EXHIBIT 4.2
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 _________, __________
$ __________
Table Showing Reflection in Indenture of Certain Provisions
of Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990*
----------------------
Reflected in Indenture
----------------------
Trust Indenture
Act Section Indenture Section
Indenture Section
310 (a) (1)..................................... 7.10
(a) (2)..................................... 7.10
(a) (3)..................................... N.A.
(a) (4)..................................... N.A.
(a) (5)..................................... 7.10
(b)......................................... 7.10
(c)......................................... N.A.
311 (a)......................................... 7.11
(b)......................................... 7.11
(c)......................................... N.A.
312 (a)......................................... 2.06
(b)......................................... 10.03
(c)......................................... 10.03
313 (a)......................................... 7.06
(b) (1)..................................... N.A.
(b) (2)..................................... 7.06
(c)......................................... 7.06; 10.02
(d)......................................... 7.06
314 (a)......................................... 4.02; 4.08; 10.02
(b)......................................... N.A.
(c) (1)..................................... 10.04
(c) (2)..................................... 10.04
(c) (3)..................................... N.A.
(d)......................................... N.A.
(e)......................................... 10.05
(f)......................................... N.A.
315 (a)......................................... 7.01
(b)......................................... 7.05; 10.02
(c)......................................... 7.01
(d)......................................... 7.01
(e)......................................... 6.11
316 (a)......................................... 2.09
(a)(1)(A)................................... 6.05
(a)(1)(B)................................... 6.04
(a)(2)...................................... N.A.
(b)......................................... 6.07
(c)......................................... 2.13
317 (a)(1)...................................... 6.08
(a)(2)...................................... 6.09
(b)......................................... 2.05
318 (a)......................................... 10.01
(b)......................................... N.A.
(c)......................................... 10.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.................................................1
SECTION 1.02. Other Definitions...........................................6
SECTION 1.03. Incorporation by Reference of Trust Indenture Act...........7
SECTION 1.04. Rules of Construction.......................................7
ARTICLE 2
THE SECURITIES
SECTION 2.01. Issuable in Series..........................................7
SECTION 2.02. Establishment of Terms of Series of Securities..............8
SECTION 2.03. Execution and Authentication...............................10
SECTION 2.04. Registrar and Paying Agent.................................11
SECTION 2.05. Paying Agent to Hold Money in Trust........................12
SECTION 2.06. Holder Lists...............................................12
SECTION 2.07. Transfer and Exchange......................................12
SECTION 2.08. Mutilated, Destroyed, Lost and Stolen Securities...........13
SECTION 2.09. Outstanding Securities.....................................13
SECTION 2.10. Treasury Securities........................................14
SECTION 2.11. Temporary Securities.......................................14
SECTION 2.12. Cancellation...............................................14
SECTION 2.13. Defaulted Interest.........................................14
SECTION 2.14. Global Securities..........................................15
SECTION 2.15. CUSIP Numbers..............................................16
i
ARTICLE 3
REDEMPTION
SECTION 3.01. Notices to Trustee.........................................16
SECTION 3.02. Selection of Securities To Be Redeemed.....................16
SECTION 3.03. Notice of Redemption.......................................17
SECTION 3.04. Effect of Notice of Redemption.............................17
SECTION 3.05. Deposit of Redemption Price................................17
SECTION 3.06. Securities Redeemed in Part................................18
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities......................................18
SECTION 4.02. SEC Reports................................................18
SECTION 4.03. Corporate Existence........................................18
SECTION 4.04. Restrictions on Liens......................................19
SECTION 4.05. Restrictions on Sale and Leaseback Transactions............21
SECTION 4.06. Exempted Debt..............................................22
SECTION 4.07. Waiver of Certain Covenants................................22
SECTION 4.08. Compliance Certificate.....................................22
SECTION 4.09. Further Instruments and Acts...............................22
ARTICLE 5
SUCCESSOR COMPANIES
SECTION 5.01. Merger and Consolidation...................................23
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default..........................................24
SECTION 6.02. Acceleration...............................................25
SECTION 6.03. Other Remedies.............................................26
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SECTION 6.04. Waiver of Past Defaults....................................26
SECTION 6.05. Control by Majority........................................26
SECTION 6.06. Limitation on Suits........................................27
SECTION 6.07. Rights of Holders to Receive Payment.......................27
SECTION 6.08. Collection Suit by Trustee.................................27
SECTION 6.09. Trustee May File Proofs of Claim...........................27
SECTION 6.10. Priorities.................................................28
SECTION 6.11. Undertaking for Costs......................................28
SECTION 6.12 Waiver of Stay or Extension Laws...........................28
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee..........................................29
SECTION 7.02. Rights of Trustee..........................................30
SECTION 7.03. Individual Rights of Trustee...............................31
SECTION 7.04. Trustee's Disclaimer.......................................31
SECTION 7.05. Notice of Defaults.........................................31
SECTION 7.06. Reports by Trustee to Holder...............................31
SECTION 7.07. Compensation and Indemnity.................................31
SECTION 7.08. Replacement of Trustee.....................................32
SECTION 7.09. Successor Trustee by Merger................................33
SECTION 7.10. Eligibility; Disqualification..............................33
SECTION 7.11. Preferential Collection of Claims Against Issuers..........33
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance...33
iii
SECTION 8.02. Legal Defeasance and Discharge.............................34
SECTION 8.03. Covenant Defeasance........................................34
SECTION 8.04. Conditions to Legal or Covenant Defeasance.................35
SECTION 8.05. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions............36
SECTION 8.06. Repayment to Issuers.......................................37
SECTION 8.07. Reinstatement..............................................37
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders.................................37
SECTION 9.02. With Consent of Holders....................................39
SECTION 9.03. Compliance with Trust Indenture Act........................40
SECTION 9.04. Revocation and Effect of Consents and Waivers..............40
SECTION 9.05. Notation on or Exchange of Securities......................40
SECTION 9.06. Trustee To Sign Amendments.................................40
SECTION 9.07. Payment for Consent........................................41
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act Controls..............................41
SECTION 10.02. Notices...................................................41
SECTION 10.03. Communication by Holders with Other Holders...............42
SECTION 10.04. Certificate and Opinion as to Conditions Precedent........42
SECTION 10.05. Statements Required in Certificate or Opinion.............42
SECTION 10.06. When Securities Disregarded...............................42
SECTION 10.07. Rules by Trustee, Paying Agent and Registrar..............43
SECTION 10.08. Legal Holidays............................................43
iv
SECTION 10.09. Governing Law.............................................43
SECTION 10.10. No Recourse Against Others................................43
SECTION 10.11. Successors................................................43
SECTION 10.12. Multiple Originals........................................43
SECTION 10.13. Table of Contents; Headings...............................43
SECTION 10.14. Severability..............................................43
v
INDENTURE, dated as of ________, ________, 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 the Securities
issued under this Indenture (the "Securities"):
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.
