination was conducted in
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accordance with generally accepted accounting standards, and
(B) whether, in connection with their audit examination, any
event which, with notice or the lapse of time or both, would
constitute an Event of Default has come to their attention
insofar as it relates to accounting matters and, if such a
default has come to their attention, specifying the nature
and period of the existence thereof.
SECTION 1020. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any covenant or condition set forth in Section
801 and Sections 1004 to 1018, if before the time for
such compliance the Holders of at least a majority in
principal amount of the Outstanding Notes shall, by Act of
such Holders, either waive such compliance in such instance
or generally waive compliance with such covenant or condition,
but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in
respect of any such covenant or condition shall remain in
full force and effect; provided, however, with respect to an
Offer to Purchase as to which an Offer has been mailed, no
such waiver may be made or shall be effective against any
Holder tendering Notes pursuant to such Offer, and the
Company may not omit to comply with the terms of such Offer
as to such Holder.
ARTICLE ELEVEN
Redemption of Notes
SECTION 1101. Right of Redemption.
The Notes may be redeemed at the option of the
Company, in whole or in part, at any time on or after May 1,
2003, and prior to maturity, at the Redemption Prices
specified in the form of Note hereinbefore set forth
together with accrued interest to, but excluding, the
Redemption Date.
In addition, if on or before May 1, 2001 the
Company receives net proceeds from the sale of its Common
Stock in one or more Public Equity Offerings, the Company
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may, at its option, use an amount equal to all or a portion
of any such net proceeds to redeem Notes in an aggregate
principal amount of up to 33 1/3% of the original aggregate
principal amount of the Notes, provided, however, that
Notes having a principal amount equal to at least 66 2/3% of
the original aggregate principal amount of the Notes remain
outstanding after such redemption. Such redemption must
occur on a Redemption Date within 90 days of such sale and
upon not less than 30 nor more than 60 days' notice mailed
to each Holder of Notes to be redeemed at such Holder's
address appearing in the Security Register, in amounts of
$1,000 or an integral multiple of $1,000, at a redemption
price of 109.50% of the principal amount of the Notes plus
accrued interest to but excluding the Redemption Date
(subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date).
If less than all the Notes are to be redeemed, the
Trustee shall select, in such manner as it shall deem fair
and appropriate, the particular Notes to be redeemed or any
portion thereof that is an integral multiple of $1,000.
The Notes will not have the benefit of any sinking
fund.
SECTION 1102. Applicability of Article.
Redemption of Notes at the election of the
Company, as permitted by any provision of this Indenture,
shall be made in accordance with such provision and this
Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes
pursuant to Section 1101 shall be evidenced by a Board Resolution.
In case of any redemption at the election of the
Company of less than all the Notes, the Company shall, at
least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Notes to be redeemed.
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SECTION 1104. Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the
particular Notes to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Notes not previously called for
redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for
redemption of portions (equal to $1,000 or any integral
multiple thereof) of the principal amount of Notes of a
denomination larger than $1,000.
The Trustee shall promptly notify the Company and
each Note Registrar in writing of the Notes selected for
redemption and, in the case of any Notes selected for
partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the
redemption of Notes shall relate, in the case of any Notes
redeemed or to be redeemed only in part, to the portion of
the principal amount of such Notes which has been or is to
be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 30 nor more than
60 days prior to the Redemption Date, to each Holder of
Notes to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
the Redemption Price,
(3) if less than all the Outstanding Notes
are to be redeemed, the identification (and, in
the case of partial redemption, the principal
amounts) of the particular Notes to be redeemed,
(4) that on the Redemption Date the
Redemption Price will become due and payable upon
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each such Note to be redeemed and that interest
thereon will cease to accrue on and after said
date, and
(5) the place or places where such Notes are
to be surrendered for payment of the Redemption
Price.
Notice of redemption of Notes to be redeemed at
the election of the Company shall be given by the Company
or, at the Company's request, by the Trustee in the name and
at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Notes which are to be redeemed
on that date.
SECTION 1107. Notes Payable on Redemption Date.
Notice of redemption having been given as afore-
said, the Notes so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company
shall default in the payment of the Redemption Price plus
accrued interest) such Notes shall cease to bear interest.
Upon surrender of any such Note for redemption in accordance
with said notice, such Note shall be paid by the Company at
the Redemption Price together with accrued interest to the
Redemption Date; provided, however, that instalments of
interest whose Stated Maturity is on or prior to the Redemp-
tion Date shall be payable to the Holders of such Notes, or
one or more Predecessor Notes, registered as such at the
close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Note called for redemption shall not be so
paid upon surrender thereof for redemption, the principal
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(and premium, if any) shall, until paid, bear interest from
the Redemption Date at the rate provided by the Note.
