JONES APPAREL GROUP, INC.,
JONES APPAREL GROUP HOLDINGS, INC.,
JONES APPAREL GROUP USA, INC., and
NINE WEST GROUP INC.,
as Issuers
and
THE BANK OF NEW YORK
as Trustee
INDENTURE
Dated as of June 15, 1999
$175,000,000 7.50% Senior Notes Due 2004
$225,000,000 7.875% Senior Notes Due 2006
i
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE ................ 1
SECTION 1.01 Definitions......................................... 1
SECTION 1.02 Other Definitions................................... 7
SECTION 1.03 Incorporation by Reference of Trust Indenture Act... 7
SECTION 1.04 Rules of Construction............................... 8
ARTICLE 2 THE SECURITIES............................................. 8
SECTION 2.01 Form of Securities.................................. 8
SECTION 2.02 Denominations....................................... 8
SECTION 2.03 Forms Generally..................................... 8
SECTION 2.04 Execution, Authentication and Delivery.............. 9
SECTION 2.05 Registrar and Paying Agent.......................... 9
SECTION 2.06 Paying Agent To Hold Money in Trust................. 10
SECTION 2.07 Securityholder Lists................................ 10
SECTION 2.08 Transfer and Exchange............................... 10
SECTION 2.09 Replacement Securities.............................. 11
SECTION 2.10 Outstanding Securities.............................. 12
SECTION 2.11 Temporary Securities................................ 12
SECTION 2.12 Cancellation........................................ 12
SECTION 2.13 Defaulted Interest.................................. 13
SECTION 2.14 CUSIP Numbers....................................... 13
ARTICLE 3 REDEMPTION ................................................ 13
SECTION 3.01 Notices to Trustee ................................. 13
SECTION 3.02 Selection of Securities To Be Redeemed.............. 13
SECTION 3.03 Notice of Redemption ............................... 14
SECTION 3.04 Effect of Notice of Redemption ..................... 15
SECTION 3.05 Deposit of Redemption Price ........................ 15
SECTION 3.06 Securities Redeemed in Part......................... 15
ARTICLE 4 COVENANTS.................................................. 15
SECTION 4.01 Payments of Securities.............................. 15
SECTION 4.02 SEC Reports ........................................ 16
SECTION 4.03 Corporate Existence ................................ 16
SECTION 4.04 Restrictions on Liens............................... 16
SECTION 4.05 Restrictions on Sale and Leaseback Transactions..... 19
SECTION 4.06 Exempted Debt ...................................... 19
SECTION 4.07 Waiver of Certain Covenants ........................ 20
SECTION 4.08 Compliance Certificate ............................. 20
SECTION 4.09 Further Instruments and Acts ....................... 20
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ARTICLE 5 SUCCESSOR COMPANIES ....................................... 20
SECTION 5.01 Merger and Consolidation ........................... 20
ARTICLE 6 DEFAULTS AND REMEDIES ..................................... 21
SECTION 6.01 Events of Default .................................. 21
SECTION 6.02 Acceleration ....................................... 23
SECTION 6.03 Other Remedies ..................................... 24
SECTION 6.04 Waiver of Past Defaults ............................ 24
SECTION 6.05 Control by Majority ................................ 24
SECTION 6.06 Limitation on Suits ................................ 24
SECTION 6.07 Rights of Holders to Receive Payment ............... 25
SECTION 6.08 Collection Suit by Trustee ......................... 25
SECTION 6.09 Trustee May File Proofs of Claim ................... 25
SECTION 6.10 Priorities ......................................... 26
SECTION 6.11 Undertaking for Costs .............................. 26
SECTION 6.12 Waiver of Stay or Extension Laws.................... 26
ARTICLE 7 TRUSTEE.................................................... 27
SECTION 7.01 Duties of Trustee................................... 27
SECTION 7.02 Rights of Trustee .................................. 28
SECTION 7.03 Individual Rights of Trustee ....................... 29
SECTION 7.04 Trustee's Disclaimer ............................... 29
SECTION 7.05 Notice of Defaults ................................. 29
SECTION 7.06 Reports by Trustee to Holders....................... 29
SECTION 7.07 Compensation and Indemnity.......................... 29
SECTION 7.08 Replacement of Trustee ............................. 30
SECTION 7.09 Successor Trustee by Merger ........................ 31
SECTION 7.10 Eligibility; Disqualification ...................... 32
SECTION 7.11 Preferential Collection of Claims Against Issuers... 32
ARTICLE 8 DISCHARGE OF INDENTURE; DEFEASANCE ........................ 32
SECTION 8.01 Discharge of Liability on Securities; Defeasance.... 32
SECTION 8.02 Conditions to Defeasance ........................... 33
SECTION 8.03 Application of Trust Money ......................... 35
SECTION 8.04 Repayment to Issuers ............................... 35
SECTION 8.05 Indemnity for Government Obligations ............... 35
SECTION 8.06 Reinstatement ...................................... 35
ARTICLE 9 AMENDMENTS ................................................ 36
SECTION 9.01 Without Consent of Holders ......................... 36
SECTION 9.02 With Consent of Holders ............................ 37
SECTION 9.03 Compliance with Trust Indenture Act ................ 37
SECTION 9.04 Revocation and Effect of Consents and Waivers ...... 38
SECTION 9.05 Notation on or Exchange of Securities .............. 38
SECTION 9.06 Trustee To Sign Amendments ......................... 38
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SECTION 9.07 Payment for Consent................................. 38
ARTICLE 10 MISCELLANEOUS............................................. 39
SECTION 10.01 Trust Indenture Act Controls ...................... 39
SECTION 10.02 Notices............................................ 39
SECTION 10.03 Communication by Holders with Other Holders........ 40
SECTION 10.04 Certificate and Opinion as to Conditions Precedent. 40
SECTION 10.05 Statements Required in Certificate or Opinion...... 40
SECTION 10.06 When Securities Disregarded ....................... 40
SECTION 10.07 Rules by Trustee, Paying Agent and Registrar....... 41
SECTION 10.08 Legal Holidays .................................... 41
SECTION 10.09 Governing Law ..................................... 41
SECTION 10.10 No Recourse Against Others......................... 41
SECTION 10.11 Successors ........................................ 41
SECTION 10.12 Multiple Originals ................................ 41
SECTION 10.13 Table of Contents; Headings........................ 41
SECTION 10.14 Severability ...................................... 42
APPENDIX A PROVISIONS RELATING TO INITIAL SECURITIES,
PRIVATE EXCHANGE SECURITIES AND
EXCHANGE SECURITIES
EXHIBIT A [FORM OF FACE OF 7.50% INITIAL SECURITY]
EXHIBIT B [FORM OF FACE OF 7.50% EXCHANGE SECURITY)
EXHIBIT C [FORM OF TRANSFEREE LETTER OF REPRESENTATION FOR
7.50% NOTES]
EXHIBIT D [FORM OF FACE OF 7.875% INITIAL SECURITY]
EXHIBIT E [FORM OF FACE OF 7.875% EXCHANGE SECURITY]
EXHIBIT F [FORM OF TRANSFEREE LETTER OF REPRESENTATION FOR
7.875% NOTES]
1
INDENTURE dated as of June 15,1999, by and among JONES APPAREL GROUP.
INC., a Pennsylvania corporation, JONES APPAREL GROUP HOLDINGS, INC., a
Delaware corporation, JONES APPAREL GROUP USA, INC., a Pennsylvania
corporation, NINE WEST GROUP INC., a Delaware corporation (collectively, the
"Issuers"), and THE BANK OF NEW YORK, a New York State banking corporation, as
trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of (i) the Issuers' 7.50%
Senior Notes due 2004 issued on the date hereof (the "7.50% Initial
Securities"), and 7.875% Senior Notes due 2006 issued on the date hereof (the
"7.875% Initial Securities" and, together with the 7.50% Initial Securities,
collectively, the "Initial Securities"), (ii) if and when issued as provided
in the Registration Agreement (as defined in Appendix A hereto (the
"Appendix")), the Issuers' 7.50% Senior Notes due 2004 issued in the
Registered Exchange Offer (as defined in the Appendix) in exchange for the
7.50% Initial Securities (the "7.50% Exchange Securities") and 7.875% Senior
Notes due 2006 issued in the Registered Exchange Offer (as defined in the
Appendix) in exchange for any 7.875% Initial Securities (the "7.875% Exchange
Securities, and together with the 7.50% Exchange Securities, collectively, the
"Exchange Securities") and (iii) if and when issued as provided in the
Registration Agreement, the Private Exchange Securities (as defined in the
Appendix, and together with the Initial Securities and any Exchange Securities
issued hereunder, and other evidence of indebtedness, collectively, the
"Securities") issued in the Private Exchange (as defined in the Appendix).
Except as otherwise provided herein, the Securities to be issued will be
limited to the two series referenced above and will be limited to $400,000,000
in aggregate principal amount outstanding which will be issued on the date
hereof.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
2
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, at the time of determination, the present value (discounted at the
actual rate of interest of such transaction) of the obligation of the lessee
for net rental payments during the remaining term of the lease included in
such Sale and Leaseback Transaction (including any period for which such lease
has been extended or may, at the option of the lessor, be extended). The term
"net rental payments" under any lease for any period shall mean the sum of the
rental and other payments required to be paid in such period by the lessee
thereunder, not including, however, any amounts required to be paid by such
lessee (whether or not designated as rental or additional rental) on account
of maintenance and repairs, insurance, taxes, assessments, water rates or
similar charges required to be paid by such lessee thereunder or any amounts
required to be paid by such lessee thereunder contingent upon the amount of
sales, maintenance and repairs, insurance, taxes, assessments, water rates or
similar charges. In the case of any lease which is terminable by the lessee
upon the payment of a penalty, such net amount shall also include the amount
of such penalty, but no rent shall be considered as required to be paid under
such lease subsequent to the first date upon which it may be so terminated
without payment of such penalty.
"Board of Directors" means the Board of Directors of the applicable
Issuer or any committee thereof duly authorized to act on behalf of the Board
of Directors of such Issuer.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participating or other equivalents of
or interests in (however designated) equity of such Person, including any
preferred stock, but excluding any debt securities convertible into such
equity.
"Closing Date" means the date of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable
to the remaining term of the Securities to be redeemed that would be utilized,
at the time of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption date,
(1) the average of the Reference Treasury Dealer Quotations for such
redemption date after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such quotations.
3
"Consolidated Net Tangible Assets" means. as of any date of
determination, the total amount of assets of the Issuers and their respective
Subsidiaries (less applicable reserves and other properly deductible items)
after deducting (1) all current liabilities (excluding the amount of those
which are by their terms extendable or renewable at the option of the obligor
to a date more than 12 months after the date as of which the amount is being
determined and excluding all intercompany items between an Issuer and any of
its wholly-owned Subsidiaries or between Issuers or wholly-owned Subsidiaries
of Issuers) and (2) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangible assets, all as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Stockholders' Equity" means consolidated stockholders'
equity of the Issuers and their respective Subsidiaries as determined in
accordance with GAAP and reflected on the Issuers' most recent balance sheet.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable in whole or in part in global form, the Person specified pursuant to
Section 2.01 hereof as the initial Depositary with respect to the Securities
of such series, until a successor shall have been appointed and become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include such successor.
"Dollar" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debt.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Funded Debt" means Indebtedness, whether incurred, assumed or
guaranteed, maturing by its terms more than one year from the date of creation
thereof or which is extendable or renewable at the sole option of the obligor
in such manner that it may become payable more than one year from the date of
creation thereof, provided, however, that Funded Debt shall not include
obligations created pursuant to leases, or any Indebtedness or portion thereof
maturing by its terms within one year from the time of any computation of the
amount of outstanding Funded Debt unless such Indebtedness shall be extendable
or renewable at the sole option of the obligor in such manner that it may
become payable more than one year from such time, or any Indebtedness for the
payment or redemption of which money in the necessary amount shall have been
deposited in trust either at or before the maturity or redemption date
thereof.
4
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, including those principles
set forth in (i) the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants, (ii)
statements and pronouncements of the Financial Accounting Standards Board,
(iii) such other statements by such other entity as approved by a significant
segment of the accounting profession and (iv) the rules and regulations of the
SEC governing the inclusion of financial statements (including pro forma
financial statements) in periodic reports required to be filed pursuant to
Section 1-3 of the Exchange Act, including opinions and pronouncements in
staff accounting bulletins and similar written statements from the accounting
staff of the SEC. All ratios and computations based on GAAP contained in this
Indenture shall be computed in conformity with GAAP.
"Global Security" means a Security that is issued in global form in the
name of the Depositary with respect thereto or its nominee.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"Indebtedness" of a Person means indebtedness for borrowed money and
all indebtedness under purchase money mortgages or other purchase money liens
or conditional sales or similar title retention agreements (but excluding
trade accounts payable in the ordinary course of business) in each case where
such indebtedness has been created, incurred, assumed or guaranteed by such
Person or where such Person is otherwise liable therefore and indebtedness for
borrowed money secured by any Lien upon property owned by such Person even
though such Person has not assumed or become liable for the payment of such
indebtedness; provided that if the obligation so secured has not been assumed
in full by such Person or is otherwise not such Person's legal liability in
full, the amount of such obligation for the purposes of this definition shall
be limited to the lesser of the amount of such obligation secured by such Lien
or the fair market value of the property securing such Lien.
"Indenture" means this Indenture as amended or supplemented from time
to time and includes the terms of a particular series of Securities
established as contemplated by Section 2.01.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Issuers.
"Issuer" means each party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes
of any provision contained herein and required by the TIA, each other obligor
on the indenture securities.
5
"Lien" means any mortgage, pledge. security interest. encumbrance. lien
or charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the Chief Financial Officer, the President, any Vice President, the Treasurer
or the Secretary of the applicable Issuer.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the applicable Issuer or the
Trustee.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"principal" of a Security means the principal of the Security plus the
premium, if any, payable on the Security which is due or overdue or is to
become due at the relevant time.
"Principal Property" means any property owned or leased by any Issuer
or Restricted Subsidiary, the net book value of which exceeds one percent of
the Consolidated Net Tangible Assets of the Issuers and their respective
Subsidiaries.
"Reference Treasury Dealer" means each of Bear, Steams & Co. Inc.,
Chase Securities Inc., Merrill Lynch, Pierce, Fenner& Smith Incorporated,
Salomon Smith Barney Inc., BancBoston Robertson Stephens, Inc. and Banc of
America Securities LLC and their respective successors; provided, however,
that if any of the foregoing shall cease to be a primary U.S. Government
securities dealer (a "Primary Treasury Dealer"), the Issuers shall substitute
therefor another nationally recognized investment banking firm that is a
Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee at 3:30 p.m., New York City time, on the third Business
Day preceding such redemption date.
"Remaining Scheduled Payments" means, with respect to any Security to
be redeemed, the remaining scheduled payments of principal of and interest on
such Security that would be due after the related redemption date but for such
redemption. If such redemption date is not an interest payment date with
respect to such Security, the amount of
6
the next succeeding scheduled interest payment on such Security will be
reduced by the amount of interest accrued on such note to such redemption
date.
"Restricted Subsidiary" means, at any time, any Subsidiary of an
Issuer which would be a "Significant Subsidiary" at such time, as such term
is defined in Regulation S-X promulgated by the SEC, as in effect on the
Closing Date.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning set forth in the second paragraph of this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total
voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i)
such Person, (ii) such Person and one or more Subsidiaries of such Person or
(iii) one or more Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-
77bb in effect on the Closing Date.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means any Vice President, Assistant Vice President,
Assistant Treasurer or any other officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code as
in effect from time to time.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States
of America (including any agency or instrumentality thereof) for the payment
of which the full faith and credit of the United States of America is pledged
and which are not callable or redeemable at the issuer's option.
7
"Wholly Owned Restricted Subsidiary" means a Restricted Subsidiary,
100% of the outstanding Capital Stock of which (other than Capital Stock
constituting directors' qualifying shares or interests held by directors or
shares or interests required to be held by foreign nationals, in each case to
the extent mandated by applicable law) is directly or indirectly owned by an
Issuer or by one or more Wholly Owned Restricted Subsidiaries.
SECTION 1.02
Term
Other Definitions.
Term Defined in Section
"Bankruptcy Law" 6.01
"covenant defeasance option" 8.01(b)
"Custodian" 6.01
"Event of Default" 6.01
"legal defeasance option" 8.01(b)
"Legal Holiday" 10.08
"Notice of Default" 6.01
"Paying Agent" 2.03
"Primary Treasury Dealer" 1.01
"protected purchaser" 2.07
"Registrar" 2.03
"Sale and Leaseback Transaction" 4.05
"Successor Company" 5.01(a)
SECTION 1.03 Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture Securityholder" means a Holder or Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuers and any other obligor
on the indenture securities.
8
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04 Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular; and
(6) the principal amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the issuer dated such date prepared in accordance
with GAAP.
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form of Securities. Provisions relating to the Initial
Securities, the Private Exchange Securities and the Exchange Securities are
set forth in the Appendix, which is hereby incorporated in and expressly made
a part of this Indenture. The (i) Initial Securities and the Trustee' s
certificate of authentication and (ii) Private Exchange Securities and the
Trustee's certificate of authentication shall each be substantially in the
form of Exhibit A hereto (in the case of the 7.50% Notes) and Exhibit D hereto
(in the case of the 7.875% Notes), which are hereby incorporated in and
expressly made a part of this Indenture.
SECTION 2.02 Denominations. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by
Section 2.0 1. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series denominated in Dollars
shall be issuable in denominations of $1,000 and any integral multiples
thereof.
SECTION 2.03 Forms Generally. The Securities of each series may have
notations, legends or endorsements required by law, securities exchange rule,
agreements to
9
which any Issuer is subject, if any, or usage (provided that any such
notation. legend or endorsement is in a form acceptable to the Issuers). Each
Security shall be dated the date of its authentication.