"Agent" means any Registrar, Paying Agent or co-registrar.
"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.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of each Issuer to have been adopted by
the applicable Board of
1
Directors or pursuant to authorization by such Board of Directors and to be
in full force and effect on the date of the certificate and delivered to
the Trustee.
"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, participations 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.
"Clearstream" means Clearstream Banking, societe anonyme.
"Closing Date" means the date of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Jones Apparel Group, Inc., a Pennsylvania
corporation, until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"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 Shareholders' Equity" means consolidated
shareholders' 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.
"Definitive Securities" means a certificated Security registered
in the name of the Holder thereof and issued in accordance with Section
2.11 hereof.
"Depositary" means, with respect to the Securities issuable in
whole or in part in global form, the Person specified pursuant to Section
2.14 hereof as the initial Depositary with respect to the Securities, 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.
2
"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.
"Euroclear" means the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Foreign Currency" means any currency or currency unit issued by
a government other than the government of the United States of America.
"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.
"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 13 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" when used with respect to any Series of
Securities issued hereunder, means a Security which is executed by the
Issuers and authenticated and delivered by the Trustee to the Depository or
pursuant to the Depository's instruction, all in accordance with this
Indenture and an indenture supplemental hereto, if any, or Board Resolution
and pursuant to an Issuer Request, which shall be registered in the name of
the Depository or its nominee and which shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, all
the outstanding Securities of such Series or any portion thereof, in either
case having the same terms, including, without limitation, the same
original issue date, date or dates on which principal is due, and interest
rate or method of determining interest and which shall bear the legend as
prescribed by Section 2.14(c).
"Global Securities Legend" means the legend set forth in Section
2.14(c), which is required to be placed on all Global Securities issued
under this Indenture.
3
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America, and the payment
for which the United States pledges its full faith and credit.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, by way of
a pledge of assets or through letters of credit or reimbursement agreements
in respect thereof), of all or any part of any Indebtedness. The term
"Guarantor" shall mean any Person Guaranteeing any obligation.
"Holder" 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.
"Interest Payment Date" when used with respect to any Series of
Securities, means the date specified in such Securities for the payment of
any installment of interest on those Securities.
"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 Trust
Indenture Act, each other obligor on the indenture securities.
"Issuer Order" means a written order signed in the name of each
Issuer by two Officers of each Issuer.
"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).
"Maturity", when used with respect to any Security or installment
of principal thereof, means the date on which the principal of such
Security or such
4
installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration
or otherwise.
"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 of each Issuer.
"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.
"Original Issue Discount Security" means (i) any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof, and
(ii) any other security which is issued with "original issue discount"
within the meaning of Section 1273(a) of the Code.
"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 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.
"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 specified in the second paragraph of
this Indenture.
"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.
"Series" or "Series of Securities" means each series of
debentures, notes or other debt instruments of the Issuers created pursuant
to Sections 2.01 and 2.02 hereof.
5
"Stated Maturity," when used with respect to any Security, means
the date specified in such Security as the fixed date on which an amount
equal to the principal amount of such Security is due and payable.
"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.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15
U.S. Code ss.ss.77aaa-77bbbb) and the rules and regulations thereunder as
in effect on the Closing 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.
"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. Other Definitions.
Term Defined in Section
"Bankruptcy Law" 6.01
"Covenant Defeasance" 8.02
"Custodian" 6.01
"Event of Default" 6.01
"Legal Defeasance" 8.03
"Legal Holiday" 10.08
"Notice of Default" 6.01
"Paying Agent" 2.04
"Registrar" 2.04
"Sale and Leaseback
Transaction" 4.05
"Successor Company" 5.01(i)
6
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the Trust
Indenture Act, which are incorporated by reference in and made a part of
this Indenture. The following Trust Indenture Act terms have the following
meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or Holder.
"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.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by Trust Indenture Act 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 non-interest 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. Issuable in Series. The aggregate principal amount
of Securities that may be authenticated and delivered under this Indenture
is unlimited. The Securities may be issued in one or more Series. All
Securities of a Series shall be identical except as may be set forth in a
Board Resolution, a supplemental indenture or an Officers' Certificate
detailing the adoption of the terms thereof pursuant to the authority
7
granted under a Board Resolution. In the case of Securities of a Series to
be issued from time to time, the Board Resolution, Officers' Certificate or
supplemental indenture may provide for the method by which specified terms
(such as interest rate, maturity date, record date or date from which
interest shall accrue) are to be determined. Securities may differ between
Series in respect of any matters.