SECTION 1108. Notes Redeemed in Part.
Any Note which is to be redeemed only in part
shall be surrendered at an office or agency of the Company
designated for that purpose pursuant to Section 1002 (with,
if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Note without service
charge, a new Note or Notes, of any authorized denomination
as requested by such Holder, in aggregate principal amount
equal to and in exchange for the unredeemed portion of the
principal of the Note so surrendered.
ARTICLE TWELVE
Subordination of Notes
SECTION 1201. Notes Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder
of a Note, by his acceptance thereof, likewise covenants
and agrees, that, to the extent and in the manner herein-
after set forth in this Article (subject to the provisions
of Article Four and Article Thirteen), the payment of the
principal of (and premium, if any) and interest on each and
all of the Notes (and any liquidated damages under the
Exchange and Registration Rights Agreement ("Additional
Amounts")) are hereby expressly made subordinate and subject
in right of payment to the prior payment in full in cash of
all Senior Debt of the Company.
SECTION 1202. Payment Over of Proceeds Upon
Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy
case or proceeding, or any receivership, liquidation, reor-
ganization or other similar case or proceeding in connection
therewith, relative to the Company or to its creditors, as
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such, or to its assets, or (b) any liquidation, dissolution
or other winding up of the Company, whether voluntary or
involuntary and whether or not involving insolvency or bank-
ruptcy, or (c) any assignment for the benefit of creditors
or any other marshaling of assets and liabilities of the
Company, then and in any such event specified in (a), (b) or
(c) above (each such event, if any, herein sometimes
referred to as a "Proceeding") the holders of Senior Debt
shall be entitled to receive or retain payment in full in
cash or cash equivalents of all amounts due or to become due
on or in respect of all Senior Debt, or provision shall be
made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior
Debt, before the Holders of the Notes are entitled to
receive any payment or distribution of any kind or
character, whether in cash, property or securities, on
account of principal of (or premium, if any) or interest on
(or Additional Amounts) or other obligations in respect of
the Notes or on account of any purchase, redemption or other
acquisition of Notes by the Company or any Subsidiary of the
Company (all such payments, distributions, purchases and
acquisitions herein referred to, individually and collectively,
as a "Notes Payment"), and to that end the holders
of Senior Debt shall be entitled to receive, for application
to the payment thereof, any Notes Payment which may be
payable or deliverable in respect of the Notes in any such
Proceeding.
In the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or the Holder of any
Note shall have received any Notes Payment before all Senior
Debt of the Company is paid in full in cash or cash
equivalents or payment thereof provided for in cash or cash
equivalents or otherwise in a manner satisfactory to the
holders of such Debt, then and in such event such Notes
Payment shall be paid over or delivered forthwith to the
trustee in bankruptcy or other person making payment or
distribution of assets of the Company for the application to
the payment of all Senior Debt remaining unpaid, to the
extent necessary to pay the Senior Debt in full.
For purposes of this Article only, the words "any
payment or distribution of any kind or character, whether in
cash, property or securities" shall not be deemed to include
a payment or distribution of stock or securities of the
Company provided for by a plan of reorganization or read-
justment authorized by an order or decree of a court of
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competent jurisdiction in a reorganization proceeding under
any applicable bankruptcy law or of any other corporation
provided for by such plan of reorganization or readjustment
which stock or securities are subordinated in right of
payment to all then outstanding Senior Debt to substantially
the same extent as the Notes are so subordinated as provided
in this Article. The consolidation of the Company with, or
the merger of the Company into, another Person or the liqui-
dation or dissolution of the Company following the convey-
ance or transfer of all or substantially all of its
properties and assets as an entirety to another Person upon
the terms and conditions set forth in Article Eight shall
not be deemed a Proceeding for the purposes of this Section
if the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance
or transfer such properties and assets as an entirety, as
the case may be, shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions
set forth in Article Eight.
SECTION 1203. No Payment When Senior Debt in Default.