The definitive Securities of each series shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the Officers executing such Securities of each series, as
evidenced by their execution thereof.
SECTION 2.04 Execution. Authentication and Delivery. One or more
Officers of the Issuers shall sign the Securities of each series on behalf of
the Issuers by manual or facsimile signature. The Issuers' seal, if any, shall
be impressed, affixed, imprinted or reproduced on the Securities and may be in
facsimile form.
If an Officer of the Issuers whose signature is on a Security no longer
holds that office at the time the Trustee authenticates the Security, the
Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities as set forth in the Appendix.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Issuers to authenticate the Securities of each series. Any such
appointment shall be evidenced by an instrument signed by a Trust Officer, a
copy of which shall be furnished to the Issuers. Unless limited by the terms
of such appointment, an authenticating agent may authenticate Securities of
such series whenever the Trustee may do so. Each reference in this Indenture
to authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or
agent for service of notices and demands.
SECTION 2.05 Registrar and Paying Agent. The Issuers shall maintain an
office or agency for each series where Securities of such series may be
presented for registration of transfer or for exchange (the "Registrar") and
an office or agency where Securities of such series may be presented for
payment (the "Paying Agent"). The Registrar shall keep a register of the
Securities of such series and of their transfer and exchange. The Issuers may
have one or more co-registrars and one or more additional paying agents. The
term "Paying Agent" includes any additional paying agent, and the term
"Registrar" includes any co-registrars. The Issuers initially appoint the
Trustee as (i) Registrar and Paying Agent in connection with the Securities
and (ii) the Securities Custodian (as defined in the Appendix) with respect to
the Global Securities (as defined in the Appendix).
10
The Issuers shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture, which shall
incorporate the terms of the TIA. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Issuers shall notify the
Trustee of the name and address of any such agent. If the Issuers fail to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall
be entitled to appropriate compensation therefor pursuant to Section 7.07. The
Issuers or any of their domestically organized Wholly Owned Restricted
Subsidiaries may act as Paying Agent or Registrar.
The Issuers may remove any Registrar or Paying Agent upon written
notice to such Registrar or Paying Agent and to the Trustee; provided,
however, that no such removal shall become effective until (1) acceptance of
an appointment by a successor as evidenced by an appropriate agreement entered
into by the Issuers and such successor Registrar or Paying Agent, as the case
may be, and delivered to the Trustee or (2) notification to the Trustee that
the Trustee shall serve as Registrar or Paying Agent until the appointment of
a successor in accordance with clause (1) above. The Registrar or Paying Agent
may resign at any time upon written notice; provided, however, that the
Trustee may resign as Paying Agent or Registrar only if the Trustee also
resigns as Trustee in accordance with Section 7.08.
SECTION 2.06 Paying Agent To Hold Money in Trust. On or before each due
date of the principal and interest on any Security, the Issuers shall deposit
with the Paying Agent (or if an Issuer or a Subsidiary of any Issuer is acting
as Paying Agent, segregate and hold in trust for the benefit of the Persons
entitled thereto) a sum sufficient to pay such principal and interest when so
becoming due. The Issuers shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Securityholders or the Trustee all money held by the Paying Agent
for the payment of principal of or interest on the Securities of each series
and shall notify the Trustee of any default by the Issuers in making any such
payment. If an Issuer or a Subsidiary of an Issuer acts as Paying Agent, it
shall segregate the money held by it as Paying Agent and hold it as a separate
trust fund. The Issuers at any time may require a Paying Agent to pay all
money held by it to the Trustee and to account for any funds disbursed by the
Paying Agent. Upon complying with this Section, the Paying Agent shall have no
further liability for the money delivered to the Trustee.
SECTION 2.07 Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Issuers shall furnish, or cause the Registrar to furnish, to
the Trustee, in writing at least five Business Days before each interest
payment date and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Securityholders.
11
SECTION 2.08 Transfer and Exchange. The Securities shall be issued in
registered form and shall be transferable only upon the surrender of a
Security for registration of transfer and in compliance with the Appendix.
When a Security is presented to the Registrar with a request to register a
transfer, the Registrar shall register the transfer as requested if the
requirements of Section 8-401(a)(1) of the Uniform Commercial Code are met.
When Securities are presented to the Registrar with a request to exchange them
for an equal principal amount of Securities of other denominations, the
Registrar shall make the exchange as requested if the same requirements are
met. To permit registration of transfers and exchanges, the Issuers shall
execute and the Trustee shall authenticate Securities at the Registrar's
request. The Issuers may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with any such transfer
or exchange pursuant to this Section. The Issuers shall not be required to
make and the Registrar need not register transfers or exchanges of Securities
selected for redemption (except, in the case of Securities to be redeemed in
part, the portion thereof not to be redeemed) or any Securities for a period
of 15 days before a selection of Securities to be redeemed.
Prior to the due presentation for registration of transfer of any
Security, the Issuers, the Trustee, the Paying Agent, and the Registrar may
deem and treat the Person in whose name a Security is registered as the
absolute owner of such Security for the purpose of receiving the payment of
principal and interest, if any, on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Issuers,
the Trustee, the Paying Agent or the Registrar shall be affected by notice to
the contrary.
Any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interest in such Global Security
may be effected only through a book-entry system maintained by (i) the Holder
of such Global Security (or its agent) or (ii) any Holder of a beneficial
interest in such Global Security, and that ownership of a beneficial interest
in such Global Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant to the
terms of this Indenture will evidence the same debt and will be entitled to
the same benefits under this Indenture as the Securities surrendered upon such
transfer or exchange.
SECTION 2.09 Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Issuers shall issue
and the Trustee shall authenticate a replacement Security if the requirements
of Section 8-405 of the Uniform Commercial Code are met, such that the Holder
(i) satisfies the Issuers or the Trustee within a reasonable time after such
Holder has notice of such loss, destruction or wrongful taking, and the
Registrar does not register a transfer prior to receiving such notification,
(ii) requests the Issuers or the Trustee to issue a new replacement Security,
prior to the Security being acquired by a protected purchaser as defined in
Section 8-303 of the Uniform Commercial Code (a "protected purchaser") and
(iii) satisfies any other reasonable requirements of the Trustee. If required
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by the Trustee or the Issuers, such Holder shall furnish an indemnity bond
sufficient in the judgment of the Trustee to protect the Issuers, the Trustee,
the Paying Agent and the Registrar from any loss that any of them may suffer
if a Security is replaced. The Issuers and the Trustee may charge the Holder
for the expenses they incur in replacing a Security. In the event any such
mutilated, lost, destroyed or wrongfully taken Security has become or is about
to become due and payable, the Issuers in their discretion may pay such
Security instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Issuers.
The provisions of this Section 2.09 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.10 Outstanding Securities. Securities outstanding at any time
are all Securities authenticated by the Trustee except for those canceled by
it, those delivered to it for cancellation and those described in this Section
as not outstanding. Subject to Section 10.06, a Security does not cease to be
outstanding because an Issuer or an Affiliate of an Issuer holds the Security.
If a Security is replaced pursuant to Section 2.09, the Security so
replaced ceases to be outstanding unless and until the Trustee and the Issuers
receive proof satisfactory to them that the replaced Security is held by a
protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date, money sufficient to pay
all principal and interest payable on that date with respect to the Securities
(or portions thereof) to be redeemed or maturing, as the case may be, then on
and after that date, such Securities (or portions thereof) shall cease to be
outstanding and interest on them shall cease to accrue.
SECTION 2.11 Temporary Securities. In the event that Definitive
Securities (as defined in the Appendix) are to be issued under the terms of
this Indenture, until such Definitive Securities are ready for delivery, the
Issuers may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of Definitive
Securities but may have variations that the Issuers consider appropriate for
temporary Securities. Without unreasonable delay, the Issuers shall prepare
and the Trustee shall authenticate Definitive Securities and deliver them in
exchange for temporary Securities upon surrender of such temporary Securities
at the office or agency of the Issuers, without charge to the Holder.
SECTION 2.12 Cancellation. The Issuers at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The
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Trustee and no one else shall cancel all Securities surrendered for
registration of transfer, exchange, payment or cancellation and deliver
canceled Securities to an Issuer pursuant to written direction by an Officer
of such Issuer. The Issuers may not issue new Securities to replace Securities
they have redeemed, paid or delivered to the Trustee for cancellation. The
Trustee shall not authenticate Securities in place of canceled Securities
other than pursuant to the terms of this Indenture.
SECTION 2.13 Defaulted Interest. If the Issuers default in a payment of
interest on the Securities, the Issuers shall pay the defaulted interest (plus
interest on such defaulted interest to the extent lawful) in any lawful
manner. The Issuers may pay the defaulted interest to the Persons who are
Securityholders on a subsequent special record date. The Issuers shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail or cause to be
mailed to each Securityholder a notice that states the special record date,
the payment date and the amount of defaulted interest to be paid.
SECTION 2.14 CUSIP Numbers. The Issuers in issuing the Securities may
use "CUSIP" numbers (if then generally in use) and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers.
ARTICLE 3
REDEMPTION
SECTION 3.01 Notices to Trustee. If the Issuers elect to redeem
Securities of any series pursuant to paragraph 5 of the Securities, they shall
notify the Trustee in writing of the redemption date and the principal amount
of Securities of such series to be redeemed.
The Issuers shall give each notice to the Trustee provided for in this
Section at least 45 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Issuers to the effect that such
redemption will comply with the conditions herein. If fewer than all the
Securities of any series are to be redeemed, the record date relating to such
redemption shall be selected by the Issuers and given to the Trustee, which
record date shall be not fewer than 15 days after the date of notice to the
Trustee. Any such notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
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SECTION 3.02 Selection of Securities To Be Redeemed. If fewer than all
the Securities of any series are to be redeemed, the Trustee shall select the
Securities of such series to be redeemed pro rata or by lot or by a method
that complies with applicable legal and securities exchange requirements, if
any, and that the Trustee in its sole discretion shall deem to be fair and
appropriate and in accordance with methods generally used at the time of
selection by fiduciaries in similar circumstances. The Trustee shall make the
selection from outstanding Securities of such series not previously called for
redemption. The Trustee may select for redemption portions of the principal of
Securities of such series that have denominations larger than $1,000.
Securities of such series and portions thereof that the Trustee selects shall
be in amounts of $1,000 or a whole multiple of $1,000. Provisions of this
Indenture that apply to Securities of such series called for redemption also
apply to portions of Securities of a series called for redemption. The Trustee
shall promptly notify the Issuers of the Securities or portions thereof to be
redeemed.
SECTION 3.03 Notice of Redemption. At least 30 days but not more than
60 days before a date for redemption of Securities, the Issuers shall mail a
notice of redemption by first-class mail to each Holder of Securities to be
redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price and the amount of accrued interest to the redemption
date;
(3) the name and address of the Paying Agent;
and
(4) that Securities called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities of any series are to be
redeemed, the certificate numbers and principal amounts of the particular
Securities to be redeemed;
(6) that, unless the Issuers default in making such redemption payment or the
Paying Agent is prohibited from making such payment pursuant to the terms of
this Indenture, interest on Securities (or portion thereof) called for
redemption ceases to accrue on and after the redemption date;
(7) the CUSIP number, if any, printed on the Securities being redeemed;
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(8) that no representation is made as to the correctness or accuracy of the
CUSIP number, if any, listed in such notice or printed on the Securities.
At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' name and at the Issuers' expense. In such event,
the Issuers shall provide the Trustee with the information required by this
Section.
SECTION 3.04 Effect of Notice of Redemption. Once notice of redemption
is mailed, Securities called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest, if any, to the redemption
date; provided, however, that if the redemption date is after a regular record
date and on or prior to the interest payment date, the accrued interest shall
be payable to the Securityholder of the redeemed Securities registered on the
relevant record date. Failure to give notice or any defect in the notice to
any Holder shall not affect the validity of the notice to any other Holder.
SECTION 3.05 Deposit of Redemption Price. Prior to 11:00 a.m. on the
redemption date, the Issuers shall deposit with the Paying Agent (or, if an
Issuer or a Subsidiary of any of the Issuers is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of
and accrued interest on all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption that have been
delivered by the Issuers to the Trustee for cancellation.
SECTION 3.06 Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part, the Issuers shall execute and the Trustee shall
authenticate for the Holder (at the Issuers' expense) a new Security equal in
principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Securities. The Issuers shall promptly pay the
principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest
shall be considered paid on the date due if on such date the Trustee or the
Paying Agent holds, in accordance with this Indenture, money sufficient to
pay all principal and interest then due and the Trustee or the Paying Agent,
as the case may be, is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture.
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The Issuers shall pay interest on overdue principal at the rate
specified-in the Securities, and shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
SECTION 4.02 SEC Reports. Notwithstanding that the Issuers may not be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, each of the Issuers shall file with the SEC, and provide the Trustee and
Securityholders within 15 days after it files them with the SEC, copies of its
annual report and the information, documents and other reports that are
specified in Sections 13 and 15(d) of the Exchange Act. Delivery of such
reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates). The Issuers also shall comply with the
other provisions of TIA Section 314(a).
SECTION 4.03 Corporate Existence. Each Issuer shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, material rights (charter and statutory) and material
franchises (other than as contemplated by Section 5.0 1); provided, however,
that such Issuer shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation of such rights
or franchises is no longer desirable in the conduct of the business of the
Issuers and the Restricted Subsidiaries considered as a whole.
SECTION 4.04 Restrictions on Liens. Except as provided in Section 4.06,
the Issuers shall not, and shall not permit any Restricted Subsidiary to,
create or suffer to exist any Lien to secure any Indebtedness of any Issuer or
Restricted Subsidiary on any Principal Property of any Issuer or Restricted
Subsidiary, without making, or causing such Restricted Subsidiary to make,
effective provision to secure all of the Securities offered hereunder and then
outstanding by such Lien, equally and ratably with any and all other such
Indebtedness thereby secured, so long as such other Indebtedness is so
secured, except that the foregoing restrictions shall not apply to:
(a) Liens on property of a Person existing at the time such Person is merged
into or consolidated with any Issuer or Restricted Subsidiary or at the time
of sale, lease or other disposition of the properties of such Person (or a
division thereof) as an entirety or substantially as an entirety to any Issuer
or Restricted Subsidiary;
(b) Liens on property of a Person existing at the time such Person becomes a
Restricted Subsidiary or existing on property prior to the acquisition thereof
by any Issuer or Restricted Subsidiary;
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(c) Liens securing Indebtedness between a Restricted Subsidiary and an Issuer
or between Restricted Subsidiaries or Issuers;
(d) Liens on any property created, assumed or otherwise brought into existence
in contemplation of the sale or other disposition of the underlying property,
whether directly or indirectly, by way of share disposition or otherwise,
provided that the applicable Issuer or Restricted Subsidiary must dispose of
such property within 180 days after the creation of such Liens and that any
Indebtedness secured by such Liens shall be without recourse to any Issuer or
Restricted Subsidiary;
(e) Liens in favor of the United States of America or any state thereof, or
any department, agency or instrumentality or political subdivision of the
United States of America or any state thereof, or in favor of any country, or
any political subdivision thereof, to secure partial, progress, advance or
other payments, or performance of any other similar obligations, including,
without limitation, Liens to secure pollution control bonds or industrial
revenue or other similar types of bonds;
(f) Liens imposed by law, such as carriers', warehousemen's and mechanics'
Liens and other similar Liens arising in the ordinary course of business which
secure obligations not more than 60 days past due or which are being contested
in good faith and by appropriate proceedings;
(g) Liens incurred in the ordinary course of business to secure performance of
obligations with respect to statutory or regulatory requirements, performance
or return-of-money bonds, surety bonds or other obligations of a like nature,
in each case which are not incurred in connection with the borrowing of money,
the obtaining of advances or credit or the payment of the deferred purchase
price of property and which do not in the aggregate impair in any material
respect the use of property in the operation of the business of the Issuers
and their respective Subsidiaries taken as a whole;
(h) Liens incurred to secure appeal bonds and judgment and attachment Liens,
in each case in connection with litigation or legal proceedings which are
being contested in good faith by appropriate proceedings so long as reserves
have been established to the extent required by GAAP;
(i) pledges or deposits under workmen's compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection
with bids, tenders, contracts (other than for the payment of Indebtedness) or
leases to which any Issuer or Restricted Subsidiary is a party, or deposits to
secure public or statutory obligations of an Issuer or Restricted Subsidiary
or deposits for the payment of rent, in each case incurred in the ordinary
course of business;
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(j) utility easements, building restrictions and such other encumbrances or
charges against real property as are of a nature generally existing with
respect to properties of a similar character;
(k) Liens granted to any bank or other institution on the payments to be made
to such institution by an Issuer or Subsidiary thereof, pursuant to any
interest rate swap or similar agreement or foreign currency hedge, exchange or
similar agreement designed to provide protection against fluctuations in
interest rates and currency exchange rates, respectively, provided that such
agreements are entered into in, or are incidental to, the ordinary course of
business;
(l) Liens arising solely by virtue of any statutory or common law provision
relating to banker's liens, rights of setoff or similar rights and remedies,
in each case as to any deposit account or any other fund maintained with a
creditor depository institution, provided that (1) such deposit account is not
a dedicated cash collateral account and is not subject to restrictions against
access by the applicable Issuer or Restricted Subsidiary in excess of those
set forth by regulations promulgated by the Federal Reserve Board, and (2)
such deposit account is not intended by such Issuer or Restricted Subsidiary
to provide collateral to the depository institution;
(m) Liens arising from Uniform Commercial Code financing statements regarding
leases;
(n) the giving, simultaneously with or within 180 days after the latest of the
Closing Date, or the acquisition, construction, improvement, development or
expansion of such property, of a purchase money Lien on property acquired,
constructed, improved, developed or expanded after the Closing Date, or the
acquisition, construction, improvement, development or expansion after the
Closing Date, of property subject to any Lien which is limited to such
property;
(o) the giving of a Lien on real property which is the sole security for
Indebtedness incurred within two years after the latest of the Closing Date,
or the acquisition, construction, improvement, development or expansion of
such property, provided that the holder of such Indebtedness is entitled to
enforce its payment only by resorting to such security;
(p) Liens arising by the terms of letters of credit entered into in the
ordinary course of business to secure reimbursement obligations thereunder;
(q) Liens existing on the Closing Date;
(r) Liens for taxes, assessments and other governmental charges or levies not
yet due or as to which the period of grace, if any, related thereto has not
expired or which are
19
being contested in good faith and by appropriate proceedings if adequate
reserves are maintained to the extent required by GAAP; and
(s) Extension, renewal, replacement or refunding of any Lien existing on the
Closing Date or referred to in clauses (a) to (k) and (n) to (o) and (q),
provided that the principal amount of Indebtedness secured thereby and not
otherwise authorized by clauses (a) to (k) and (n) to (o) and (q) shall not
exceed the principal amount of Indebtedness, plus any premium or fee payable
in connection with any such extension, renewal, replacement or refunding, so
secured at the time of such extension, renewal, replacement or refunding.