SECTION 2.02. Establishment of Terms of Series of Securities. At
or prior to the issuance of any Securities within a Series, the following
shall be established (as to the Series generally, in the case of Section
2.02(a) and either as to such Securities within the Series or as to the
Series generally in the case of Sections 2.02(b) through 2.02(x)) by a
Board Resolution, a supplemental indenture or an Officers' Certificate
pursuant to authority granted under a Board Resolution:
(a) the title of the Securities of the Series (which shall
distinguish the Securities of that particular Series from the Securities of
any other Series);
(b) any limit upon the aggregate principal amount of the
Securities of the Series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the Series);
(c) the date or dates on which the principal and premium of the
Securities of the Series are payable;
(d) the rate or rates (which may be fixed or variable) at which
the Securities of the Series shall bear interest, if any, or the method of
determining such rate or rates, the date or dates from which such interest,
if any, shall accrue, the Interest Payment Dates on which such interest, if
any, shall be payable or the method by which such dates will be determined,
the record dates, for the determination of holders thereof to whom such
interest is payable (in the case of Securities in registered form), and the
basis upon which such interest will be calculated if other than that of a
360-day year of twelve 30-day months;
(e) the currency or currencies in which Securities of the Series
shall be denominated, if other than Dollars, the place or places, if any,
in addition to or instead of the corporate trust office of the Trustee (in
the case of Securities in registered form) or the principal New York office
of the Trustee (in the case of Securities in bearer form), where the
principal, premium and interest with respect to Securities of such Series
shall be payable or the method of such payment, if by wire transfer, mail
or other means;
(f) the price or prices at which, the period or periods within
which, and the terms and conditions upon which, Securities of the Series
may be redeemed, in whole or in part at the option of the Issuers or
otherwise;
(g) whether Securities of the Series are to be issued in
registered form or bearer form or both and, if Securities are to be issued
in bearer form, whether coupons will be attached to them, whether
Securities of the Series in bearer form may be
8
exchanged for Securities of the Series issued in registered form, and the
circumstances under which and the places at which any such exchanges, if
permitted, may be made;
(h) if any Securities of the Series are to be issued in bearer
form or as one or more Global Securities representing individual Securities
of the Series in bearer form, whether certain provisions for the payment of
additional interest or tax redemptions shall apply; whether interest with
respect to any portion of a temporary Security of the Series in bearer form
payable with respect to any Interest Payment Date prior to the exchange of
such temporary Security in bearer form for definitive Securities of the
Series in bearer form shall be paid to any clearing organization with
respect to the portion of such temporary Security in bearer form held for
its account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date; and the terms upon which a
temporary Security in bearer form may be exchanged for one or more
definitive Securities of the Series in bearer form;
(i) the obligation, if any, of the Issuers to redeem, purchase or
repay the Securities of the Series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the price or
prices at which, the period or periods within which, and the terms and
conditions upon which, Securities of the Series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligations;
(j) the terms, if any, upon which the Securities of the Series
may be convertible into or exchanged for any Issuer's common stock,
preferred stock, other debt securities or warrants for common stock,
preferred stock, Indebtedness or other securities of any kind and the terms
and conditions upon which such conversion or exchange shall be effected,
including the initial conversion or exchange price or rate, the conversion
or exchange period and any other additional provisions;
(k) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which the Securities of the Series
shall be issuable;
(l) if the amount of principal, premium or interest with respect
to the Securities of the Series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts will be
determined;
(m) if the principal amount payable at the Stated Maturity of
Securities of the Series will not be determinable as of any one or more
dates prior to such Stated Maturity, the amount that will be deemed to be
such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any Maturity
other than the Stated Maturity and which will be deemed to be outstanding
as of any such date (or, in any such case, the manner in which such deemed
principal amount is to be determined), and if necessary, the manner of
determining the equivalent thereof in Dollars;
(n) any changes or additions to Article 8;
(o) if other than the principal amount thereof, the portion of
the principal amount of the Securities of the Series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.02;
9
(p) the terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Securities of the Series of any properties,
assets, moneys, proceeds, securities or other collateral, including whether
certain provisions of the Trust Indenture Act are applicable and any
corresponding changes to provisions of this Indenture as then in effect;
(q) any addition to or change in the Events of Default which
applies to any Securities of the Series and any change in the right of the
Trustee or the requisite Holders of such Series of Securities to declare the
principal amount of, premium, if any, and interest on such Series of Securities
due and payable pursuant to Section 6.02;
(r) if the Securities of the Series shall be issued in whole or
in part in the form of a Global Security, the terms and conditions, if any,
upon which such Global Security may be exchanged in whole or in part for
other individual Securities of such Series in definitive registered form, the
Depositary for such Global Security and the form of any legend or legends to
be borne by any such Global Security in addition to or in lieu of the Global
Securities Legend;
(s) any Trustee, authenticating agent, Paying Agent, transfer
agent or Registrar;
(t) the applicability of, and any addition to or change in, the
covenants (and the related definitions) set forth in Articles 4 or 5 which
applies to Securities of the Series;
(u) the terms, if any, of any Guarantee of the payment of
principal, premium and interest with respect to Securities of the Series
and any corresponding changes to the provisions of this Indenture and as
then in effect;
(v) the subordination, if any, of the Securities of the Series
pursuant to this Indenture;
(w) with regard to Securities of the Series that do not bear
interest, the dates for certain required reports to the Trustee; and
(x) any other terms of Securities of the Series (which terms
shall not be prohibited by the provisions of this Indenture).
All Securities of any one Series need not be issued at the same
time and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution,
supplemental indenture or Officers' Certificate referred to above, and the
authorized principal amount of any Series may not be increased to provide
for issuances of additional Securities of such Series, unless otherwise
provided in such Board Resolution, supplemental indenture or Officers'
Certificate.
SECTION 2.03. Execution and Authentication. One or more Officers
of the Issuers shall sign the Securities on behalf of the Issuers by manual
or facsimile
10
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 whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture. A Security shall be dated the date of its authentication, unless
otherwise provided by a Board Resolution, a supplemental indenture or an
Officers' Certificate.
The Trustee shall at any time, and from time to time,
authenticate Securities for original issue in the principal amount provided
in the Board Resolution, supplemental indenture hereto or Officers'
Certificate, upon receipt by the Trustee of an Issuer Order. Such Issuer
Order may authorize authentication and delivery pursuant to oral or
electronic instructions from the Issuers or their duly authorized agent or
agents, which oral instructions shall be promptly confirmed in writing.
The aggregate principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution, supplemental
indenture hereto or Officers' Certificate delivered pursuant to Section
2.02, except as provided in Section 2.08.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Issuers to authenticate the Securities. 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 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 2.04. Registrar and Paying Agent. The Issuers shall
maintain, with respect to each Series of Securities, at the place or places
specified with respect to such Series pursuant to Section 2.02, an office
or agency 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 with respect to each Series of
Securities 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 hereby appoint the
Trustee as Registrar and Paying Agent for each Series of Securities unless
another Registrar or Paying Agent, as the case may be, is appointed prior
to the time Securities of that Series are first issued.