In the event that any Company Senior Payment
Default (as defined below) shall have occurred and be
continuing, then no Notes Payment shall be made, and no
defeasance of the Notes may be made, unless and until such
Company Senior Payment Default shall have been cured or
waived or shall have ceased to exist or all amounts then due
and payable in respect of Senior Debt shall have been paid
in full in cash or cash equivalents, or provision shall have
been made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior
Debt. "Company Senior Payment Default" means any default in
the payment of principal of (or premium, if any) or interest
on Designated Senior Debt when due, whether at the Stated
Maturity of any such payment or by declaration of acceleration,
call for redemption or otherwise.
Upon the occurrence of a Senior Nonmonetary
Default and receipt of written notice by the Company and the
Trustee of the occurrence of such Senior Nonmonetary Default
from any holder of Designated Senior Debt (or any trustee,
agent or other representative for such holder) which is the
subject of such Senior Nonmonetary Default, no Notes Payment
may be made, and no defeasance of the Notes, may be made for
a period (the "Payment Blockage Period") commencing on the
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date of the receipt of such notice and ending the earlier of
(i) the date on which such Senior Nonmonetary Default shall
have been cured or waived or ceased to exist or all Senior
Debt the subject of such Senior Nonmonetary Default shall
have been discharged and (ii) the 179th day after the date
of the receipt of such notice. In any event, no more than
one Payment Blockage Period may be commenced during any 360-
day period and there shall be a period of at least 181 days
during each 360-day period when no Payment Blockage Period
is in effect. In addition, no Senior Nonmonetary Default
that existed or was continuing on the date of the commencement
of a Payment Blockage Period may be made the basis of
the commencement of a subsequent Payment Blockage Period
whether or not within a period of 360 consecutive days,
unless such Senior Nonmonetary Default shall have been cured
for a period of not less than 90 consecutive days. "Senior
Nonmonetary Default" means the occurrence or existence and
continuance of an event of default with respect to Company
Senior Debt, other than a Senior Payment Default, permitting
the holders of the Designated Senior Debt (or a trustee or
other agent on behalf of the holders thereof) then to
declare such Designated Senior Debt due and payable prior to
the date on which it would otherwise become due and payable.
The failure to make any payment on the Notes by
reason of the provisions of the Indenture described under
this Article Twelve will not be construed as preventing the
occurrence of an Event of Default with respect to the Notes
arising from any such failure to make payment. Upon termination
of any period of payment blockage the Company shall
resume making any and all required payments in respect of
the Notes, including any missed payments.
In the event that, notwithstanding the foregoing,
the Company shall make any Company Notes Payment to the
Trustee or any Holder prohibited by the foregoing of this
Section, and if such fact shall, at or prior to the time of
such Notes Payment, have been made known to the Trustee or,
as the case may be, such Holder, then and in such event such
Notes Payment shall be paid over and delivered forthwith to
the holders of the Senior Debt of the Company.
The subordination provisions described above will
not be applicable to payments in respect of the Notes from a
defeasance trust established in connection with any
defeasance or covenant defeasance of the Notes as described
under Article Thirteen.
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The provisions of this Section shall not apply to
any Notes Payment with respect to which Section 1202 would
be applicable.
SECTION 1204. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in
this Indenture or in any of the Notes shall prevent (a) the
Company, at any time except during the pendency of any
Proceeding referred to in Section 1202 or under the
conditions described in Section 1203, from making Notes
Payments, or (b) the application by the Trustee of any money
deposited with it hereunder to Notes Payments or the
retention of such Notes Payment by the Holders, if, at the
time of such application by the Trustee, it did not have
knowledge that such Notes Payment would have been prohibited
by the provisions of this Article.
SECTION 1205. Subrogation to Rights of Holders of
Senior Debt.
Subject to the payment in full in cash or cash
equivalents of all amounts due or to become due on or in
respect of Senior Debt of the Company or the provision for
such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, the
Holders of the Notes shall be subrogated to the rights of
the holders of such Debt to receive payments and
distributions of cash, property and securities applicable to
such Debt until the principal of (and premium, if any) and
interest on the Notes shall be paid in full. For purposes
of such subrogation, no payments or distributions to the
holders of the Senior Debt of the Company of any cash, property
or securities to which the Holders of the Notes or the
Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Debt by Holders of the
Notes or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Debt and the Holders
of the Notes, be deemed to be a payment or distribution by
the Company to or on account of the Senior Debt of the
Company.
-113-
SECTION 1206. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are
intended solely for the purpose of defining the relative
rights of the Holders on the one hand and the holders of
Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Notes is
intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Debt and the Holders
of the Notes, the obligation of the Company, which is
absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Debt, is
intended to rank equally with all other general obligations
of the Company), to pay to the Holders of the Notes the
principal of (and premium, if any) and interest on the Notes
as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights
against the Company of the Holders of the Notes and creditors
of the Company, other than the holders of Senior Debt;
or (c) prevent the Trustee or the Holder of any Note from
exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior
Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 1207. Trustee to Effectuate Subordination.