SECTION 4.05 Restrictions on Sale and Leaseback Transactions. Except as
provided in Section 4.06, none of the Issuers shall, and none of the Issuers
shall permit any Restricted Subsidiary to, after the date hereof, enter into
any arrangement with any Person providing for the leasing by any such Issuer
or Restricted Subsidiary of any Principal Property now owned or hereafter
acquired which has been or is to be sold or transferred by such Issuer or
Restricted Subsidiary to such Person with the intention of taking back a lease
of such Principal Property (a "Sale and Leaseback Transaction"), unless the
net proceeds of such sale or transfer have been determined by the Board of
Directors to be at least equal to the fair market value of such Principal
Property or asset at the time of such sale and transfer and either (i) such
Issuer or Restricted Subsidiary applies or causes to be applied an amount
equal to the net proceeds of such sale or transfer, within 180 days of receipt
thereof, to the retirement or prepayment (other than any mandatory retirement
or prepayment, except mandatory retirements or prepayments required as a
result of such Sale and Leaseback Transaction) of Funded Debt of any Issuer or
any Restricted Subsidiary ranking senior to or pari passu with the Securities
or to the purchase, construction or development of property or assets to be
used in the ordinary course of business, or (ii) such Issuer or Restricted
Subsidiary would, on the effective date of such sale or transfer, be entitled,
pursuant to this Indenture, to issue, assume or guarantee Indebtedness secured
by a Lien upon such Principal Property, at least equal in amount to the
Attributable Debt in respect of such Sale and Leaseback Transaction without
equally and ratably securing the Securities. The foregoing restriction shall
not apply to any Sale and Leaseback Transaction (i) between any Issuer and
Restricted Subsidiary or between Restricted Subsidiaries or Issuers, provided
that the lessor shall be an Issuer or a Wholly Owned Restricted Subsidiary,
(ii) which has a lease of less than three years in length, (iii) entered into
within 180 days after the later of the purchase, construction of development
of such Principal Property or assets, or the commencement of operation of such
Principal Property or (iv) involving the distribution warehouse of Jones
Apparel Group, Inc. at South Hill, Virginia.
SECTION 4.06 Exempted Debt. Notwithstanding Sections 4.04 and 4.05, any
Issuer or Restricted Subsidiary may, in addition to amounts permitted under
such restrictions, create Indebtedness secured by Liens, or enter into Sale
and Leaseback Transactions, provided that, at the time of such transactions
and after giving effect thereto, the aggregate
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outstanding amount of all such Indebtedness secured by Liens plus Attributable
Debt resulting from such Sale and Leaseback Transactions does not exceed 20%
of Consolidated Stockholders' Equity.
SECTION 4.07 Waiver of Certain Covenants. Each of the Issuers may in
any particular instance, be excused from failing to comply with any term,
provision or condition set forth in Section 4.02 or Sections 4.04 to 4.06,
with respect to the Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
outstanding Securities of such series shall, by act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Issuers, and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
The Issuers may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive compliance with any
covenant or condition hereunder. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to waive any such compliance, whether or not such Holders
remain Holders after such record date; provided that unless the Holders of at
least a majority in principal amount of the outstanding Securities affected
shall have waived such compliance prior to the date which is 90 days after
such record date, any such waiver previously given shall automatically and
without further action by any Holder be canceled and of no further effect.
SECTION 4.08 Compliance Certificate. The Issuers shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Issuers an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Issuers they would normally have
knowledge of any Default and whether or not the signers know of any Default
that occurred during such period. If they do, the certificate shall describe
the Default, its status and what action the Issuers are taking or propose to
take with respect thereto. The Issuers also shall comply with TIA Section
314(a)(4).
SECTION 4.09 Further Instruments and Acts. Each of the Issuers shall
execute and deliver to the Trustee such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
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ARTICLE 5
SUCCESSOR COMPANIES
SECTION 5.01 Merger and Consolidation. None of the Issuers shall
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets to, any Person (other than a merger of a Wholly
Owned Restricted Subsidiary into an Issuer or another Wholly Owned Restricted
Subsidiary or a merger of one Issuer into another), unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia, and
the Successor Company (if not such Issuer) shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of such Issuer under the
Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and treating
any Indebtedness which becomes an obligation of the Successor Company, any
other Issuer or any Restricted Subsidiary as a result of such transaction, as
having been incurred by the Successor Company or such Issuer or Restricted
Subsidiary at the time of such transaction), no Event of Default shall have
occurred and be continuing;
(iii) such Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture (if any) comply with this
Indenture; and
(iv) if, as a result of any such consolidation, merger or transfer, the
Principal Property of such Issuer would become subject to a Lien which shall
not be permitted by this Indenture, such Issuer or the Successor Company, as
the case may be, shall take such steps as shall be necessary to secure the
Securities equally and ratably with (or prior to) all Indebtedness secured
thereby.
The Successor Company shall succeed to, and be substituted for, and may
exercise every right and power of, the applicable Issuer under this Indenture,
but the predecessor Issuer in the case of a lease of all or substantially all
of its assets shall not be released from the obligation to pay the principal
of and interest on the Securities.
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default. An "Event of Default" with respect to
any series of Notes occurs if:
(1) the Issuers default in any payment of interest or liquidated
damages on any Security of such series when the same becomes due and payable,
and such default continues for a period of 30 days;
(2) the Issuers default in the payment of the principal of. or premium,
if any, on any Security of such series when the same becomes due and payable
at its maturity, upon redemption, upon declaration or otherwise;
(3) any Issuer fails to comply with Section 5.01;
(4) any Issuer fails to comply with Section 4.02, 4.03. 4.04, 4.05 or
4.06, and such failure continues for 30 days after the notice specified
below;
(5) any Issuer fails to comply with any of its covenants or agreements
contained in the Securities or this Indenture (other than those referred to in
(1), (2), (3) or (4) above) and such failure continues for 60 days after the
notice specified below;
(6) any Issuer or Restricted Subsidiary defaults under any Indebtedness
(other than the Securities of such Series), whether such Indebtedness now
exists or shall hereafter be created, and such default results in Indebtedness
in excess of $25,000,000 or its foreign currency equivalent becoming due and
payable prior to the date on which it would otherwise have become due and
payable, without such Indebtedness having been discharged or such acceleration
having been rescinded or annulled within 30 days after notice;
(7) any Issuer or Restricted Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
involuntary case;
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
(C) consents to the appointment of a Custodian of it or for any substantial
part of its property; or
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(D) makes a general assignment for the benefit of its creditors or takes any
comparable action under any foreign laws relating to insolvency:
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against any Issuer or Restricted Subsidiary in an
involuntary case;
(B) appoints a Custodian of any Issuer or Restricted Subsidiary or for
any substantial part of its property; or
(C) orders the winding up or liquidation of any Issuer or Restricted
Subsidiary or any similar relief is granted under any foreign laws and the
order or decree remains unstayed and in effect for 60 days.
(9) any judgment or decree for the payment of money in excess of
$25,000,000 or its foreign currency equivalent at the time, is entered against
any Issuer or Restricted Subsidiary and either (A) an enforcement proceeding
has been commenced by any creditor upon such judgment or decree or (B) there
is a period of 60 days following the entry of such judgment or decree during
which such judgment or decree is not discharged, waived or the execution
thereof stayed.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Title 11, United States Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.
A Default under clause (4), (5) or (6) above is not an Event of Default
with respect to any series until the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities of such series notify the
applicable Issuer of the Default and such Issuer does not cure such Default
within the time specified in clause (4), (5) or (6), as applicable, after
receipt of such notice. Such notice must specify the Default, demand that it
be remedied and state that such notice is a "Notice of Default."
The Issuers shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (6) and any event which with the giving of
notice or the lapse of time would become an Event
24
of Default under clause (4), (5) or (9), its status and what action the
Issuers are taking or proposes to take with respect thereto.
SECTION 6.02 Acceleration. If an Event of Default with respect to any
Securities of any series at the time outstanding (other than an Event of
Default specified in Section 6.01(7) or (8) with respect to any Issuer) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the outstanding Securities of such series by notice to the Issuers,
may declare the principal of and accrued but unpaid interest on all the
Securities of such series to be due and payable. Upon such a declaration, such
principal and interest shall be due and payable immediately. If an Event of
Default specified in Section 6.01(7) or (8) with respect to any Issuer occurs,
the principal of and interest on all the Securities shall ipso facto become
and be 4nmediately due and payable without any declaration or other act on the
part of the Trustee or any Holder. The Holders of a majority in principal
amount of the Securities of such series by notice to the Trustee may rescind
an acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default in respect of
such series have been cured or waived except nonpayment of principal or
interest that has become due solely because of acceleration. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.03 0ther Remedies. If an Event of Default in respect of any
series occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal of or interest on the Securities of such
series or to enforce the performance of any provision of the Securities of
such series or this Indenture.
The Trustee may institute and maintain a suit or legal proceeding even
if it does not possess any of the Securities or does not produce any of them
in the proceeding. A delay or omission by the trustee or any Securityholder
in exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.04 Waiver of Past Defaults. The Holders of a majority in
principal amount of the Securities of any series by notice to the Trustee may
waive an existing Default with respect to such series and its consequences
except (i) a Default in the payment of the principal of or interest on a
Security of such series, (ii) a Default arising from the failure to redeem or
purchase any Security of such series when required pursuant to the terms of
this Indenture or (iii) a Default in respect of a provision that under Section
9.02 cannot be amended without the consent of each Securityholder affected.
When a Default is waived, it is deemed cured, but no such waiver shall extend
to any subsequent or other Default or impair any consequent right.
25
SECTION 6.05 Control by Majority. With respect to Securities of any
series, the Holders of a majority in principal amount of the outstanding
Securities of such series may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or of exercising any
trust or power conferred on the Trustee. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture or, subject to
Section 7.01, that the Trustee determines is unduly prejudicial to the rights
of any other Holder or that would subject the Trustee to personal liability;
provided, however, that the Trustee may take any other action deemed proper
by the Trustee that is not inconsistent with such direction. Prior to taking
any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses
caused by taking or not taking such action.
SECTION 6.06 Limitation on Suits. Except to enforce the right to
receive payment of principal, premium (if any) or interest when due, no Holder
of a Security of any series may pursue any remedy with respect to this
Indenture or the Securities of any such series unless:
(1) the Holder previously gave the Trustee written notice stating that
an Event of Default with respect to such series is continuing;
(2) the Holders of at least 25% in principal amount of the outstanding
Securities of such series make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the outstanding
Securities of such series do not give the Trustee a direction inconsistent
with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07 Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment
of principal of and liquidated damages and interest on the Securities held by
such Holder, on or after the respective due dates expressed in the Securities,
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of
such Holder.
26
SECTION 6.08 Collection Suit by Trustee. If an Event of Default
specified in Section 6.01 (1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against
the Issuers for the whole amount then due and owing (together with interest on
any unpaid interest to the extent lawful) and the amounts provided for in
Section 7.07.
SECTION 6.09 Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to any Issuer or any of its
Subsidiaries, their creditors or their property and, unless prohibited by law
or applicable regulations, may vote on behalf of the Holders in any election
of a trustee in bankruptcy or other Person performing similar functions, and
any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make 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 its counsel, and
any other amounts due the Trustee under Section 7.07.
SECTION 6.10 Priorities. If the Trustee collects any money or property
pursuant to this Article 6, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders of each series for amounts due and unpaid
on the Securities of each series for principal and interest, ratably, and any
liquidated damages without preference or priority of any kind, according to
the amounts due and payable on the Securities of each series for principal,
any liquidated damages and interest, respectively; and
THIRD: to the Issuers.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such
record date, the Trustee shall mail to each Securityholder and each Issuer a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11 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 or omitted by it as Trustee, a court in its discretion
may require the filing, by any party litigant in the suit, of an undertaking
to pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to
a suit by the Trustee, a suit by a Holder
27
pursuant to Section 6.07 or a suit by Holders of more than 10% in principal
amount of the Securities.
SECTION 6.12 Waiver of Stay or Extension Laws. None of the Issuers (to
the extent it may lawfully do so) shall at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law, wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and each
Issuer (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and shall not hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer
and permit the execution of every such power as though no such law had been
enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
its exercise thereof as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture (but need not confirm
or investigate the accuracy of mathematical calculations or other facts stated
therein).
(c) The Trustee may not be relieved from liability for its own grossly
negligent action, its own grossly negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
28
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was grossly
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (g) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuers.
(f) Money held in trust by the Trustee need not be segregated from
funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers.
(h) 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 and to the provisions of the TIA.
SECTION 7.02 Rights of Trustee. (a) The Trustee may conclusively rely
on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute
wilful misconduct or gross negligence.
(e) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
Securities, shall be full and complete authorization and protection from
liability in respect to any action taken, omitted
29
or suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(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, consent, order, approval, bond, debenture,
note or other paper or document.
(g) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such
a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture.
(h) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to. and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person employed
to act hereunder.
SECTION 7.03 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Issuers or their Affiliates with the same
rights it would have if it were not Trustee. Any Paying Agent, Registrar or
co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Issuers use
of the proceeds from the Securities, and it shall not be responsible for any
statement in this Indenture, in the Securities, or in any document executed in
connection with the sale of the Securities, other than those set forth in the
Trustee's certificate of authentication.
SECTION 7.05 Notice of Defaults. If a Default with respect to the
Securities of any series occurs and is continuing and if it is actually known
to a Trust Officer of the Trustee, the Trustee shall mail to each
Securityholder of such series notice of the Default within 90 days after it
occurs. Except in the case of a Default in payment of principal of, premium
(if any) or interest on any Security of such series (including payments
pursuant to the mandatory redemption provisions of such Security, if any), the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of Securityholders of such series.
SECTION 7.06 Reports by Trustee to Holder. As promptly as practicable
after each July 31 beginning with the July 31 following the Closing Date, and
in any event prior to September 30 in each year, the Trustee shall mail to
each Securityholder of a series a brief
30
report dated as of such July 31 that complies with Section 13(a) of the TIA.
The Trustee shall also comply with Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Securityholders of
a series shall be filed with the SEC and each stock exchange (if any) on which
the Securities of a series are listed. The Issuers agree to notify promptly
the Trustee whenever the Securities become listed on any stock exchange and of
any delisting thereof.
SECTION 7.07 Compensation and Indemnity. Each of the Issuers, jointly
and severally, shall pay to the Trustee from time to time such compensation
for its services as the Issuers and the Trustee shall from time to time agree
in writing. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuers, jointly and
severally, shall reimburse the Trustee upon request for all reasonable out-of-
pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustees agents, counsel, accountants and experts. Each Issuer, jointly and
severally, shall indemnify the Trustee against any and all loss, liability or
expense (including reasonable attorneys' fees) incurred by or in connection
with the administration of this trust and the performance of its duties
hereunder. The Trustee shall notify the Issuers of any claim for which it may
seek indemnity promptly upon obtaining actual knowledge thereof, provided,
however, that any failure so to notify the Issuers shall not relieve any
Issuer of its indemnity obligations hereunder. The Issuers need not reimburse
any expense or indemnify against any loss, liability or expense incurred by an
indemnified party through such party's own wilful misconduct, gross negligence
or bad faith.
To secure the Issuers' payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee other than money or property held in trust to pay the
principal of and interest and any liquidated damages on particular Securities.
The Issuers' payment obligations pursuant to this Section shall survive
the satisfaction or discharge of this Indenture, any rejection or termination
of this Indenture under any bankruptcy law or the resignation or removal of
the Trustee. When the Trustee incurs expenses after the occurrence of a
Default specified in Section 6.01(7) or (8) with respect to any Issuer, the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION 7.08 Replacement of Trustee. The Trustee may resign at any time
with respect to the Securities of one or more series by so notifying the
Issuers. The Holders of a majority in principal amount of the Securities of a
series may remove the Trustee with respect to the Securities of such series
and may appoint a successor Trustee. The Issuers shall remove the Trustee if:
31
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Issuers or by the Holders of
a majority in principal amount of the Securities of one or more series and
such Holders do not reasonably promptly appoint a successor Trustee with
respect to the Securities of that or those series, or if a vacancy exists in
the office of Trustee for any reason with respect to one or more series (the
Trustee in such event being referred to herein as the retiring Trustee), the
Issuers shall promptly appoint a successor Trustee with respect to the
Securities of that or those series.
A successor Trustee with respect to the Securities of any series shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Issuers. Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. The successor Trustee
shall mail a notice of its succession to Securityholders. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 7.07.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Securities of such series may petition any
court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
If the Trustee fails to comply with Section 7.10, any Securityholder of
a series may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee with respect to the
Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Issuers' obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate-trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the
32
Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
trustee, and deliver such Securities so authenticated; and if at that time any
of the Securities shall not have been authenticated, any such successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the
Securities or in this Indenture provided that the certificate of the Trustee
shall have.