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 Trust Indenture Act. 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
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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 any 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 Registrar or Paying Agent
only if the Trustee also resigns as Trustee in accordance with Section
7.08.
SECTION 2.05. Paying Agent to Hold Money in Trust. The Issuers
shall require each Paying Agent other than the Trustee to agree in writing
that the Paying Agent will hold in trust, for the benefit of Holders of any
Series of Securities, or the Trustee, all money held by the Paying Agent
for the payment of principal of or interest on the Series of Securities,
and will notify the Trustee of any default by the Issuers in making any
such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Issuers at any
time may require a Paying Agent to pay all money held by it to the Trustee.
Upon payment over to the Trustee, the Paying Agent (if other than one of
the Issuers or any of their Subsidiaries) shall have no further liability
for the money. If one of the Issuers or any of their Subsidiaries acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of Holders of any Series of Securities all money held by it as
Paying Agent.
SECTION 2.06. Holder 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 Holders of each Series of Securities
and shall otherwise comply with Trust Indenture Act Section 312(a). If the
Trustee is not the Registrar, the Issuers shall furnish to the Trustee at
least ten 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
Holders of each Series of Securities.
SECTION 2.07. Transfer and Exchange. Where Securities of a Series
are presented to the Registrar or a co-registrar with a request to register
a transfer or to exchange them for an equal principal amount of Securities
of the same Series, the Registrar shall register the transfer or make the
exchange if its requirements for such transactions are met. To permit
registrations of transfers and exchanges, the Trustee shall authenticate
Securities at the Registrar's request. No service charge shall be made for
any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Issuers may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.11, 3.06
or 9.05).
Neither the Issuers nor the Registrar shall be required (a) to
issue, register the transfer of, or exchange Securities of any Series for
the period beginning at the
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opening of business fifteen days immediately preceding the mailing of a
notice of redemption of Securities of that Series selected for redemption
and ending at the close of business on the day of such mailing, or (b) to
register the transfer of or exchange Securities of any Series selected,
called or being called for redemption as a whole or the portion being
redeemed of any such Securities selected, called or being called for
redemption in part.
SECTION 2.08. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Issuers shall
execute and the Trustee shall authenticate and deliver in exchange therefor
a new Security of the same Series and of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Issuers and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Issuers or the Trustee that such Security has been
acquired by a bona fide purchaser, the Issuers shall execute and upon their
request the Trustee shall authenticate and make available for delivery, in
lieu of any such destroyed, lost or stolen Security, a new Security of the
same Series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Issuers in their
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Issuers may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any Series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Issuers, whether or not
the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that Series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.09. Outstanding Securities. The Securities outstanding
at any time are all the Securities authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those
reductions in the interest on a Global Security effected by the Trustee in
accordance with the provisions hereof and those described in this Section
as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to
be outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
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If the Paying Agent holds at the Maturity of Securities of a
Series money sufficient to pay such Securities payable on that date, then
on and after that date such Securities of the Series cease to be
outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Issuers
or an Affiliate of the Issuers holds the Security.
In determining whether the Holders of the requisite principal amount
of outstanding Securities of any Series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant to Section 6.02.
SECTION 2.10. Treasury Securities. In determining whether the
Holders of the required principal amount of Securities of a Series have
concurred in any request, demand, authorization, direction, notice, consent
or waiver Securities of a Series owned by the Issuers or an Affiliate of
the Issuers shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver only
Securities of a Series that the Trustee knows are so owned shall be so
disregarded.
SECTION 2.11. Temporary Securities. Until Definitive Securities
are ready for delivery, the Issuers may prepare and the Trustee shall
authenticate temporary Securities upon an Issuer Order. 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 upon request shall authenticate Definitive Securities of the same
Series and date of maturity in exchange for temporary Securities. Until so
exchanged, temporary securities shall have the same rights under this
Indenture as the Definitive Securities.
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 Trustee shall cancel all
Securities surrendered for transfer, exchange, payment, replacement or
cancellation and shall destroy such canceled Securities (subject to the
record retention requirement of the Exchange Act) and deliver a certificate
of such destruction to the Issuers, unless the Issuers otherwise direct.
The Issuers may not issue new Securities to replace Securities that they
have paid or delivered to the Trustee for cancellation.
SECTION 2.13. Defaulted Interest. If the Issuers default in a
payment of interest on a Series of Securities, they shall pay the defaulted
interest, plus, to the extent permitted by law, any interest payable on the
defaulted interest, to the persons who are Holders of the Series on a
subsequent special record date. The Issuers shall fix the record date and
payment date. At least 30 days before the record date, the Issuers shall
mail to the Trustee and to each Holder of the Series a notice that states
the record date, the payment date and the amount of interest to be paid.
The Issuers may pay defaulted interest in any other lawful manner.
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SECTION 2.14. Global Securities.
(a) Terms of Securities. A Board Resolution, a supplemental
indenture hereto or an Officers' Certificate shall establish whether the
Securities of a Series shall be issued in whole or in part in the form of
one or more Global Securities and the Depository for such Global Security
or Securities.
(b) Transfer and Exchange. Notwithstanding any provisions to the
contrary contained in Section 2.07 of this Indenture and in addition
thereto, any Global Security shall be exchangeable pursuant to Section 2.07
of this Indenture for Securities registered in the names of Holders other
than the Depository for such Security or its nominee only if (i) such
Depository notifies the Issuers that it is unwilling or unable to continue
as Depository for such Global Security or if at any time such Depository
ceases to be a clearing agency registered under the Exchange Act, and, in
either case, the Issuers fail to appoint a successor Depository within 90
days of such event, (ii) the Issuers execute and deliver to the Trustee an
Officers' Certificate to the effect that such Global Security shall be so
exchangeable or (iii) an Event of Default with respect to the Securities
represented by such Global Security shall have happened and be continuing.
Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as the
Depository shall direct in writing in an aggregate principal amount equal
to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14(b) a Global Security may
not be transferred except as a whole by the Depository with respect to such
Global Security to a nominee of such Depository, by a nominee of such
Depository to such Depository or another nominee of such Depository or by
the Depository or any such nominee to a successor Depository or a nominee
of such a successor Depository.