Each Holder of a Note by his acceptance thereof
authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate
the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 1208. No Waiver of Subordination Provisions.
No right of any present or future holder of any
Senior Debt to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Company or by
any act or failure to act by any such holder, or by any
noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged
with.
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Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Debt may, at any
time and from time to time, without the consent of or notice
to the Trustee or the Holders of the Notes, without incur-
ring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this
Article or the obligations hereunder of the Holders of the
Notes to the holders of Senior Debt, do any one or more of
the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter,
Senior Debt, or otherwise amend or supplement in any manner
Senior Debt or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt;
(iii) release any Person liable in any manner for the
collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other
Person.
SECTION 1209. Notice to Trustee.
The Company shall give prompt written notice to
the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in
respect of the Notes, provided that failure to notify will
not affect the subordination provisions set forth herein.
Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the
Trustee in respect of the Notes, unless and until the
Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee
therefor at its Corporate Trust Office; and, prior to the
receipt of any such written notice, the Trustee, subject to
the provisions of Section 601, shall be entitled in all
respects to assume that no such facts exist.
Subject to the provisions of Section 601, the
Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a
holder of Senior Debt (or a trustee therefor) to establish
that such notice has been given by a holder of Senior Debt
(or a trustee therefor). In the event that the Trustee
determines in good faith that further evidence is required
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with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution
pursuant to this Article, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Debt held by such
Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this
Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
SECTION 1210. Reliance on Judicial Order or Certificate
of Liquidating Agent.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article, the
Trustee, subject to the provisions of Section 601, and the
Holders of the Notes shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction
in which such Proceeding is pending, or a certificate
of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered
to the Trustee or to the Holders of Notes, for the purpose
of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this
Article.
SECTION 1211. Trustee Not Fiduciary for Holders of
Senior Debt.
The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Debt and shall not be
liable to any such holders if it shall in good faith mistakenly
pay over or distribute to Holders of Notes or to the
Company or to any other Person cash, property or securities
to which any holders of Senior Debt shall be entitled by
virtue of this Article or otherwise.
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SECTION 1212. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article with
respect to any Senior Debt which may at any time be held by
it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
Nothing in this Article shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 607.
SECTION 1213. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company and be
then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article
in addition to or in place of the Trustee; provided,
however, that Section 1212 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
SECTION 1214. Defeasance of this Article Twelve.
The subordination of the Notes provided by this
Article Twelve is expressly made subject to the provisions
for defeasance or covenant defeasance in Article Thirteen
hereof and, anything herein to the contrary notwithstanding,
upon the effectiveness of any such defeasance or covenant
defeasance effected in compliance with this Indenture, the
Notes then outstanding shall thereupon cease to be
subordinated pursuant to this Article Twelve.
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ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Company's Option to Effect Defeasance
or Covenant Defeasance.
The Company may at its option by Board Resolution,
at any time, in accordance with the Exchange and
Registration Rights Agreement, elect to have either
Section 1302 or Section 1303 applied to the Outstanding
Notes upon compliance with the conditions set forth below in
this Article Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided
in Section 1301 applicable to this Section, the Company
shall be deemed to have been discharged from its obligations
with respect to the Outstanding Notes, and the provisions of
Article Twelve hereof shall cease to be effective, on the
date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by
the Outstanding Notes and to have satisfied all its other
obligations under such Notes and this Indenture insofar as
such Notes are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging
the same), except for the following which shall survive
until otherwise terminated or discharged hereunder: (A) the
rights of Holders of such Notes to receive, solely from the
trust fund described in Section 1304 and as more fully set
forth in such Section, payments in respect of the principal
of (and premium, if any) and interest on such Notes when
such payments are due, (B) the Company's obligations with
respect to such Notes under Sections 304, 305, 306, 1002 and
1003, (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article Thirteen.
Subject to compliance with this Article Thirteen, the
Company may exercise its option under this Section 1302
notwithstanding the prior exercise of its option under
Section 1303.