SECTION 7.10 Eligibility, Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a). The Trustee shall have a
combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b); 12rovided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which
other securities or certificates of interest or participation in other
securities of any Issuer are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 7.11 Preferential Collection of Claims Against Issuers. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01 Disclaimer of Liability on Securities: Defeasance. (a)
When (i) the Issuers deliver to the Trustee all outstanding Securities of a
series (other than Securities of a series replaced pursuant to Section 2.09)
for cancellation or (ii) all outstanding Securities of a series have become
due and payable, whether at maturity or as a result of the mailing of a notice
of redemption pursuant to Article 3 hereof, and the Issuers irrevocably
deposit with the Trustee funds or U.S. Government Obligations on which payment
of principal and interest when due shall be sufficient to pay at maturity or
upon redemption all outstanding Securities of a series, including interest
thereon to maturity or such redemption date (other than Securities replaced
pursuant to Section 2.09), and if in either case the Issuers pay all other
sums payable hereunder by the Issuers, then this Indenture shall, subject to
Section 8.01(c), cease to be of further effect with respect to the Securities
of such series. The Trustee shall acknowledge satisfaction and discharge of
this Indenture on demand of the Issuers accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the
Issuers.
33
(b) Subject to Sections 8.01(c) and 8.02, the Issuers at any time may
terminate (i) all of their obligations under the Securities of a series and
this Indenture ("legal defeasance option") or (ii) the obligations of the
Issuers under Sections 4.02, 4.03, 4.04. 4.05, 4.06, 4.08 and 4.09 and the
operation of Section 5.01(iii), 5.01(iv), 6.01(4), 6.01(6), 6.01(7) (with
respect to Restricted Subsidiaries only), 6.01(8) (with respect to Restricted
Subsidiaries only) and 6.01(9) ("covenant defeasance option"). The Issuers may
exercise their legal defeasance option notwithstanding their prior exercise of
their covenant defeasance option.
If the Issuers exercise their legal defeasance option, payment of the
Securities of a series may not be accelerated because of an Event of Default.
If the Issuers exercise their covenant defeasance option, payment of the
Securities may not be accelerated because of an Event of Default specified in
Section 6.01(4), 6.01(6), 6.01(7) or 6.01(8) (with respect to Restricted
Subsidiaries only) or 6.01(9) or because of the failure of the Issuers to
comply with clauses (iii) and (iv) of Section 5.01.
Upon satisfaction of the conditions set forth herein and upon request
of the Issuers, the Trustee shall acknowledge in writing the discharge of
those obligations that the Issuers terminate.
(c) Notwithstanding clauses (a) and (b) above, the Issuers' obligations
in Sections 2.03, 2.04, 2.05, 2.07, 2.09, 2.10, 7.07, 7.08 and in this Article
8 shall survive until the Securities of a series have been paid in full.
Thereafter, the Issuers' obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
SECTION 8.02 Conditions to Defeasance. (a) The Issuers may exercise
their legal defeasance option only if:
(1) the Issuers irrevocably deposit in trust with the Trustee money or
U.S. Government Obligations for the payment of principal, premium (if any) and
interest on the Securities of a series to maturity or redemption, as the case
may be;
(2) the Issuers deliver to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion that the
payments of principal and interest when due and without reinvestment on the
deposited U.S. Government Obligations plus any deposited money without
investment shall provide cash at such times and in such amounts as shall be
sufficient to pay principal and interest when due on all the Securities of
such series to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123 day
period no Default specified in Section 6.01(7) or (8) with respect to the
Issuers occurs which is continuing at the end of the period;
34
(4) the deposit does not constitute a default under any other
agreement binding on any of the Issuers;
(5) the Issuers deliver to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or
qualify as, a regulated investment company under the Investment Company Act of
1940;
(6) the Issuers shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Issuers have received from, or there has been
published by, the Internal Revenue Service, a ruling, or (ii) since the
Closing Date there has been a change in the applicable Federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Securityholders shall not recognize income, gain or
loss for Federal income tax purposes as a result of such defeasance and shall
be subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred;
(7) the Issuers deliver to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities of such series as contemplated by
this Article 8 have been complied with.
Before or after a deposit, the Issuers may make arrangements
satisfactory to the Trustee for the redemption of Securities of such series at
a future date in accordance with Article 3 of this Indenture.
(b) The Issuers may exercise their covenant defeasance option only if:
(1) the Issuers irrevocably deposit in trust with the Trustee money or
U.S. Government Obligations for the payment of principal, premium (if any) and
interest on the Securities to maturity or redemption, as the case may be,
(2) the Issuers deliver to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion that the
payments of principal and interest when due and without reinvestment on the
deposited U.S. Government Obligations plus any deposited money without
investment shall provide cash at such times and in such amounts as shall be
sufficient to pay principal and interest when due on all the Securities to
maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123 day
period no Default specified in Section 6.01(7) or (8) with respect to the
Issuers occurs which is continuing at the end of the period;
35
(4) the deposit does not constitute a default under any other
agreement binding on any of the Issuers;
(5) the Issuers deliver to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or
qualify as, a regulated investment company under the Investment Company Act of
1940;
(6) the Issuers shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Securityholders shall not recognize income,
gain or loss for Federal income tax purposes as a result of such covenant
defeasance and shall be subject to Federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
covenant defeasance had not occurred; and
(7) the Issuers deliver to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities as contemplated by this Article 8
have been complied with.
Before or after a deposit, the Issuers may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date
in accordance with Article 3 of this Indenture.
SECTION 8.03 Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities of the
series with respect to which the deposit was made.
SECTION 8.04 Repayment to Issuers. The Trustee and the Paying Agent
shall promptly turn over to the Issuers upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Issuers upon written request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Issuers for payment as general creditors.
SECTION 8.05 Indemni1y for Government Obligations. The Issuers shall
pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
36
SECTION 8.06 Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with this Article
8 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Issuers' obligations under this Indenture
and the Securities of each applicable series shall be revived and reinstated
as though no deposit had occurred pursuant to this Article 8 until such time
as the Trustee or Paying, Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with this Article 8; provided, however,
that, if the Issuers have made any payment of interest on or principal of any
Securities of such series because of the reinstatement of their obligations
hereunder, the Issuers shall be subrogated to the rights of the Holders of
such Securities of such series to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders. The Issuers and the Trustee
may amend this Indenture or the Securities without notice to or consent of
any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in place of
certificated Securities; provided, however, that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of
the Code or in a manner such that the uncertificated Securities are described
in Section 163(f)(2)(B) of the Code;
(4) to add guarantees or co-obligors with respect to the Securities or to
secure the Securities;
(5) to add to the covenants of the Issuers for the benefit of the Holder to
surrender any right or power herein conferred upon the Issuers;
(6) to comply with any requirements of the SEC in connection with qualifying,
or maintaining the qualification of, this Indenture under the TIA;
(7) to make any change that does not adversely affect the rights of any
Securityholder; or
37
(8) to provide for the issuance of the Exchange Securities or Private
Exchange Securities, which shall have terms substantially identical in all
material respects to the Initial Securities (except that the transfer
restrictions contained in the Initial Securities shall be modified or
eliminated, as appropriate), and which shall be treated, together with any
outstanding Initial Securities, as a single issue of securities. After an
amendment under this Section becomes effective, the Issuers shall mail to
Securityholders a notice briefly describing such amendment. The failure to
give such notice to all Securityholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.
SECTION 9.02 With Consent of Holders. The Issuers and the Trustee may
amend this Indenture or the Securities without notice to any Securityholder
but with the written consent of the Holders of at least a majority in
principal amount of the Securities then outstanding (including consents
obtained in connection with a tender offer or exchange for the Securities).
However, without the consent of each Securityholder of a series affected, an
amendment may not:
(1) reduce the amount of Securities of such series whose Holder
consent to an amendment;
(2) reduce the rate of or extend the time for payment of interest or
any liquidated damages on any Security of such series;
(3) of such series;
reduce the principal of or extend the stated maturity of any Security
(4) reduce the premium payable upon the redemption of any Security of
a series or change the time at which any Security of such series may be
redeemed in accordance with Article 3;
(5) make any Security of such series payable in money other than that
stated in the Security;
(6) impair the right of any Holder to receive payment of principal of,
and interest or any liquidated damages on, such Holder's Securities on or
after the due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Securities; or
(7) make any change in Section 6.04 or 6.07 or the second sentence of
this Section 9.02.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent
38
approves the substance thereof After an amendment under this Section becomes
effective. the Issuers shall mail to all affected Securityholders a notice
briefly describing such amendment. The failure to give such notice to all such
Securityholders, or any defect therein, shall not impair or affect the
validity of an amendment under this Section.
SECTION 9.03 Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents and Waivers. A consent
to an amendment or a waiver by a Holder of a Security shall bind the Holder
and every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder's Security, even if notation
of the consent or waiver is not made on the Security. However, any such Holder
or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver becomes effective once both (i) the requisite number of
consents have been received by the Issuers or the Trustee and (ii) such
amendment or waiver has been executed by the Issuers and the Trustee.
The Issuers may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to give their consent
or take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding
the immediately preceding paragraph, those Persons who were Securityholders at
such record date (or their duly designated proxies), and only those Persons,
shall be entitled to give such consent or to revoke any consent previously
given or to take any such action, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or effective
for more than 120 days after such record date.
SECTION 9.05 Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Issuers or the Trustee so determines, the
Issuers in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure to make
the appropriate notation or to issue a new Security shall not affect the
validity of such amendment.
SECTION 9.06 Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment
the Trustee shall be entitled to receive indemnity satisfactory to it and to
receive, and (subject to Section 7.01) shall be fully protected in
39
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
such amendment is authorized or permitted by this Indenture and that such
amendment is the legal, valid and binding obligation of the Issuers
enforceable against them in accordance with its terms, subject to customary
exceptions, and complies with the provisions hereof (including Section 9.03).
SECTION 9.07 Payment for Consent. Neither the Issuers nor any
Affiliate of the Issuers shall, directly or indirectly, pay or cause to be
paid any consideration, whether by way of interest, fee or otherwise, to any
Holder for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of this Indenture or the Securities unless such
consideration is offered to be paid to all Holders, ratably, that so consent,
waive or agree to amend in the time frame set forth in solicitation documents
relating to such consent, waiver or agreement.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01 Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 10.02 Notices. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail addressed as follows:
if to the Issuers:
Jones Apparel Group, Inc.
1411 Broadway
New York, NY 10018
Attention of: Ira M. Dansky, Esq.
if to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Attention: Corporate Trust Administration
40
The Issuers or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
to the Securityholder at the Securityholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 10.03 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Issuers, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 10.04 Certificate and Opinion as to Conditions Precedent. Upon
any request or application by any Issuer to the Trustee to take or refrain
from taking any action under this Indenture, such Issuer shall furnish to the
Trustee:
(1) an Officers' Certificate of such Issuer in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 10.05 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(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;
41
(3) a statement that, in the opinion of 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 or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 10.06 When Securities Disregarded. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by any Issuer, or by any Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with any Issuer shall be disregarded and deemed not to
be outstanding, except that, for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, waiver or
consent, only Securities which the Trustee knows are so owned shall be so
disregarded. Subject to the foregoing, only Securities outstanding at the time
shall be considered in any such determination.
SECTION 10.07 Rules by Trustee, Paying Agent and Registrar. The Trustee
may make reasonable rules for action by or a meeting of Securityholders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 10.08 Legal Holiday. A "Legal Holiday" is a Saturday, Sunday or
other day on which banking institutions in New York State are authorized or
required by law to close. If a payment date is a Legal Holiday, payment shall
be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a regular record date is
a Legal Holiday, the record date shall not be affected.
SECTION 10.09 Governing Law. THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 10.10 No Recourse Against Others. A director, officer, employee
or stockholder, as such, of any Issuer shall not have any liability for any
obligations of such Issuer under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issuance of the Securities.
42
SECTION 10.11 Successors. All agreements of each Issuer in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 10.12 Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy of the Indenture
is enough to prove this Indenture.
SECTION 10.13 Table of Contents: Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any
of the terms or provisions hereof.
SECTION 10.14 Severability. If any provision in this Indenture is
deemed unenforceable, it shall not affect the validity or enforceability of
any other provision set forth herein, or of the Indenture as a whole.
(Rest of page intentionally left blank]
43
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
JONES APPAREL GROUP, INC.
By: /s/ Wesley R. Card
Name: Wesley R. Card
Title: Chief Financial Officer
JONES APPAREL GROUP HOLDINGS, INC.
By: /s/ Ira M. Dansky
Name: Ira M. Dansky
Title: President
JONES APPAREL GROUP USA, INC.
By: /s/ Wesley R. Card
Name: Wesley R. Card
Title: Chief Financial Officer
NINE WEST GROUP INC.
By: /s/ Ira M. Dansky
Name: Ira M. Dansky
Title: President
THE BANK OF NEW YORK, as Trustee
By: /s/ Mary La Gumina
Name: Mary La Gumina
Title: Assistant Vice President
APPENDIX A
PROVISIONS RELATING TO INITIAL SECURITIES.
PRIVATE EXCHANGE SECURITIES
AND EXCHANGE SECURITIES
1. Definitions.
1.1 Definitions. For the purposes of this Appendix A the following
terms shall have the meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Regulation S Global Security or beneficial interest
therein, the rules and procedures of the Depositary for such Global Security,
Euroclear and Cedel, in each case to the extent applicable to such transaction
and as in effect from time to time.
"Cedel" means Cedel Bank, S.A., or any successor securities clearing
agency.
"Definitive Security" means a certificated Initial Security or Exchange
Security (bearing the Restricted Securities Legend if the transfer of such
Security is restricted by applicable law) that does not include the Global
Securities Legend.
"Depositary" means The Depository Trust Company, its nominees anc
respective successors.
"Euroclear" means the Euroclear Clearance System or any successor
securities clearing agency.
"Global Securities Legend"means the legend set forth under that caption
in Exhibit A to this Indenture.
"IAI" means an institutional "accredited investor" as described in Rule
501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means Bear, Steams & Co. Inc., Chase Securities
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Salomon Smith Barney
Inc., BancBoston Robertson Stephens Inc., and Banc of America Securities LLC.
"Private Exchange" means an offer by the Issuers, pursuant to the
Registration Agreement, to issue and deliver to certain purchasers, in
exchange for the Initial Securities held by such purchasers as part of their
initial distribution a like aggregate principal amount of Private Exchange
Securities.
2
"Private Exchange Securities" means the Securities of the Issuers
issued in exchange for Initial Securities pursuant to this Indenture in
connection with the Private Exchange pursuant to the Registration Agreement.
"Purchase Agreement" means the Purchase Agreement dated June 9, 1999.
among the Issuers and the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registered Exchange Offer" means the offer by the Issuers, pursuant to
the Registration Agreement, to certain Holders of Initial Securities, to issue
and deliver to such Holders, in exchange for their Initial Securities, a like
aggregate principal amount of Exchange Securities registered under the
Securities Act.
"Registration Agreement" means the Exchange and Note Registration
Rights Agreement dated June 15, 1999, among the Issuers and the Initial
Purchasers.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Securities" means all Initial Securities offered and sold
the United States in reliance on Regulation S.
"Restricted Period," with respect to any Securities of any series,
means the period of 40 consecutive days beginning on and including the later
of (i) the day on which such Securities are first offered to Persons other
than distributors (as defined in Regulation S under the Securities Act) in
reliance on Regulation S and (ii) the Closing Date with respect to such
Securities.
"Restricted Securities Legend" means the legend set forth in Section
2.3(e)
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means all Initial Securities offered and sold to
QIBs in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a Global
Security (as appointed by the Depositary) or any successor thereto, who shall
initially be the Trustee.
3
"Shelf Registration Statement" means a registration statement filed by
the Issuers in connection with the offer and sale of Initial Securities
pursuant to the Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities and any
other Securities that bear or are required to bear the Restricted Securities
Legend.
1.2 Other Definitions.
Term: Defined in Section:
"Agent Members" 2.1(b)
"IAI Global Securities" 2.1(a)
"Global Securities" 2.1(a)
"Regulation S Global Securities" 2.1(a)
"Rule 144A Global Securities" 2.1(a)
2. The Securities.
2.1 Form and Dating. The Initial Securities issued on the date hereof
shall be (i) offered and sold by the Issuers pursuant to the Purchase
Agreement and (ii) resold, initially only to (A) QlBs in reliance on Rule 144A
and (B) Persons other than U.S. Persons (as defined in Regulation S) in
reliance on Regulation S. Such Initial Securities may thereafter be
transferred to, among others, QIBs, purchasers in reliance on Regulation S
and, except as set forth below, IAIs in accordance with Rule 501.
(a) Global Securities. Rule 144A Securities shall be issued initially
in the form of one or more permanent global Securities in definitive, fully
registered form (collectively, the "Rule 144A Global Securities") and
Regulation S Securities shall be issued initially in the form of one or more
global Securities (collectively, the "Regulation S Global Securities"), in
each case without interest coupons and bearing the Global Securities Legend
and Restricted Securities Legend, which shall be deposited on behalf of the
purchasers of the Securities represented thereby with the Securities
Custodian, and registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Issuers and authenticated by the Trustee as
provided in this Indenture. One or more global securities in definitive, fully
registered form without interest coupons and bearing the Global Securities
Legend and the Restricted Securities Legend (collectively, the "IAI Global
Security") shall also be issued on the Closing Date, deposited with the
Securities Custodian, and registered in the name of the Depositary or a
nominee of the Depositary, duly executed by the Issuers and authenticated by
the Trustee as provided in this Indenture to accommodate transfers of
beneficial interests in the Securities to IAIs subsequent to the initial
distribution. Beneficial ownership interests in a Regulation S Global Security
shall not be exchangeable for interests in a Rule 144A Global Security, IAI
Global Security or any other Security without a
4
Restricted Securities Legend until the expiration of the Restricted Period.