(c) Legend. Any Global Security issued hereunder shall bear a
legend in substantially the following form:
"THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN
THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE
INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 2.07 OF THE INDENTURE, (III) THIS GLOBAL SECURITY
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12
OF THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS (AS
DEFINED IN THE INDENTURE GOVERNING THIS SECURITY)."
(d) Acts of Holders. The Depository, as a Holder, may appoint
agents and otherwise authorize participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
which a Holder is entitled to give or take under this Indenture.
15
(e) Payments. Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.02,
payment of the principal of and interest, if any, on any Global Security
shall be made to the Holder thereof.
(f) Consents, Declaration and Directions. Except as provided in
Section 2.14(e), the Issuers, the Trustee and any Agent shall treat a
person as the Holder of such principal amount of outstanding Securities of
such Series represented by a Global Security as shall be specified in a
written statement of the Depositary with respect to such Global Security,
for purposes of obtaining any consents, declarations, waivers or directions
required to be given by the Holders pursuant to this Indenture.
SECTION 2.15. 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 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 elements of identification
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. The Issuers, with respect to any
Series of Securities, may elect to redeem and pay the Series of Securities or
may covenant to redeem and pay the Series of Securities or any part thereof
prior to the Stated Maturity thereof at such time and on such terms provided
for in such Series of Securities. If a Series of Securities is redeemable and
the Issuers want or are obligated to redeem prior to the Stated Maturity
thereof all or part of the Series of Securities pursuant to the terms of such
Securities, they shall notify the Trustee in writing of the redemption date
and the principal amount of Securities of the Series to be redeemed and the
redemption price. The Issuers shall give such notice to the Trustee at least
45 days before the redemption date unless the Trustee consents to a shorter
period.
SECTION 3.02. Selection of Securities To Be Redeemed. Unless
otherwise provided for a particular Series of Securities by a Board
Resolution, a supplemental indenture or an Officers' Certificate, if fewer
than all the Securities of a particular Series are to be redeemed or
purchased, the Trustee shall select the Securities to be redeemed or purchased
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 at least 30 days but no
more than 60 days before the redemption date from outstanding Securities of a
Series not previously called for redemption. Securities and portions thereof
that the Trustee selects shall be in principal amounts of $1,000 or integral
multiples of $1,000. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption. The Trustee shall promptly notify the Issuers of the Securities
(or portions thereof) to be redeemed.
16
SECTION 3.03. Notice of Redemption. Unless otherwise provided for
a particular Series of Securities by a Board Resolution, a supplemental
indenture or an Officers' Certificate, 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;
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion shall
be issued upon cancellation of the original Security;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(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 paragraph of the Securities and/or provision of this
Indenture pursuant to which the Securities called for redemption are
being redeemed;
(8) the CUSIP or ISIN number, if any, printed on the Securities
being redeemed; and
(9) that no representation is made as to the correctness or
accuracy of the CUSIP or ISIN number, if any, listed in such notice or
printed on the Securities.
At the Issuers' request, the Trustee shall give the notice of
redemption as provided to it 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.
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.
(New York City time) on the redemption date, the Issuers shall deposit with
the Paying Agent
17
(or, if any 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. The Paying Agent shall as promptly as practicable return to
the Issuers any money deposited with it by the Issuers in excess of the
amounts necessary to pay the redemption price of, and accrued interest on,
all Securities to be redeemed. If such money is then held by the Issuers in
trust and is not required for such purpose it shall be discharged from such
trust. 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 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
make all payments in respect of each Series of Securities on the dates and
in the manner provided in such Series of Securities and in this Indenture.
Such payments shall be considered made on the date due if on such date the
Trustee or the Paying Agent holds, in accordance with this Indenture, money
sufficient to make all payments with respect to such Securities then due
and the Trustee or the Paying Agent, as the case may be, is not prohibited
from paying such money to the Holders on that date pursuant to the terms of
this Indenture.
SECTION 4.02. SEC Reports. Unless otherwise provided for a
particular Series of Securities in a Board Resolution, a supplemental
indenture or an Officers' Certificate, notwithstanding that the Company may
not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the SEC, and provide the Trustee
and Holders 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 Issuers' compliance with
any of their 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 Trust Indenture Act 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 5.01); 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
18
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. Unless otherwise provided
for a particular Series of Securities in a Board Resolution, a supplemental
indenture or an Officers' Certificate, 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 of
all Series 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;
(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
19
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;
(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;
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(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 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.
Unless otherwise provided for a particular Series of Securities in a Board
Resolution, a supplemental indenture or an Officers' Certificate, 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,
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(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. Unless otherwise provided for a
particular Series of Securities in a Board Resolution, a supplemental
indenture or an Officers' Certificate, 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
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 Shareholders' Equity.
SECTION 4.07. Waiver of Certain Covenants. Unless otherwise
provided for a particular Series of Securities in a Board Resolution, a
supplemental indenture or an Officers' Certificate, 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 any Series of Securities 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 of the
Series of 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 Trust Indenture Act 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
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may be reasonably necessary or proper to carry out more effectively the
purpose of this Indenture.
ARTICLE 5
SUCCESSOR COMPANIES
SECTION 5.01. Merger and Consolidation. Unless otherwise provided
for a particular Series of Securities in a Board Resolution, a supplemental
indenture or an Officers' Certificate, 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 (as modified or supplemented by an Officers' Certificate, Board
Resolution or supplemental 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. Unless otherwise provided for a
particular Series of Securities by a Board Resolution, a supplemental
indenture or an Officers' Certificate, each of the following constitutes an
"Event of Default" with respect to each Series of Securities:
(1) the Issuers default in any payment of the principal amount or
premium, if any, on any Security of that Series when such amount becomes
due and payable at Stated Maturity, upon acceleration, redemption or
otherwise;
(2) the Issuers default in the payment of interest on any
Security of that Series when such interest becomes due and payable, and
such default continues for a period of 30 days;
(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 of that Series 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 (including any other Series of Securities), 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 the notice specified below;
(7) any Issuer or Restricted Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it
in an involuntary case;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its property; or
(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:
24
(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 (not covered
by insurance) 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; or
(10) the co-obligation of any Issuer shall cease to be in full
force and effect (except as contemplated by the terms thereof or this
Indenture).