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SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided
in Section 1301 applicable to this Section, (i) the Company
shall be released from its obligations under Sections 1005
through 1018, inclusive, and Clauses (3), (4) and (5) of
Section 801, (ii) the occurrence of an event specified in
Sections 501(3), 501(4) (with respect to Clauses (1), (3),
(4) or (5) of Section 801), 501(5) (with respect to any of
Sections 1005 through 1018, inclusive), 501(6) and 501(7)
shall not be deemed to be an Event of Default and (iii) the
provisions of Article Twelve hereof shall cease to be
effective on and after the date the conditions set forth
below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that the
Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in
any such Section, Clause or Article, whether directly or
indirectly by reason of any reference elsewhere herein to
any such Section, Clause or Article or by reason of any
reference in any such Section, Clause or Article to any
other provision herein or in any other document, but the
remainder of this Indenture and such Notes shall be
unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application
of either Section 1302 or Section 1303 to the then
Outstanding Notes:
(1) The Company shall irrevocably have
deposited or caused to be deposited with the
Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to
comply with the provisions of this Article
Thirteen applicable to it) as trust funds in trust
for the purpose of making the following payments,
specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of
such Notes, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled
payment of principal and interest in respect
thereof in accordance with their terms will
provide, not later than one day before the due
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date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of
a nationally recognized firm of independent public
accountants expressed in a written certification
thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and
discharge, the principal of (, premium, if any,)
and each instalment of interest on the Notes on
the Stated Maturity of such principal or
instalment of interest in accordance with the
terms of this Indenture and of such Notes. For
this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the
United States of America for the payment of which
its full faith and credit is pledged or
(y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality
of the United States of America the
payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United
States of America, which, in either case, are not
callable or redeemable at the option of the issuer
thereof, and shall also include a depository
receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended)
as custodian with respect to any such U.S.
Government Obligation or a specific payment of
principal of or interest on any such U.S.
Government Obligation held by such custodian for
the account of the holder of such depository
receipt, provided that (except as required by law)
such custodian is not authorized to make any
deduction from the amount payable to the holder of
such depository receipt from any amount received
by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of
or interest on the U.S. Government Obligation
evidenced by such depository receipt.
(2) In the case of an election under Section
1302, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been
published by, the Internal Revenue Service a
ruling, or (y) since the date of this Indenture
there has been a change in the applicable Federal
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income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that,
the Holders of the Outstanding Notes will not
recognize gain or loss for Federal income tax
purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal
income tax on the same amount, in the same manner
and at the same times as would have been the case
if such deposit, defeasance and discharge had not
occurred.
(3) In the case of an election under Section 1303,
the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that
the Holders of the Outstanding Notes will not
recognize gain or loss for Federal income tax
purposes as a result of such deposit and covenant
defeasance and will be subject to Federal income
tax on the same amount, in the same manner and at
the same times as would have been the case if such
deposit and covenant defeasance had not occurred.
(4) The Company shall have delivered to the
Trustee an Officer's Certificate to the effect
that the Notes, if then listed on any securities
exchange, will not be delisted as a result of such
deposit.
(5) Such defeasance or covenant defeasance
shall not cause the Trustee to have a conflicting
interest as defined in Section 608 and for
purposes of the Trust Indenture Act with respect
to any securities of the Company.
(6) At the time of such deposit: (A) no
default in the payment of all or a portion of
principal of (or premium, if any) or interest on
or other obligations in respect of any Senior Debt
shall have occurred and be continuing, and no
event of default with respect to any Senior Debt
shall have occurred and be continuing and shall
have resulted in such Senior Debt becoming or
being declared due and payable prior to the date
on which it would otherwise have become due and
payable and (B) no other event of default with
respect to any Senior Debt shall have occurred and
be continuing permitting (after notice or the
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lapse of time, or both) the holders of such Senior
Debt (or a trustee on behalf of the holders
thereof) to declare such Senior Debt due and
payable prior to the date on which it would
otherwise have become due and payable, or, in the
case of either Clause (A) or Clause (B) above,
each such default or event of default shall have
been cured or waived or shall have ceased to
exist.
(7) No Event of Default or event which with
notice or lapse of time or both would become an
Event of Default shall have occurred and be
continuing.
(8) Such defeasance or covenant defeasance
shall not result in a breach or violation of, or
constitute a default under, any other agreement or
instrument to which the Company is a party or by
which it is bound.
(9) The Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of
Counsel (which Opinion of Counsel may rely, as to
factual matters, on such Officer's Certificate),
each stating that all conditions precedent
provided for relating to either the defeasance
under Section 1302 or the covenant defeasance
under Section 1303 (as the case may be) have been
complied with.