Each Rule 144A Global Security, IAI Global Security and Regulation S Global
Security is referred to herein as a "Global Security" and are collectively
referred to herein as "Global Securities." The aggregate principal amount of
the Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or its
nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a
Global Security deposited with or on behalf of the Depositary.
The Issuers shall execute and the Trustee shall, in accordance with
this Section 2.1(b) and pursuant to an order of the Issuers, authenticate
and deliver initially one or more Global Securities that (a) shall be
registered in the name of the Depositary for such Global Security or Global
Securities or the nominee of such Depositary and (b) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions or
held by the Trustee as Securities Custodian.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held
on their behalf by the Depositary or by the Trustee as Securities Custodian or
under such Global Security, and the Depositary may be treated by the Issuers,
the Trustee and any agent of the Issuers or the Trustee as the absolute owner
of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall (x) prevent the Issuers, the Trustee or any
agent of the Issuers or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or (y)
impair, as between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the rights of
a holder of a beneficial interest in any Global Security.
(c) Definitive Securities. Except as provided in Section 2.3 or 2.4,
owners of beneficial interests in Global Securities will not be entitled to
receive physical delivery of certificated Securities.
2.2 Authentication. The Trustee shall authenticate and make available
for delivery upon a written order of the Issuers signed by one Officer (1)
Initial Securities for original issue on the date hereof, in an aggregate
principal amount of $400,000,000 and (2) the (A) Exchange Securities for issue
only in a Registered Exchange Offer and (B) Private Exchange Securities for
issue only in the Private Exchange, in the case of each of (A) and (B)
pursuant to the Registration Agreement and for a like principal amount of
Initial Securities exchanged pursuant thereto. Such order shall specify the
amount of the Securities to be authenticated, the date on which the original
issue of Securities is to be authenticated and whether the Securities are to
be Initial Securities, Exchange Securities or Private Exchange Securities. The
aggregate principal amount of Securities outstanding at any time may not
exceed $400,000,000 except as provided in Section 2.07 of this Indenture.
5
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
Securities. When Definitive Securities are presented to the Registrar with a
request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal principal amount of
Definitive Securities of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the
Definitive Securities surrendered for transfer or exchange shall be:
(i) duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Issuers and the Registrar, duly executed
by the Holder thereof or his attorney duly authorized in writing; and
(ii) accompanied by the following additional information and
documents, as applicable:
(A) if such Definitive Securities are being delivered to the Registrar
by a Holder for registration in the name of such Holder, without transfer, a
certification from such Holder to that effect (in the form set forth on the
reverse side of the Initial Security); or
(B) if such Definitive Securities are being transferred to an Issuer, a
certification to that effect (in the form set forth on the reverse side of the
Initial Security); or
(C) if such Definitive Securities are being transferred pursuant to an
exemption from registration in accordance with Rule 144 under the Securities
Act or in reliance upon another exemption from the registration requirements
of the Securities Act, (i) a certification to that effect (in the form set
forth on the reverse side of the Initial Security) and (ii) if the Issuers so
request, an opinion of counsel or other evidence reasonably satisfactory to it
as to the compliance with the restrictions set forth in the legend set forth
in Section 2.3(e)(i).
(b) Restrictions on Transfer of a Definitive Security for a Beneficial
Interest in a Global Security. A Definitive Security may not be exchanged for
a beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of:
6
(i) a Definitive Security, duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Issuers and the
Registrar, together with:
(ii) certification (in the form set forth on the reverse side of the
Initial Security) that such Definitive Security is being transferred (A) to a
QIB in accordance with Rule 144A, (B) to an IAI that has furnished to the
Trustee a signed letter substantially in the form of Exhibit C or Exhibit F,
as applicable, or (C) outside the United States in an offshore transaction
within the meaning of Regulation S and in compliance with Rule 904 under the
Securities Act; and
(iii) written instructions directing the Trustee to make, or to direct
the Securities Custodian to make, an adjustment on its books and records with
respect to such Global Security to reflect an increase in the aggregate
principal amount of the Securities represented by the Global Security, such
instructions to contain information regarding the Depositary account to be
credited with such increase, then the Trustee shall cancel such Definitive
Security and cause, or direct the Securities Custodian to cause, in accordance
with the standing instructions and procedures existing between the Depositary
and the Securities Custodian, the aggregate principal amount of Securities
represented by the Global Security to be increased by the aggregate principal
amount of the Definitive Security to be exchanged and shall credit or cause to
be credited to the account of the Person specified in such instructions a
beneficial interest in the Global Security equal to the principal amount of
the Definitive Security so canceled. If no Global Securities are then
outstanding and the Global Security has not been previously exchanged for
certificated securities pursuant to Section 2.4, the Issuers shall issue and
the Trustee shall authenticate, upon written order of the Issuers in the form
of an Officers' Certificate, a new Global Security in the appropriate
principal amount.
(c) Transfer and Exchange of Global Securities. (i) The transfer and
exchange of Global Securities or beneficial interests therein shall be
effected through the Depositary, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the
procedures of the Depositary therefor. A transferor of a beneficial interest
in a Global Security shall deliver to the Depository a written order given in
accordance with the Depositary's procedures containing information regarding
the participant account of the Depositary to be credited with a beneficial
interest in such Global Security or another Global Security and such account
shall be credited in accordance with such order with a beneficial interest in
the applicable Global Security and the account of the Person making the
transfer shall be debited by an amount equal to the beneficial interest in the
Global Security
7
pledged or transferred through Euroclear or Cedel in accordance with the
Applicable Procedures and only (A) to an Issuer, (B) so long as such security
is eligible for resale pursuant to Rule 144A, to a Person whom the selling
holder reasonably believes is a QIB that purchases for its own account or for
the account of a QIB to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, (C) in an offshore
transaction in accordance with Regulation S, (D) pursuant to an exemption from
registration under the Securities Act provided by Rule 144 (if applicable)
under the Securities Act, (E) to an IAI purchasing for its own account, or for
the account of such an IAI, in a minimum principal amount of Securities of
$250,000 or (F) pursuant to an effective registration statement under the
Securities Act, in each case in accordance with any applicable securities laws
of any state of the United States.
Prior to the expiration of the Restricted Period, transfers by
an owner of a beneficial interest in a Regulation S Global Security to a
transferee who takes delivery of such interest through a Rule 144A Global
Security or IAI Global Security shall be made only in accordance with
Applicable Procedures and upon receipt by the Trustee of a written
certification from the transferor of the beneficial interest in the form
provided on the reverse of the Initial Security to the effect that such
transfer is being made to (i) a Person whom the transferor reasonably believes
is a QIB within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A or (ii) an IAI purchasing for its own account, or
for the account of such an IAI, in a minimum principal amount of the
Securities of $250,000.
Such written certification shall no longer be required after the
expiration of the Restricted Period. In the case of a transfer of a beneficial
interest in a Regulation S Global Security for an interest in an IAI Global
Security, the transferee must furnish to the Trustee a signed letter
substantially in the form of Exhibit C or Exhibit F, as applicable.
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in a Regulation S Global Security shall be transferable in
accordance with applicable law and the other terms of this Indenture.
(e) Legend. (i) Except as permitted by the following paragraphs (ii),
(iii) or (iv), each Security certificate evidencing the Global Securities and
the Definitive Securities (and all Securities issued in exchange therefor or
in substitution thereof) shall bear a legend in substantially the following
form (each defined term in the legend being defined as such for purposes of
the legend only):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
9
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED. ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS NOT A U.S. PERSON AND
IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATIONS UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT (AN "IAI"). THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH AN ISSUER
OR ANY AFFILIATE OF AN ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO AN ISSUER, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, INSIDE THE UNITED STATES TO A PERSON IT
REASONABLY BELIEVES IS A QIB THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (E) INSIDE THE UNITED STATES TO AN IAI ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN IAI, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT AND PRIOR TO SUCH TRANSFER,
SUCH IAI FURNISHES THE TRUSTEE A SIGNED
10
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) OR
(F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS AND THE TRUSTEES
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM. EACH HOLDER AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE."
Each Definitive Security shall bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Security that is a Definitive Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security for a Definitive
Security that does not bear the legends set forth above and rescind any
restriction on the transfer of such Transfer Restricted Security if the
Holder certifies in writing to the Registrar that its request for such
exchange was made in reliance on Rule 144 (such certification to be in the
form set forth on the reverse of the Initial Security).
(iii) After a transfer of any Initial Securities or Private
Exchange Securities during the period of the effectiveness of the Shelf
Registration Statement with respect to such Initial Securities or Private
Exchange Securities, as the case may be, all requirements pertaining to the
Restricted Securities Legend on such Initial Securities or such Private
Exchange Securities shall cease to apply and the requirements that any such
Initial Securities or such Private Exchange Securities be issued in global
form shall continue to apply.
11
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities pursuant to which Holders of such Initial
Securities are offered Exchange Securities in exchange for their Initial
Securities, all requirements pertaining to Initial Securities that Initial
Securities be issued in global form shall continue to apply, and Exchange
Securities in global form without the Restricted Securities Legend shall be
available to Holders that exchange such Initial Securities in such Registered
Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect to
the Initial Securities pursuant to which Holders of such Initial Securities
are offered Private Exchange Securities in exchange for their Initial
Securities, all requirements pertaining to such Initial Securities that
Initial Securities be issued in global form shall continue to apply, and
Private Exchange Securities in global form with the Restricted Securities
Legend shall be available to Holders that exchange such Initial Securities in
such Private Exchange.
(vi) Upon a sale or transfer after the expiration of the
Restricted Period of any Initial Security acquired pursuant to Regulation S,
all requirements that such Initial Security bear the Restricted Securities
Legend shall cease to apply and the requirement that any such Initial Security
be issued in global form shall continue to apply.
(f) Cancellation or Adjustment of Global Security. At such time as
all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depositary to the Trustee for
cancellation or retained and canceled by the Trustee. At any time prior to
such cancellation, if any beneficial interest in a Global Security is
exchanged for Definitive Securities, transferred in exchange for
an interest in another Global Security, redeemed, repurchased or canceled,
the principal amount of Securities represented by such Global Security shall
be reduced and an adjustment shall be made on the books and records of the
Trustee (if it is then the Securities Custodian for such Global Security)
with respect to such Global Security, by the Trustee or the Securities
Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of Securities.
(i) To permit registrations of transfers and exchanges, the Issuers
shall execute and the Trustee shall authenticate, Definitive Securities and
Global Securities at the Registrar's request.
(ii) No service charge shall be made for any registration of transfer
or exchange, but the Issuers may require payment of a sum sufficient to cover
any transfer tax, assessments, or similar governmental charge payable in
connection therewith (other than any such transfer taxes, assessments or
similar governmental
12
charge payable upon exchange or transfer pursuant to Sections 33.06 and 9.05
of this Indenture).
(iii) Prior to the due presentation for registration of transfer
of any Security, the Issuers, the Trustee, the Paying Agent or the Registrar
may deem and treat the Person in whose name a Security is registered as the
absolute owner of such Security for the purpose of receiving payment of
principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Issuers,
the Trustee, the Paying Agent or the Registrar shall be affected by notice to
the contrary.
(iv) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt and shall
be entitled to the same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(b) No Obligation of the Trustee. (i) The Trustee shall have no
responsibility or obligation to any beneficial owner of a Global Security, any
Agent Member, or any other Person with respect to the accuracy of the records
of the Depositary or its nominee or of any Agent Member, with respect to any
ownership interest in the Securities or with respect to the delivery to any
participant, member, beneficial owner or other Person (other than the
Depositary) of any notice (including any notice of redemption or repurchase)
or the payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments to be
made to Holders under the Securities shall be given or made only to the
registered Holders (which shall be the Depositary or its nominee in the case
of a Global Security). The rights of beneficial owners in any Global Security
shall be exercised only through the Depositary subject to the applicable rules
and procedures of the Depositary. The Trustee may rely and shall be fully
protected in relying upon information furnished by the Depositary with respect
to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between or
among Agent Members or beneficial owners in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by, the
terms of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
13
2.4 Definitive Securities. (a) A Global Security deposited with the
Depositary or with the Trustee as Securities Custodian pursuant to Section
2.1 shall be transferred to the beneficial owners thereof in the form of
Definitive Securities in an aggregate principal amount equal to the principal
amount of such Global Security, in exchange for such Global Security, only if
such transfer complies with Section 2.3 and (i) the Depositary notifies the
Issuers that it is unwilling or unable to continue as a Depositary for such
Global Security or if at any time the Depositary ceases to be a "clearing
agency" registered under the Exchange Act, and a successor depositary is not
appointed by the Issuers within 90 days of such notice, or (ii) an Event of
Default has occurred and is continuing or (iii) the Issuers, in their sole
discretion, notify the Trustee in writing that they elect to cause the
issuance of certificated Securities under this Indenture.
(b) Any Global Security that is transferable to the beneficial owners
thereof pursuant to this Section 2.4 shall be surrendered by the Depositary to
the Trustee, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Security, an equal aggregate principal
amount of Definitive Securities of authorized denominations. Any portion of a
Global Security transferred pursuant to this Section shall be executed,
authenticated and delivered only in denominations of $1,000 and any integral
multiple thereof and registered in such names as the Depositary shall direct.
Any certificated Initial Security in the form of a Definitive Security
delivered in exchange for an interest in the Global Security shall, except as
otherwise provided by Section 2.3(c), bear the Restricted Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the registered Holder
of a Global Security may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of any of the events specified in
Section 2.4(a)(i), (ii) or (iii), the Issuers will promptly make available to
the Trustee a reasonable supply of Definitive Securities in fully registered
form without interest coupons.
14
EXHIBIT A
[FORM OF FACE OF 7.50% INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE HOLDER REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"),
(B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (AN "IAI"). THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH AN ISSUER
OR ANY AFFILIATE OF AN ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO AN ISSUER, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, INSIDE THE UNITED STATES TO A PERSON IT
REASONABLY BELIEVES IS A QIB THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATIONS UNDER THE
SECURITIES ACT, (E) INSIDE THE UNITED STATES TO AN IAI ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN IAI, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT AND PRIOR TO SUCH TRANSFER,
SUCH IAI FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OR (F) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM. EACH HOLDER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION",
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION
S UNDER THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
Each Definitive Security shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
No. _ up to $175,000,000
7.50% Senior Note due 2004 CUSIP No.
JONES APPAREL GROUP, INC., a Pennsylvania corporation, JONES APPAREL GROUP
HOLDINGS, INC., a Delaware corporation, JONES APPAREL GROUP USA, INC., a
Pennsylvania corporation, and NINE WEST GROUP INC., a Delaware corporation,
promise to pay to Cede & Co., or registered assigns, the principal sum of
$175,000,000 Dollars on June 15, 2004.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Security are set forth on the other side of this
Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
JONES APPAREL GROUP, INC.
By: __________________________
Name: ________________________
Title: _______________________
JONES APPAREL GROUP HOLDINGS, INC.
By: __________________________
Name: ________________________
Title: _______________________
JONES APPAREL GROUP USA, INC.
By: __________________________
Name: ________________________
Title: _______________________
NINE WEST GROUP INC.
By: __________________________
Name: ________________________
Title: _______________________
THE BANK OF NEW YORK, as Trustee, certifies that this is one of the
Securities referred to in the Indenture.
Dated:
By: ___________________________
Authorized Signatory
[FORM OF REVERSE SIDE OF 7.50% INITIAL SECURITY]
7.50% Senior Note due 2004
1. Interest.
(a) JONES APPAREL GROUP, INC., a Pennsylvania corporation, JONES
APPAREL GROUP HOLDINGS, INC., a Delaware corporation, JONES APPAREL GROUP USA,
INC., a Pennsylvania corporation, and NINE WEST GROUP INC., a Delaware
corporation (such corporations and. their successors and assigns under the
Indenture are collectively referred to herein as the "Issuers"), promise to
pay interest on the principal amount of this Security at the rate per annum
shown above. The Issuers shall pay interest semiannually on June 15 and
December 15 of each year. Interest on the Securities shall accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from December 15, 1999. Interest shall be computed on the basis of a
360-day year of twelve 30-day months. The Issuers shall pay interest on
overdue principal at the rate borne by the Securities, and it shall pay
interest on overdue installments of interest at the same rate to the extent
lawful.
(b) Liquidated Damages. The holder of this Security is entitled
to the benefits of an Exchange and Note Registration Rights Agreement, dated
June 15, 1999, among the Issuers and the Initial Purchasers named therein (the
"Registration Agreement"). Capitalized terms used in this paragraph (b) but
not defined herein have the meanings assigned to them in the Registration
Agreement. If (i) the Shelf Registration Statement or Exchange Offer
Registration Statement, as applicable under the Registration Agreement, is not
filed with the Commission on or prior to 90 days after the Closing Date, (ii)
the Exchange Offer Registration Statement or the Shelf Registration Statement,
as the case may be, is not declared effective within 180 days after the
Closing Date, (iii) the Registered Exchange Offer is not consummated on or
prior to 210 days after the Closing Date, or (iv) the Shelf Registration
Statement is filed and declared effective within 180 days after the Closing
Date but shall thereafter cease to be effective (at any time that the Issuers
are obligated to maintain the effectiveness thereof) without being succeeded
within 90 days by an additional Registration Statement filed and declared
effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Issuers shall pay liquidated damages to each
holder of Transfer Restricted Securities, during the period of such
Registration Default, at a rate of 0.25% per annum, determined daily on the
principal amount of the Securities constituting Transfer Restricted Securities
held by such holder until the applicable Registration Statement is filed or
declared effective, the Registered Exchange Offer is consummated or the Shelf
Registration Statement again becomes effective, as the case may be. All
accrued liquidated damages shall be paid to holders in the same manner as
interest payments on the Securities on semi-annual payment dates which
correspond to
interest payment dates for the Securities. Following the cure of all
Registration Defaults. the accrual of liquidated damages shall cease. The
Trustee shall have no responsibility with respect to the determination of the
amount of any such liquidated damages. For purposes of the foregoing,
"Transfer Restricted Securities" means (i) each Initial Security until the
date on which such Initial Security has been exchanged for a freely
transferable Exchange Security in the Registered Exchange Offer, (ii) each
Initial Security or Private Exchange Security until the date on which such
Initial Security or Private Exchange Security has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iii) each Initial Security or Private Exchange
Security until the date on which such Initial Security or Private Exchange
Security is distributed to the public pursuant to Rule 144 under the
Securities Act or is saleable pursuant to Rule 144(k) under the Securities
Act.