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 of Securities until the Trustee or the
Holders of at least 25% in principal amount of the outstanding Securities of
that 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 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 Series of Securities 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 that Series by notice to
the Issuers, may declare the principal amount of (or, in the case of
Original Issue Discount Securities of that Series, the portion thereby
specified in the
25
terms of such Security), premium, if any, and accrued and unpaid interest on
all the Securities of that Series to be due and payable. Upon such a
declaration, such amounts 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 amount of (or, in the case of Original Issue Discount Securities
of that Series, the portion thereby specified in the terms of such Security),
premium, if any, and accrued and unpaid interest on all the Securities of each
Series of Security shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
The Holders of a majority in principal amount of the Securities of any Series
of Securities by notice to the Trustee may rescind an acceleration of that
Series of Securities and its consequences if the rescission would not conflict
with any judgment or decree and if all existing Events of Default with respect
to such Series of Securities have been cured or waived except nonpayment of
the principal amount of (or, in the case of Original Issue Discount Securities
of that Series, the portion thereby specified in the terms of such Security),
premium, if any, and accrued and unpaid interest on all Securities of that
Series 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. Other Remedies. If an Event of Default with respect
to any Series of Securities occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of the principal amount
of (or, in the case of Original Issue Discount Securities of that Series,
the portion thereby specified in the terms of such Security), premium, if
any, and accrued and unpaid interest on the Securities of that Series or to
enforce the performance of any provision of the Securities of that 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 of a Series or does not
produce any of them in the proceeding. A delay or omission by the Trustee or
any Holder in exercising any right or remedy accruing upon an Event of Default
with respect to any Series of Securities 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 and its consequences except (i) a
Default in the payment of the principal amount of (or, in the case of
Original Issue Discount Securities of that Series, the portion thereby
specified in the terms of such Security), premium, if any, and accrued and
unpaid interest on a Security of that Series, (ii) a Default arising from
the failure to redeem or purchase any Security of that 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 Holder of that Series 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.
SECTION 6.05. Control by Majority. The Holders of a majority in
principal amount of the outstanding Securities of any 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 with respect to that Series. 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 of that Series or that would subject the Trustee
to personal
26
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 the principal amount of (or, in the case of Original
Issue Discount Securities, the portion thereby specified in
the terms of such Security), premium, if any, and accrued and unpaid
interest on a Security of any Series when due, no Holder of a Security of
that Series may pursue any remedy with respect to this Indenture or the
Securities of that Series unless:
(1) the Holder previously gave the Trustee written notice stating
that an Event of Default with respect to that Series is continuing;
(2) the Holders of at least 25%, in principal amount of the
outstanding Securities of that Series make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders of that Series 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 that Series do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Holder of Securities of any Series may not use this Indenture
to prejudice the rights of another Holder of that Series or to obtain a
preference or priority over another Holder of that Series.
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 the principal amount of (or, in the case of
Original Issue Discount Securities, the portion thereby specified in the
terms of such Security), premium, if any, and accrued and unpaid interest
on the Securities held by such Holder, on or after their Maturity, or to
bring suit for the enforcement of any such payment on or after their
Maturity, shall not be impaired or affected without the consent of such
Holder.
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 Holders
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
27
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 with respect to any Series
of Securities, 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 Holders for amounts due and unpaid on the Securities of
that Series for the principal amount of (or, in the case of Original Issue
Discount Securities of that Series, the portion thereby specified in the terms
of such Security), premium, if any, and accrued and unpaid interest, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Securities of that Series for the principal amount of (or, in
the case of Original Issue Discount Securities of that Series, the portion
thereby specified in the terms of such Security), premium, if any, and accrued
and unpaid interest, respectively; and
THIRD: to the Issuers.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section. At least 15 days before such
record date, the Trustee shall mail to each Holder 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 and expenses, 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 pursuant to Section 6.07 or a suit by Holders of more than
10% in principal amount of the Securities of any Series.
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 to 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.
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ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing with respect to any Series of Securities, 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 with
respect to any Series of Securities:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture with respect to the
Securities of that Series, as modified or supplemented by an Officers'
Certificate, a Board Resolution or a supplemental 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,
with respect to Securities of that Series, 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;
(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.
29
(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
Trust Indenture Act.
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 willful 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 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 with respect to the Securities of any Series 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 such 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.
(i) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders
30
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred by the Trustee in
compliance with such request or direction.
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
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
Holder of that Series notice of the Default within 90 days after it occurs.
Except in the case of a Default with respect to Securities of any Series in
payment of the principal amount of (or, in the case of Original Issue
Discount Securities of that Series, the portion thereby specified in the
terms of such Security), premium, if any, and accrued and unpaid interest
on any Security of that Series, 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 Holders.
SECTION 7.06. Reports by Trustee to Holder. As promptly as
practicable after each ________ beginning with the _________ for so long as
Securities remain outstanding, the Trustee shall mail to each Holder a
brief report dated as of such reporting date that complies with Section
313(a) of the Trust Indenture Act. The Trustee shall also comply with
Section 313(b) of the Trust Indenture Act.
A copy of each report at the time of its mailing to Holders shall
be filed with the SEC and each stock exchange (if any) on which the
Securities 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 Trustee's 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
31
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 willful
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 any Series by so notifying the
Issuers. The Holders of a majority in principal amount of the Securities of
any Series may remove the Trustee and may appoint a successor Trustee with
respect to such Series of Securities. The Issuers shall remove the Trustee
if:
(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 or its 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 any Series
and such Holders do not reasonably promptly appoint a successor Trustee or
if a vacancy exists in the office of Trustee for any reason (the Trustee in
such event being referred to herein as the retiring Trustee), the Issuers
shall promptly appoint a successor Trustee.
A successor Trustee 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 Holders of that Series of Securities. 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 that Series may
petition, at the expense of the Issuers, any court of competent
jurisdiction for the appointment of a successor Trustee.