(10) Such defeasance or covenant defeasance
shall not result in the trust arising from such
deposit constituting an investment company as
defined in the Investment Company Act of 1940, as
amended, or such trust shall be qualified under
such act or exempt from regulation thereunder.
SECTION 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of
Section 1003, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee
(or other qualifying trustee--collectively, for purposes of
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this Section 1305, the "Trustee") pursuant to Section 1304
in respect of the Notes shall be held in trust uninvested
and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Notes, of all sums due and
to become due thereon in respect of principal (and premium,
if any) and interest, but such money need not be segregated
from other funds except to the extent required by law.
Money so held in trust shall not be subject to the provisions
of Article Twelve.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations deposited pursuant
to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the Outstanding
Notes.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon Company Request any money or
U.S. Government Obligations held by it as provided in Section
1304 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are
in excess of the amount thereof which would then be required
to be deposited to effect an equivalent defeasance or covenant
defeasance.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to
apply any money in accordance with Section 1302 or 1303 by
reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to this Article
Thirteen until such time as the Trustee or Paying Agent is
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permitted to apply all such money in accordance with Section
1302 or 1303; provided, however, that if the Company makes
any payment of principal of (and premium, if any) or
interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights
of the Holders of such Note to receive such payment from the
money held by the Trustee or the Paying Agent.
____________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as
of the day and year first above written.
PHILLIPS-VAN HEUSEN CORPORATION
By
Name:
Title:
Attest:
__________________________
UNION BANK OF CALIFORNIA, N.A.
By
Name: Gillian Wallace
Title: Assistant Vice President
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STATE OF _________ ) ss.:
COUNTY OF _________)
On the _____ day of __________, 19__, before me
personally came ___________________________, to me known, who,
being by me duly sworn, did depose and say that [he -- she] is
___________________________________________________ of
___________________________, one of the corporations described
in and which executed the foregoing instrument; that [he --
she] knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said
corporation; and that [he -- she] signed [his -- her] name
thereto by like authority.
______________________________
STATE OF __________) ss.:
COUNTY OF _________)
On the _____ day of __________, 19__, before me
personally came ___________________________, to me known, who,
being by me duly sworn, did depose and say that [he -- she] is
___________________________________________________ of
___________________________, one of the corporations described
in and which executed the foregoing instrument; that [he --
she] knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said
corporation; and that [he -- she] signed [his -- her] name
thereto by like authority.
______________________________
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SCHEDULE I
7.75% Debentures due 2023
Capital Lease re: Industrial Development Board of Ozark, AL
(Interest rate: 6.50% - 7.75%; Maturity date: 09/01/99;
Amount outstanding as of 03/31/98: $670,000)
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ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to Sec. 306(b)(i) of the Indenture)
[ ]
[ ]
[ ]
[ ]
Re: 9 1/2% Senior Subordinated Notes
due May 1, 2008 of Phillips-
Van Heusen Corporation (the
"Securities")
Reference is made to the Indenture, dated as of
April 22, 1998 (the "Indenture"), from Phillips-Van Heusen
Corporation (the "Company") to Union Bank of California,
N.A., as Trustee. Terms used herein and defined in the
Indenture or in Regulation S or Rule 144 under the U.S.
Securities Act of 1933 (the "Securities Act") are used
herein as so defined.
This certificate relates to U.S. $_______________
principal amount of Securities, which are evidenced by the
following certificate(s) (the "Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is
the sole beneficial owner of the Specified Securities or
(ii) it is acting on behalf of all the beneficial owners of
the Specified Securities and is duly authorized by them to
do so. Such beneficial owner or owners are referred to
herein collectively as the "Owner". The Specified
Securities are represented by a Global Security and are held
through the Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
A-1
The Owner has requested that the Specified
Securities be transferred to a person (the "Transferee") who
will take delivery in the form of a Regulation S Security.