2. Method of Payment. The Issuers shall pay interest on the Securities
(except defaulted interest) to the Persons who are registered holders of
Securities at the close of business on the June 1 or December 1 next preceding
the interest payment date even if Securities are canceled after the record
date and on or before the interest payment date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Issuers shall
pay principal, premium, liquidated damages and interest in money of the United
States of America that at the time of payment is legal tender for payment of
public and private debts. Payments in respect of the Securities represented by
a Global Security (including principal, premium, liquidated damages and
interest) shall be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. The Issuers will make all
payments in respect of a certificated Security (including principal, premium
and interest), by mailing a check to the registered address of each Holder
thereof, provided, however, that payments on the Securities may also be made,
in the case of a Holder of at least $1,000,000 aggregate principal amount of
Securities, by wire transfer to a U.S. dollar account maintained by the payee
with a bank in the United States if such Holder elects payment by wire
transfer by giving written notice to the Trustee or the Paying Agent to such
effect designating such account no later than 30 days immediately preceding
the relevant due date for payment (or such other date as the Trustee may
accept in its discretion).
3. Paying. Agent and Registrar. Initially, The Bank of New York, a New
York State banking corporation (the "Trustee"), will act as Paying Agent and
Registrar. The Issuers may appoint and change any Paying Agent, Registrar or
coregistrar without notice. An Issuer or any domestically incorporated Wholly
Owned Restricted Subsidiary of an Issuer may act as Paying Agent, Registrar or
coregistrar.
4. Indenture. The Issuers issued the Securities under an Indenture
dated as of June 15, 1999 (the "Indenture") among the Issuers and the Trustee.
The terms of the Securities include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the
"TIA"). Terms defined in the Indenture and not defined herein have the
meanings ascribed thereto in the Indenture. The Securities are subject to all
terms and provisions of the Indenture, and Securityholders are referred to the
Indenture, and the TIA for a statement of such terms and provisions.
The Securities are senior unsecured obligations of the Issuers
limited to $175,000,000 aggregate principal amount at any one time outstanding
(subject to Sections 2.01 and 2.08 of the Indenture). The Securities include
the Initial Securities and any Exchange Securities and Private Exchange
Securities issued in exchange for Initial Securities. The Initial Securities,
the Exchange Securities and the Private Exchange Securities are treated as a
single class of securities under the Indenture. The Indenture imposes certain
limitations on the ability of the Issuers and the Restricted Subsidiaries to,
among other things, create or incur Liens or enter into sale and leaseback
transactions. The Indenture also imposes limitations on the ability of the
Issuers to convey, transfer or lease all or substantially all of the assets of
any Issuer.
5. Optional Redemption. The Securities will be redeemable as a whole or
in part, at the option of the Issuers at any time or from time to time, at a
redemption price equal to the greater of (i) 100% of their principal amount or
(ii) the sum of the present values of the Remaining Scheduled Payments (as
defined below) discounted, on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at a rate equal to the sum of the
Treasury Rate (as defined below) and 25 basis points.
In the case of each of clause (i) and (ii), accrued interest will be
payable to the redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable
to the remaining term of the Securities to be redeemed that would be utilized,
at the time of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption date,
(1) the average of the Reference Treasury Dealer Quotations for such
redemption date after
excluding the highest and lowest of such Reference Treasury Dealer Quotations,
or (2) if the Trustee obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Reference Treasury Dealer" means each of Bear, Stearns & Co. Inc.,
Chase Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Salomon Smith Barney Inc., BancBoston Robertson Stephens, Inc. and Banc of
America Securities LLC and their respective successors; provided, however,
that if any of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Issuers
shall substitute therefor another nationally recognized investment banking
firm that is a Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New
York City time, on the third business day preceding such redemption date.
"Remaining Scheduled Payments" means, with respect to any Security to
be redeemed, the remaining scheduled payments of principal of and interest on
such Security that would be due after the related redemption date but for such
redemption. If such redemption date is not an interest payment date with
respect to such Security, the amount of the next succeeding scheduled interest
payment on such Security will be reduced by the amount of interest accrued on
such note to such redemption date.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Issuers.
6. Sinking Fund. The Securities are not subject to any sinking fund.
7. Notice of Redemption. Notice of redemption will be mailed by first-
class mail at least 30 days but not more than 60 days before the redemption
date to each Holder of Securities to be redeemed at his or her registered
address. Securities in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000. If money sufficient to pay the
redemption price of and accrued and unpaid interest on all Securities (or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date, interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
8. Denominations: Transfer: Exchange. The Securities are in registered
form without coupons in denominations of $1,000 and whole multiples of
$1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture. Upon any
transfer or exchange, the Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements or transfer documents
and to pay any taxes required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Securities
selected for redemption (except, in the case of a Security to be redeemed in
part, the portion of the Security not to be redeemed) or transfer or exchange
any Securities for a period of 15 days prior to a selection of Securities to
be redeemed.
9. Persons Deemed Owners. The registered Holder of this Security may
be treated as the owner of it for all purposes.
10. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent shall pay the
money back to the Issuers upon their written request unless an abandoned
property law designates another Person. After any such payment, Holders
entitled to the money must look only to the Issuers and not to the Trustee for
payment.
11. Discharge and Defeasance. Subject to certain conditions, the
Issuers at any time may terminate some of or all their obligations under the
Securities and the Indenture if the Issuers deposit with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
12. Amendment. Waiver. Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be amended without prior
notice to any Securityholder but with the written consent of the Holders of a
majority in aggregate principal amount of the outstanding Securities and (ii)
any default or noncompliance with any provisions may be waived with the
consent of the Holders of a majority in principal amount of the outstanding
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder of Securities, the Issuers and the Trustee may amend
the Indenture or the Securities (i) to cure any ambiguity, omission, defect or
inconsistency; (ii) to comply with Article 5 of the Indenture; (iii) to
provide for uncertificated Securities in addition to or in place of
certificated Securities; (iv) to add guarantees or co-obligors with respect to
the Securities or to secure the Securities; (v) to add to the covenants for
the benefit of the Securityholders or to surrender any right or power
conferred upon the Issuers; (vi) to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA;
(vii) to make any change that does not adversely affect the rights of any
Securityholder; or (viii) to provide for the issuance of the Exchange
Securities or Private Exchange Securities.
13. Defaults and Remedies. If an Event of Default occurs (other than
an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of any Issuer) and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the outstanding Securities may declare
the principal of and accrued but unpaid interest on all
the Securities to be due and payable. If an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of any Issuer
occurs, the principal of and interest on all the Securities shall become
immediately due and payable without any declaration or other act on the part
of the Trustee or any Holders. Under certain circumstances, the Holders of a
majority in principal amount of the outstanding Securities may rescind any
such acceleration with respect to the Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee indemnity or security satisfactory to it
against any loss, liability or expense. Except to enforce the right to receive
payment of principal, premium (if any) or interest when due, no Holder may
pursue any remedy with respect to the Indenture or the Securities unless (i)
such Holder has previously given the Trustee notice that an Event of Default
is continuing, (ii) Holders of at least 25% in principal amount of the
outstanding Securities have requested in writing that the Trustee pursue the
remedy, (iii) such Holders have offered the Trustee reasonable security or
indemnity against any loss, liability or expense, (iv) the Trustee has not
complied with such request within 60 days after the receipt of the request and
the offer of security or indemnity and (v) the Holders of a majority in
principal amount of the outstanding Securities have not given the Trustee a
direction inconsistent with such request within such 60-day period. Subject to
certain restrictions, the Holders of a majority in principal amount of the
outstanding Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust
or power conferred on the Trustee. The Trustee, however, may refuse to follow
any direction that conflicts with law or the Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that
would subject the Trustee to personal liability. Prior to taking any action
under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses
caused by taking or not taking such action.
14. Trustee Dealings with the Issuers. Subject to certain limitations
imposed by the TIA, the Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the Issuers or their
Affiliates and may otherwise deal with the Issuers or their Affiliates with
the same rights it would have if it were not Trustee.
15. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of any Issuer shall not have any liability for any
obligations of such Issuer under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
16. Authentication. This Security shall not be valid until an
authorized signatory of the Trustee (or an authenticating agent) manually
signs the certificate of Authentication on the other side of this Security.
17. Abbreviations. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A
(=Uniform Gift to Minors Act).
18. Governing Law. THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
19. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have
caused CUSIP numbers to be printed on the Securities and have directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience to
Securityholders. No representation is made as to the accuracy of such numbers
either as printed on the Securities or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
The Issuers will furnish to any Holder of Securities upon written request
and without charge to the Holder a copy of the Indenture which has in it the
text of this Security.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_____________________________________________________
(Print or type assignee's name, address and zip code)
_____________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ________________ agent to transfer this Security on
the books of the Issuers. The agent may substitute another to act for him.
Date: _________________
Your Signature: __________________
Sign exactly as your name appears on the other side of this Security.
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER RESTRICTED SECURITIES
This certificate relates to $_________________ principal amount of Securities
held in (check applicable space) _ book-entry or _ definitive form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above);
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in
Rule 144(k) under the Securities Act, the undersigned confirms that such
Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to an Issuer; or
(2) [ ] pursuant to an effective registration statement under the Securities
Act of 1933; or
(3) [ ] inside the United States to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933) that purchases
for its own account or for the account of a qualified institutional
buyer to whom notice is given that such transfer is being made in
reliance on Rule 144A, in each case pursuant to and in compliance
with Rule 144A under the Securities Act of 1933; or
(4) [ ] outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance with
Rule 904 under the Securities Act of 1933; or
(5) [ ] to an institutional "accredited investor"(as defined in Rule
501(a)(1),(2), (3) or (7) under the Securities Act of 1933) that has
furnished to the Trustee a signed letter containing certain
representations and agreements; or
(6) [ ] pursuant to another available exemption from registration provided by
Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any Person other
than the registered holder thereof, provided, however, that if box (4), (5) or
(6) is checked, the Trustee may require, prior to registering any such
transfer of the Securities, such legal opinions, certifications and other
information as the Issuers have reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 193-31.
____________________________________
Your Signature
Signature Guarantee:
Date: ___________ ____________________________________
Signature of Signature Guaranteed
Signature must be guaranteed by a participant in a recognized signature
guaranty medallion program or other signature guarantor acceptable to the
Trustee
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a"qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information regarding the
Issuers as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Dated: Signature
NOTICE: To be executed by an executive officer
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $_____
following increases or decreases in this Global Security have been made:
Date of Exchange
Amount of decrease in Principal Amount of this Global Security
Amount of increase in Principal Amount of this Global Security
Principal Amount of this Global Security following such decrease or increase
Signature of authorized signatory of Trustee or Securities Custodian
EXHIBIT B
[FORM OF FACE OF 7.50% EXCHANGE SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
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 OF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE. BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
No. _ up to $175,000,000
7.50% Senior Note due 2004
CUSIP No.
JONES APPAREL GROUP, INC., a Pennsylvania corporation, JONES APPAREL
GROUP HOLDINGS, INC., a Delaware corporation, JONES APPAREL GROUP USA, INC., a
Pennsylvania corporation, and NINE WEST GROUP INC. a Delaware corporation,
promise to pay to Cede & Co., or registered assigns, the principal sum of
$175,000,000 Dollars on June 15, 2004.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1
Additional provisions of this Security are set forth on the other side of
this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
JONES APPAREL GROUP, INC.
By: ___________________________
Name: _________________________
Title: ________________________
JONES APPAREL GROUP HOLDINGS, INC.
By: ___________________________
Name: _________________________
Title: ________________________
JONES APPAREL GROUP USA, INC.
By: ___________________________
Name: _________________________
Title: ________________________
NINE WEST GROUP INC.
By: ___________________________
Name: _________________________
Title: ________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK, as Trustee, certifies that this is one of the
Securities referred to in the Indenture.
Dated:
By: ____________________________
Authorized Signatory
[FORM OF REVERSE SIDE OF 7.50% EXCHANGE SECURITY]
7.50% Senior Note due 2004
1. Interest. JONES APPAREL GROUP, INC. a Pennsylvania corporation,
JONES APPAREL GROUP HOLDINGS, INC., a Delaware corporation, JONES APPAREL
GROUP USA, INC., a Pennsylvania corporation, and NINE WEST GROUP INC., a
Delaware corporation (such corporations, and their successors and assigns
under the Indenture are collectively referred to herein as the "Issuers"),
promise to pay interest on the principal amount of this Security at the rate
per annum shown above. The Issuers shall pay interest semiannually on June 15
and December 15 of each year. Interest on the Securities shall accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from December 15, 1999. Interest shall be computed on the basis of a
360-day year of twelve 30-day months. The Issuers shall pay interest on
overdue principal at the rate borne by the Securities, and it shall pay
interest on overdue installments of interest at the same rate to the extent
lawful.
2. Method of Payment. The Issuers shall pay interest on the Securities
(except defaulted interest) to the Persons who are registered holders of
Securities at the close of business on the June I or December I next preceding
the interest payment date even if Securities are canceled after the record
date and on or before the interest payment date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Issuers shall
pay principal, premium and interest in money of the United States of America
that at the time of payment is legal tender for payment of public and private
debts. Payments in respect of the Securities represented by a Global Security
(including principal, premium and interest) shall be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust
Company. The Issuers will make all payments in respect of a certificated
Security (including principal, premium and interest), by mailing a check to
the registered address of each Holder thereof; provided, however, that
payments on the Securities may also be made, in the case of a Holder of at
least $1,000,000 aggregate principal amount of Securities, by wire transfer
to a U.S. dollar account maintained by the payee with a bank in the United
States if such Holder elects payment by wire transfer by giving written notice
to the Trustee or the Paying Agent to such effect designating such account no
later than 30 days immediately preceding the relevant due date for payment (or
such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar. Initially, The Bank of New York, a New
York State banking institution (the "Trustee"), will act as Paying Agent and
Registrar. The Issuers may appoint and change any Paying Agent, Registrar or
coregistrar without notice. An Issuer or any domestically incorporated Wholly
Owned Restricted Subsidiary of an Issuer may act as Paying Agent, Registrar or
coregistrar.
4. Indenture. The Issuers issued the Securities under an Indenture
dated as of June 15, 1999 (the "Indenture") among the Issuers and the Trustee.
The terms of the Securities include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C. 77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA").
Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The Securities are subject to all terms and
provisions of the Indenture, and Securityholders are referred to the Indenture
and the TIA for a statement of such terms and provisions.
The Securities are senior unsecured obligations of the Issuers
limited to $175,000,000 aggregate principal amount at any one time
outstanding. This Security is one of the Initial Securities referred to in the
Indenture. The Securities include the Initial Securities and any Exchange
Securities and Private Exchange Securities issued in exchange for the Initial
Securities pursuant to the Indenture. The Initial Securities, the Exchange
Securities and the Private Exchange Securities are treated as a single class
of securities under the Indenture. The Indenture imposes certain limitations
on the ability of the Issuers and the Restricted Subsidiaries to, among other
things, create or incur Liens or enter into sale and leaseback transactions.
The Indenture also imposes limitations on the ability of the Issuers to
consolidate or merge with or into any other Person or convey, transfer or
lease all or substantially all of the assets of any Issuer.
5. Optional Redemption. The Securities will be redeemable as a whole or
in part, at the option of the Issuers at any time or from time to time, at a
redemption price equal to the greater of (i) 100% of their principal amount or
(ii) the sum of the present values of the Remaining Scheduled Payments (as
defined below) discounted, on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at a rate equal to the sum of the
Treasury Rate (as defined below) and 25 basis points.
In the case of each of clause (i) and (ii), accrued interest will be
payable redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable
to the remaining term of the Securities to be redeemed that would be utilized,
at the time of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption date.
(1) the average of the Reference Treasury Dealer Quotations for such
redemption date after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer" means each of Bear, Stearns & Co. Inc.,
Chase Securities Inc., Merrill Lynch, Pierce, Fenner& Smith Incorporated,
Salomon Smith Barney Inc., BancBoston Robertson Stephens, Inc. and Banc of
America Securities LLC and their respective successors; provided, however,
that if any of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Issuers
shall substitute therefor another nationally recognized investment banking
firm that is a Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New
York City time, on the third business day preceding such redemption date.
"Remaining Scheduled Payments" means, with respect to any Security to
be redeemed, the remaining scheduled payments of principal of and interest on
such Security that would be due after the related redemption date but for such
redemption. If such redemption date is not an interest payment date with
respect to such Security, the amount of the next succeeding scheduled interest
payment on such Security will be reduced by the amount of interest accrued on
such note to such redemption date.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Issuers.
6. Sinking Fund, The Securities are not subject to any sinking fund.
7. Notice of Redemption. Notice of redemption will be mailed by first-
class mail at least 30 days but not more than 60 days before the redemption
date to each Holder of Securities to be redeemed at his or her registered
address. Securities in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000. If money sufficient to pay the
redemption price of and accrued and unpaid interest on all Securities (or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Securities
(or such portions thereof) called for redemption.