32
If the Trustee fails to comply with Section 7.10, any Holder of
that Series of Securities may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section 7.08, 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 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 Trust Indenture Act 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 Trust Indenture Act Section
310(b); provided, however, that there shall be excluded from the operation
of Trust Indenture Act 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 Trust Indenture Act Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Issuers.
The Trustee shall comply with Trust Indenture Act Section 311(a), excluding
any creditor relationship listed in Trust Indenture Act Section 311(b). A
Trustee who has resigned or has been removed shall be subject to Trust
Indenture Act Section 311(a) to the extent indicated.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance. The Issuers may, at the option of their Boards of Directors
evidenced by resolutions set forth in an Officers' Certificate, at any
time, elect to have either Section 8.02 or 8.03 hereof be applied to all
outstanding Securities of any Series upon compliance with the conditions
set forth below in this Article 8.
33
SECTION 8.02. Legal Defeasance and Discharge. Upon the Issuers'
exercise under Section 8.01 hereof of the option applicable to this Section
8.02 with respect to any Series of Securities, the Issuers shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
deemed to have been discharged from its obligations with respect to all
outstanding Securities of that Series on the date the conditions set forth
below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that the Issuers shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding
Securities of that Series, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.05 hereof and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all their other obligations under such Securities and this
Indenture (and the Trustee, on demand of and at the expense of the Issuers,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder:
(a) the rights of Holders of outstanding Securities of that
Series to receive solely from the trust fund described in Section 8.04
hereof, and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest on such
Securities when such payment are due;
(b) the Issuers' obligations with respect to such Securities of
that Series under Article 2,
(c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Issuers' obligations in connection
therewith; and
(d) this Article 8.
Subject to compliance with this Article 8, the Issuers may
exercise their option under this Section 8.02 notwithstanding the prior
exercise of their option under Section 8.03 hereof.
SECTION 8.03. Covenant Defeasance. Upon the Issuers' exercise under
Section 8.01 hereof of the option applicable to this Section 8.03 with respect
to any Series of Securities, the Issuers shall, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, be released from their
obligations under the covenants contained in an Officers' Certificate, a Board
Resolution or a supplemental indenture and Sections 4.02 through 4.08 and
clause (iv) of Section 5.01 hereof with respect to the outstanding Securities
of that Series on and after the date the conditions set forth in Section 8.04
are satisfied (hereinafter, "Covenant Defeasance"), and the Securities of that
Series shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Securities shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the outstanding Securities of that Series, the Issuers may omit to comply with
and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of
any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an
Event of Default with respect to such Securities under Section 6.01 hereof,
but, except as specified
34
above, the remainder of this Indenture and such Securities shall be
unaffected thereby. In addition, upon the Issuers' exercise under Section
8.01 hereof of the option applicable to this Section 8.03 hereof with
respect to any Series of Securities, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, Sections 6.01(3) through
6.01(6) and 6.01(9) hereof shall not constitute Events of Default with
respect to such Securities.
SECTION 8.04. Conditions to Legal or Covenant Defeasance. The
following shall be the conditions to the application of either Section 8.02
or 8.03 hereof to the outstanding Securities:
In order to exercise either Legal Defeasance or Covenant
Defeasance with respect to any Series of Securities:
(1) the Issuers must irrevocably deposit with the Trustee,
in trust, for the benefit of the Holders of that Series of
Securities, cash in United States dollars, non-callable
Government Securities, or a combination thereof, in such amounts
as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of,
premium, if any, and interest on the outstanding Securities of
that Series on the stated date for payment thereof or on the
applicable redemption date, as the case may be;
(2) in the case of an election under Section 8.02 hereof,
the Issuers shall have delivered to the Trustee an Opinion of
Counsel in the United States reasonably acceptable to the Trustee
confirming that:
(a) the Issuers have received from, or there has been
published by, the Internal Revenue Service a ruling; or
(b) since the date of this Indenture, there has been a
change in the applicable federal income tax law, in either
case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding
Securities of that Series will not recognize income, gain or
loss for federal income tax purposes as a result of such
Legal Defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same time
as would have been the case if such Legal Defeasance had not
occurred;
(3) in the case of an election under Section 8.03 hereof,
the Issuers shall have delivered to the Trustee an Opinion of
Counsel in the United States reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Securities of that
Series will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(4) no Default or Event of Default with respect to that
Series of Securities shall have occurred and be continuing
either:
35
(a) on the date of such deposit (other than a Default
or Event of Default with respect to that Series of
Securities resulting from the borrowing of funds to be
applied to such deposit); or
(b) insofar as Sections 6.01(7) or 6.01(8) hereof are
concerned, at any time in the period ending on the 91st day
after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default
under, any material agreement or instrument (other than this
Indenture) to which the Issuers or any of their Restricted
Subsidiaries are a party or by which the Issuers or any of their
Restricted Subsidiaries are bound;
(6) the Issuers shall have delivered to the Trustee an
Opinion of Counsel to the effect that on the 91st day following
the deposit, the trust funds will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally;
(7) the Issuers shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by
the Issuers with the intent of preferring the Holders of that
Series of Securities over any other creditors of the Issuers or
with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Issuers or others; and
(8) the Issuers shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for or relating to the
Legal Defeasance or the Covenant Defeasance have been complied
with.
SECTION 8.05. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions. Subject to Section 8.06
hereof, all money and non-callable Government Securities (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.05, the "Trustee") pursuant to
Section 8.04 hereof in respect of any outstanding Series of Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including any Issuer acting as Paying
Agent) as the Trustee may determine, to the Holders of such Securities of
all sums due and to become due thereon in respect of principal, premium, if
any, and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Issuers shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
outstanding Securities of that Series.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuers from time to time upon the
request of the Issuers any money or non-callable Government Securities held
by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public
36
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.04(1) hereof),
are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.06. Repayment to Issuers. Any money deposited with the
Trustee or any Paying Agent, or then held by the Issuers, in trust for the
payment of the principal of, premium, if any, or interest on any Security
and remaining unclaimed for two years after such principal, and premium, if
any, or interest has become due and payable shall be paid to the Issuers on
their request or (if then held by the Issuers) shall be discharged from
such trust; and the Holder of such Security shall thereafter look only to
the Issuers for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Issuers as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Issuers cause to be published once, in
the New York Times and The Wall Street Journal (national edition), notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining will be
repaid to the Issuers.