In connection with such transfer, the Owner hereby certifies
that, unless such transfer is being effected pursuant to an
effective registration statement under the Securities Act,
it is being effected in accordance with Rule 904 or Rule 144
under the Securities Act and with all applicable securities
laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further
certifies as follows:
(1) Rule 904 Transfers. If the transfer is being
effected in accordance with Rule 904:
(A) the Owner is not a distributor of the
Securities, an affiliate of the Company or any
such distributor or a person acting on behalf of
any of the foregoing;
(B) the offer of the Specified Securities
was not made to a person in the United States;
(C) either:
(i) at the time the buy order was
originated, the Transferee was outside the
United States or the Owner and any person
acting on its behalf reasonably believed that
the Transferee was outside the United States,
or
(ii) the transaction is being executed
in, on or through the facilities of the
Eurobond market, as regulated by the
Association of International Bond Dealers, or
another designated offshore securities market
and neither the Owner nor any person acting
on its behalf knows that the transaction has
been prearranged with a buyer in the United
States;
(D) no directed selling efforts have been
made in the United States by or on behalf of the
Owner or any affiliate thereof;
A-2
(E) if the Owner is a dealer in securities
or has received a selling concession, fee or other
renumeration in respect of the Specified
Securities, and the transfer is to occur during
the Restricted Period, then the requirements of
Rule 904(c)(1) have been satisfied; and
(F) the transaction is not part of a plan or
scheme to evade the registration requirements of
the Securities Act.
(2) Rule 144 Transfers. If the transfer is being
effected pursuant to Rule 144:
(A) the transfer is occurring after a
holding period of at least one year (computed in
accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Securities were last
acquired from the Company or from an affiliate of
the Company, whichever is later, and is being
effected in accordance with the applicable amount,
manner of sale and notice requirements of Rule
144; or
(B) the transfer is occurring after a
holding period of at least two years has elapsed
since the Specified Securities were last acquired
from the Company or from an affiliate of the
Company, whichever is later, and the Owner is not,
and during the preceding three months has not
been, an affiliate of the Company.
A-3
This certificate and the statements contained
herein are made for your benefit and the benefit of the
Company and the Initial Purchasers.
Dated:
(Print the name of the Undersigned,
as such term is defined in the second
paragraph of this certificate.)
By:
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title
of the person signing on behalf of
the Undersigned must be stated.)
A-4
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Sec. 306(b)(ii) of the Indenture)
[ ]
[ ]
[ ]
[ ]
Re: 9 1/2% Senior Subordinated Notes
due May 1, 2008 of Phillips-
Van Heusen Corporation (the
"Securities")
Reference is made to the Indenture, dated as of
April 22, 1998 (the "Indenture"), from Phillips-Van Heusen
Corporation (the "Company") to Union Bank of California,
N.A., as Trustee. Terms used herein and defined in the
Indenture or in Rule 144A or Rule 144 under the U.S.
Securities Act of 1933 (the "Securities Act") are used
herein as so defined.
This certificate relates to U.S.$_____________
principal amount of Securities, which are evidenced by the
following certificate(s) (the "Specified Securities"):
CUSIP No(s). ___________________________
ISIN No(s) If any. ____________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is
the sole beneficial owner of the Specified Securities or
(ii) it is acting on behalf of all the beneficial owners of
the Specified Securities and is duly authorized by them to
do so. Such beneficial owner or owners are referred to
herein collectively as the "Owner". The Specified
Securities are represented by a Global Security and are held
through the Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified
Securities be transferred to a person (the "Transferee") who
B-1
will take delivery in the form of a Restricted Security. In
connection with such transfer, the Owner hereby certifies
that, unless such transfer is being effected pursuant to an
effective registration statement under the Securities Act,
it is being effected in accordance with Rule 144A or Rule
144 under the Securities Act and all applicable securities
laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further
certifies as:
(1) Rule 144A Transfers. If the transfer is
being effected in accordance with Rule 144A:
(A) the Specified Securities are being
transferred to a person that the Owner and any
person acting on its behalf reasonably believe is
a "qualified institutional buyer" within the
meaning of Rule 144A, acquiring for its own
account or for the account of a qualified institutional
buyer; and
(B) the Owner and any person acting on its
behalf have taken reasonable steps to ensure that
the Transferee is aware that the Owner may be
relying on Rule 144A in connection with the
transfer; and
(2) Rule 144 Transfers. If the transfer is being
effected pursuant to Rule 144:
(A) the transfer is occurring after a
holding period of at least one year (computed in
accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Securities were last
acquired from the Company or from an affiliate of
the Company, whichever is later, and is being
effected in accordance with the applicable amount,
manner of sale and notice requirements of Rule
144; or
(B) the transfer is occurring after a
holding period of at least two years has elapsed
since the Specified Securities were last acquired
from the Company or from an affiliate of the
Company, whichever is later, and the Owner is not,
and during the preceding three months has not
been, an affiliate of the Company.
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This certificate and the statements contained
herein are made for your benefit and the benefit of the
Company and the Initial Purchasers.