8. Denominations. Transfer. Exchange. The Securities are in registered
form without coupons in denominations of $1,000 and whole multiples of $1,000.
A Holder may transfer or exchange Securities in accordance with the Indenture.
Upon any transfer or exchange, the Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes required by law or permitted by the Indenture.
The Registrar need not register the transfer of or exchange any Securities
selected for redemption (except, in the case of a Security to be redeemed in
part. the portion of the Security not to be redeemed) or transfer or exchange
any Securities for a period of 15 days prior to a selection of Securities to
be redeemed or 15 days before an interest payment date.
9. Persons Deemed Owners. The registered Holder of this Security may be
treated as the owner of it for all purposes.
10. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent shall pay the
money back to the Issuers upon their written request unless an abandoned
property law designates another Person. After any such payment, Holders
entitled to the money must look only to the Issuers and not to the Trustee for
payment.
11. Discharge and Defeasance. Subject to certain conditions, the
Issuers at any time may terminate some of or all their obligations under the
Securities and the Indenture if the Issuers deposit with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
12. Amendment. Waiver. Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be amended without prior
notice to any Securityholder but with the written consent of the Holders of a
majority in aggregate principal amount of the outstanding Securities and (ii)
any default or noncompliance with any provisions may be waived with the
consent of the Holders of a majority in principal amount of the outstanding
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder of Securities, the Issuers and the Trustee may amend
the Indenture or the Securities (i) to cure any ambiguity, omission, defect or
inconsistency; (ii) to comply with Article 5 of the Indenture; (iii) to
provide for uncertificated Securities in addition to or in place of
certificated Securities; (iv) to add guarantees or co-obligors with respect to
the Securities or to secure the Securities; (v) to add to the covenants for
the benefit of the Securityholders or to surrender any right or power
conferred upon the Issuers; (vi) to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA;
(vii) to make any change that does not adversely affect the rights of any
Securityholder; or (viii) to provide for the issuance of the Exchange
Securities or Private Exchange Securities.
13. Defaults and Remedies. If an Event of Default occurs (other than an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of any Issuer) and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the outstanding Securities may declare the
principal of and accrued but unpaid interest on all the Securities to be due
and payable. If an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization of any Issuer occurs, the principal of and
interest on all the Securities shall become immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holders. Under certain circumstances, the Holders of a majority in principal
amount of the outstanding Securities may rescind any such acceleration with
respect to the Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee reasonable indemnity or security against
any loss, liability or expense. Except to enforce the right to receive payment
of principal, premium (if any) or interest when due, no Holder may pursue any
remedy with respect to the Indenture or the Securities unless (i) such Holder
has previously given the Trustee notice that an Event of Default is
continuing, (ii) Holders of at least 25% in principal amount of the
outstanding Securities have requested in writing that the Trustee pursue the
remedy, (iii) such Holders have offered the Trustee reasonable security or
indemnity against any loss, liability or expense, (iv) the Trustee has not
complied with such request within 60 days after the receipt of the request and
the offer of security or indemnity and (v) the Holders of a majority in
principal amount of the outstanding Securities have not given the Trustee a
direction inconsistent with such request within such 60-day period. Subject to
certain restrictions, the Holders of a majority in principal amount of the
outstanding Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust
or power conferred on the Trustee. The Trustee, however, may refuse to follow
any direction that conflicts with law or the Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that
would subject the Trustee to personal liability. Prior to taking any action
under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses
caused by taking or not taking such action.
14. Trustee Dealings with the Issuer. Subject to certain limitations
imposed by the TIA, the Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the Issuers or their
Affiliates and may otherwise deal with the Issuers or their Affiliates with
the same rights it would have if it were not Trustee.
15. No Recourse Against Others. A director, officer. employee or
stockholder. as such, of any Issuer shall not have any liability for any
obligations of such Issuer under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
16. Authentication. This Security shall not be valid until an
authorized signatory of the Trustee (or an authenticating agent) manually
signs the certificate of Authentication on the other side of this Security.
17. Abbreviations. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A
(=Uniform Gift to Minors Act).
18. Governing Law. THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
19. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have
caused CUSIP numbers to be printed on the Securities and have directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience to
Securityholders. No representation is made as to the accuracy of such numbers
either as printed on the Securities or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
The Issuers will furnish to any Holder of Securities upon
written request and without charge to the Holder a copy of the Indenture which
has in it the text of this Security.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
____________________________________________________
(Print or type assignee's name, address and zip code)
____________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ________________ agent to transfer this Security on
the books of the Issuers. The agent may substitute another to act for him.
Date:
Your Signature:
Sign exactly as your name appears on the other side of this Security.
Signature must be guaranteed by a participant in a recognized signature
guaranty medallion program or other signature guaranteed acceptable to the
Trustee.
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $________
increases or decreases in this Global Security have been made:
Amount of decrease in Principal Amount of this Global Security
Amount of increase in Principal Amount of this Global Security
Principal Amount of this Global Security following such decrease or increase
Signature of authorized signatory of Trustee or Securities Custodian
EXHIBIT C
[FORM OF TRANSFEREE LETTER OF REPRESENTATION
FOR 7.50% NOTES]
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $__________
principal amount of the 7.50% Senior Notes due 2004 (the "Notes") of Jones
Apparel Group, Inc., Jones Apparel Group Holdings, Inc., Jones Apparel Group
USA, Inc., and Nine West Group Inc. (the "Issuers").
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such
an institutional "accredited investor" at least $250,000 principal amount of
the Securities, and we are acquiring the Securities not with a view to, or
offer or sale in connection with, any distribution in violation of the
Securities Act. We have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Securities, and we invest in or purchase securities similar
to the Securities in the normal course of our business. We, aud any accounts
for which we are acting, are each able to bear the economic risk of our or its
investment.
2. We understand that the Securities have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted
in the following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to the date that is two years after
the later of the date of original issue and the last date on which an Issuer
or any affiliate of an Issuer was the owner of such Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to
an Issuer, (b) pursuant to a registration statement that has been declared
effective under the Securities Act, (c) in a
transaction complying with the requirements of Rule 144A under the Securities
Act ("Rule 144A"), to a Person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that is purchasing for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A. (d) in an offshore
transaction within the meaning of, and in compliance with, Regulation S under
the Securities Act, (e) to an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in minimum principal amount of Securities
of $250,000, or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within
our or their control and in compliance with any applicable state securities
laws. The foregoing restrictions on resale will not apply subsequent to the
Resale Restriction Termination Date. If any resale or other transfer of the
Securities is proposed to be made pursuant to clause (e) above prior to the
Resale Restriction Termination Date, the transferor shall deliver a letter
from the transferee substantially in the form of this letter to the Issuers
and the Trustee, which shall provide, among other things, that the transferee
is an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring
such Securities for investment purposes and not for distribution in violation
of the Securities Act. Each purchaser acknowledges that the Issuers and the
Trustee reserve the right prior to the offer, sale or other transfer prior to
the Resale Termination Date of the Securities pursuant to clause (d), (e) or
(f) above to require the delivery of an opinion of counsel, certifications or
other information satisfactory to the Issuers and the Trustee.
TRANSFEREE:
By:
EXHIBIT D
[FORM OF FACE OF 7.875% INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE HOLDER REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"),
(B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (AN "IAI"). THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH AN ISSUER
OR ANY AFFILIATE OF AN ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO AN ISSUER, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, INSIDE THE UNITED STATES TO A PERSON IT
REASONABLY BELIEVES IS A QIB THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATIONS UNDER THE
SECURITIES ACT, (E) INSIDE THE UNITED STATES TO AN IAI ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN IAI, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT AND PRIOR TO SUCH TRANSFER,
SUCH IAI FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OR (F) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM. EACH HOLDER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION",
"UNITED STATES" AND "U.S. PERSON,, HAVE THE MEANING GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
Each Definitive Security shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
No. _ up to $225,000,000
7.875% Senior Note due 2006 CUSIP No.
JONES APPAREL GROUP, INC., a Pennsylvania corporation, JONES APPAREL GROUP
HOLDINGS, INC., a Delaware corporation, JONES APPAREL GROUP USA. INC., a
Pennsylvania corporation, and NINE WEST GROUP INC., a Delaware corporation,
promise to pay to Cede & Co., or registered assigns, the principal sum of
$225,000.000 Dollars on June 15, 2006.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Security are set forth on the other side of this
Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
JONES APPAREL GROUP, INC.
By: ___________________________
Name: _________________________
Title: ________________________
JONES APPAREL GROUP HOLDINGS, INC.
By: ___________________________
Name: _________________________
Title: ________________________
JONES APPAREL GROUP USA, INC.
By: ___________________________
Name: _________________________
Title: ________________________
NINE WEST GROUP INC.
By: ___________________________
Name: _________________________
Title: ________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK, as Trustee, certifies that this is one of the
Securities referred to in the Indenture.
Dated:
By: ________________________
Authorized Signatory
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
7.875% Senior Note due 2006
1. Interest.
(a) JONES APPAREL GROUP, INC., a Pennsylvania corporation, JONES
APPAREL GROUP HOLDINGS, INC., a Delaware corporation, JONES APPAREL GROUP USA,
INC., a Pennsylvania corporation, and NINE WEST GROUP INC., a Delaware
corporation (such corporations and their successors and assigns under the
Indenture are collectively referred to herein as the "Issuers"), promise to
pay interest on the principal amount of this Security at the rate per annum
shown above. The Issuers shall pay interest semiannually on June 15 and
December 15 of each year. Interest on the Securities shall accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from December 15, 1999. Interest shall be computed on the basis of a
360-day year of twelve 30-day months. The Issuers shall pay interest on
overdue principal at the rate borne by the Securities, and it shall pay
interest on overdue installments of interest at the same rate to the extent
lawful.
(b) Liquidated Damages. The holder of this Security is entitled
to the benefits of an Exchange and Note Registration Rights Agreement, dated
June 15, 1999, among the Issuers and the Initial Purchasers named therein (the
"Registration Agreement"). Capitalized terms used in this paragraph (b) but
not defined herein have the meanings assigned to them in the Registration
Agreement. If (i) the Shelf Registration Statement or Exchange Offer
Registration Statement, as applicable under the Registration Agreement, is not
filed with the Commission on or prior to 90 days after the Closing Date, (ii)
the Exchange Offer Registration Statement or the Shelf Registration Statement,
as the case may be, is not declared effective within 180 days after the
Closing Date, (iii) the Registered Exchange Offer is not consummated on or
prior to 210 days after the Closing Date, or (iv) the Shelf Registration
Statement is filed and declared effective within 180 days after the Closing
Date but shall thereafter cease to be effective (at any time that the Issuers
are obligated to maintain the effectiveness thereof) without being succeeded
within 90 days by an additional Registration Statement filed and declared
effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Issuers shall pay liquidated damages to each
holder of Transfer Restricted Securities, during the period of such
Registration Default, at a rate of 0.25% per annum, determined daily on the
principal amount of the Securities constituting Transfer Restricted Securities
held by such holder until the applicable Registration Statement is filed or
declared effective, the Registered Exchange Offer is consummated or the Shelf
Registration Statement again becomes effective, as the case may be. All
accrued liquidated damages shall be paid to holders in the same manner as
interest payments on the Securities on semi-annual payment dates which
correspond to
interest payment dates for the Securities. Following the cure of all
Registration Defaults. the accrual of liquidated damages shall cease. The
Trustee shall have no responsibility with respect to the determination of the
amount of any such liquidated damages. For purposes of the foregoing,
"Transfer Restricted Securities" means (i) each Initial Security until the
date on which such Initial Security has been exchanged for a freely
transferable Exchange Security in the Registered Exchange Offer, (ii) each
Initial Security or Private Exchange Security until the date on which such
Initial Security or Private Exchange Security has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iii) each Initial Security or Private Exchange
Security until the date on which such Initial Security or Private Exchange
Security is distributed to the public pursuant to Rule 144 under the
Securities Act or is saleable pursuant to Rule 144(k) under the Securities
Act.
2. Method of Payment. The Issuers shall pay interest on the Securities
(except defaulted interest) to the Persons who are registered holders of
Securities at the close of business on the June I or December I next preceding
the interest payment date even if Securities are canceled after the record
date and on or before the interest payment date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Issuers shall
pay principal, premium, liquidated damages and interest in money of the United
States of America that at the time of payment is legal tender for payment of
public and private debts. Payments in respect of the Securities represented by
a Global Security (including principal, premium, liquidated damages and
interest) shall be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. The Issuers will make all
payments in respect of a certificated Security (including principal, premium
and interest), by mailing a check to the registered address of each Holder
thereof, provided, however, that payments on the Securities may also be made,
in the case of a Holder of at least $1,000,000 aggregate principal amount of
Securities, by wire transfer to a U.S. dollar account maintained by the payee
with a bank in the United States if such Holder elects payment by wire
transfer by giving written notice to the Trustee or the Paying Agent to such
effect designating such account no later than 30 days immediately preceding
the relevant due date for payment (or such other date as the Trustee may
accept in its discretion).
3. Paying Agent and Registrar. Initially, The Bank of New York, a New
York State banking corporation (the "Trustee"), will act as Paying Agent and
Registrar. The Issuers may appoint and change any Paying Agent, Registrar or
coregistrar without notice. An Issuer or any domestically incorporated Wholly
Owned Restricted Subsidiary of an Issuer may act as Paying Agent, Registrar or
coregistrar.
4. Indenture. The Issuers issued the Securities under an Indenture
dated as of June 15, 1999 (the "Indenture") among the Issuers and the Trustee.
The terms of the Securities include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the
"TIA"). Terms defined in the Indenture and not defined herein have the
meanings ascribed thereto in the Indenture. The Securities are subject to all
terms and provisions of the Indenture, and Securityholders are referred to the
Indenture, and the TIA for a statement of such terms and provisions.
The Securities are senior unsecured obligations of the Issuers
limited to $225,000,000 aggregate principal amount at any one time outstanding
(subject to Sections 2.01 and 2.08 of the Indenture). The Securities include
the Initial Securities and any Exchange Securities and Private Exchange
Securities issued in exchange for Initial Securities. The Initial Securities,
the Exchange Securities and the Private Exchange Securities are treated as a
single class of securities under the Indenture. The Indenture imposes certain
limitations on the ability of the Issuers and the Restricted Subsidiaries to,
among other things, create or incur Liens or enter into sale and leaseback
transactions. The Indenture also imposes limitations on the ability of the
Issuers to convey, transfer or lease all or substantially all of the assets of
any Issuer.
5. Optional Redemption. The Securities will be redeemable as a whole or
in part, at the option of the Issuers at any time or from time to time, at a
redemption price equal to the greater of (i) 100% of their principal amount or
(ii) the sum of the present values of the Remaining Scheduled Payments (as
defined below) discounted, on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at a rate equal to the sum of the
Treasury Rate (as defined below) and 25 basis points.
In the case of each of clause (i) and (ii), accrued interest will be
payable to the redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable
to the remaining term of the Securities to be redeemed that would be utilized,
at the time of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption date,
(1) the average of the Reference Treasury Dealer Quotations for such
redemption date after
excluding the highest and lowest of such Reference Treasury Dealer Quotations.
or (2) if the Trustee obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Reference Treasury Dealer" means each of Bear, Stearns & Co. Inc.,
Chase Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Salomon Smith Barney Inc., BancBoston Robertson Stephens, Inc. and Banc of
America Securities LLC and their respective successors; provided, however,
that if any of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Issuers
shall substitute therefor another nationally recognized investment banking
firm that is a Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New
York City time, on the third business day preceding such redemption date.
"Remaining Scheduled Payments" means, with respect to any Security to
be redeemed, the remaining scheduled payments of principal of and interest on
such Security that would be due after the related redemption date but for such
redemption. If such redemption date is not an interest payment date with
respect to such Security, the amount of the next succeeding scheduled interest
payment on such Security will be reduced by the amount of interest accrued on
such note to such redemption date.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Issuers.
6. Sinking Fund. The Securities are not subject to any sinking fund.
7. Notice of Redemption. Notice of redemption will be mailed by first-
class mail at least 30days but not more than 60 days before the redemption
date to each Holder of Securities to be redeemed at his or her registered
address. Securities in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000. If money sufficient to pay the
redemption price of and accrued and unpaid interest on all Securities (or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date, interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
8. Denominations: Transfer. Exchange. The Securities are in registered
form without coupons in denominations of S 1,000 and whole multiples of
S1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture. Upon any
transfer or exchange, the Registrar and the Trustee may require a Holder.
among other things, to furnish appropriate endorsements or transfer documents
and to pay any taxes required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Securities
selected for redemption (except, in the case of a Security to be redeemed in
part, the portion of the Security not to be redeemed) or transfer or exchange
any Securities for a period of 15 days prior to a selection of Securities to
be redeemed.
9. Persons Deemed Owners. The registered Holder of this Security may
be treated as the owner of it for all purposes.
10. Unclaimed money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent shall pay the
money back to the Issuers upon their written request unless an abandoned
property law designates another Person. After any such payment, Holders
entitled to the money must look only to the Issuers and not to the Trustee for
payment.
11. Discharge and Defeasance. Subject to certain conditions, the
Issuers at any time may terminate some of or all their obligations under the
Securities and the Indenture if the Issuers deposit with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
12. Amendment, Waiver. Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be amended without prior
notice to any Securityholder but with the written consent of the Holders of a
majority in aggregate principal amount of the outstanding Securities and (ii)
any default or noncompliance with any provisions may be waived with the
consent of the Holders of a majority in principal amount of the outstanding
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder of Securities, the Issuers and the Trustee may amend
the Indenture or the Securities (i) to cure any ambiguity, omission, defect or
inconsistency; (ii) to comply with Article 5 of the Indenture; (iii) to
provide for uncertificated Securities in addition to or in place of
certificated Securities; (iv) to add guarantees or co-obligors with respect to
the Securities or to secure the Securities; (v) to add to the covenants for
the benefit of the Securityholders or to surrender any right or power
conferred upon the Issuers; (vi) to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA;
(vii) to make any change that does not adversely affect the rights of any
Securityholder; or (viii) to provide for the issuance of the Exchange
Securities or Private Exchange Securities.