SECTION 8.07. Reinstatement. If the Trustee or Paying Agent is
unable to apply any United States dollars or non-callable Government
Securities in accordance with Section 8.02 or 8.03 thereof, as the case may
be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the Issuers' obligations under this Indenture and the Securities shall
be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 8.02 or
8.03 hereof, as the case may be; provided, however, that, if the Issuers
make any payment of principal of, premium, if any, or interest on any
Security following the reinstatement of its obligations, the Issuers shall
be subrogated to the rights of the Holders of such Securities to receive
such payment from the money 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 Holder:
(1) to evidence the succession of another Person to any Issuer
pursuant to Article 5 and the assumption by such successor of such
Issuer's covenants, agreements and obligations in this Indenture and
in the Securities;
(2) to surrender any right or power conferred upon the Issuers by
this Indenture, to add to the covenants of the Issuers such further
covenants, restrictions, conditions or provisions for the protection
of the Holders of all or any Series of Securities as the Boards of
Directors of the Issuers shall consider to be for the protection of
the Holders of such Securities, and to make the occurrence, or the
occurrence and continuance, of a default in respect of any such
additional
37
covenants, restrictions, conditions or provisions a Default or an
Event of Default under this Indenture; provided, however, that with
respect to any such additional covenant, restriction, condition or
provision, such amendment may provide for a period of grace after
default, which may be shorter or longer than that allowed in the case
of other Defaults, may provide for an immediate enforcement upon such
Default, may limit the remedies available to the Trustee upon such
Default or may limit the right of Holders of a majority in aggregate
principal amount of the Securities of any Series to waive such
default;
(3) to cure any ambiguity or correct or supplement any provision
contained in this Indenture, in any supplemental indenture or in any
Securities that may be defective or inconsistent with any other
provision contained therein;
(4) to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee, or to make such other provisions in regard to
matters or questions arising under this Indenture as shall not adversely
affect the interests of any Holders of Securities of any Series;
(5) to modify or amend this Indenture in such a manner as to
permit the qualification of this Indenture or any supplemental
indenture under the Trust Indenture Act as then in effect;
(6) to add or to change any of the provisions of this Indenture
to provide that Securities in bearer form may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal or premium with respect to Securities in registered form or
of principal, premium or interest with respect to Securities in bearer
form, or to permit Securities in registered form to be exchanged for
Securities in bearer form, so as to not adversely affect the interests
of the Holders of Securities or any coupons of any Series in any
material respect or permit or facilitate the issuance of Securities of
any Series in uncertificated form;
(7) in the case of subordinated Securities, to make any change in
the provisions of this Indenture or any supplemental indenture relating
to subordination that would limit or terminate the benefits available to
any holder of senior Indebtedness under such provisions (but only if each
such holder of senior Indebtedness consents to such change);
(8) to add Guarantees with respect to the Securities or to secure
the Securities;
(9) to make any change that does not adversely affect the rights
of any Holder;
(10) to add to, change, or eliminate any of the provisions of
this Indenture with respect to one or more Series of Securities, so
long as any such addition, change or elimination not otherwise
permitted under this Indenture shall (A) neither apply to any Security
of any Series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor modify the
rights of the Holders of any such Security with respect to the benefit
of
38
such provision or (B) become effective only when there is no such
Security outstanding;
(11) to evidence and provide for the acceptance of appointment by
a successor or separate Trustee with respect to the Securities of one
or more Series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of this Indenture by more than one Trustee; or
(12) to establish the form or terms of Securities and coupons of
any Series pursuant to Article 2.
SECTION 9.02. With Consent of Holders. The Issuers and the
Trustee may amend this Indenture or the Securities of any Series without
notice to any Holder but with the written consent of the Holders of at
least a majority in principal amount of the Securities of each Series then
outstanding (including consents obtained in connection with a tender offer
or exchange for the Securities) affected by such amendment. However,
without the consent of each Holder affected, an amendment may not:
(1) make any changes to the percentage of principal amount of the
outstanding Securities of any Series, the consent of whose Holders is
required for any amendment, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences) provided for in
this Indenture;
(2) reduce the principal amount of, premium, if any, or interest
on, or extend the Stated Maturity or interest payment periods of any
Security;
(3) make any Security payable in money or securities other than
that stated in the Security;
(4) make any change that adversely affects such Holder's right to
require the Issuers to purchase the Securities in accordance with the
terms thereof and this Indenture;
(5) impair the right of any Holder to institute suit for the
enforcement of any payment with respect to the Securities;
(6) in the case of any subordinated Securities, or coupons
appertaining thereto, make any change in the provisions of this
Indenture relating to subordination that adversely affects the rights
of any Holder under such provisions;
(7) except as provided under Article 8 hereof or in accordance
with the terms of any Guarantee, release any Guarantor from any of its
obligations under its Guarantee or make any change in a Guarantee that
would adversely affect the Holder of the Securities; or
39
(8) 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 approves the substance thereof.
After an amendment under this Section becomes effective, the Issuers shall
mail to all affected Holders a notice briefly describing such amendment.
The failure to give such notice to all such Holders, 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 Trust
Indenture Act 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 Holder. 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 Holders 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
Holders 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 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
40
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 Trust Indenture Act,
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, New York 10018
Attention: Ira M. Dansky, Esq.
with a copy to:
Cravath, Swaine & Moore
825 Eighth Avenue
New York, NY 10019
Attention: William V. Fogg, Esq.
If to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Attention: Corporate Trust Administration
The Issuers or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
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Any notice or communication mailed to a Holder shall be mailed to
the Holder at the Holder'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 Holder or any
defect in it shall not affect its sufficiency with respect to other
Holders. 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.
Holders may communicate pursuant to Trust Indenture Act Section 312(b) with
other Holders 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 Trust Indenture Act 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;
(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
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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 Holders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
SECTION 10.08. Legal Holidays. 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 shareholder, 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 Holder shall
waive and release all such liability. The waiver and release shall be part
of the consideration for the issuance of the Securities.
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.
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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:
-----------------------------
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
By:
------------------------------
Name:
Title:
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