Dated:
(Print the name of the Undersigned,
as such term is defined in the second
paragraph of this certificate.)
By:
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title
of the person signing on behalf of
the Undersigned must be stated.)
B-3
ANNEX C -- Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to Sec. 306(c))
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[ ]
Re: 9 1/2% Senior Subordinated Notes
due May 1, 2008 of Phillips-
Van Heusen Corporation (the
"Securities")
Reference is made to the Indenture, dated as of
April 22, 1998 (the "Indenture"), from Phillips-Van Heusen
Corporation (the "Company") to Union Bank of California,
N.A., as Trustee. Terms used herein and defined in the
Indenture or in Regulation S or Rule 144 under the U.S.
Securities Act of 1933 (the "Securities Act") are used
herein as so defined.
This certificate relates to U.S. $_____________
principal amount of Securities, which are evidenced by the
following certificate(s) (the "Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is
the sole beneficial owner of the Specified Securities or
(ii) it is acting on behalf of all the beneficial owners of
the Specified Securities and is duly authorized by them to
do so. Such beneficial owner or owners are referred to
herein collectively as the "Owner". If the Specified
Securities are represented by a Global Security, they are
held through the Depositary or an Agent Member in the name
of the Undersigned, as or on behalf of the Owner. If the
Specified Securities are not represented by a Global
Security, they are registered in the name of the Undersigned,
as or on behalf of the Owner.
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The Owner has requested that the Specified
Securities be exchanged for Securities bearing no Securities
Act Legend pursuant to Section 306(c) of the Indenture. In
connection with such exchange, the Owner hereby certifies
that the exchange is occurring after a holding period of at
least three years (computed in accordance with paragraph (d)
of Rule 144) has elapsed since the Specified Securities were
last acquired from the Company or from an affiliate of the
Company, whichever is later, and the Owner is not, and
during the preceding three months has not been, an affiliate
of the Company. The Owner also acknowledges that any future
transfers of the Specified Securities must comply with all
applicable securities laws of the states of the United
States and other jurisdictions.
This certificate and the statements contained
herein are made for your benefit and the benefit of the
Company and the Initial Purchasers.
Dated:
(Print the name of the Undersigned,
as such term is defined in the second
paragraph of this certificate.)
By:
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title
of the person signing on behalf of
the Undersigned must be stated.)
C-2
ANNEX D -- Form of Certification to
be Given by Holders of Beneficial
Interest in a Regulation S Temporary
Global Note
OWNER SECURITIES CERTIFICATION
PHILLIPS-VAN HEUSEN CORPORATION
9 1/2% Senior Subordinated Notes due May 1, 2008
This is to certify that, as of the date hereof,
$________ of the above-captioned Notes are beneficially
owned by non-U.S. person(s). As used in this paragraph, the
term "U.S. person" has the meaning given to it by Regulation
S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested
telex on or prior to the date on which you intend to submit
your certification relating to the Notes held by you for our
account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed
that this certification applies as of such date.
We understand that this certificate is required in
connection with certain securities laws of the United
States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with
which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate to any
interested party in such proceedings.
Dated:______________, ____
By:____________________________________________
As, or as agent for, the beneficial owner(s)
of the Notes to which this certificate
relates.
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ANNEX E -- Form of Certification to
be Given by the Euroclear Operator
or Cedel S.A.
DEPOSITARY SECURITIES CERTIFICATION
PHILLIPS-VAN HEUSEN CORPORATION
9 1/2% Senior Subordinated Notes due May 1, 2008
This is to certify that, with respect to
U.S.$___________ principal amount of the above-captioned
Notes, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from
member organizations appearing in our records as persons
being entitled to a portion of the principal amount of Notes
set forth above (our "Member Organizations"), certifications
with respect to such portion, substantially to the effect
set forth in the Indenture.
We further certify (i) that we are not making
available herewith for exchange (or, if relevant, exercise
of any rights or collection of any interest) any portion of
the Regulation S Temporary Global Note (as defined in the
Indenture) excepted in such certifications and (ii) that as
of the date hereof we have not received any notification
from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to
any portion of the part submitted herewith for exchange (or,
if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as of
the date hereof.
We understand that this certification is required
in connection with certain securities laws of the United
States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with
E-1
which this certification is or would be relevant, we
irrevocably authorize you to produce this certification to
any interested party in such proceedings.
Dated: _____________, _______
Yours faithfully,
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK, Brussels office,
as operator of the Euroclear System]
or
[CEDEL S.A.]
By____________________________
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