13. Defaults and Remedies. If an Event of Default occurs (other than an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of any Issuer) and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the outstanding Securities may declare the
principal of and accrued but unpaid interest on all
the Securities to be due and payable. If an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of any Issuer
occurs, the principal of and interest on all the Securities shall become
immediately due and payable without any declaration or other act on the part
of the Trustee or any Holders. Under certain circumstances. the Holders of a
majority in principal amount of the outstanding Securities may rescind any
such acceleration with respect to the Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee indemnity or security satisfactory to it
against any loss, liability or expense. Except to enforce the right to receive
payment of principal, premium (if any) or interest when due, no Holder may
pursue any remedy with respect to the Indenture or the Securities unless (i)
such Holder has previously given the Trustee notice that an Event of Default
is continuing, (ii) Holders of at least 25% in principal amount of the
outstanding Securities have requested in writing that the Trustee pursue the
remedy, (iii) such Holders have offered the Trustee reasonable security or
indemnity against any loss, liability or expense, (iv) the Trustee has not
complied with such request within 60 days after the receipt of the request and
the offer of security or indemnity and (v) the Holders of a majority in
principal amount of the outstanding Securities have not given the Trustee a
direction inconsistent with such request within such 60-day period. Subject to
certain restrictions, the Holders of a majority in principal amount of the
outstanding Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust
or power conferred on the Trustee. The Trustee, however, may refuse to follow
any direction that conflicts with law or the Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that
would subject the Trustee to personal liability. Prior to taking any action
under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses
caused by taking or not taking such action.
14. Trustee Dealings with the Issuers. Subject to certain limitations
imposed by the TIA, the Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the Issuers or their
Affiliates and may otherwise deal with the Issuers or their Affiliates with
the same rights it would have if it were not Trustee.
15. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of any Issuer shall not have any liability for any
obligations of such Issuer under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
16. Authentication. This Security shall not be valid until an
authorized signatory of the Trustee (or an authenticating agent) manually
signs the certificate of Authentication on the other side of this Security.
17. Abbreviations. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A
(=Uniform Gift to Minors Act).
18. Governing Law. THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
19. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have
caused CUSIP numbers to be printed on the Securities and have directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience to
Securityholders. No representation is made as to the accuracy of such numbers
either as printed on the Securities or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
The Issuers will furnish to any Holder of Securities upon
written request and without charge to the Holder a copy of the Indenture which
has in it the text of this Security.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
____________________________________________________
(Print or type assignee's name, address and zip code)
____________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint _______________ agent to transfer this Security on
the books of the Issuers. The agent may substitute another to act for him.
Date:
Your Signature:
Sign exactly as your name appears on the other side of this Security.
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER RESTRICTED SECURITIES
This certificate relates to $ ______________ principal amount of Securities
held in (check applicable space) _ book-entry or _ definitive form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Security held by the Depositary a Security
or Securities in definitive, registered form of authorized denominations and
an aggregate principal amount equal to its beneficial interest in such Global
Security (or the portion thereof indicated above);
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in
Rule 144(k) under the Securities Act, the undersigned confirms that such
Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to an Issuer; or
(2) [ ] pursuant to an effective registration statement under the Securities
Act of 1933; or
(3) [ ] inside the United States to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933) that purchases
for its own account or for the account of a qualified institutional
buyer to whom notice is given that such transfer is being made in
reliance on Rule 144A, in each case pursuant to and in compliance
with Rule 144A under the Securities Act of 1933; or
(4) [ ] outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance with
Rule 904 under the Securities Act of 1933; or
(5) [ ] to an institutional "accredited investor" (as defined in Rule 501
(a)(1), (2), (3) or (7) under the Securities Act of 1933) that has
furnished to the Trustee a signed letter containing certain
representations and agreements; or
(6) [ ] pursuant to another available exemption from registration provided by
Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any Person other
than the registered holder thereof; provided, however, that if box (4), (5) or
(6) is checked, the Trustee may require, prior to registering any such
transfer of the Securities, such legal opinions, certifications and other
information as the Issuers have reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933.
_________________________________
Your Signature
Signature Guarantee:
Date: _________________ _________________________________
Signature of Signature Guaranteed
Signature must be guaranteed by a participant in a recognized signature
guaranty medallion program or other signature guarantor acceptable to the
Trustee.
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information regarding the
Issuers as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Dated:
Signature
NOTICE: To be executed by an executive officer
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $_______
increases or decreases in this Global Security have been made:
Date of Exchange
Amount of decrease in Principal Amount of this Global Security
Amount of increase in Principal Amount of this Global Security
Principal Amount of this Global Security following such decrease or increase
Signature of authorized signatory of Trustee or Securities Custodian
EXHIBIT E
[FORM OF FACE OF 7.875% EXCHANGE SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
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 OF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
No. _ up to $225,000,000
7.875% Senior Note due 2006
CUSIP No.
JONES APPAREL GROUP, INC., a Pennsylvania corporation, JONES APPAREL
GROUP HOLDINGS, INC., a Delaware corporation, JONES APPAREL GROUP USA, INC., a
Pennsylvania corporation, and NINE WEST GROUP INC. a Delaware corporation,
promise to pay to Cede & Co., or registered assigns, the principal sum of
$225,000,000 Dollars on June 15, 2006.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Security are set forth on the other side of
this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
JONES APPAREL GROUP, INC.
By: ___________________________
Name: _________________________
Title: ________________________
JONES APPAREL GROUP HOLDINGS, INC.
By: ___________________________
Name: _________________________
Title: ________________________
JONES APPAREL GROUP USA, INC.
By: ___________________________
Name: _________________________
Title: ________________________
NINE WEST GROUP INC.
By: ___________________________
Name: _________________________
Title: ________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK, as Trustee, certifies that this is one of the
Securities referred to in the Indenture.
Dated:
By: ________________________
Authorized Signatory
[FORM OF REVERSE SIDE OF 7.875% EXCHANGE SECURITY]
7.875% Senior Note due 2006
1. Interest. JONES APPAREL GROUP, INC. a Pennsylvania corporation,
JONES APPAREL GROUP HOLDINGS, INC., a Delaware corporation, JONES APPAREL
GROUP USA, INC., a Pennsylvania corporation, and NINE WEST GROUP INC., a
Delaware corporation (such corporations, and their successors and assigns
under the Indenture are collectively referred to herein as the "Issuers"),
promise to pay interest on the principal amount of this Security at the rate
per annum. shown above. The Issuers shall pay interest semiannually on June 15
and December 15 of each year. Interest on the Securities shall accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from December 15, 1999. Interest shall be computed on the basis of a
360-day year of twelve 30-day months. The Issuers shall pay interest on
overdue principal at the rate borne by the Securities, and it shall pay
interest on overdue installments of interest at the same rate to the extent
lawful.
2. Method of Payment. The Issuers shall pay interest on the Securities
(except defaulted interest) to the Persons who are registered holders of
Securities at the close of business on the June I or December I next preceding
the interest payment date even if Securities are canceled after the record
date and on or before the interest payment date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Issuers shall
pay principal, premium and interest in money of the United States of America
that at the time of payment is legal tender for payment of public and private
debts. Payments in respect of the Securities represented by a Global Security
(including principal, premium and interest) shall be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust
Company. The Issuers will make all payments in respect of a certificated
Security (including principal, premium and interest), by mailing a check to
the registered address of each Holder thereof; provided, however, that
payments on the Securities may also be made, in the case of a Holder of at
least $1,000,000 aggregate principal amount of Securities, by wire transfer to
a U.S. dollar account maintained by the payee with a bank in the United States
if such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than 30 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar. Initially, The Bank of New York, a New
York State banking corporation (the "Trustee"), will act as Paying Agent and
Registrar. The Issuers may appoint and change any Paying Agent, Registrar or
coregistrar without notice. An Issuer or any domestically incorporated Wholly
Owned Restricted Subsidiary of an Issuer may act as Paying Agent, Registrar or
coregistrar.
4. Indenture. The Issuers issued the Securities under an indenture
dated as of June 15, 1999 (the "Indenture") among the Issuers and the Trustee.
The terms of the Securities include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C. 77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA").
Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The Securities are subject to all terms and
provisions of the Indenture, and Securityholders are referred to the Indenture
and the TIA for a statement of such terms and provisions.
The Securities are senior unsecured obligations of the Issuers
limited to $175,000,000 aggregate principal amount at any one time
outstanding. This Security is one of the Initial Securities referred to in the
Indenture. The Securities include the Initial Securities and any Exchange
Securities and Private Exchange Securities issued in exchange for the Initial
Securities pursuant to the Indenture. The Initial Securities, the Exchange
Securities and the Private Exchange Securities are treated as a single class
of securities under the Indenture. The Indenture imposes certain limitations
on the ability of the Issuers and the Restricted Subsidiaries to, among other
things, create or incur Liens or enter into sale and leaseback transactions.
The Indenture also imposes limitations on the ability of the Issuers to
consolidate or merge with or into any other Person or convey, transfer or
lease all or substantially all of the assets of any Issuer.
5. Optional Redemption. The Securities will be redeemable as a whole or
in part, at the option of the Issuers at any time or from time to time, at a
redemption price equal to the greater of (i) 100% of their principal amount or
(ii) the sum of the present values of the Remaining Scheduled Payments (as
defined below) discounted, on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at a rate equal to the sum of the
Treasury Rate (as defined below) and 25 basis points.
In the case of each of clause (i) and (ii), accrued interest will be
payable to the redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannu4l equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable
to the remaining term of the Securities to be redeemed that would be utilized,
at the time of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption date,
(1) the average of the Reference Treasury Dealer Quotations for such
redemption date after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer" means each of Bear, Steams & Co. Inc.,
Chase Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Salomon Smith Barney Inc., BancBoston Robertson Stephens, Inc. and Banc of
America Securities LLC and their respective successors; provided, however,
that if any of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Issuers
shall substitute therefor another nationally recognized investment banking
firm that is a Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New
York City time, on the third business day preceding such redemption date.
"Remaining Scheduled Payments" means, with respect to any Security to
be redeemed, the remaining scheduled payments of principal of and interest on
such Security that would be due after the related redemption date but for such
redemption. If such redemption date is not an interest payment date with
respect to such Security, the amount of the next succeeding scheduled interest
payment on such Security will be reduced by the amount of interest accrued on
such note to such redemption date.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Issuers.
6. Sinking Fund, The Securities are not subject to any sinking fund.
7. Notice of Redemption. Notice of redemption will be mailed by first-
class mail at least 30 days but not more than 60 days before the redemption
date to each Holder of Securities to be redeemed at his or her registered
address. Securities in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000. If money sufficient to pay the
redemption price of and accrued and unpaid interest on all Securities (or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
8. Denominations: Transfer; Exchange. The Securities are in registered
form without coupons in denominations of $1,000 and whole multiples of $1,000.
A Holder may transfer or exchange Securities in accordance with the Indenture.
Upon any transfer or exchange, the Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes required by law or permitted by the Indenture.
The Registrar need not register the transfer of or exchange an), Securities
selected for redemption (except, in the case of a Security to be redeemed in
part, the portion of the Security not to be redeemed) or transfer or exchange
any Securities for a period of 15 days prior to a selection of Securities to
be redeemed or 15 days before an interest payment date.
9. Persons Deemed Owners. The registered Holder of this Security may
be treated as the owner of it for all purposes.
10. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent shall pay the
money back to the Issuers upon their written request unless an abandoned
property law designates another Person. After any such payment, Holders
entitled to the money must look only to the Issuers and not to the Trustee for
payment.
11. Discharge and Defeasance. Subject to certain conditions, the
Issuers at any time may terminate some of or all their obligations under the
Securities and the Indenture if the Issuers deposit with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
12. Amendment, Waiver. Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be amended without prior
notice to any Securityholder but with the written consent of the Holders of a
majority in aggregate principal amount of the outstanding Securities and (ii)
any default or noncompliance with any provisions may be waived with the
consent of the Holders of a majority in principal amount of the outstanding
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder of Securities, the Issuers and the Trustee may amend
the Indenture or the Securities (i) to cure any ambiguity, omission, defect or
inconsistency; (ii) to comply with Article 5, of the Indenture; (iii) to
provide for uncertificated Securities in addition to or in place of
certificated Securities; (iv) to add guarantees or co-obligors with respect to
the Securities or to secure the Securities; (v) to add to the covenants for
the benefit of the Securityholders or to surrender any right or power
conferred upon the Issuers; (vi) to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA;
(vii) to make any change that does not adversely affect the rights of any
Securityholder; or (viii) to provide for the issuance of the Exchange
Securities or Private Exchange Securities.
13. Defaults and Remedies. If an Event of Default occurs (other than an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of any Issuer) and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the outstanding Securities may declare the
principal of and accrued but unpaid interest on all the Securities to be due
and payable. If an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization of any Issuer occurs, the principal of and
interest on all the Securities shall become immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holders. Under certain circumstances. the Holders of a majority in principal
amount of the outstanding Securities may rescind any such acceleration with
respect to the Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee indemnity or security satisfactory to it
against any loss, liability or expense. Except to enforce the right to receive
payment of principal, premium (if any) or interest when due, no Holder may
pursue any remedy with respect to the Indenture or the Securities unless (i)
such Holder has previously given the Trustee notice that an Event of Default
is continuing, (ii) Holders of at least 25% in principal amount of the
outstanding Securities have requested in writing that the Trustee pursue the
remedy, (iii) such Holders have offered the Trustee reasonable security or
indemnity against any loss, liability or expense, (iv) the Trustee has not
complied with such request within 60 days after the receipt of the request and
the offer of security or indemnity and (v) the Holders of a majority in
principal amount of the outstanding Securities have not given the Trustee a
direction inconsistent with such request within such 60-day period. Subject to
certain restrictions, the Holders of a majority in principal amount of the
outstanding Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust
or power conferred on the Trustee. The Trustee, however, may refuse to follow
any direction that conflicts with law or the Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that
would subject the Trustee to personal liability. Prior to taking any action
under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses
caused by taking or not taking such action.
14. Trustee Dealings with the Issuer. Subject to certain limitations
imposed by the TIA, the Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the Issuers or their
Affiliates and may otherwise deal with the Issuers or their Affiliates with
the same rights it would have if it were not Trustee.
15. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of any Issuer shall not have any liability for any
obligations of such Issuer under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
16. Authentication. This Security shall not be valid until an
authorized signatory of the Trustee (or an authenticating agent) manually
signs the certificate of Authentication on the other side of this Security.
17. Abbreviations. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A
(=Uniform Gift to Minors Act).
18. Governing Law. THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
19. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have
caused CUSIP numbers to be printed on the Securities and have directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience to
Securityholders. No representation is made as to the accuracy of such numbers
either as printed on the Securities or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
The Issuers will furnish to any Holder of Securities upon written request
and without charge to the Holder a copy of the Indenture which has in it the
text of this Security.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_____________________________________________________
(Print or type assignee's name, address and zip code)
____________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint _____________ agent to transfer this Security on the
books of the Issuers. The agent may substitute another to act for him.
Date:
Your Signature:
Sign exactly as your name appears on the other side of this Security.
Signature must be guaranteed by a participant in a recognized signature
guaranty medallion program or other signature guaranteed acceptable to the
Trustee.
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $_____
increases or decreases in this Global Security have been made:
Date of Exchange
Amount of decrease in Principal Amount of this Global Security
Amount of increase in Principal Amount of this Global Security
Principal Amount of this Global Security following such decrease or increase
Signature of authorized signatory of Trustee or Securities Custodian
EXHIBIT F
[FORM OF TRANSFEREE LETTER OF REPRESENTATION
FOR 7.875% NOTES]
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $________
principal amount of the 7.875% Senior Notes due 2006 (the "Notes") of Jones
Apparel Group, Inc., Jones Apparel Group Holdings, Inc., Jones Apparel Group
USA, Inc., and Nine West Group Inc. (the "Issuers").
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such
an institutional "accredited investor" at least $250,000 principal amount of
the Securities, and we are acquiring the Securities not with a view to, or
offer or sale in connection with, any distribution in violation of the
Securities Act. We have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Securities, and we invest in or purchase securities similar
to the Securities in the normal course of our business. We, and any accounts
for which we are acting, are each able to bear the economic risk of our or its
investment.
2. We understand that the Securities have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted
in the following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to the date that is two years after
the later of the date of original issue and the last date on which an Issuer
or any affiliate of an Issuer was the owner of such Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to
an Issuer, (b) pursuant to a registration statement that has been declared
effective under the Securities Act, (c) in a
transaction complying with the requirements of Rule 144A under the Securities
Act ("Rule 144A"), to a Person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that is purchasing for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) in an offshore
transaction within the meaning of, and in compliance with, Regulation S under
the Securities Act, (e) to an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in minimum principal amount of Securities
of $250,000, or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within
our or their control and in compliance with any applicable state securities
laws. The foregoing restrictions on resale will not apply subsequent to the
Resale Restriction Termination Date. If any resale or other transfer of the
Securities is proposed to be made pursuant to clause (e) above prior to the
Resale Restriction Termination Date, the transferor shall deliver a letter
from the transferee substantially in the form of this letter to the Issuers
and the Trustee, which shall provide, among other things, that the transferee
is an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring
such Securities for investment purposes and not for distribution in violation
of the Securities Act. Each purchaser acknowledges that the Issuers and the
Trustee reserve the right prior to the offer, sale or other transfer prior to
the Resale Termination Date of the Securities pursuant to clause (d), (e) or
(f) above to require the delivery of an opinion of counsel, certifications or
other information satisfactory to the Issuers and the Trustee.
TRANSFEREE:
By: