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<SEC-DOCUMENT>0000950144-03-010460.txt : 20030828
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<ACCEPTANCE-DATETIME>20030828163709
ACCESSION NUMBER: 0000950144-03-010460
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 8
CONFORMED PERIOD OF REPORT: 20030530
FILED AS OF DATE: 20030828
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: OXFORD INDUSTRIES INC
CENTRAL INDEX KEY: 0000075288
STANDARD INDUSTRIAL CLASSIFICATION: MEN'S & BOYS' FURNISHINGS, WORK CLOTHING, AND ALLIED GARMENTS [2320]
IRS NUMBER: 580831862
STATE OF INCORPORATION: GA
FISCAL YEAR END: 0528
FILING VALUES:
FORM TYPE: 10-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-04365
FILM NUMBER: 03871464
BUSINESS ADDRESS:
STREET 1: 222 PIEDMONT AVE NE
CITY: ATLANTA
STATE: GA
ZIP: 30308
BUSINESS PHONE: 4046592424
MAIL ADDRESS:
STREET 1: 222 PIEDMONT AVE NE
CITY: ATLANTA
STATE: GA
ZIP: 30308
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<FILENAME>g84730e10vk.txt
<DESCRIPTION>OXFORD INDUSTRIES, INC.
<TEXT>
<PAGE>
FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the fiscal year ended MAY 30, 2003
OR
[ ] Transition Report Pursuant To Section 13 or 15(d) of
For the transition period from____
to____ The Securities Exchange Act of 1934[NO FEE REQUIRED}
Commission File Number 1-4365
OXFORD INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-0831862
(State or other (I.R.S. Employer
jurisdiction of incorporation Identification number)
or organization)
222 PIEDMONT AVENUE, N.E., ATLANTA, GEORGIA 30308
(Address of principal executive offices)
(Zip Code)
(404) 659-2424
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(g) of the Act:
NONE
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K (Section 229.405 of this chapter) is not contained herein, and
will not be contained, to the best of registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III of this
Form 10-K or any amendment to this Form 10-K. [ ]
Indicate by check mark whether the registrant is an accelerated filer as defined
in rule 12b-2 of the Exchange Act. Yes [X] NO [ ]
State the aggregate market value of the voting stock held by nonaffiliates of
the Registrant: As of August 18, 2003, the aggregate market value of the voting
stock held by nonaffiliates of the Registrant (based upon the closing price for
the common stock on the New York Stock Exchange on that date) was approximately
$277,975,543
Indicate the number of shares outstanding of each of the Registrant's
classes of common stock, as of the last practicable date.
<TABLE>
<CAPTION>
Title of each class Number of shares outstanding as of August 18, 2003
------------------- --------------------------------------------------
<S> <C>
COMMON STOCK, $1 PAR VALUE 8,066,759
</TABLE>
Documents incorporated by Reference
(1) Sections of 2003 Annual Report to Stockholders (Incorporated in Parts II and
IV of this Report).
(2) Sections of Proxy Statement, which will be filed with the Securities and
Exchange Commission not later than 120 days after May 30, 2003. (Incorporated in
Part III of this Report).
<PAGE>
PART I
ITEM 1. BUSINESS
BUSINESS AND PRODUCTS
INTRODUCTION AND BACKGROUND
We are one of the largest designers, manufacturers, marketers and wholesalers of
consumer apparel products in the United States. Since our founding in 1942, we
have increased our sales by offering a wide range of compelling, value-added
apparel products and services to retailers in all major distribution channels.
Within these distribution channels we have focused on the largest price
categories, budget and moderate. We add value for our approximately 8,900
retailer customers by understanding the needs and desires of the ultimate
consumers and then developing responsive products in terms of styling, quality
and value. Our primary customers include specialty catalog retailers, national
chain and department stores and mass merchants. We have been doing business with
all of our largest customers for more than 20 years. We have shifted away from
domestic manufacturing and, as a result, have moved substantially all of our
production offshore to a network of owned plants, joint venture plants and third
party producers. We outsource approximately 85% of our manufacturing to third
party producers.
Our business segments are the Oxford Shirt Group, Lanier Clothes, Oxford Slacks
and the Oxford Womenswear Group. The Oxford Shirt Group operations encompass
branded and private label dress and sport shirts and branded golf apparel.
Lanier Clothes produces branded and private label suits, sportscoats, suit
separates and dress slacks. Oxford Slacks is a producer of private label dress
slacks, casual slacks and walkshorts. The Oxford Womenswear Group is a producer
of private label women's sportswear. Corporate and Other is a reconciling
category for reporting purposes and includes our corporate offices,
transportation and logistics, intercompany eliminations, LIFO inventory
accounting adjustments and other costs that are not allocated to the operating
groups. All data with respect to the specific segments is presented before
applicable intercompany eliminations.
SALES AND MARKETING
We design and market our products in all major retail channels, including:
o national and regional chain stores;
o mail order and catalog firms;
o mass merchants;
o department stores; and
o chain and upscale independent specialty stores.
We sold our products to more than 7,000, 8,000 and 8,000 active customers in
fiscal 2001, fiscal 2002 and fiscal 2003, respectively. Our ten largest
customers accounted for approximately 73%, 72% and 80% of our net sales in
fiscal 2001, fiscal 2002 and fiscal 2003, respectively. Our 50 largest customers
accounted for 91%, 91% and 94% of our net sales in fiscal 2001, fiscal 2002 and
2
<PAGE>
fiscal 2003. Target accounted for 14%, 19% and 22% of our net sales in fiscal
2001, fiscal 2002 and Fiscal 2003, respectively. Wal-Mart accounted for 15%, 13%
and 15% of our net sales in fiscal 2001, fiscal 2002 and fiscal 2003,
respectively. Sears Roebuck & Co accounted for 12%, 12% and 16% of our net sales
in fiscal 2001, fiscal 2002 and fiscal 2003, respectively. On June 17, 2002
Sears Roebuck & Co acquired Lands' End Inc., one of our major customers. All
sales percentages have been recalculated to reflect the combination of these two
customers. We believe that our long-standing relationships with all of our major
customers, including Wal-Mart, Target and Sears Roebuck & Co, are good.
We employ a sales force consisting of salaried and commissioned sales employees
and independent commissioned sales representatives. We maintain apparel sales
offices and showrooms in Atlanta, New York, Hong Kong, Chicago and Dallas. We
also work with independent commissioned sales representatives who maintain their
own showrooms. We conduct a majority of our business by direct contacts between
our salaried executives and buyers and other executives of our customers.
Several of our product lines are designed and manufactured in anticipation of
orders for sale to department and specialty stores and certain specialty chain
and mail order customers. We make commitments for fabric and production in
connection with these lines. In the case of imports, these commitments can be up
to several months prior to the receipt of firm orders from customers. These
lines include both popular and better price merchandise sold under brand and
designer names or customers' private labels.
We work closely with many customers to develop large volume product programs
prior to commencement of production, enabling us to take advantage of relative
efficiencies in planning, raw materials purchasing and utilization of production
facilities. Products sold under these programs are in the popular price range
and usually carry the customers' trademarks, although we offer some branded and
designer programs for this customer market.
MANUFACTURING, RAW MATERIALS, SOURCES OF SUPPLY AND LOGISTICS
MANUFACTURING AND RAW MATERIALS
We manufacture our products in our owned manufacturing facilities, through our
joint venture partners and by sourcing these products from third party
producers. In fiscal 2003, we manufactured approximately 13% of our products in
our owned offshore manufacturing facilities and we sourced approximately 87%
from our offshore joint ventures and third party producers. We use numerous
independent manufacturers, principally in Latin America and Asia, for the
production and finishing of our garments. We typically conduct business with our
producers on an order-by-order basis. Our manufacturing facilities, joint
ventures and third party producers perform cutting, sewing and related
operations to produce finished apparel products to the specifications and
quality standards approved by us in advance. We inspect fabrics and finished
goods throughout the manufacturing process as part of our quality control
program to ensure that consumers receive products that meet our high standards.
The use of third party producers enables us to reduce working capital relating
to work-in-process inventories. In order to place orders and monitor production,
we maintain buying offices in Hong Kong and Singapore. We also retain
unaffiliated buying agents in several other countries. We believe that our
efficient utilization of our offshore manufacturing network allows us to
maintain production flexibility, in terms of both location and nature of
production, while avoiding the substantial capital expenditures and costs
related to operating a large internal production capability. In most cases, we
do not take ownership until the finished product is shipped to us. In some
cases, fabrics are shipped directly from fabric
3
<PAGE>
manufacturers to our own manufacturing plants or to third party producers for
garment construction. In these traditional "Cut-Make-Trim" arrangements, we
retain ownership of the fabric throughout the manufacturing and finishing
process.
We require all third party producers who manufacture or finish products for us
to abide by a stringent code of conduct that sets guidelines for employment
practices such as wages and benefits, working hours, health and safety, working
age and disciplinary practices, and for environmental, ethical and legal
matters. We regularly assess manufacturing and finishing facilities to see if
they are complying with our code of conduct. Our program includes periodic
on-site facility inspections and continuous improvement activities. We also hire
independent monitors to supplement our efforts.
SOURCES OF SUPPLY
Our products are manufactured from cotton, linen, wool, silk, other natural
fibers, synthetics and blends of these materials. The majority of the materials
used in our manufacturing operations are purchased from numerous offshore
textile mills and converters in the form of woven or knitted finished fabrics.
In addition, many of our buttons, zippers, thread and other trim items are also
purchased from offshore suppliers. We do not have long-term raw materials
contracts with any of our principal suppliers.
We regard our access to offshore sources of raw materials, finished goods and
outside production as good. We are not dependent on any single source or third
party producer. No single supplier or third party producer accounts for a
material portion of our purchases or business. Alternative competitive sources
are available, and we do not anticipate significant difficulty in meeting our
supply and outside production requirements. There are occasions; however, where
we are unable to take customer orders on short notice because of the minimum
lead time required to produce a garment that is acceptable to the customer with
respect to cost, quantity, quality and service.
LOGISTICS
We operate seven dedicated distribution centers in the United States and we also
outsource distribution activities to third party logistics providers.
Distribution center activities include receiving finished goods from our plants
and contractors, inspecting those products and shipping them to our customers.
We continually explore opportunities in all of our regions to improve
efficiencies in both our in-bound and out-bound logistics activities.
4
<PAGE>
INTELLECTUAL PROPERTY
LICENSES
We have the right to use trademarks under license and design agreements with the
trademarks' owners. Principal menswear trademarks we have the right to use are:
o Oscar de la Renta for men's suits, sportcoats, vests, and dress and
casual slacks;
o Tommy Hilfiger for men's dress shirts and men's and women's golf
apparel;
o Nautica for men's tailored suits, sportcoats and dress slacks;
o Geoffrey Beene for men's tailored suits, sport coats, vests and
dress slacks; and
o Slates and Dockers for men's sportcoats and soft suitings.
The above mentioned license and design agreements will expire at various dates
through our fiscal 2007 year. Many of our licensing agreements are eligible for
renewal to extend the licenses through various dates from our fiscal 2004
through 2009 years.
Although we are not dependent on any single license and design agreement, we
believe our license and design agreements in the aggregate are of significant
value to our business.
TRADEMARKS
Principal menswear trademarks we own are "Lanier Clothes" and "Holbrook" for
men's suits and sportcoats, "Oxford Shirtings" and "Holbrook" for men's shirts,
"Oxford Golf" for golf apparel, "Travelers Worsted" for men's suits, "Everpress"
for men's slacks; "928" for young men's suited separates, and "Ely Cattleman",
"Cumberland Outfitters", "Ely Plains", "Ely Casuals", and "Plains" for men's
western wear.
Although we are not dependent on any single trademark, we believe our trademarks
in the aggregate are of significant value to our business.
5
<PAGE>
SEASONAL ASPECTS OF BUSINESS AND ORDER BACKLOG
SEASONAL ASPECTS OF BUSINESS
Although our business is impacted by the general seasonal trends characteristic
of the apparel and retail industries, we do not consider our revenue and
earnings to be highly seasonal. As the timing of product shipments and other
events affecting the retail business may vary, results for any particular
quarter may not be indicative of results for the full year.
ORDER BACKLOG
As of May 30, 2003 and May 31, 2002, we had booked orders amounting to
approximately $124,753,000 and $118,195,000, respectively, all of which will be
or were shipped within six months after each such date. These numbers represent
only store orders on hand and do not include private-label contract balances. A
growing percentage of our business consists of at-once EDI "Quick Response"
programs with large retailers. Replenishment shipments under these programs
generally possess such an abbreviated order life as to exclude them from the
order backlog completely. We therefore do not believe that this backlog
information is indicative of sales to be expected for the following year.
COMPETITION
We sell our products in a highly competitive domestic market in which numerous
U.S.-based and foreign manufacturers compete. No single manufacturer or small
group of manufacturers dominates the apparel industry. We believe we are one of
the largest designers, manufacturers, marketers and wholesalers of consumer
apparel products in the United States, but there are other apparel firms with
greater sales and financial resources.
Competition within the apparel industry is based upon styling, marketing, price,
quality, customer service and, with respect to branded and designer product
lines, consumer recognition and preference. We believe we compete effectively
with other members of the industry with regard to all of these factors.
Successful competition in styling and marketing is related to our ability to
foresee changes and trends in fashion and consumer preference and to present
appealing product programs to our customers. Successful competition in price,
quality and customer service is related to our ability to maintain efficiency in
production, sourcing and distribution.
Substantially all of the apparel sold by us and our principal competitors is
produced outside the United States. Most of the apparel sold by us and some of
our competitors is sold to customers on a landed, duty-paid basis after it is
imported into the United States. Some of our competitors sell apparel to their
customers, many of whom are also our customers, on a direct basis in which the
customer takes ownership in the country of production. In this direct sourcing
scenario, the customer handles the in-bound logistics and customs clearance.
Direct sourcing presents a competitive challenge to us as our customers purchase
apparel directly from the third party producers instead of from us. We believe
that the relative price advantage to retailers of direct sourcing is offset to
an extent by our ownership of, joint venture participation in or long term
relationships with foreign facilities and by services that we provide to our
customers such as delivery flexibility, manufacturing expertise, product
development and design and supply chain management. We are always upgrading and
streamlining our supply chain management technology
6
<PAGE>
and information systems which we believe will enable us to continue to
effectively compete against the direct sourcing alternative. In addition, in
recent years we have successfully transitioned some of our business to a direct
sales basis.
We believe that choosing the most competitive countries for the production of
our products is critical to our competitiveness. The most competitive location
to produce or source a particular product depends on a variety of factors. These
factors include availability of globally competitive fabric and other raw
materials, labor and manufacturing costs, ability to meet quality standards,
required lead times, logistics and the impact of international trade rules and
trade preference agreements and legislation on apparel exports from that country
to the United States.
TRADE REGULATION
International trade agreements, trade preference arrangements and trade
legislation are important because most apparel imports into the United States
are highly restricted. There are two key types of restrictions. First, there are
duties levied on the value of imported apparel. The duty rates on the cotton and
wool product categories that cover the majority of our products range from 15%
to 20%. Second, the United States has implemented restrictive quotas on the
importation of many classifications of textiles and apparel products from most
of the major apparel-producing countries, including most of the countries where
we produce apparel and including the cotton and wool product categories that
cover the majority of our products. These quota restraints place numerical
limits on the quantity of garments that may be imported into the U.S. in a given
year on a by country and by product category basis. The effect of these quotas
is to limit the amount of apparel that can be sourced in the countries that
offer the most competitive fabrics and most competitive apparel manufacturing.
As a result, a substantial portion of cotton and wool apparel imported into the
U.S. is sourced from countries that would not be the most competitive producers
in the absence of quotas.
Through December of 1994, these restraints were controlled pursuant to the
Multi-Fiber Arrangement, or the MFA, an international textile trade agreement to
which the United States was a party. During the Uruguay Round of the General
Agreement of Tariffs and Trade, the United States and other countries negotiated
a successor agreement to the MFA known as the Agreement on Textiles and
Clothing, or the ATC, which became effective on January 1, 1995.
The ATC requires that importing countries gradually phase out over a ten-year
period approximately half of the restrictive quotas on the importation of
textiles and apparel products that were in place on December 31, 1994. The
remaining quotas are to be eliminated on January 1, 2005. However, the ATC gives
importing countries such as the United States significant discretion in
determining when during the ten-year period quotas on particular products from
particular countries will be eliminated. The United States has announced a plan
that will keep quotas on most of the products produced by us for the entire
ten-year period. In addition, the ATC permits importing countries, under certain
conditions, to impose new quotas on the importation of textile and apparel
products during the ten-year phase out period. As a result, we believe the
extent to which the ATC will liberalize trade in our apparel products from now
until January 1, 2005 is not material.
When the ATC is fully implemented on January 1, 2005, the competitiveness of
many countries as apparel sourcing locations will change significantly.
Currently, we believe that the presence of quotas imposes a non-market
restriction on where apparel is sourced and prevents a substantial portion of
apparel destined for the U.S. market from being sourced in the countries that
offer most
7
<PAGE>
competitive fabric and the most competitive apparel garment manufacturing. We
believe that generally the most competitive fabrics and apparel manufacturing,
absent the non-market restrictions created by quotas, are in Asia and the Indian
sub-continent. Consequently, we believe that the elimination of quotas will
result in reduced apparel sourcing in the western hemisphere and increased
apparel sourcing in Asia and the Indian sub-continent. The market forces that
are likely to shift apparel sourcing out of the western hemisphere upon the
elimination of quotas may be partially offset by the reduced or zero duty rates
offered by free trade agreements and trade preference programs applicable to
western hemisphere countries particularly those in Latin America and the
Caribbean Basin.
Currently, there are various free trade agreements and trade preference
legislation that provide apparel importers including us with relief from duties
and quotas. These include, but are not limited to, the United States-Caribbean
Basin Trade Partnership Act, the African Growth and Opportunity Act, the North
American Free Trade Agreement, the Israel Free Trade Agreement and the Andean
Trade Promotion and Drug Eradication. The proposed Central America Free Trade
Agreement, Chile Free Trade Agreement, Dominican Republic Free Trade Agreement
and Free Trade of the Americas Agreement may also affect our manufacturing and
sourcing agreements in the future to the extent any of them are implemented. We
believe that by selecting the locations where we produce or source our products
based in part on trade regulations we are effective and will continue to be
effective in using various trade preference agreements and legislation to our
competitive advantage. We believe that our flexible manufacturing and sourcing
base allows us, and will continue to allow us, to source our products in the
most competitive countries.
EMPLOYEES
As of May 30, 2003, we employed 7,343 persons, of which 1,516 were employed in
the United States. Approximately 81% of our employees were hourly and incentive
paid production workers. We believe our employee relations are excellent.
AVAILABLE INFORMATION
Our internet address is www.oxfordinc.com. We make available free of charge on
www.oxfordinc.com our annual report on Form 10-K, quarterly reports on Form 10-Q
and current reports on Form 8-K, and amendments to those reports filed or
furnished pursuant to Section 13(a) or 15(d) of the Exchange Act, as soon as
reasonably practicable after we electronically file such material with, or
furnish it to, the SEC.
In addition, we will provide, at no cost, paper or electronic copies of our
reports and other filings made with the SEC. Requests should be directed to:
J. Reese Lanier, Jr.
Treasurer and Investor Relations Director
Oxford Industries, Inc.
222 Piedmont Avenue, N.E.
Atlanta, GA 30308
rlanier@oxfordinc.com
8
<PAGE>
The information on the website listed above, is not and should not be considered
part of this annual report on Form 10-K and is not incorporated by reference in
this document. This website is and is only intended to be an inactive textual
reference.
ITEM 2. PROPERTIES.
MANUFACTURING FACILITIES
We lease or own 10 foreign manufacturing facilities and one domestic support
facility. The Oxford Shirt Group owns plants in Honduras and Costa Rica, and
leases a factory in the Philippines. Oxford Slacks owns one facility in Mexico,
and leases three plants in the Dominican Republic. Lanier Clothes owns one plant
in Mexico, leases one factory in Honduras, and leases one manufacturing support
facility in Tupelo, Mississippi. The Oxford Womenswear Group leases one
manufacturing complex in Honduras.
DISTRIBUTION CENTERS AND COMBINED ADMINISTRATIVE FACILITIES
We own and lease five distribution centers, and five facilities that combine
distributive and administrative responsibilities. The Oxford Shirt Group owns a
combined facility in Lyons, Georgia, and leases a combined facility in Lebanon,
Tennessee. Oxford Slacks owns a combined facility in Monroe, Georgia. Lanier
Clothes owns one distribution center in Toccoa, Georgia and one in Greenville,
Georgia. The Oxford Womenswear Group owns one combined facility, and one
separate distribution center, in Gaffney, South Carolina, leases a combined
facility in Walhalla, South Carolina, and leases a distribution center in
Guatemala. Oxford Products International, Ltd., a wholly owned subsidiary of the
Company, leases one distribution center in Hong Kong.
CORPORATE OFFICES
Our key managerial and administrative functions take place in eight corporate
offices throughout the world. The Company owns its corporate headquarters
located in Atlanta, Georgia. Oxford Products International, Ltd., a wholly owned
subsidiary of the Company, leases office space in Hong Kong and Singapore. The
Oxford Shirt Group owns a workplace in Lyons, Georgia, and leases office space
in New York City. In addition, the Oxford Slacks Group, Lanier Clothes, and the
Oxford Womenswear Group all lease corporate offices in New York City.
ITEM 3. LEGAL PROCEEDINGS.
From time to time, we are a party to litigation arising in the ordinary course
of business. We are not currently a party to any litigation that we believe
could reasonably be expected to have a material adverse effect on our results of
operations or financial condition.
In 1993, we discovered that a substance believed to be dry cleaning fluid had
been disposed of at our Greenville, Georgia facility, and may have contaminated
the soil and groundwater at the facility and impacted a nearby municipal
drinking water source. In July 1994, we entered into a consent order with the
Georgia Department of Natural Resources, or GDNR, requiring us, among other
things, to pay a fine of $99,000 to GDNR, to address the soil and groundwater
contamination resulting from any past disposal practices, and to assist the
municipality in obtaining an alternate drinking water source. In 1996, after
investigating the extent of the contamination at the facility,
9
<PAGE>
based on advice from our environmental experts, we accrued $4,500,000 in
reserves based on an assumed remedy consisting of a pump-and-treat groundwater
remediation system. We believe this estimate of our potential liability
continues to be reasonable given recent discussions with our environmental
experts
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
Not applicable.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
Incorporated by reference to the table presented in Note P under the heading
"Common Stock Information" on page 40 of our 2003 Annual Report to Stockholders
(Exhibit 13 hereto). On August 18, 2003, there were 514 holders of record of our
common stock.
EQUITY COMPENSATION PLAN INFORMATION
<TABLE>
<CAPTION>
(A) (B) (C)
PLAN CATEGORY NUMBER OF SECURITIES TO BE WEIGHTED-AVERAGE NUMBER OF SECURITIES REMAINING AVAILABLE
- ------------- ISSUED UPON EXERCISE OF EXERCISE PRICE OF FOR FUTURE ISSUANCE UNDER EQUITY
OUTSTANDING OPTIONS, OUTSTANDING OPTIONS, COMPENSATION PLANS (EXCLUDING SECURITIES
WARRANTS AND RIGHTS WARRANTS AND RIGHTS REFLECTED IN COLUMN (A))
------------------- ------------------- ----------------------------------------
<S> <C> <C> <C>
EQUITY
COMPENSATION PLANS
APPROVED BY
SECURITY HOLDERS 483,580 $25 252,494
EQUITY
COMPENSATION PLANS
NOT APPROVED BY
SECURITY HOLDERS 0 0 0
TOTAL 483,580 $25 252,494
</TABLE>
ITEM 6. SELECTED FINANCIAL DATA.
Incorporated by reference to page 18 of our 2003 Annual Report to Stockholders
(Exhibit 13 hereto).
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
Incorporated by reference to page 19 through 28 of our 2003 Annual Report to
Stockholders (Exhibit 13 hereto).
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
Information appearing under the caption "Market Risk Sensitivity" on page 27 of
our 2003 Annual Report to Stockholders is incorporated herein by reference (See
Item 7, "Management's Discussion and Analysis of Financial Condition and Results
of Operations").
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<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The report of Ernst & Young LLP, independent auditors, and consolidated
financial statements, included on pages 29 through 42 of the Annual Report to
Stockholders for the year ended May 30, 2003 are incorporated herein by
reference. Quarterly Results of Operations on page 40 of the Annual Report to
Stockholders for the year ended May 30, 2003 is incorporated herein by
reference.
The report of Arthur Andersen LLP, independent public accountants, for the year
ended June 1, 2001 is as follows.
OXFORD INDUSTRIES INC., AND SUBSIDIARIES
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Oxford Industries, Inc.
We have audited the accompanying consolidated balance sheets of Oxford
Industries, Inc. (a Georgia corporation) and Subsidiaries as of June 1, 2001 and
June 2, 2000 and the related consolidated statements of earnings, stockholders'
equity, and cash flows for each of the three years in the period ended June 1,
2001. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Oxford Industries, Inc. and
subsidiaries as of June 1, 2001 and June 2, 2000 and the results of their
operations and their cash flows for each of the three years in the period ended
June 1, 2001 in conformity with accounting principles generally accepted in the
United States.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
July 13, 2001
NOTE: THIS IS A COPY OF A REPORT PREVIOUSLY ISSUED BY ARTHUR ANDERSEN LLP, OUR
FORMER INDEPENDENT ACCOUNTANTS. THIS REPORT HAS NOT BEEN REISSUED BY
ARTHUR ANDERSEN LLP IN CONNECTION WITH THE FILING OF THIS ANNUAL REPORT ON
FORM 10-K.
11
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
Effective May 22, 2002, we appointed Ernst & Young LLP ("Ernst & Young") as our
independent auditors. The decision to replace Arthur Andersen LLP ("Andersen")
as our independent public accountants was approved by our Board of Directors
upon the recommendation of our Audit Committee.
During our fiscal 2002 year and through the date of the Form 8-K filed on May
22, 2002, there were no disagreements between us and Andersen on any matter of
accounting principles or practices, financial statement disclosure, or auditing
scope or procedure, which disagreements if not resolved to Andersen's
satisfaction would have caused them to make reference to the subject matter of
the disagreement in connection with their reports.
None of the reportable events described under Item 304(a)(1)(v) of Regulation
S-K occurred within our two most recent fiscal years or through the date of the
Form 8-K filed on May 22, 2002.
The audit report of Andersen on our consolidated financial statements for our
fiscal 2001 year did not contain any adverse opinion or disclaimer of opinion,
nor were was it qualified or modified as to uncertainty, audit scope, or
accounting principles. A letter from Andersen is attached as Exhibit 16.1.
During our fiscal 2002 year and through the date of the Form 8-K filed on May
22, 2002, we did not consult Ernst & Young with respect to the application of
accounting principles to a specified transaction, either completed or proposed,
or the type of audit opinion that might be rendered on our consolidated
financial statements, or any other matters or reportable events listed in Items
304(a)(2)(i) and (ii) of Regulation S-K.
ITEM 9A. CONTROLS AND PROCEDURES
As of the end of the period covered by this report, we conducted an evaluation,
under the supervision and with the participation of our principal executive
officer and principal financial officer, of our disclosure controls and
procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities
Exchange Act of 1934 (the "Exchange Act")). Based on this evaluation, our
principal executive officer and principal financial officer concluded that our
disclosure controls and procedures are effective to ensure that information we
are required to disclosed in reports that we file or submit under the Exchange
Act is recorded, processed, summarized and reported within the time periods
specified in Securities and Exchange Commission rules and forms. There was no
change in our internal control over financial reporting during our most recently
completed fiscal quarter that has materially affected, or is reasonably likely
to materially affect, our internal control over financial reporting.
12
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
Information required by this item covering our directors is incorporated by
reference to the information presented under the heading "Election of Directors
- - Directors and Nominees" in the Company's Proxy Statement, which will be filed
with the Securities and Exchange Commission not later than 120 days after May
30, 2003. Information regarding our executive officers is set forth below.
<TABLE>
<CAPTION>
Name Age Office Held
- ---- --- -----------
<S> <C> <C>
J. Hicks Lanier 63 Chairman of the Board, President and
Chief Executive Officer
Ben B. Blount, Jr 64 Executive Vice President -- Finance
Planning and Administration and Chief
Financial Officer
L. Wayne Brantley 61 Group Vice President
R. Larry Johnson 64 Group Vice President
Knowlton J. O'Reilly 63 Group Vice President
</TABLE>
Messrs. J. Hicks Lanier, Ben B. Blount, Jr. and Knowlton J. O'Reilly are also
directors. The Board of Directors of the Company elects executive officers
annually.
Mr. J. Hicks Lanier has served as President since 1977. In 1981, he was elected
as Chairman of the Board.
Mr. Ben B. Blount, Jr. was Executive Vice President -- Planning and Development
from 1986 - 1995. Mr. Blount was President of Kayser Roth Apparel, an apparel
manufacturer and marketer, from 1982 to 1986. Prior to 1982 he was Group Vice
President. In 1995 he was elected to serve in his present position as Executive
Vice President of Finance, Planning and Administration and Chief Financial
Officer.
Mr. Knowlton J. O'Reilly has served as Group Vice President since 1978.
Messrs. L. Wayne Brantley and R. Larry Johnson have served as Group Vice
Presidents since 1997.
13
<PAGE>
ITEM 11. EXECUTIVE COMPENSATION.
Incorporated by reference to the information presented under the heading
"Executive Compensation and Other Information" in our Proxy Statement, which
will be filed with the Securities and Exchange Commission not later than 120
days after May 30, 2003.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
Incorporated by reference to the information presented under the heading
"Beneficial Ownership of Common Stock" in our Proxy Statement, which will be
filed with the Securities and Exchange Commission not later than 120 days after
May 30, 2003.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
Incorporated by reference to the information presented under the heading
"Executive Compensation and Other Information - Compensation Committee
Interlocks and Insider Participation" in our Proxy Statement, which will be
filed with the Securities and Exchange Commission not later than 120 days after
May 30, 2003.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES.
Incorporated by reference to the information presented under the heading "Fees
Paid To Auditors" in our Proxy Statement, which will be filed with the
Securities and Exchange Commission not later than 120 days after May 30, 2003.
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K.
(a) 1. Financial Statements
The following consolidated financial statements of Oxford Industries, Inc. and
Subsidiaries, included in the annual report of the registrant to its
stockholders for the fiscal year ended May 30, 2003 are incorporated by
reference in Item 8.
Consolidated Balance Sheets at May 30, 2003 and May 31, 2002
Consolidated Statements of Earnings for the years ended May 30, 2003, May 31,
2002 and June 1, 2001
Consolidated Statements of Stockholders' Equity for the years ended May 30,
2003, May 31, 2002 and June 1, 2001
Consolidated Statements of Cash Flows for the years ended May 30, 2003, May 31,
2002 and June 1, 2001
Notes to Consolidated Financial Statements for the years ended May 30, 2003, May
31, 2002 and June 1, 2001
14
<PAGE>
2. Financial Statement Schedules
All schedules for which provision is made in the applicable accounting
regulation of the Securities and Exchange Commission are not required under the
related instructions or are inapplicable and therefore have been omitted.
3. Exhibits
3(a) Articles of Incorporation of the Company. Incorporated by reference
to Exhibit 3(a) to the Company's Form 10-Q for the fiscal quarter
ended August 29, 1997.
3(b) Bylaws of the Company. Incorporated by reference to Exhibit 3(b) to
the Company's Form 10-K for the fiscal year ended May 28, 1999.
10(a) 1997 Stock Option Plan. Incorporated by reference to Exhibit 10(a)
to the Company's Form 10-K for the fiscal year ended May 31, 2002.
10(b) 1997 Restricted Stock Plan. Incorporated by reference to Exhibit
10(b) to the Company's Form 10-K for the fiscal year ended May 31,
2002.
10(c) Non-qualified Deferred Compensation Plan. Incorporated by reference
to Exhibit 10(c), to the Company's Form 10-K for the fiscal year
ended June 1, 2001.
10(e) Executive Medical Reimbursement Plan. Incorporated by reference to
Exhibit 10(e), to the Company's Form 10-K for the fiscal year ended
June 1, 2001.
10(h) 1992 Stock Option Plan. Incorporated by reference to Exhibit 10(h),
to the Company's Form 10-K for the fiscal year ended June 1, 2001
10(j) Accounts receivable sale agreement between Oxford Industries, Inc.
and Oxford Receivables Company. Incorporated by reference to Exhibit
10(j), to the Company's Form 10-K for the fiscal year ended June 1,
2001.
10(k) Loan agreement between Oxford Receivables Company and Three Pillars
Funding Corporation Incorporated by reference to Exhibit 10(k) , to
the Company's Form 10-K for the fiscal year ended June 1, 2001.
10(l) Liquidity Asset Purchase Agreement between SunTrust Bank and
Three Pillars Funding Corporation. Incorporated to Exhibit 10(l), to
the Company's Form 10-K for the fiscal year ended June 1, 2001.
10(m) Omnibus Amendment No. 1. Amendment to the accounts receivable sale
and accounts receivable loan agreements (Exhibits 10(j) and 10(k)
dated January 31, 2002. Incorporated by reference to Exhibit 10(m),
to the Company's Form 10-Q for the quarter ended March 1, 2002.
10(n) Indenture agreement between Oxford Industries Inc. and SunTrust
Bank.
10(o) Credit Agreement between Oxford Industries, Inc and SunTrust Bank.
15
<PAGE>
13 2003 Annual Report to Stockholders (furnished for the information of
the Commission and not deemed "filed" or part of this Form 10-K
except for those portions expressly incorporated herein by
reference).
16.1 Letter of Arthur Andersen LLP regarding change in certifying
accountant. Incorporated by reference to Exhibit 16.1 the Company's
Form 10-K for the fiscal year ended May 31, 2002.
23 Consent of Independent Auditors.
24 Powers of Attorney.
31.1 Certification by Chief Executive Officer and Chief Financial Officer
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1 Certification by Chief Executive Officer and Chief Financial Officer
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
We agree to file upon request of the Securities and Exchange Commission a copy
of all agreements evidencing long-term debt of ours omitted from this report
pursuant to Item 601(b)(4)(iii) of Regulation S-K.
Shareholders may obtain copies of Exhibits without charge upon written request
to the Corporate Secretary, Oxford Industries, Inc., 222 Piedmont Avenue, N.E.,
Atlanta, Georgia 30308.
(b) We filed the following Form 8-K's during the last quarter of the period
covered by this report.
A report on Form 8-K was filed on April 28, 2003 for Item 5. Other events for
two press releases dated April 27, 2003. One for a senior note offering and one
for the acquisition of Viewpoint International, Inc.
A report on Form 8-K was filed on April 28, 2003 for Item 5. Other events for
additional information regarding the acquisition of Viewpoint International,
Inc.
A report on Form 8-K was filed on April 28, 2003 for Item 5. Other events for
the consent of Mahoney Cohen & Company, CPA, P.C.
A report on Form 8-K was filed on April 2, 2003 for Item 12. Other events for
the third quarter earnings release.
16
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Company has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
Oxford Industries, Inc.
/s/J. Hicks Lanier
------------------
J. Hicks Lanier
Chairman and President
Date: August 28, 2003
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the Company in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/J. Hicks Lanier President, Chief Executive August 28, 2003
- ------------------ Officer and Director
J. Hicks Lanier
/s/Ben B. Blount, Jr. Executive Vice President, Chief August 28, 2003
- --------------------- Financial Officer and Director
Ben B. Blount, Jr.
/s/K. Scott Grassmyer Controller August 28, 2003
- ---------------------
K. Scott Grassmyer
/s/Thomas Caldecot Chubb III Director August 28, 2003
- ----------------------------
Cecil D. Conlee*
/s/Thomas Caldecot Chubb III Director August 28, 2003
- ----------------------------
Thomas Gallagher*
/s/Thomas Caldecot Chubb II Director August 28, 2003
- ---------------------------
J. Reese Lanier*
/s/Thomas Caldecot Chubb III Director August 28, 2003
- ----------------------------
Knowlton J. O'Reilly*
*by power of attorney
</TABLE>
17
<PAGE>
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/Thomas Caldecot Chubb III Director August 28, 2003
- ----------------------------
Clarence B. Rogers, Jr.*
/s/Thomas Caldecot Chubb III Director August 28, 2003
- ----------------------------
Robert E. Shaw*
/s/Thomas Caldecot Chubb III Director August 28, 2003
- ----------------------------
E. Jenner Wood*
/s/Thomas Caldecot Chubb III Director August 28, 2003
- ----------------------------
Helen B. Weeks*
*by power of attorney
</TABLE>
18
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.(N)
<SEQUENCE>3
<FILENAME>g84730exv10wxny.txt
<DESCRIPTION>EX-10.(N) INDENTURE AGREEMENT
<TEXT>
<PAGE>
Exhibit 10 N
OXFORD INDUSTRIES, INC., as Issuer,
LIONSHEAD CLOTHING COMPANY, INC.
MERONA INDUSTRIES, INC.
OXFORD CARIBBEAN, INC.
OXFORD GARMENT, INC.
OXFORD PRIVATE LIMITED OF DELAWARE, INC.
OXFORD RECEIVABLES COMPANY
OXFORD CLOTHING
OXFORD INTERNATIONAL, INC.
OXFORD OF SOUTH CAROLINA
PIEDMONT APPAREL CORPORATION,
as Guarantors,
and
SunTrust Bank, as Trustee
-----------------
INDENTURE
Dated as of May 16, 2003
-----------------
$200,000,000
8 7/8% Senior Notes due 2011
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939,
as amended, and Indenture, dated as of May 16, 2003
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C> <C>
Section 310 (a)(1)......................................................................... 609
(a)(2)......................................................................... 609
(a)(3)......................................................................... N/A
(a)(4)......................................................................... N/A
(b)............................................................................ 608, 610
Section 311 (a)............................................................................ 613
(c)............................................................................ Not Applicable
Section 312 (a)............................................................................ 701
(b)............................................................................ 702
(c)............................................................................ 702
Section 313 (a)............................................................................ 703
(b)............................................................................ N/A
(c)............................................................................ 106
Section 314 (a)............................................................................ 704
(a)(4)......................................................................... 1019
(b)............................................................................ Not Applicable
(c)............................................................................ 103, 104, 404, 1201
(d)............................................................................ Not Applicable
(e)............................................................................ 103
Section 315 (a)............................................................................ 601(b)
(b)............................................................................ 602
(c)............................................................................ 601(a)
(d)............................................................................ 601(c), 603
(e)............................................................................ 514
Section 316 (a)(last sentence)............................................................. 101 ("Outstanding")
(a)(1)(A)...................................................................... 502, 512
(a)(1)(B)...................................................................... 513
(a)(2)......................................................................... Not Applicable
(b)............................................................................ 508
(c)............................................................................ 105
Section 317 (a)(1)......................................................................... 503
(a)(2)......................................................................... 504
(b)............................................................................ 1003
Section 318 (a)............................................................................ 108
</TABLE>
- -------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.................................................................................. 1
Acquired Indebtedness...................................................................................... 2
Acquisition................................................................................................ 2
Acquisition Agreements..................................................................................... 2
Additional Securities...................................................................................... 2
Adjusted Treasury Rate..................................................................................... 2
Affiliate.................................................................................................. 3
Applicable Procedures...................................................................................... 3
Acquisition................................................................................................ 3
Asset Sale................................................................................................. 3
Attributable Debt.......................................................................................... 4
Average Life to Stated Maturity............................................................................ 4
Bankruptcy Law............................................................................................. 4
Board of Directors......................................................................................... 4
Board Resolution........................................................................................... 4
Book-Entry Security........................................................................................ 4
Business Day............................................................................................... 5
Capital Lease Obligation................................................................................... 5
Capital Stock.............................................................................................. 5
Cash Equivalents........................................................................................... 5
Change of Control.......................................................................................... 5
Clearstream................................................................................................ 6
Collateral................................................................................................. 6
Commission................................................................................................. 6
Commodity Price Protection Agreement....................................................................... 7
Company.................................................................................................... 7
Company Request............................................................................................ 7
Comparable Treasury Issue.................................................................................. 7
Comparable Treasury Price.................................................................................. 7
Consolidated Fixed Charge Coverage Ratio................................................................... 7
Consolidated Income Tax Expense............................................................................ 8
Consolidated Interest Expense.............................................................................. 8
Consolidated Net Income (Loss)............................................................................. 9
Consolidated Net Tangible Assets.......................................................................... 10
Consolidated Non-cash Charges............................................................................. 10
Consolidation............................................................................................. 10
Corporate Trust Office.................................................................................... 10
Credit Agreement.......................................................................................... 10
</TABLE>
- i -
<PAGE>
<TABLE>
<S> <C>
Credit Facility........................................................................................... 10
Cumulative Additional Earn-Out Payment.................................................................... 11
Custodian................................................................................................. 11
Currency Hedging Agreements............................................................................... 11
Deadline.................................................................................................. 11
Default................................................................................................... 11
Depositary................................................................................................ 11
Designated Non-cash Consideration......................................................................... 11
Disinterested Director.................................................................................... 11
Earn-Out Agreement........................................................................................ 11
Earn-Out Year............................................................................................. 11
Equity Offering........................................................................................... 12
Escrow Agreement.......................................................................................... 12
Escrowed Property......................................................................................... 12
Euroclear................................................................................................. 12
Event of Default.......................................................................................... 12
Exchange Act.............................................................................................. 12
Exchange Offer............................................................................................ 12
Exchange Offer Registration Statement..................................................................... 12
Exchange Securities....................................................................................... 12
Fair Market Value......................................................................................... 12
Foreign Subsidiary........................................................................................ 12
Generally Accepted Accounting Principles.................................................................. 12
Global Securities......................................................................................... 12
Guarantee................................................................................................. 13
Guaranteed Debt........................................................................................... 13
Guarantor................................................................................................. 13
Holder.................................................................................................... 13
IAI Global Securities..................................................................................... 13
Indebtedness.............................................................................................. 13
Indenture................................................................................................. 14
Indenture Obligations..................................................................................... 14
Independent Investment Banker............................................................................. 15
Initial Purchasers........................................................................................ 15
Initial Securities........................................................................................ 15
Institutional Accredited Investor......................................................................... 15
Interest Payment Date..................................................................................... 15
Interest Rate Agreements.................................................................................. 15
Investment................................................................................................ 15
Issue Date................................................................................................ 15
Lien...................................................................................................... 15
Material Indebtedness..................................................................................... 16
Maturity.................................................................................................. 16
Moody's................................................................................................... 16
Net Cash Proceeds......................................................................................... 16
Non-recourse Indebtedness................................................................................. 17
Non-U.S. Person........................................................................................... 17
Officers' Certificate..................................................................................... 17
Opinion of Counsel........................................................................................ 17
</TABLE>
- ii -
<PAGE>
<TABLE>
<S> <C>
Opinion of Independent Counsel............................................................................ 17
Outstanding............................................................................................... 17
Pari Passu Indebtedness................................................................................... 18
Paying Agent.............................................................................................. 18
Permitted Business........................................................................................ 18
Permitted Investment...................................................................................... 18
Permitted Lien............................................................................................ 19
Person.................................................................................................... 22
Predecessor Security...................................................................................... 22
Preferred Stock........................................................................................... 22
Purchase Money Obligation................................................................................. 22
Qualified Capital Stock................................................................................... 22
Qualified Securitization Transaction...................................................................... 22
Receivables and Related Assets............................................................................ 22
Redeemable Capital Stock.................................................................................. 23
Redemption Date........................................................................................... 23
Redemption Price.......................................................................................... 23
Reference Treasury Dealer................................................................................. 23
Reference Treasury Dealer Quotations...................................................................... 23
Registration Rights Agreement............................................................................. 23
Registration Statement.................................................................................... 23
Regular Record Date....................................................................................... 23
Regulation S.............................................................................................. 23
Regulation S Global Securities............................................................................ 23
Related Business Entity................................................................................... 23
Release................................................................................................... 24
Replacement Assets........................................................................................ 24
Responsible Officer....................................................................................... 24
Restricted Subsidiary..................................................................................... 24
Rule 144A................................................................................................. 24
Rule 144A Global Securities............................................................................... 24
S&P....................................................................................................... 24
Securities................................................................................................ 24
Securities Act............................................................................................ 24
Securities Control Agreement.............................................................................. 24
Securities Intermediary................................................................................... 24
Security Documents........................................................................................ 24
Securitization Entity..................................................................................... 25
Shelf Registration Statement.............................................................................. 25
Significant Subsidiary.................................................................................... 25
Special Mandatory Redemption.............................................................................. 25
Special Mandatory Redemption Date......................................................................... 26
Special Mandatory Redemption Price........................................................................ 26
Special Record Date....................................................................................... 26
Standard Securitization Undertakings...................................................................... 26
Stated Maturity........................................................................................... 26
Stock Purchase Agreement.................................................................................. 26
Subordinated Indebtedness................................................................................. 26
Subsidiary................................................................................................ 26
</TABLE>
- iii -
<PAGE>
<TABLE>
<S> <C>
Successor Security........................................................................................ 26
Trust Indenture Act....................................................................................... 26
Trustee................................................................................................... 26
Unrestricted Global Securities............................................................................ 27
Unrestricted Subsidiary................................................................................... 27
Viewpoint................................................................................................. 27
Voting Stock.............................................................................................. 27
Wholly Owned Restricted Subsidiary........................................................................ 27
Section 102. Other Definitions........................................................................... 27
Section 103. Compliance Certificates and Opinions........................................................ 28
Section 104. Form of Documents Delivered to Trustee...................................................... 29
Section 105. Acts of Holders............................................................................. 29
Section 106. Notices, etc., to the Trustee, the Company and any Guarantor................................ 31
Section 107. Notice to Holders; Waiver................................................................... 31
Section 108. Conflict with Trust Indenture Act........................................................... 31
Section 109. Effect of Headings and Table of Contents.................................................... 32
Section 110. Successors and Assigns...................................................................... 32
Section 111. Separability Clause......................................................................... 32
Section 112. Benefits of Indenture....................................................................... 32
Section 113. Governing Law............................................................................... 32
Section 114. Legal Holidays.............................................................................. 32
Section 115. Schedules and Exhibits...................................................................... 32
Section 116. Counterparts................................................................................ 32
Section 117. No Personal Liability of Directors, Officers, Employees or Stockholders..................... 33
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally............................................................................. 33
Section 202. Form of Face of Security.................................................................... 34
Section 203. Form of Reverse of Securities............................................................... 49
Section 204. Form of Guarantee........................................................................... 57
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms............................................................................. 58
Section 302. Denominations............................................................................... 59
Section 303. Execution, Authentication, Delivery and Dating.............................................. 59
Section 304. Temporary Securities........................................................................ 60
Section 305. Registration, Registration of Transfer and Exchange......................................... 60
Section 306. Book Entry Provisions for Global Securities................................................. 62
Section 307. Special Transfer and Exchange Provisions.................................................... 63
Section 308. Mutilated, Destroyed, Lost and Stolen Securities............................................ 66
Section 309. Payment of Interest; Interest Rights Preserved.............................................. 67
Section 310. CUSIP Numbers............................................................................... 68
Section 311. Persons Deemed Owners....................................................................... 68
</TABLE>
- iv -
<PAGE>
<TABLE>
<S> <C>
Section 312. Cancellation................................................................................ 69
Section 313. Computation of Interest..................................................................... 69
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Company's Option to Effect Defeasance or Covenant Defeasance................................ 69
Section 402. Defeasance and Discharge.................................................................... 69
Section 403. Covenant Defeasance......................................................................... 70
Section 404. Conditions to Defeasance or Covenant Defeasance............................................. 70
Section 405. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions...................................................... 72
Section 406. Reinstatement............................................................................... 72
ARTICLE FIVE
REMEDIES
Section 501. Events of Default........................................................................... 73
Section 502. Acceleration of Maturity; Rescission and Annulment.......................................... 74
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee............................. 76
Section 504. Trustee May File Proofs of Claim............................................................ 76
Section 505. Trustee May Enforce Claims without Possession of Securities................................. 77
Section 506. Application of Money Collected.............................................................. 77
Section 507. Limitation on Suits......................................................................... 78
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest................... 78
Section 509. Restoration of Rights and Remedies.......................................................... 78
Section 510. Rights and Remedies Cumulative.............................................................. 79
Section 511. Delay or Omission Not Waiver................................................................ 79
Section 512. Control by Holders.......................................................................... 79
Section 513. Waiver of Past Defaults..................................................................... 79
Section 514. Undertaking for Costs....................................................................... 80
Section 515. Waiver of Stay, Extension or Usury Laws..................................................... 80
Section 516. Remedies Subject to Applicable Law.......................................................... 80
ARTICLE SIX
THE TRUSTEE
Section 601. Duties of Trustee........................................................................... 80
Section 602. Notice of Defaults.......................................................................... 81
Section 603. Certain Rights of Trustee................................................................... 82
Section 604. Trustee Not Responsible for Recitals, Dispositions of Securities or
Application of Proceeds Thereof........................................................... 83
Section 605. Trustee and Agents May Hold Securities; Collections; etc.................................... 83
Section 606. Money Held in Trust......................................................................... 83
Section 607. Compensation and Indemnification of Trustee and Its Prior Claim............................. 83
Section 608. Conflicting Interests....................................................................... 85
Section 609. Trustee Eligibility......................................................................... 85
</TABLE>
- v -
<PAGE>
<TABLE>
<S> <C>
Section 610. Resignation and Removal; Appointment of Successor Trustee................................... 85
Section 611. Acceptance of Appointment by Successor...................................................... 86
Section 612. Merger, Conversion, Consolidation or Succession to Business................................. 87
Section 613. Preferential Collection of Claims Against Company........................................... 87
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders................................... 88
Section 702. Disclosure of Names and Addresses of Holders................................................ 88
Section 703. Reports by Trustee.......................................................................... 88
Section 704. Reports by Company and Guarantors........................................................... 88
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF ASSETS
Section 801. Company and Guarantors May Consolidate, etc., Only on Certain Terms......................... 89
Section 802. Successor Substituted....................................................................... 91
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements without Consent of Holders........................... 91
Section 902. Supplemental Indentures and Agreements with Consent of Holders.............................. 92
Section 903. Execution of Supplemental Indentures and Agreements......................................... 93
Section 904. Effect of Supplemental Indentures........................................................... 93
Section 905. Conformity with Trust Indenture Act......................................................... 93
Section 906. Reference in Securities to Supplemental Indentures.......................................... 94
Section 907. Notice of Supplemental Indentures........................................................... 94
Section 908. Revocation and Effects of Consents.......................................................... 94
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.................................................. 94
Section 1002. Maintenance of Office or Agency............................................................. 94
Section 1003. Money for Security Payments to Be Held in Trust............................................. 95
Section 1004. Corporate Existence......................................................................... 96
Section 1005. Payment of Taxes and Other Claims........................................................... 96
Section 1006. Maintenance of Properties................................................................... 97
Section 1007. Waiver of Certain Covenants................................................................. 97
Section 1008. Limitation on Indebtedness.................................................................. 97
Section 1009. Limitation on Restricted Payments.......................................................... 101
Section 1010. Limitation on Transactions with Affiliates................................................. 105
Section 1011. Limitation on Liens........................................................................ 106
</TABLE>
- vi -
<PAGE>
<TABLE>
<S> <C>
Section 1012. Limitation on Sale of Assets............................................................... 106
Section 1013. Limitation on Issuances of Guarantees of Indebtedness...................................... 111
Section 1014. Purchase of Securities upon a Change of Control............................................ 111
Section 1015. Limitation on Subsidiary Preferred Stock................................................... 114
Section 1016. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries............... 115
Section 1017. Limitations on Unrestricted Subsidiaries................................................... 116
Section 1018. Provision of Financial Statements.......................................................... 118
Section 1019. Statement by Officers as to Default........................................................ 118
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Rights of Redemption....................................................................... 119
Section 1102. Applicability of Article................................................................... 119
Section 1103. Election to Redeem; Notice to Trustee...................................................... 120
Section 1104. Selection by Trustee of Securities to Be Redeemed.......................................... 120
Section 1105. Notice of Redemption....................................................................... 120
Section 1106. Deposit of Redemption Price................................................................ 121
Section 1107. Securities Payable on Redemption Date...................................................... 121
Section 1108. Securities Redeemed or Purchased in Part................................................... 122
Section 1109. Special Mandatory Redemption; Notices to Trustee and Securities Intermediary............... 122
Section 1110. Notice of Special Mandatory Redemption to Holders.......................................... 122
Section 1111. Effect of Notice of Special Mandatory Redemption........................................... 123
Section 1112. Deposit of Special Mandatory Redemption Price.............................................. 123
Section 1113. No Other Mandatory Redemptions............................................................. 123
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 1201. Satisfaction and Discharge of Indenture.................................................... 123
Section 1202. Application of Trust Money................................................................. 124
ARTICLE THIRTEEN
GUARANTEES
Section 1301. Guarantors' Guarantee...................................................................... 125
Section 1302. Continuing Guarantee; No Right of Set-Off; Independent Obligation.......................... 125
Section 1303. Guarantee Absolute......................................................................... 126
Section 1304. Right to Demand Full Performance........................................................... 128
Section 1305. Waivers.................................................................................... 128
Section 1306. The Guarantors Remain Obligated in Event the Company Is No Longer
Obligated to Discharge Indenture Obligations............................................. 129
Section 1307. Fraudulent Conveyance; Contribution; Subrogation........................................... 129
Section 1308. Guarantee Is in Addition to Other Security................................................. 129
Section 1309. Release of Security Interests.............................................................. 130
Section 1310. No Bar to Further Actions.................................................................. 130
</TABLE>
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<TABLE>
<S> <C>
Section 1311. Failure to Exercise Rights Shall Not Operate as a Waiver; No Suspension of Remedies........ 130
Section 1312. Trustee's Duties; Notice to Trustee........................................................ 130
Section 1313. Successors and Assigns..................................................................... 130
Section 1314. Release of Guarantee....................................................................... 131
Section 1315. Execution of Guarantee..................................................................... 131
ARTICLE FOURTEEN
SECURITY DOCUMENTS
Section 1401. Security Documents......................................................................... 132
Section 1402. Release of Collateral...................................................................... 132
Section 1403. Certificates of the Company................................................................ 132
Section 1404. Certificates of the Trustee................................................................ 132
Section 1405. Authorization of Actions To Be Taken by the Trustee Under the Security Documents........... 133
Section 1406. Documents.................................................................................. 133
Section 1407. Termination of Security Interest........................................................... 133
</TABLE>
TESTIMONIUM
SIGNATURE AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A Regulation S Certificate
EXHIBIT B Restricted Securities Certificate
EXHIBIT C Institutional Accredited Investor Certificate
EXHIBIT D Unrestricted Security Certificate
EXHIBIT E Form of Supplemental Indenture
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<PAGE>
INDENTURE, dated as of May 16, 2003, among Oxford Industries,
Inc., a Georgia corporation (the "Company"), and Lionshead Clothing Company,
Inc., a Delaware corporation, Merona Industries Inc., a Delaware corporation,
Oxford Caribbean, Inc., a Delaware corporation, Oxford Garment, Inc., a Delaware
corporation, Oxford Private Limited of Delaware, Inc., a Delaware corporation,
Oxford Receivables Company, a Delaware corporation, Oxford Clothing, a Georgia
corporation, Oxford International, Inc., a Georgia corporation, Oxford of South
Carolina, a South Carolina corporation and Piedmont Apparel Corporation, a
Delaware corporation, as Guarantors (the "Guarantors"), and SunTrust Bank, as
trustee (the "Trustee").
RECITALS OF THE COMPANY AND THE GUARANTORS
The Company has duly authorized the creation of an issue of 8
7/8% Senior Notes due 2011 (the "Initial Securities"), and, when and if issued
in an Exchange Offer, an issue of 8 7/8% Senior Notes due 2011 (the "Exchange
Securities" and, together with the Initial Securities, the "Securities"), of
substantially the tenor and amount hereinafter set forth (subject to the ability
of the Company to issue additional Securities hereunder as described herein),
and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture and the Securities;
Each Guarantor has duly authorized the issuance of a Guarantee
of the Securities, of substantially the tenor hereinafter set forth, and to
provide therefor, each Guarantor has duly authorized the execution and delivery
of this Indenture and its Guarantee;
Upon the issuance of the Exchange Securities, this Indenture
is subject to, and shall be governed by, the provisions of the Trust Indenture
Act that are required to be part of and to govern indentures qualified under the
Trust Indenture Act;
All things necessary have been done to make (i) the
Securities, when duly issued and executed by the acts and Company and
authenticated and delivered hereunder, the valid obligations of the Company,
(ii) the Guarantees, when executed by each of the Guarantors and delivered
hereunder, the valid obligation of each of the Guarantors and (iii) this
Indenture a valid agreement of the Company and each of the Guarantors in
accordance with the terms of this Indenture;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
<PAGE>
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(e) all references to $, US$, dollars or United States
dollars shall refer to the lawful currency of the United States of America; and
(f) all references herein to particular Sections or
Articles refer to this Indenture unless otherwise so indicated.
Certain terms used principally in Article Four are defined in
Article Four.
"Acquired Indebtedness" means, with respect to any specified
Person, Indebtedness of any other Person (1) existing at the time such other
Person is consolidated or merged with or into, or became a Subsidiary of, such
specified Person, whether or not such Indebtedness is incurred in connection
with, or in contemplation of, such other Person consolidating or merging with or
into, or becoming a Subsidiary of, such specified Person, or (2) assumed in
connection with the acquisition of assets from such other Person, in each case,
other than Indebtedness incurred in connection with, or in contemplation of such
acquisition, as the case may be. Notwithstanding the foregoing, Acquired
Indebtedness shall not include Indebtedness of such other Person that is
extinguished, retired or repaid concurrently with such other Person becoming a
Restricted Subsidiary of, or at the time it is consolidated or merged with or
into, such specified Person.
"Acquisition" means the consummation of the acquisition by the
Company of all of the outstanding capital stock of Viewpoint.
"Acquisition Agreements" means the Stock Purchase Agreement,
Earn-Out Agreement, Escrow Agreement and Employment Agreements (each as defined
in the Stock Purchase Agreement) and any other agreements entered into in
connection with the transactions contemplated by the Stock Purchase Agreement.
"Additional Securities" means further Securities (other than
the Initial Securities) issued under this Indenture in accordance with the terms
of this Indenture including, Sections 303 and 1108 hereof, as part of the same
series as the Initial Securities, ranking equally with the Initial Securities in
all respects (other than the issuance dates and at the option of the Company the
date from which interest will accrue), subject to compliance with Section 1008
herein. The Initial Securities and any Additional Securities subsequently issued
under this Indenture shall be treated as a single class for all purposes under
this Indenture, including, without limitation, waivers, amendments, redemptions,
and offers to purchase.
"Adjusted Treasury Rate" means the rate per annum equal to the
semiannual equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as a percentage of
the principal amount) equal to the Comparable Treasury Price for the Redemption
Date, calculated in accordance with standard market practice.
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<PAGE>
"Affiliate" means, with respect to any specified Person: (1)
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person; (2) any other
Person that owns, directly or indirectly, 10% or more of any class or series of
such specified Person's (or any of such Person's direct or indirect parent's)
Capital Stock or any officer or director of any such specified Person or other
Person or, with respect to any natural Person, any Person having a relationship
with such Person by blood, marriage or adoption not more remote than first
cousin; or (3) any other Person 10% or more of the Voting Stock of which is
beneficially owned or held directly or indirectly by such specified Person. For
the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, Euroclear and
Clearstream, in each case to the extent applicable to such transaction and as in
effect at the time of such transfer or transaction.
"Acquisition" means the acquisition by the Company of the
Capital Stock of Viewpoint International, Inc.
"Asset Sale" means any sale, issuance, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of:
(1) any Capital Stock of any Restricted
Subsidiary;
(2) all or substantially all of the properties
and assets of any division or line of business of the Company or any
Restricted Subsidiary; or
(3) any other properties or assets of the
Company or any Restricted Subsidiary other than in the ordinary course
of business.
For the purposes of this definition, the term "Asset Sale"
shall not include any transfer of properties and assets
(A) that is governed by the provisions described
under Article Eight hereof,
(B) that is by the Company to any Restricted
Subsidiary or by any Restricted Subsidiary to the Company or any Restricted
Subsidiary in accordance with the terms of this Indenture,
(C) that would be within the definition of a
"Restricted Payment" under Section 1009 herein and would be permitted to be made
as a Restricted Payment under such covenant,
(D) that is a disposition of Receivables and
Related Assets in a Qualified Securitization Transaction for the Fair Market
Value thereof including cash or Cash Equivalents in an amount at least equal to
75% of the Fair Market Value thereof,
(E) that are obsolete, damaged or worn out
equipment or otherwise unsuitable for use in the ordinary course of business,
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<PAGE>
(F) that is the disposition of Capital Stock of
an Unrestricted Subsidiary,
(G) that is the sale or other disposition of
cash or Cash Equivalents,
(H) that is the issuance of Capital Stock by a
Restricted Subsidiary to the Company or to another Restricted Subsidiary (other
than a Securitization Entity),
(I) that is the sale or disposition deemed to
occur in connection with creating or granting any Liens pursuant to the
provisions described in Section 1011,
(J) that is the transfer of assets in connection
with the Investment in a Related Business Entity permitted by clause (8) of the
definition of Permitted Investment, or
(K) the Fair Market Value of which in the
aggregate does not exceed $1.5 million in any transaction or series of related
transactions.
"Attributable Debt" means, as to any lease under which any
Person is at the time liable, and at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid by such
Person under such lease during the remaining term thereof as determined in
accordance with GAAP, discounted from the last date of such term to the date of
determination at a rate per annum equal to the discount rate that would be
applicable to a Capital Lease Obligation with like term in accordance with GAAP.
The net amount of rent required to be paid under any such lease for any such
period will be the aggregate amount of rent payable by the lessee with respect
to such period after excluding amounts required to be paid on account of
insurance, taxes, assessments, utility, operating and labor costs and similar
charges.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (1) the sum of the product of (a) the number of years from the date of
determination to the date or dates of each successive scheduled principal
payment of such Indebtedness and (b) the amount of each such principal payment
by (2) the sum of all such principal payments.
"Bankruptcy Law" means Title 11, United States Bankruptcy Code
of 1978, as amended, or any similar United States federal or state law or
foreign law relating to the bankruptcy, insolvency, receivership, winding up,
liquidation, reorganization or relief of debtors or any amendment to, succession
to or change in any such law.
"Board of Directors" means the board of directors of the
Company or any Guarantor, as the case may be, or any duly authorized committee
of such board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company or any Guarantor, as the
case may be, to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Book-Entry Security" means any Global Securities bearing the
legend specified in Section 202 evidencing all or part of a series of
Securities, authenticated and delivered to the Depositary for such series or its
nominee, and registered in the name of such Depositary or nominee.
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<PAGE>
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions or trust companies
in The City of New York or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law, regulation or executive
order to close.
"Capital Lease Obligation" of any Person means any obligation
of such Person and its Restricted Subsidiaries on a Consolidated basis under any
capital lease of (or other agreement conveying the right to use) real or
personal property which, in accordance with GAAP, is required to be recorded as
a capitalized lease obligation.
"Capital Stock" of any Person means any and all shares,
interests, participations, rights in or other equivalents (however designated)
of such Person's capital stock, other equity interests whether now outstanding
or issued after the date of this Indenture, partnership interests (whether
general or limited), limited liability company interests, any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person,
including any Preferred Stock, and any rights (other than debt securities
convertible into Capital Stock), warrants or options exchangeable for or
convertible into such Capital Stock.
"Cash Equivalents" means
(1) any evidence of Indebtedness issued or
directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof,
(2) deposits, certificates of deposit or
acceptances of any financial institution that is a member of the
Federal Reserve System and whose senior unsecured debt is rated at
least "A-1" by S&P, or at least "P-1" by Moody's,
(3) commercial paper with a maturity of 365 days
or less issued by a corporation (other than an Affiliate of the
Company) organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia and rated at
least "A-1" by S&P and at least "P-1" by Moody's,
(4) repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the United States or issued by any agency
thereof and backed by the full faith and credit of the United States
maturing within 365 days from the date of acquisition,
(5) demand and time deposits with a domestic
commercial bank that is a member of the Federal Reserve System that are
FDIC insured, and
(6) money market funds which invest
substantially all of their assets in securities described in the
preceding clauses (1) through (5).
"Change of Control" means the occurrence of any of the
following events:
(1) any "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act), is or becomes
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have beneficial
ownership of all shares that such Person has the right to acquire,
whether such right is
- 5 -
<PAGE>
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 50% of the total outstanding Voting Stock of
the Company;
(2) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board
of Directors of the Company (together with any new directors whose
election to such board or whose nomination for election by the
stockholders of the Company was approved by a vote of a majority of the
directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved), cease for any reason to constitute a
majority of such Board of Directors then in office;
(3) the Company consolidates with or merges with
or into any Person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its and its
Restricted Subsidiaries' assets to any Person, or any Person
consolidates with or merges into or with the Company, in any such event
pursuant to a transaction in which the outstanding Voting Stock of the
Company is converted into or exchanged for cash, securities or other
property, other than any such transaction where
(A) the outstanding Voting Stock of the Company
is converted into or exchanged for (1) Voting Stock of the surviving corporation
which is not Redeemable Capital Stock or (2) cash, securities and other property
(other than Capital Stock of the surviving corporation) in an amount which could
be paid by the Company as a Restricted Payment as described in Section 1009
hereof (and such amount shall be treated as a Restricted Payment subject to the
provisions of Section 1009 hereof) and
(B) immediately after such transaction, no
"person" or "group," is the beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a person shall be deemed to have
beneficial ownership of all securities that such person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 50% of the total outstanding
Voting Stock of the surviving corporation; or
(4) the Company is liquidated or dissolved or
adopts a plan of liquidation or dissolution other than in a transaction
which complies with the provisions described under Article Eight
hereof.
For purposes of this definition, any transfer of an equity interest of an entity
that was formed for the purpose of acquiring voting stock of the Company will be
deemed to be a transfer of such portion of such voting stock as corresponds to
the portion of the equity of such entity that has been so transferred.
"Clearstream" means Clearstream Banking, societe anonyme (or
any successor securities clearing agency).
"Collateral" has the meaning set forth in Section 6(a) of the
Escrow Agent.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Securities Act, Exchange Act
and Trust Indenture Act then the body performing such duties at such time.
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<PAGE>
"Commodity Price Protection Agreement" means any forward
contract, commodity swap, commodity option or other similar agreement or
arrangement relating to, or the value of which is dependent upon, fluctuations
in commodity prices and which do not increase the amount of Indebtedness or
other obligations of the Company or any Restricted Subsidiary outstanding other
than as a result of fluctuations in commodity prices or by reason of fees,
indemnities and compensation payable thereunder.
"Company" means Oxford Industries, Inc., a corporation
incorporated under the laws of the State of Georgia, until a successor Person
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company (i) by any one of its Chairman of the
Board, its President, its Chief Executive Officer, its Chief Financial Officer,
any Vice President (regardless of Vice Presidential designation), its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary or (ii) by an
authorized signatory (by virtue of a power of attorney or other similar
instrument), and delivered to the Trustee.
"Comparable Treasury Issue" means the U.S. treasury security
selected by an Independent Investment Banker that would be used, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Securities (assuming the Securities matured on June 1, 2007).
"Comparable Treasury Price" means either (1) the average of
the Reference Treasury Dealer Quotations for the Redemption Date, after
excluding the highest and lowest of such Reference Treasury Dealer Quotations or
(2) if the Trustee obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all quotations obtained.
"Consolidated Fixed Charge Coverage Ratio" of any Person
means, for any period, the ratio of
(a) the sum of Consolidated Net Income (Loss), and in
each case to the extent deducted in computing Consolidated Net Income (Loss) for
such period, Consolidated Interest Expense, Consolidated Income Tax Expense and
Consolidated Non-cash Charges for such period, of such Person all determined in
accordance with GAAP, less all non-cash items increasing Consolidated Net Income
for such period and less all cash payments during such period relating to
non-cash charges that were added back to Consolidated Net Income in determining
the Consolidated Fixed Charge Coverage Ratio in any prior period to
(b) the sum of Consolidated Interest Expense for such
period after giving pro forma effect to
(1) the incurrence of the Indebtedness giving
rise to the need to make such calculation and (if applicable) the
application of the net proceeds therefrom, including to refinance other
Indebtedness, as if such Indebtedness was incurred, and the application
of such proceeds occurred, on the first day of such period;
(2) the incurrence, repayment or retirement of
any other Indebtedness by the Company and its Restricted Subsidiaries
since the first day of such period as if such Indebtedness was
incurred, repaid or retired at the beginning of such period (except
that, in
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<PAGE>
making such computation, the amount of Indebtedness under any revolving
credit facility shall be computed based upon the average daily balance
of such Indebtedness during such period);
(3) in the case of Acquired Indebtedness or any
acquisition occurring at the time of the incurrence of such
Indebtedness, the related acquisition, assuming such acquisition had
been consummated on the first day of such period; and
(4) any acquisition or disposition by the
Company and its Restricted Subsidiaries of any company or any business
or any assets out of the ordinary course of business, whether by
merger, stock purchase or sale or asset purchase or sale, or any
related repayment of Indebtedness, in each case since the first day of
such period, assuming such acquisition or disposition had been
consummated on the first day of such period;
provided that
(1) in making such computation, the Consolidated
Interest Expense attributable to interest on any Indebtedness computed
on a pro forma basis and (A) bearing a floating interest rate shall be
computed as if the rate in effect on the date of computation had been
the applicable rate for the entire period and (B) which was not
outstanding during the period for which the computation is being made
but which bears, at the option of such Person, a fixed or floating rate
of interest, shall be computed by applying at the option of such Person
either the fixed or floating rate;
(2) in making such computation, the Consolidated
Interest Expense of such Person attributable to interest on any
Indebtedness under a revolving credit facility computed on a pro forma
basis shall be computed based upon the average daily balance of such
Indebtedness during the applicable period; and
(3) whenever pro forma effect is to be given to
an acquisition or disposition, such pro forma calculation will be
determined in accordance with Article 11 of Regulation S-X under the
Securities Act or any successor provision.
"Consolidated Income Tax Expense" of any Person means, for any
period, the provision for federal, state, local and foreign income taxes of such
Person and its Consolidated Restricted Subsidiaries for such period as
determined in accordance with GAAP.
"Consolidated Interest Expense" of any Person means, without
duplication, for any period, the sum of
(a) the interest expense of such Person and its
Restricted Subsidiaries for such period, on a Consolidated basis, including,
without limitation,
(1) amortization of debt discount,
(2) the net cost (benefit) associated with
Interest Rate Agreements (including amortization of discounts),
(3) the interest portion of any deferred payment
obligation,
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<PAGE>
(4) all commissions, discounts and other fees
and charges owed with respect to letters of credit and bankers
acceptance financing and
(5) accrued interest, plus
(b) (1) the interest component of the Capital Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by such Person
and its Restricted Subsidiaries during such period and
(2) all capitalized interest of such Person and
its Restricted Subsidiaries plus
(c) the interest expense under any Guaranteed Debt of
such Person and any Restricted Subsidiary to the extent not included under
clause (a)(4) above, whether or not paid by such Person or its Restricted
Subsidiaries, plus
(d) dividend requirements of the Company with respect to
Redeemable Capital Stock and of any Restricted Subsidiary with respect to
Preferred Stock (except, in either case, dividends payable solely in shares of
Qualified Capital Stock of the Company or such Restricted Subsidiary, as the
case may be).
"Consolidated Net Income (Loss)" of any Person means, for any
period, the Consolidated net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a Consolidated basis as determined in accordance
with GAAP, adjusted, to the extent included in calculating such net income (or
loss), by excluding, without duplication,
(1) all extraordinary gains or losses net of
taxes (less all fees and expenses relating thereto),
(2) the portion of net income (or loss) of such
Person and its Restricted Subsidiaries on a Consolidated basis
allocable to minority interests in unconsolidated Persons or
Unrestricted Subsidiaries to the extent that cash dividends or
distributions have not actually been received by such Person or one of
its Consolidated Restricted Subsidiaries,
(3) any gain or loss, net of taxes, realized
upon the termination of any employee pension benefit plan,
(4) gains or losses, net of taxes (less all fees
and expenses relating thereto), in respect of dispositions of assets
other than in the ordinary course of business,
(5) the net income of any Restricted Subsidiary
to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is not at
the time permitted, directly or indirectly, by operation of the terms
of its charter, any agreement, or applicable law, except to the extent
of the amount of dividends or other distributions actually paid to the
Company or any Restricted Subsidiary,
(6) any net gain or loss arising from the
acquisition of any securities or extinguishment, under GAAP, of any
Indebtedness of such Person,
(7) any non-cash goodwill impairment charges
incurred subsequent to the date of this Indenture resulting from the
application of SFAS No. 142,
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(8) any non-cash charges incurred subsequent to
the date of this Indenture relating to the underfunded portion of any
pension plan,
(9) any non-cash charges incurred subsequent to
the date of this Indenture resulting from the application of SFAS No.
123,
(10) all deferred financing costs written off,
and premiums paid, in connection with any early extinguishment of
Indebtedness, or
(11) any non-cash compensation charges or other
non-cash expenses or charges arising from the grant of or issuance or
repricing of stock, stock options or other equity-based awards or any
amendment, modification, substitution or change of any such stock,
stock options or other equity-based awards.
"Consolidated Net Tangible Assets" of any Person means, for
any period, the total amount of assets (less applicable reserves and other
properly deductible items) after deducting (1) all current liabilities and (2)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other intangibles, all as set forth on the Company's most recent
consolidated balance sheet and computed in accordance with GAAP.
"Consolidated Non-cash Charges" of any Person means, for any
period, the aggregate depreciation, amortization and other non-cash charges of
such Person and its Restricted Subsidiaries on a Consolidated basis for such
period, as determined in accordance with GAAP (excluding any non-cash charge
which requires an accrual or reserve for cash charges for any future period).
"Consolidation" means, with respect to any Person, the
consolidation of the accounts of such Person and each of its subsidiaries if and
to the extent the accounts of such Person and each of its Subsidiaries would
normally be consolidated with those of such Person, all in accordance with GAAP.
The term "Consolidated" shall have a similar meaning.
"Corporate Trust Office" means the office of the Trustee or an
affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of this Indenture shall be principally administered,
which office at the date of execution of this Indenture is located at 25 Park
Place, 24th Floor, Atlanta, Georgia 30303.
"Credit Agreement" means the Credit Agreement to be dated the
date of the Acquisition, as amended, among the Company and certain of its
Subsidiaries, as borrowers thereunder, the Company's subsidiaries which are
guarantors thereof, certain lenders party thereto, and certain agents party
thereto, together with the related documents, instruments and agreements
executed in connection therewith (including, without limitation, any guarantees,
notes and security documents), as such agreement, in whole or in part, in one or
more instances, may be amended, renewed, extended, substituted, refinanced,
restructured, replaced, supplemented or otherwise modified from time to time
(including increasing the amount available for borrowing thereunder and
including refinancings with the same or different lenders or agents or any
agreement extending the maturity of, or increasing the commitments to extend,
Indebtedness or any commitment to extend such Indebtedness, and any successor or
replacement agreements and whether by the same or any other agent, lender or
group of lenders).
"Credit Facility" means, one or more debt facilities
(including, without limitation, the Credit Agreement), commercial paper
facilities or other debt instruments, indentures or agreements,
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<PAGE>
providing for revolving credit loans, term loans, letters of credit or other
debt obligations, in each case, as amended, restated, modified, renewed,
refunded, restructured, supplemented, replaced or refinanced in whole or in part
from time to time, including without limitation any amendment increasing the
amount of Indebtedness incurred or available to be borrowed thereunder,
extending the maturity of any Indebtedness incurred thereunder or contemplated
thereby or deleting, adding or substituting one or more parties thereto (whether
or not such added or substituted parties are banks or other institutional
lenders).
"Cumulative Additional Earn-Out Payment" means up to $25
million that may be paid following the fourth Earn-Out Year in respect of
cumulative performance during the four Earn-Out Years pursuant to the Earn-Out
Agreement.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Currency Hedging Agreements" means foreign exchange
contracts, currency swap agreements or other similar agreements or arrangements
designed to protect against the fluctuations in currency values and that relate
to (1) Indebtedness of the Company or any Restricted Subsidiary and/or (2)
obligations to purchase or sell assets or properties; provided, however, that
such Currency Hedging Agreements do not increase the Indebtedness or other
obligations of the Company or any Restricted Subsidiary outstanding other than
as a result of fluctuations in foreign currency exchange rates or by reason of
fees, indemnities and compensation payable thereunder.
"Deadline" means June 15, 2003, which date may be extended
pursuant to Section 3(h) of the Escrow Agreement.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities issued in
the form of one or more Book-Entry Securities, The Depository Trust Company
("DTC"), its nominees and successors, or another Person designated as Depositary
by the Company, which must be a clearing agency registered under the Exchange
Act.
"Designated Non-cash Consideration" means the Fair Market
Value, as set forth in an Officer's Certificate, of non-cash consideration
received by the Company or any of its Restricted Subsidiaries in connection with
an Asset Sale.
"Disinterested Director" means, with respect to any
transaction or series of related transactions, a member of the Board of
Directors of the Company who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of related
transactions.
"Earn-Out Agreement" means the Earn-Out Agreement to be
entered into in connection with the Stock Purchase Agreement.
"Earn-Out Year" means each of the Company's fiscal years
ending May 28, 2004, June 3, 2005, June 2, 2006 and June 1, 2007.
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"Equity Offering" means any public offering or private sale
for cash of common stock (other than Redeemable Capital Stock) of the Company
(other than public offerings with respect to a registration statement on Form
S-4 (or any successor form covering substantially the same transactions), Form
S-8 (or any successor form covering substantially the same transactions) or
otherwise relating to equity securities issuable under any employee benefit plan
of the Company).
"Escrow Agreement" means the escrow agreement dated the Issue
Date among the Securities Intermediary, the Trustee and the Company.
"Escrowed Property" means the funds to be held in escrow
pursuant to the Escrow Agreement.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear Clearance System (or any successor securities clearing agency).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute, and the rules and regulations promulgated by
the Commission thereunder.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"Exchange Securities" has the meaning set forth in the first
recital of this Indenture.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy. Fair Market Value shall
be determined by the Board of Directors of the Company acting in good faith.
"Foreign Subsidiary" means any Restricted Subsidiary of the
Company that (x) is not organized under the laws of the United States of America
or any State thereof or the District of Columbia, or (y) was organized under the
laws of the United States of America or any State thereof or the District of
Columbia that has no material assets other than Capital Stock of one or more
foreign entities of the type described in clause (x) above and is not a
guarantor of Indebtedness under the Credit Agreement.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
have been approved by a significant segment of the accounting profession, which
are in effect on the date of this Indenture.
"Global Securities" means the Rule 144A Global Securities, the
Regulation S Global Securities, the IAI Global Securities and the Unrestricted
Global Securities to be issued as Book-Entry Securities issued to the Depositary
in accordance with Section 306.
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<PAGE>
"Guarantee" means the guarantee by any Guarantor of the
Company's Indenture Obligations.
"Guaranteed Debt" of any Person means, without duplication,
all Indebtedness of any other Person referred to in the definition of
Indebtedness guaranteed directly or indirectly in any manner by such Person, or
in effect guaranteed directly or indirectly by such Person through an agreement
(1) to pay or purchase such Indebtedness or to
advance or supply funds for the payment or purchase of such
Indebtedness,
(2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Indebtedness or
to assure the holder of such Indebtedness against loss,
(3) to supply funds to, or in any other manner
invest in, the debtor (including any agreement to pay for property or
services without requiring that such property be received or such
services be rendered),
(4) to maintain working capital or equity
capital of the debtor, or otherwise to maintain the net worth, solvency
or other financial condition of the debtor or to cause such debtor to
achieve certain levels of financial performance or
(5) otherwise to assure a creditor against loss;
provided that the term "guarantee" shall not include endorsements for collection
or deposit, in either case in the ordinary course of business.
"Guarantor" means any Subsidiary which is a guarantor of the
Securities, including any Person that is required after the date of this
Indenture to execute a guarantee of the Securities pursuant to Section 1011 or
Section 1013 until a successor replaces such party pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"IAI Global Securities" means one or more permanent Global
Securities in registered form representing the aggregate principal amount of
Securities sold to Institutional Accredited Investors.
"Indebtedness" means, with respect to any Person, without
duplication,
(1) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property or services,
excluding any trade payables and other accrued current liabilities
arising in the ordinary course of business, but including, without
limitation, all obligations, contingent or otherwise, of such Person in
connection with any letters of credit issued under letter of credit
facilities, acceptance facilities or other similar facilities,
(2) all obligations of such Person evidenced by
bonds, notes, debentures or other similar instruments,
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<PAGE>
(3) all indebtedness created or arising under
any conditional sale or other title retention agreement with respect to
property acquired by such Person (even if the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), but excluding trade
payables arising in the ordinary course of business,
(4) all obligations under Interest Rate
Agreements, Currency Hedging Agreements or Commodity Price Protection
Agreements of such Person (the amount of any such obligations to be
equal at any time to the termination value of such agreement or
arrangement giving rise to such obligation that would be payable by
such Person at such time),
(5) all Capital Lease Obligations of such
Person,
(6) all Indebtedness referred to in clauses (1)
through (5) above of other Persons, the payment of which is secured by
(or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien, upon or with
respect to property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness,
(7) all Guaranteed Debt of such Person,
(8) all Redeemable Capital Stock issued by such
Person valued at the greater of its voluntary or involuntary maximum
fixed repurchase price plus accrued and unpaid dividends,
(9) all amounts outstanding and other
obligations of such Person in respect of a Qualified Securitization
Transaction, and
(10) Attributable Debt with respect to sale and
leaseback transactions.
For purposes of this Indenture, the "maximum fixed repurchase
price" of any Redeemable Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Redeemable
Capital Stock as if such Redeemable Capital Stock were purchased on any date on
which Indebtedness shall be required to be determined pursuant to this
Indenture, and if such price is based upon, or measured by, the Fair Market
Value of such Redeemable Capital Stock, such Fair Market Value to be determined
in good faith by the board of directors of the issuer of such Redeemable Capital
Stock.
"Indenture" means this instrument as originally executed
(including all exhibits and schedules thereto) and as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
"Indenture Obligations" means the obligations of the Company
and any other obligor under this Indenture or under the Securities, including
any Guarantor, to pay principal of, premium, if any, and interest when due and
payable, and all other amounts due or to become due under or in connection with
this Indenture, the Securities and the performance of all other obligations to
the Trustee and the Holders under this Indenture and the Securities, according
to the respective terms thereof.
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<PAGE>
"Independent Investment Banker" means one of the Reference
Treasury Dealers that the Company appoints.
"Initial Purchasers" means Merrill Lynch, Pierce,
Fenner & Smith Incorporated and SunTrust Capital Markets (or the initial
purchasers with respect to Additional Securities issued after the date hereof).
"Initial Securities" has the meaning set forth in the first
recital of this Indenture.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act.
"Interest Payment Date", when used with respect to any
Security, means each semiannual interest payment date on June 1 and December 1
of each year.
"Interest Rate Agreements" means interest rate protection
agreements (including, without limitation, interest rate swaps, caps, floors,
collars and similar agreements) and/or other types of interest rate hedging
agreements or arrangements designed to protect against or manage exposure to
fluctuations in interest rates in respect of Indebtedness of the Company or any
Restricted Subsidiary.
"Investment" means, with respect to any Person, directly or
indirectly, any advance, loan (including guarantees), or other extension of
credit or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase, acquisition or ownership by such Person of any
Capital Stock, bonds, notes, debentures or other securities issued or owned by
any other Person and all other items that would be classified as investments on
a balance sheet prepared in accordance with GAAP. "Investment" shall exclude
direct or indirect advances to customers or suppliers in the ordinary course of
business that are, in conformity with GAAP, recorded as accounts receivable,
prepaid expenses or deposits on the Company's or any Restricted Subsidiary's
balance sheet, endorsements for collection or deposit arising in the ordinary
course of business and extensions of trade credit on commercially reasonable
terms in accordance with normal trade practices. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Capital
Stock of any direct or indirect Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such Person is no longer a
Subsidiary of the Company (other than the sale of all of the outstanding Capital
Stock of such Subsidiary), the Company will be deemed to have made an Investment
on the date of such sale or disposition equal to the Fair Market Value of the
Company's Investments in such Subsidiary that were not sold or disposed of in an
amount determined as provided in Section 1009 hereof.
"Issue Date" means the original issue date of the Securities
under this Indenture.
"Lien" means any mortgage or deed of trust, charge, pledge,
lien (statutory or otherwise), privilege, security interest, assignment,
deposit, arrangement, easement, hypothecation, claim, preference, priority or
other encumbrance upon or with respect to any property of any kind (including
any conditional sale, capital lease or other title retention agreement, any
leases in the nature thereof, and any agreement to give any security interest),
real or personal, movable or immovable, now owned or hereafter acquired. A
Person will be deemed to own subject to a Lien any property which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease Obligation or other title retention
agreement.
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<PAGE>
"Material Indebtedness" means any of the agreements,
indentures or instruments under which the Company, any Guarantor or any
Restricted Subsidiary then has outstanding Indebtedness in excess of $15
million.
"Maturity" means, when used with respect to the Securities,
the date on which the principal of the Securities becomes due and payable as
therein provided or as provided in this Indenture, whether at Stated Maturity,
the Offer Date or the Redemption Date and whether by declaration of
acceleration, Offer in respect of Excess Proceeds, Change of Control Offer in
respect of a Change of Control, call for redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc. and its
successors.
"Net Cash Proceeds" means
(a) with respect to any Asset Sale by any Person, the
proceeds thereof (without duplication in respect of all Asset Sales) in the form
of cash or Cash Equivalents including payments in respect of deferred payment
obligations when received in the form of, or stock or other assets when disposed
of for, cash or Cash Equivalents (except to the extent that such obligations are
financed or sold with recourse to the Company or any Restricted Subsidiary) net
of
(1) brokerage commissions and other reasonable
fees and expenses (including fees and expenses of counsel and
investment bankers) related to such Asset Sale,
(2) provisions for all taxes payable as a result
of such Asset Sale,
(3) payments made to retire Indebtedness where
payment of such Indebtedness is secured by the assets or properties the
subject of such Asset Sale,
(4) amounts required to be paid to any Person
(other than the Company or any Restricted Subsidiary) owning a
beneficial interest in the assets subject to the Asset Sale,
(5) all distributions and other payments
required to be made to non-majority interest holders in Subsidiaries as
a result of such Asset Sale, and
(6) appropriate amounts to be provided by the
Company or any Restricted Subsidiary, as the case may be, as a reserve,
in accordance with GAAP, against any liabilities associated with such
Asset Sale and retained by the Company or any Restricted Subsidiary, as
the case may be, after such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as
reflected in an Officers' Certificate delivered to the Trustee and
(b) with respect to any issuance or sale of Capital Stock
or options, warrants or rights to purchase Capital Stock, or debt securities or
Capital Stock that have been converted into or exchanged for Capital Stock as
referred to under Section 1009 hereof, the proceeds of such issuance or sale in
the form of cash or Cash Equivalents including payments in respect of deferred
payment obligations when received in the form of, or stock or other assets when
disposed of for, cash or Cash Equivalents (except to the extent that such
obligations are financed or sold with recourse to the Company or any Restricted
Subsidiary), net of attorney's fees, accountant's fees and brokerage,
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<PAGE>
consultation, underwriting and other fees and expenses actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Non-recourse Indebtedness" means, with respect to any Person,
Indebtedness of such Person as to which the Company and any Restricted
Subsidiary may not be directly or indirectly liable (by virtue of the Company or
any such Restricted Subsidiary being the primary obligor on, guarantor of, or
otherwise liable in any respect to, such Indebtedness), and which, upon the
occurrence of a default with respect to such Indebtedness, does not result in,
or permit any holder of any Indebtedness of the Company or any Restricted
Subsidiary to declare, a default on such Indebtedness of the Company or any
Restricted Subsidiary or cause the payment of Indebtedness of the Company or any
Restricted Subsidiary to be accelerated or payable prior to its Stated Maturity.
"Non-U.S. Person" means a Person that is not a "U.S. person"
as defined in Regulation S under the Securities Act.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President, the Chief Executive Officer, the Chief
Financial Officer or a Vice President (regardless of Vice Presidential
designation), and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company or any Guarantor, as the case may be, and in
form and substance reasonably satisfactory to, and delivered to, the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee or counsel for the Company, any Guarantor or the Trustee, and
who shall be reasonably acceptable to the Trustee, and which opinion shall be in
form and substance reasonably satisfactory to the Trustee.
"Opinion of Independent Counsel" means a written opinion of
counsel which is issued by a Person who is not an employee, director or
consultant (other than non-employee legal counsel) of the Company or any
Guarantor and who shall be reasonably acceptable to the Trustee, and which
opinion shall be in form and substance reasonably satisfactory to the Trustee.
"Outstanding" when used with respect to Securities means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company or any Affiliate thereof) in
trust or set aside and segregated in trust by the Company or any Affiliate
thereof (if the Company or any Affiliate thereof shall act as its own Paying
Agent) for the Holders of such Securities; provided that if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor reasonably satisfactory to the Trustee has been
made;
(c) Securities, to the extent provided in Sections 402
and 403, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Four; and
(d) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been
presented to the Trustee and the Company proof reasonably satisfactory to
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<PAGE>
each of them that such Securities are held by a bona fide purchaser in whose
hands the Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company, any Guarantor, or any other obligor upon the Securities or any
Affiliate of the Company, any Guarantor or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the reasonable satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the pledgee is not the Company,
any Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, any Guarantor or such other obligor.
"Pari Passu Indebtedness" means (a) any Indebtedness of the
Company that is equal in right of payment to the Securities and (b) with respect
to any Guarantee, Indebtedness which ranks equal in right of payment to such
Guarantee.
"Paying Agent" means any Person (including the Company)
authorized by the Company to pay the principal of, premium, if any, or interest
on, any Securities on behalf of the Company.
"Permitted Business" means the business conducted by (a) the
Company and its Restricted Subsidiaries on the date of this Indenture and (b)
Viewpoint and its Subsidiaries on the date of the Acquisition, and, in each
case, the business reasonably related, complementary or ancillary thereto,
including reasonably related extensions or expansions thereof.
"Permitted Investment" means
(1) Investments in the Company or any Restricted
Subsidiary (other than a Securitization Entity) or any Person which, as
a result of such Investment, (a) becomes a Restricted Subsidiary (other
than a Securitization Entity) or (b) is merged or consolidated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or any Restricted Subsidiary (other than a
Securitization Entity);
(2) Indebtedness of the Company or a Restricted
Subsidiary described under clauses (iv), (v), (vi), (vii) and (viii) of
the definition of "Permitted Indebtedness";
(3) Investments in any of the Securities;
(4) Investments in Cash Equivalents;
(5) Investments acquired by the Company or any
Restricted Subsidiary in connection with an Asset Sale permitted under
Section 1012 herein to the extent such Investments are non-cash
proceeds as permitted under such covenant;
(6) Investments by the Company or a Restricted
Subsidiary in a Securitization Entity in connection with a Qualified
Securitization Transaction, which Investment consists of a retained
interest in transferred Receivables and Related Assets;
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<PAGE>
(7) (x) Investments in existence on the date of
this Indenture or acquired in connection with the Acquisition and (y)
an Investment in any Person to the extent such Investment replaces or
refinances an Investment covered by clause (x) above or this clause (y)
in an amount not exceeding the amount of the Investment being replaced
or refinanced; provided, however, that the Investment under clause (y)
is on terms and conditions no less favorable to the Company and its
Restricted Subsidiaries taken as a whole than the Investment being
replaced or refinanced;
(8) Investments in a Related Business Entity in
the aggregate amount outstanding at any one time of up to 2.5% of the
Company's Consolidated Net Tangible Assets;
(9) Investments in a Person whose primary
business is a Permitted Business acquired in exchange for the issuance
of Capital Stock (other than Redeemable Capital Stock of the Company or
a Restricted Subsidiary or Preferred Stock of a Restricted Subsidiary)
or acquired with the net cash proceeds received by the Company after
the date of this Indenture from the issuance and sale of Capital Stock
(other than Redeemable Stock of the Company or a Restricted Subsidiary
or Preferred Stock of a Restricted Subsidiary); provided that such Net
Cash Proceeds are used to make such Investment within 30 days of the
receipt thereof and the amount of all such Net Cash Proceeds will be
excluded from clause (3)(B) of the first paragraph of the covenant
described under Section 1009(a) hereof;
(10) Investments in prepaid expenses, negotiable
instruments held for collection and lease, utility and worker's
compensation, performance and other similar deposits provided to third
parties in the ordinary course of business;
(11) loans or advances to employees of the
Company in the ordinary course of business for bona fide business
purposes of the Company and its Restricted Subsidiaries (including
travel, entertainment and moving expenses) made in compliance with
applicable law;
(12) any Investments received in good faith in
settlement or compromise of obligations of trade creditors or customers
that were incurred in the ordinary course of business, including
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of any trade creditor or customer; and
(13) other Investments in the aggregate amount
outstanding at any one time of up to $10 million.
In connection with any assets or property contributed or
transferred to any Person as an Investment, such property and assets shall be
equal to the Fair Market Value (as determined by the Company's Board of
Directors) at the time of Investment.
"Permitted Lien" means
(a) any Lien existing as of the date of this Indenture on
Indebtedness existing on the date of this Indenture;
(b) any Lien with respect to the Credit Agreement or any
successor Credit Facility so long as the aggregate principal amount outstanding
under the Credit Agreement or any successor Credit Facility does not exceed the
principal amount which could be borrowed under clause (i) of the
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<PAGE>
definition of Permitted Indebtedness; provided, however, that any Lien created
in connection with any registered offering of securities under the Securities
Act or a private placement of securities (including under Rule 144A) pursuant to
an exemption from the registration requirements of the Securities Act shall be
excluded from this clause (b);
(c) any Lien arising by reason of
(1) any judgment, decree or order of any court,
so long as such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such
judgment, decree or order shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have
expired;
(2) taxes not yet delinquent or which are being
contested in good faith;
(3) security for payment of workers'
compensation or other insurance;
(4) good faith deposits in connection with
tenders, leases, contracts (other than contracts for the payment of
money);
(5) zoning restrictions, easements, licenses,
reservations, title defects, rights of others for rights of way,
utilities, sewers, electric lines, telephone or telegraph lines, and
other similar purposes, provisions, covenants, conditions, waivers,
restrictions on the use of property or minor irregularities of title
(and with respect to leasehold interests, mortgages, obligations, liens
and other encumbrances incurred, created, assumed or permitted to exist
and arising by, through or under a landlord or owner of the leased
property, with or without consent of the lessee), none of which
materially impairs the use of any parcel of property material to the
operation of the business of the Company or any Subsidiary or the value
of such property for the purpose of such business;
(6) deposits to secure public or statutory
obligations, or in lieu of surety or appeal bonds; or
(7) operation of law in favor of mechanics,
carriers, warehousemen, landlords, materialmen, laborers, employees or
suppliers, incurred in the ordinary course of business for sums which
are not yet delinquent or are being contested in good faith by
negotiations or by appropriate proceedings which suspend the collection
thereof;
(d) any Lien securing Acquired Indebtedness created prior
to (and not created in connection with, or in contemplation of) the incurrence
of such Indebtedness by the Company or any Subsidiary;
(e) any Lien to secure the performance bids, trade
contracts, leases (including, without limitation, statutory and common law
landlord's liens), statutory obligations, surety and appeal bonds, letters of
credit and other obligations of a like nature and incurred in the ordinary
course of business of the Company or any Subsidiary;
(f) any Lien securing Indebtedness permitted to be
incurred under Interest Rate Agreements or otherwise incurred to hedge interest
rate risk;
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<PAGE>
(g) any Lien securing Capital Lease Obligations or
Purchase Money Obligations incurred in accordance with this Indenture (including
clause (ix) of the definition of Permitted Indebtedness);
(h) leases and subleases of real property which do not
materially interfere with the ordinary conduct of the business of the Company or
any of its Restricted Subsidiaries;
(i) banker's Liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with a depositary
institution; provided that:
(1) such deposit account is not a dedicated cash
collateral account and is not subject to restrictions against access by
the Company in excess of those set forth by regulations promulgated by
the Federal Reserve Board or other applicable law; and
(2) such deposit account is not intended by the
Company or any Restricted Subsidiary to provide collateral to the
depository institution;
(j) Liens on property, assets or shares of stock of a
Person at the time such Person becomes a Restricted Subsidiary; provided,
however, that such Liens are not created, incurred or assumed in connection
with, or in contemplation of, such other Person becoming a Restricted
Subsidiary; provided further, that any such Lien may not extend to any other
property owned by the Company or any Restricted Subsidiary and assets fixed or
appurtenant thereto;
(k) Liens securing Indebtedness or other obligations of a
Restricted Subsidiary owing to the Company or another Restricted Subsidiary
(other than a Securitization Entity);
(l) Liens securing the Securities and the Guarantees;
(m) Liens on assets transferred to a Securitization
Entity or on assets of a Securitization Entity, in either case incurred in
connection with a Qualified Securitization Transaction;
(n) Liens on property of any Foreign Subsidiary securing
Indebtedness of such Foreign Subsidiary permitted to be incurred under clause
(xii) of the definition of Permitted Indebtedness;
(o) Liens incurred pursuant to the Acquisition
Agreements;
(p) Liens pursuant to the Escrow Agreement for the
benefit of the Holders of the Securities in connection with the Acquisition;
(q) any extension, renewal, refinancing or replacement,
in whole or in part, of any Lien described in the foregoing clauses (a) through
(n) so long as no additional collateral is granted as security thereby; and
(r) in addition to the items referred to in clauses (a)
through (q) above, Liens of the Company and its Restricted Subsidiaries on
Indebtedness in an aggregate amount which, when take together with the aggregate
amount of all other Liens on Indebtedness incurred pursuant to this clause (r)
and then outstanding will not exceed 5% of the Company's Consolidated Net
Tangible Assets at any one time outstanding.
- 21 -
<PAGE>
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 308 in
exchange for a mutilated Security or in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Security.
"Preferred Stock" means, with respect to any Person, any
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over the Capital Stock of any other class in such Person.
"Purchase Money Obligation" means any Indebtedness secured by
a Lien on assets related to the business of the Company and any additions and
accessions thereto, which are purchased or constructed by the Company at any
time after the Securities are issued; provided that
(1) the security agreement or conditional sales
or other title retention contract pursuant to which the Lien on such
assets is created (collectively a "Purchase Money Security Agreement")
shall be entered into within 360 days after the purchase or substantial
completion of the construction of such assets and shall at all times be
confined solely to the assets so purchased or acquired, any additions
and accessions thereto and any proceeds therefrom,
(2) at no time shall the aggregate principal
amount of the outstanding Indebtedness secured thereby be increased,
except in connection with the purchase of additions and accessions
thereto and except in respect of fees and other obligations in respect
of such Indebtedness and
(3) (A) the aggregate outstanding principal
amount of Indebtedness secured thereby (determined on a per asset basis
in the case of any additions and accessions) shall not at the time such
Purchase Money Security Agreement is entered into exceed 100% of the
purchase price to the Company of the assets subject thereto or (B) the
Indebtedness secured thereby shall be with recourse solely to the
assets so purchased or acquired, any additions and accessions thereto
and any proceeds therefrom.
"Qualified Capital Stock" of any Person means any and all
Capital Stock of such Person other than Redeemable Capital Stock.
"Qualified Securitization Transaction" means any transaction
or series of transactions that may be entered into by the Company or any
Restricted Subsidiary pursuant to which (a) the Company or any Restricted
Subsidiary may sell, convey or otherwise transfer to a Securitization Entity its
interests in Receivables and Related Assets and (b) such Securitization Entity
transfers to any other Person, or grants a security interest in, such
Receivables and Related Assets, pursuant to a transaction customary in the
industry which is used to achieve a transfer of financial assets under GAAP.
"Receivables and Related Assets" means any account receivable
(whether now existing or arising thereafter) of the Company or any Restricted
Subsidiary, and any assets related thereto
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<PAGE>
including all collateral securing such accounts receivable, all contracts and
contract rights and all Guarantees or other obligations in respect of such
accounts receivable, proceeds of such accounts receivable and other assets which
are customarily transferred or in respect of which security interest are
customarily granted in connection with asset securitization transaction
involving accounts receivable.
"Redeemable Capital Stock" means any Capital Stock
that, either by its terms or by the terms of any security into which it is
convertible or exchangeable (at the option of the holders thereof), is or upon
the happening of an event or passage of time would be, required to be redeemed
(at the option of the holders thereof) prior to the final Stated Maturity of the
principal of the Securities (other than upon a change of control of or sale of
assets by the Company in circumstances where the holders of the Securities would
have similar rights), or is convertible into or exchangeable for debt securities
at any time prior to such final Stated Maturity at the option of the holder
thereof.
"Redemption Date" when used with respect to any Security to be
redeemed pursuant to any provision in this Indenture means the date fixed for
such redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to
be redeemed pursuant to any provision in this Indenture means the price at which
it is to be redeemed pursuant to this Indenture.
"Reference Treasury Dealer" means each of Merrill Lynch,
Pierce, Fenner & Smith Incorporated (and its successors) and any other
nationally recognized investment banking firm that is a primary U.S. government
securities dealer specified from time to time by the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer as of 3:30
p.m., New York time, on the third Business Day preceding the Redemption Date.
"Registration Rights Agreement" means (1) the Registration
Rights Agreement, dated as of May 16, 2003 among the Company, the Guarantors and
the Initial Purchasers and (2) with respect to any Additional Securities issued
subsequent to May 16, 2003, the registration rights agreement entered into for
the benefit of the holders of such Additional Securities, if any.
"Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the May 15 or November 15 (whether or not a Business Day)
next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act, as
amended from time to time.
"Regulation S Global Securities" means one or more permanent
global Securities in registered form representing the aggregate principal amount
of Securities sold in reliance on Regulation S under the Securities Act.
"Related Business Entity" means
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<PAGE>
(1) any corporation at least 35% of the
outstanding voting power of the Voting Stock of which is owned or
controlled, directly or indirectly, by the Company, or
(2) any other Person in which the Company,
directly or indirectly, has at least 35% of the outstanding
partnership, equity or other similar interests,
which, in the case of (1) or (2) above, conducts its principal business in a
Permitted Business.
"Release" means the release of the Escrowed Property pursuant
to the Escrow Agreement.
"Replacement Assets" means properties or assets to replace the
properties or assets that were the subject of an Asset Sale or in properties and
assets that will be used in businesses of the Company or its Restricted
Subsidiaries, as the case may be, existing at the time such assets are sold or
in Capital Stock of a Person, the principal portion of whose assets consist of
such property or assets.
"Responsible Officer" when used with respect to the Trustee
means any officer or employee assigned to the Corporate Trust Office or any
agent of the Trustee appointed hereunder, including any vice president,
assistant vice president, secretary, assistant secretary, or any other officer
or assistant officer of the Trustee or any agent of the Trustee appointed
hereunder to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company
that has not been designated by the Board of Directors of the Company by a Board
Resolution delivered to the Trustee as an Unrestricted Subsidiary pursuant to
and in compliance with Section 1017 hereof.
"Rule 144A" means Rule 144A under the Securities Act, as
amended from time to time.
"Rule 144A Global Securities" means one or more permanent
Global Securities in registered form representing the aggregate principal amount
of Securities sold in reliance on Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Rating Services, a division of
The McGraw-Hill Companies, Inc., and any successor thereto.
"Securities" shall have the meaning set forth in the Recitals.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor statute, and the rules and regulations promulgated by the
Commission thereunder.
"Securities Control Agreement" means the securities account
control agreement dated the Issue Date among the Company, the Trustee and the
Securities Intermediary.
"Securities Intermediary" has the meaning assigned to such
term in the Escrow Agreement.
"Security Documents" means prior to the Release, the Escrow
Agreement and the Securities Control Agreement.
- 24 -
<PAGE>
"Securitization Entity" means a Wholly Owned Restricted
Subsidiary (or another Person in which the Company or any Subsidiary of the
Company makes an Investment and to which the Company or any Subsidiary of the
Company transfers Receivables and Related Assets) that, in the case of a Wholly
Owned Restricted Subsidiary, engages in no activities other than in connection
with the financing of Receivables and Related Assets and that is designated by
the Board of Directors of the Company (as provided below) as a Securitization
Entity and:
(a) no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which:
(1) is guaranteed by the Company or any
Restricted Subsidiary (excluding Guarantees (other than the principal
of, and interest on, Indebtedness) pursuant to Standard Securitization
Undertakings);
(2) is recourse to or obligates the Company or
any Restricted Subsidiary (other than such Securitization Entity) in
any way other than pursuant to Standard Securitization Undertakings; or
(3) subjects any property or asset of the
Company or any Restricted Subsidiary (other than such Securitization
Entity), directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to Standard Securitization
Undertakings;
(b) with which neither the Company nor any Restricted
Subsidiary (other than such Securitization Entity) has any material contract,
agreement, arrangement or understanding other than on terms no less favorable to
the Company or such Restricted Subsidiary than those that might be obtained at
the time from Persons that are not Affiliates of the Company, other than fees
payable in the ordinary course of business in connection with servicing accounts
receivable of such entity;
(c) to which neither the Company nor any Restricted
Subsidiary (other than such Securitization Entity) has any obligation to
maintain or preserve such entity's financial condition or cause such entity to
achieve certain levels of operating results; and
(d) such entity is a Qualified Special Purpose Entity in
accordance with GAAP.
Any designation of a Subsidiary as a Securitization Entity
shall be evidenced to the Trustee by filing with the Trustee a certified copy of
the resolution of the Board of Directors of the Company giving effect to the
designation and an Officers' Certificate certifying that the designation
complied with the preceding conditions and was permitted by this Indenture. On
the date of this Indenture, Oxford Receivables Company is the only
Securitization Entity.
"Shelf Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Significant Subsidiary" means, at any time, any
Restricted Subsidiary that qualifies at such time as a "significant subsidiary"
within the meaning of Regulation S-X promulgated by the Commission (as in effect
on the date of this Indenture).
"Special Mandatory Redemption" has the meaning set forth in
Section 1109.
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<PAGE>
"Special Mandatory Redemption Date" has the meaning set forth
in Section 1109.
"Special Mandatory Redemption Price" means (a) $202,000,000
(which amount is equal to 101% of the original issue amount of the Senior Notes
($200,000,000)) plus (b) the accrued and unpaid interest on the Securities to
the Special Mandatory Redemption Date.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 309.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Restricted Subsidiary that are reasonably customary in an accounts receivable
securitization transaction.
"Stated Maturity" means, when used with respect to any
Indebtedness or any installment of interest thereon, the dates specified in such
Indebtedness as the fixed date on which the principal of such Indebtedness or
such installment of interest, as the case may be, is due and payable.
"Stock Purchase Agreement" means the stock purchase agreement
among Viewpoint, the stockholders of Viewpoint and the Company entered into in
connection with the Acquisition.
"Subordinated Indebtedness" means Indebtedness of the Company
or a Guarantor subordinated in right of payment to the Securities or a
Guarantee, as the case may be.
"Subsidiary" of a Person means
(1) any corporation more than 50% of the
outstanding voting power of the Voting Stock of which is owned or
controlled, directly or indirectly, by such Person or by one or more
other Subsidiaries of such Person, or by such Person and one or more
other Subsidiaries thereof, or
(2) any limited partnership of which such Person
or any Subsidiary of such Person is a general partner, or
(3) any other Person in which such Person, or
one or more other Subsidiaries of such Person, or such Person and one
or more other Subsidiaries, directly or indirectly, has more than 50%
of the outstanding partnership or similar interests or has the power,
by contract or otherwise, to direct or cause the direction of the
policies, management and affairs thereof.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 308 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, or any successor statute.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, until a successor trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor trustee.
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<PAGE>
"Unrestricted Global Securities" means one or more permanent
Global Securities in registered form representing the aggregate principal amount
of Exchange Securities exchanged for Initial Securities pursuant to the Exchange
Offer.
"Unrestricted Subsidiary" means any Subsidiary of the Company
(other than a Guarantor) designated as such pursuant to and in compliance with
Section 1017 hereof.
"Viewpoint" means Viewpoint International, Inc.
"Voting Stock" of a Person means Capital Stock of such Person
of the class or classes pursuant to which the holders thereof have the general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such Person (irrespective of whether
or not at the time Capital Stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary all the Capital Stock of which is owned by the Company or another
Wholly Owned Restricted Subsidiary (other than directors' qualifying shares).
SECTION 102. OTHER DEFINITIONS.
<TABLE>
<CAPTION>
Term Defined in Section
- ---- ------------------
<S> <C>
"Act" 105
"Agent Members" 306
"Change of Control Offer" 1014
"Change of Control Purchase Date" 1014
"Change of Control Purchase Notice" 1014
"Change of Control Purchase Price" 1014
"control" 101 ("Affiliate")
"covenant defeasance" 403
"CUSIP" 310
"Defaulted Interest" 309
"defeasance" 402
"Defeasance Redemption Date" 404
"Defeased Securities" 401
"Designation" 1017
"Designation Amount" 1017
"DTC" 101 ("Depositary")
"Excess Proceeds" 1012
"Exchange Securities" Recitals
"incur" 1008
"Initial Securities" Recitals
"maximum fixed repurchase price" 101 ("Indebtedness")
"Offer" 1012
"Offer Date" 1012
"Offered Price" 1012
"Offshore Transaction" 202
"Pari Passu Debt Amount" 1012
"Pari Passu Offer" 1012
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
"Permitted Indebtedness" 1008
"Permitted Payment" 1009
"Private Placement Legend" 202
"Purchase Money Security Agreement" 101 ("Purchase Money
Obligation")
"Qualified Institutional Buyer" 202
"refinancing" 1008
"Registration Default" 202
"Required Filing Date" 1018
"Restricted Payment" 1009
"Restricted Period" 201
"restricted security" 307
"Revocation" 1017
"Security Amount" 1012
"Security Register" 305
"Security Registrar" 305
"Special Payment Date" 309
"Surviving Entity" 801
"Surviving Guarantor Entity" 801
"transfer" 101 ("Asset Sale")
"U.S. Government Obligations" 404
"U.S. Person" 202
</TABLE>
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company and any
Guarantor (if applicable) and any other obligor on the Securities (if
applicable) shall, in each case at the request of the Trustee, furnish to the
Trustee an Officers' Certificate in a form and substance reasonably acceptable
to the Trustee stating that all conditions precedent, if any, provided for in
this Indenture (including any covenant compliance with which constitutes a
condition precedent) relating to the proposed action have been complied with,
and an Opinion of Counsel in a form and substance reasonably acceptable to the
Trustee stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that, in the case of any such
application or request as to which the furnishing of such certificates or
opinions is specifically required by any provision of this Indenture relating to
such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture (other
than pursuant to Section 1019) shall include:
(a) a statement that each individual signing such
certificate or individual or firm signing such opinion has read and understands
such covenant or condition and the definitions herein relating thereto;
(b) 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;
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<PAGE>
(c) a statement that, in the opinion of each such
individual or such firm, he or it has made such examination or investigation as
is necessary to enable him or it to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such individual or such firm, such condition or covenant has been complied with.
SECTION 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate of an officer of the Company, any Guarantor or
other obligor on the Securities may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters
upon which his or her certificate or opinion is based are erroneous. Any such
certificate or opinion may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Company, any Guarantor or other obligor on the Securities stating that
the information with respect to such factual matters is in the possession of the
Company, any Guarantor or other obligor on the Securities, unless such officer
or counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous. Opinions of Counsel required to be delivered to the Trustee may have
qualifications customary for opinions of the type required and counsel
delivering such Opinions of Counsel may rely on certificates of the Company or
government or other officials customary for opinions of the type required,
including certificates certifying as to matters of fact, including that various
financial covenants have been complied with.
Any certificate or opinion of an officer of the Company, any
Guarantor or other obligor on the Securities may be based, insofar as it relates
to accounting matters, upon a certificate or opinion of, or representations by,
an accountant or firm of accountants in the employ of the Company, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate or opinion may be based are erroneous. Any
certificate or opinion of any independent firm of public accountants filed with
the Trustee shall contain a statement that such firm is independent with respect
to the Company.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 105. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall
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<PAGE>
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section 105.
(b) The ownership of Securities shall be proved by the
Security Register.
(c) Any request, demand, authorization, direction,
notice, consent, waiver or other Act by the Holder of any Security shall bind
every future Holder of the same Security or the Holder of every Security issued
upon the transfer thereof or in exchange therefor or in lieu thereof, in respect
of anything done, suffered or omitted to be done by the Trustee, any Paying
Agent or the Company, any Guarantor or any other obligor of the Securities in
reliance thereon, whether or not notation of such action is made upon such
Security.
(d) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of such Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. Notwithstanding Trust
Indenture Act Section 316(c), any such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such first solicitation is
completed.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for purposes of
determining whether Holders of the requisite proportion of Securities then
Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for this
purpose the Securities then Outstanding shall be computed as of such record
date; provided that no such request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after such record date.
(f) For purposes of this Indenture, any action by the
Holders which may be taken in writing may be taken by electronic means or as
otherwise reasonably acceptable to the Trustee.
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<PAGE>
SECTION 106. NOTICES, ETC., TO THE TRUSTEE, THE COMPANY AND ANY
GUARANTOR.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company or any Guarantor
or any other obligor on the Securities shall be sufficient for every purpose
(except as provided in Section 501(c)) hereunder if in writing and mailed,
first-class postage prepaid, or delivered by recognized overnight courier, to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Department, or at any other address previously furnished in writing to the
Holders or the Company, any Guarantor or any other obligor on the Securities by
the Trustee; or
(b) the Company or any Guarantor by the Trustee or any Holder
shall be sufficient for every purpose (except as provided in Section 501(c))
hereunder if in writing and mailed, first-class postage prepaid, or delivered by
recognized overnight courier, to the Company or such Guarantor addressed to it
c/o Oxford Industries, Inc., 222 Piedmont Avenue, N.E., Atlanta, Georgia 30308,
Attention: General Counsel, or at any other address previously furnished in
writing to the Trustee by the Company or such Guarantor.
SECTION 107. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, or
delivered by recognized overnight courier, to each Holder affected by such
event, at its address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice when mailed to a Holder in the aforesaid manner shall
be conclusively deemed to have been received by such Holder whether or not
actually received by such Holder. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause, it shall be impracticable to mail notice of any
event as required by any provision of this Indenture, then any method of giving
such notice as shall be reasonably satisfactory to the Trustee shall be deemed
to be a sufficient giving of such notice.
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision which is required
or deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
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<PAGE>
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
and the Guarantors shall bind their respective successors and assigns, whether
so expressed or not.
SECTION 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities
or Guarantees shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or Guarantees,
express or implied, shall give to any Person (other than the parties hereto and
their successors hereunder, any Paying Agent and the Holders) any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Maturity or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or premium, if any, need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on such Interest Payment Date or Redemption Date, or at
the Maturity or Stated Maturity and no interest shall accrue with respect to
such payment for the period from and after such Interest Payment Date,
Redemption Date, Maturity or Stated Maturity, as the case may be, to the next
succeeding Business Day.
SECTION 115. SCHEDULES AND EXHIBITS.
All schedules and exhibits attached hereto are by this
reference made a part hereof with the same effect as if herein set forth in
full.
SECTION 116. COUNTERPARTS.
This Indenture may be executed in any number of counterparts,
each of which shall be deemed an original; but all such counterparts shall
together constitute but one and the same instrument.
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<PAGE>
SECTION 117. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES OR STOCKHOLDERS.
No director, officer, employee, member or stockholder of the
Company or any Guarantor, as such, will have any liability for any obligations
of the Company or the Guarantors under the Securities, this Indenture, the
Guarantees, or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Securities by accepting a Security
waives and releases the Company and each Guarantor from all such liability. The
waiver and release are part of the consideration for issuance of the Securities.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities, the Guarantees and the Trustee's certificate
of authentication thereon shall be in substantially the forms set forth in this
Article Two, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted hereby and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange,
any organizational document or governing instrument or applicable law or as may,
consistently herewith, be determined by the officers executing such Securities
and Guarantees, as evidenced by their execution of the Securities and
Guarantees. Any portion of the text of any Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Security.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more Rule 144A Global Securities,
substantially in the form set forth in Section 202, deposited upon issuance with
the Trustee, as custodian for the Depositary, registered in the name of the
Depositary or its nominee, in each case for credit to an account of a direct or
indirect participant of the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Rule 144A Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided.
Securities offered and sold in reliance on Regulation S shall
be issued in the form of one or more Regulation S Global Securities,
substantially in the form set forth in Section 202, deposited upon issuance with
the Trustee, as custodian for the Depositary, registered in the name of the
Depositary or its nominee, in each case for credit by the Depositary to an
account of a direct or indirect participant of the Depositary, duly executed by
the Company and authenticated by the Trustee as hereinafter provided; provided,
however, that upon such deposit through and including the 40th day after the
later of the commencement of the offering of such Securities and the original
issue date of such Securities (such period through and including such 40th day,
the "Restricted Period"), all such Securities shall be credited to or through
accounts maintained at the Depositary by or on behalf of Euroclear or
Clearstream unless exchanged for interests in the Rule 144A Global Securities in
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<PAGE>
accordance with the transfer and certification requirements described below. The
aggregate principal amount of the Regulation S Global Securities may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Exchange Securities exchanged for Initial Securities shall be
issued initially in the form of one or more Unrestricted Global Securities,
substantially in the form set forth in Section 202, deposited upon issuance with
the Trustee, as custodian for the Depositary, registered in the name of the
Depositary or its nominee, in each case for credit to an account of a direct or
indirect participant of the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Exchange Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided.
With respect to any Additional Securities issued subsequent to
the date of this Indenture, (1) all references in Section 202 herein and
elsewhere in this Indenture to a Registration Rights Agreement shall be to the
registration rights agreement entered into with respect to such Additional
Securities, (2) any references in Section 202 and elsewhere in this Indenture to
the Exchange Offer, Exchange Offer Registration Statement, Shelf Registration
Statement, Initial Purchasers, Registration Default, and any other term related
thereto shall be to such terms as they are defined in such registration rights
agreement entered into with respect to such Additional Securities, (3) all time
periods described in the Securities with respect to the registration of such
Additional Securities shall be as provided in such Registration Rights Agreement
entered into with respect to such Additional Securities and (4) all provisions
of this Indenture shall be construed and interpreted to permit the issuance of
such Additional Securities and to allow such Additional Securities to become
fungible and interchangeable with the Initial Securities originally issued under
this Indenture.
SECTION 202. FORM OF FACE OF SECURITY.
(a) The form of the face of any Initial Securities
authenticated and delivered hereunder shall be substantially as follows:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION, OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION AS SET FORTH BELOW.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT ("RULE 144A") OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION OR (C) AN "INSTITUTIONAL ACCREDITED INVESTOR" (AS
DEFINED IN RULE
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<PAGE>
501(A)(1),(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT) AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH
THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A)
TO THE COMPANY OR ANY SUBSIDIARY OF THE COMPANY, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A INSIDE THE
UNITED STATES, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES PURSUANT
TO OFFERS AND SALES TO NON-U.S. PERSONS IN AN OFFSHORE
TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES (D), (E)
OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT
A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. AS USED HEREIN, THE TERMS "UNITED
STATES," "OFFSHORE TRANSACTION," AND "U.S. PERSON" HAVE THE
RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
[LEGEND IF SECURITY IS A GLOBAL SECURITY]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A
SUCCESSOR DEPOSITARY. TRANSFERS OF THIS GLOBAL SECURITY
- 35 -
<PAGE>
SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTIONS 306 AND 307 OF THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
[LEGEND IF SECURITY IS A REGULATION S GLOBAL SECURITY]
THIS SECURITY IS A REGULATION S GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE REFERRED TO HEREIN. INTERESTS IN THIS
REGULATION S GLOBAL SECURITY MAY NOT BE OFFERED OR SOLD TO A
U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD (AS DEFINED
IN THE INDENTURE), AND NO TRANSFER OR EXCHANGE OF AN INTEREST
IN THIS REGULATION S GLOBAL SECURITY MAY BE MADE FOR AN
INTEREST IN A RULE 144A GLOBAL SECURITY UNTIL AFTER THE
TERMINATION OF THE RESTRICTED PERIOD OR AS OTHERWISE PERMITTED
BY LAW AND CONTEMPLATED BY THE INDENTURE.
- 36 -
<PAGE>
OXFORD INDUSTRIES, INC.
8 7/8% SENIOR NOTE DUE 2011
CUSIP NO. ______________
No. __________ $__________
Oxford Industries, Inc., a Georgia corporation (herein called
the "Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of ________ United States dollars
on June 1, 2011, at the office or agency of the Company referred to below, and
to pay interest thereon from May 16, 2003, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semiannually
on June 1 and December 1 in each year, commencing December 1, 2003 at the rate
of 8 7/8% per annum, in United States dollars, until the principal hereof is
paid or duly provided for. Interest shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or any Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be May 15 or November 15 (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid, or duly provided for, and interest on such defaulted
interest at the interest rate borne by the Initial Securities, to the extent
lawful, shall forthwith cease to be payable to the Holder on such Regular Record
Date, and may either be paid to the Person in whose name this Security (or any
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such defaulted interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by the Indenture not inconsistent with the requirements of such exchange, all as
more fully provided in the Indenture.
Payment of the principal of, premium, if any, and interest on,
this Security, and exchange or transfer of the Security, will be made at the
office or agency of the Company in The City of New York maintained for that
purpose (which initially will be a corporate trust office of an affiliate of the
Trustee, SunTrust Bank, located at SunTrust Bank c/o Computershare Trust Co. of
New York, 88 Pine Street, Wall Street Plaza, 19th Floor, New York, NY 10005), or
at such other office or agency as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
payment of interest may be made at the option of the Company by check mailed to
the address of the Person entitled thereto as such address shall appear on the
Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
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<PAGE>
This Security is entitled to the benefits of the Guarantees by
the Guarantors of the punctual payment when due and performance of the Indenture
Obligations made in favor of the Trustee for the benefit of the Holders.
Reference is made to Article Thirteen of the Indenture for a statement of the
respective rights, limitations of rights, duties and obligations under the
Guarantees of the Guarantors.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature
of an authorized signer, this Security shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
- 38 -
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by the manual or facsimile signature of its authorized officer.
OXFORD INDUSTRIES, INC.
By: _______________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 8 7/8% Senior Notes due 2011 referred to in
the within-mentioned Indenture.
SUNTRUST BANK, as Trustee
By: _______________________
Authorized Signer
Dated:
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<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company
pursuant to Section 1012 or Section 1014, as applicable, of the Indenture, check
the Box: [ ].
If you wish to have a portion of this Security purchased by
the Company pursuant to Section 1012 or Section 1014, as applicable, of the
Indenture, state the amount (in original principal amount):
$ _________________.
Date: ___________________ Your Signature: _____________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee: __________________________________
[Signature must be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with membership in an
approved guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15]
- 40 -
<PAGE>
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
___________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including zip code of assignee)
________________________________________________________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
________________________________________________________________________________
attorney to transfer such Security on the books of the Company with full power
of substitution in the premises.
In connection with any transfer of this Security occurring
prior to the date which is the earlier of the date of an effective Registration
Statement or two years after the issuance of the relevant Securities, the
undersigned confirms that without utilizing any general solicitation or general
advertising that:
[Check One]
[ ](a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act of 1933,
as amended, provided by Rule 144A thereunder.
or
[ ](b) this Security is being transferred other than in accordance
with (a) above and documents are being furnished which comply
with the conditions of transfer set forth in this Security and
the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Security
Registrar shall not be obligated to register this Security in the name of any
Person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 307 of the Indenture
shall have been satisfied.
Date: _______________________
_______________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
- 41 -
<PAGE>
Signature Guarantee: _____________________________
[Signature must be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with membership in an
approved guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15]
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule 144A.
Dated: _________________ ______________________________________
NOTICE: To be executed by an authorized signatory
- 42 -
<PAGE>
(b) The form of the face of any Exchange Securities
authenticated and delivered hereunder shall be substantially as follows:
[LEGEND IF SECURITY IS A GLOBAL SECURITY]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A
SUCCESSOR DEPOSITARY. TRANSFERS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES
OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTIONS 306 AND 307 OF THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
- 43 -
<PAGE>
OXFORD INDUSTRIES, INC.
8 7/8% SENIOR NOTE DUE 2011
CUSIP NO. ______________
No. __________ $_______________________
Oxford Industries, Inc., a Georgia corporation (herein called
the "Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co. or registered assigns, the principal sum of _______ United States dollars on
June 1, 2011, at the office or agency of the Company referred to below, and to
pay interest thereon from May 16, 2003, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semiannually on June
1 and December 1in each year, commencing December 1, 2003 at the rate of 8 7/8%
per annum, in United States dollars, until the principal hereof is paid or duly
provided for; provided that to the extent interest has not been paid or duly
provided for with respect to the Initial Security exchanged for this Exchange
Security, interest on this Exchange Security shall accrue from the most recent
Interest Payment Date to which interest on the Initial Security which was
exchanged for this Exchange Security has been paid or duly provided for.
Interest shall be computed on the basis of a 360-day year comprised of twelve
30-day months.
This Exchange Security was issued pursuant to the Exchange
Offer pursuant to which the 8 7/8% Senior Notes due 2011, and related Guarantees
(herein called the "Initial Securities") in like principal amount were exchanged
for the Exchange Securities and related Guarantees. The Exchange Securities rank
pari passu in right of payment with the Initial Securities.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or any Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be May 15 or November 15 (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid, or duly provided for, and interest on such defaulted
interest at the interest rate borne by the Exchange Securities, to the extent
lawful, shall forthwith cease to be payable to the Holder on such Regular Record
Date, and may either be paid to the Person in whose name this Security (or any
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such defaulted interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by the Indenture not inconsistent with the requirements of such exchange, all as
more fully provided in the Indenture.
Payment of the principal of, premium, if any, and interest on,
this Security, and exchange or transfer of the Security, will be made at the
office or agency of the Company in The City of New York maintained for such
purpose (which initially will be a corporate trust office of an affiliate of the
Trustee, SunTrust Bank, located at SunTrust Bank c/o Computershare Trust Co. of
New York, 88 Pine Street, Wall Street Plaza, 19th Floor, New York, NY 10005), or
at such other office or agency as may be maintained for such purpose, in such
coin or currency of the United States of America as at
- 44 -
<PAGE>
the time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the address of the Person entitled thereto as such
address shall appear on the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Security is entitled to the benefits of the Guarantees by
the Guarantors of the punctual payment when due and performance of the Indenture
Obligations made in favor of the Trustee for the benefit of the Holders.
Reference is made to Article Thirteen of the Indenture for a statement of the
respective rights, limitations of rights, duties and obligations under the
Guarantees of the Guarantors.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature
of an authorized signer, this Security shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
- 45 -
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by the manual or facsimile signature of its authorized officer.
OXFORD INDUSTRIES, INC.
By: _______________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 8 7/8% Senior Notes due 2011 referred to in
the within-mentioned Indenture.
SUNTRUST BANK, as Trustee
By: _______________________________________
Authorized Signer
Dated:
- 46 -
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company
pursuant to Section 1012 or Section 1014, as applicable, of the Indenture, check
the Box: [ ].
If you wish to have a portion of this Security purchased by
the Company pursuant to Section 1012 or Section 1014 as applicable, of the
Indenture, state the amount (in original principal amount):
$________________.
Date: ___________________ Your Signature: _____________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee: __________________________________
[Signature must be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with membership in an
approved guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15]
- 47 -
<PAGE>
FORM OF TRANSFEREE CERTIFICATE
I or we assign and transfer this Security to:
Please insert social security or other identifying number of assignee
_______________________________________________________________________
_______________________________________________________________________
Print or type name, address and zip code of assignee and irrevocably
appoint________________________________________________________________
[Agent], to transfer this Security on the books of the Company. The Agent may
substitute another to act for him.
Dated ____________________ Signed_____________________________
(Sign exactly as name appears on the other side of this Security)
[Signature must be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with membership in an
approved guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17 Ad-15]
- 48 -
<PAGE>
SECTION 203. FORM OF REVERSE OF SECURITIES.
(a) The form of the reverse of the Initial Securities
shall be substantially as follows:
OXFORD INDUSTRIES, INC.
8 7/8% Senior Note due 2011
This Security is one of a duly authorized issue of Securities
of the Company designated as its 8 7/8% Senior Notes due 2011, Initial (herein
called the "Initial Securities"), initially limited (except as otherwise
provided in the Indenture referred to below) in aggregate principal amount to
$200,000,000, issued under and subject to the terms of an indenture (herein
called the "Indenture") dated as of May 16, 2003, among the Company, the
Guarantors and SunTrust Bank, as trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Guarantors, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
The Company may, from time to time, without notice to or the
consent of the Holders of the Securities, create and issue Additional Securities
under the Indenture ranking equally with the Initial Securities in all respects
(or in all respects other than the payment of interest accruing prior to the
issue date of such Additional Securities or except for the first payment of
interest following the issue date of such Additional Securities), subject to the
limitations described in Section 1008 of the Indenture. Such Additional
Securities will be consolidated and form a single series with the Initial
Securities and have the same terms as to status, redemption or otherwise as the
Initial Securities.
The Holder of this Initial Security is entitled to the
benefits of the Registration Rights Agreement among the Company, the Guarantors
and the Initial Purchasers, dated as of May 16, 2003, pursuant to which, subject
to the terms and conditions thereof, the Company and the Guarantors have agreed
to consummate the Exchange Offer pursuant to which the Holder of this Security
(and the related Guarantees) shall have the right to exchange this Security (and
the related Guarantees) for 8 7/8% Senior Notes due 2011, and related guarantees
(herein called the "Exchange Securities") in like principal amount as provided
therein. In addition, the Company and the Guarantors have agreed to register the
Securities for resale under the Securities Act through a Shelf Registration
Statement under certain circumstances. The Initial Securities and the Exchange
Securities are together (including related Guarantees) referred to as the
"Securities." The Initial Securities rank pari passu in right of payment with
the Exchange Securities.
In the event that (a) the Exchange Offer is not consummated on
or prior to September 30, 2004, or (b) a Shelf Registration Statement required
to be filed is not declared effective on or prior to the 180th day following the
date a Shelf Registration is required to be filed with the Commission (each such
event referred to in clauses (a) and (b) above, a "Registration Default"),
additional interest will accrue on the principal amount of the Initial
Securities at a rate of 2% per year from and including the date any such event
occurs through the date on which such event is cured, at which point the
additional interest will cease to accrue; provided, however, that, if after any
such additional interest ceases to accrue, a different event specified in clause
(a) or (b) above occurs, additional interest again shall accrue pursuant to the
foregoing provisions. If the Shelf Registration Statement is declared effective
but thereafter shall become unusable for more than 60 days in the aggregate,
then the interest rate borne by
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<PAGE>
the Initial Securities will be increased by 0.25% per annum of the principal
amount of the Initial Securities for the first 90-day period (or portion
thereof) beginning on the 61st such date that such Shelf Registration Statement
ceases to be usable, which rate shall be increased by an additional 0.25% per
annum of the principal amount of the Initial Securities at the beginning of each
subsequent 90-day period, provided that the maximum aggregate increase in the
interest rate will in no event exceed one percent (1%) per annum. Upon the Shelf
Registration Statement once again becoming usable, the interest rate borne by
the Initial Securities will be reduced to the original interest rate.
The Securities are subject to redemption at any time on or
after June 1, 2007, at the option of the Company, in whole or in part, on not
less than 30 nor more than 60 days' prior notice, in amounts of $1,000 or an
integral multiple thereof, at the following Redemption Prices (expressed as
percentages of the principal amount), if redeemed during the 12-month period
beginning June 1 of the years indicated below:
<TABLE>
<CAPTION>
Redemption
Year Price
- ---- ----------
<S> <C>
2007 104.438%
2008 102.219%
</TABLE>
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest, if any, to the Redemption Date (subject to the
rights of Holders of record on relevant record dates to receive interest due on
an Interest Payment Date).
In addition, at any time prior to June 1, 2006, the Company,
at its option, may use the net proceeds of one or more Equity Offerings to
redeem up to an aggregate of 35% of the aggregate principal amount of Securities
originally issued under the Indenture at a Redemption Price equal to 108.875% of
the aggregate principal amount thereof, plus accrued and unpaid interest
thereon, if any, to the Redemption Date (subject to the rights of Holders of
record on relevant record dates to receive interest due on an Interest Payment
Date); provided that this redemption provision shall not be applicable with
respect to any transaction that results in a Change of Control; provided,
further that at least 65% of the initial aggregate principal amount of
Securities remains outstanding immediately after the occurrence of such
redemption.
In addition, at any time prior to June 1, 2007, the Company
may redeem all or a portion of the Securities in amounts of $1,000 or an
integral multiple thereof, at a price equal to the greater of:
(i) 100% of the aggregate principal amount of the
Securities to be redeemed, together with accrued and unpaid interest,
if any, to the date of redemption, and
(ii) as determined by an Independent Investment Banker,
the sum of the present values of 104.438% of the principal of the
Securities being redeemed plus scheduled payments of interest (not
including any portion of such payments of interest accrued as of the
date of redemption) from the date of redemption to June 1, 2007,
discounted to the Redemption Date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate plus 50 basis points, together with accrued and unpaid
interest, if any, to the date of redemption.
If less than all of the Securities are to be redeemed, the
Trustee shall select the Securities or portions thereof to be redeemed in
compliance with the requirements of the principal
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<PAGE>
national securities exchange, if any, on which the Securities are listed, or if
the Securities are not so listed, pro rata, by lot or by any other method the
Trustee shall deem fair and reasonable. Securities redeemed in part must be
redeemed only in integral multiples of $1,000. Redemption pursuant to the
provisions relating to an Equity Offering must be made on a pro rata basis or on
as nearly a pro rata basis as practicable (subject to the procedures of DTC or
any other depositary).
If: (1) the Release has not occurred on or prior to 5:00 p.m.,
New York City time, on the Deadline or (2) the Company has earlier notified the
Securities Intermediary that it will not proceed with the Acquisition then the
Company shall, on a Business Day designated by the Company that is not more than
20 Business Days following the Deadline or such earlier date as permitted by
applicable law (the "Special Mandatory Redemption Date") redeem all of the
Securities (the "Special Mandatory Redemption") at the Special Redemption Price.
Upon the occurrence of a Change of Control, each Holder may
require the Company to purchase such Holder's Securities in whole or in part in
integral multiples of $1,000, at a purchase price in cash in an amount equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the date of purchase, pursuant to a Change of Control Offer in accordance
with the procedures set forth in the Indenture.
Under certain circumstances described in the Indenture, the
Company will be required to apply the proceeds of Asset Sales to the repayment
of the Securities and Pari Passu Indebtedness.
In the case of any redemption or repurchase of Securities in
accordance with the Indenture, interest installments whose Stated Maturity is on
or prior to the Redemption Date will be payable to the Holders of such
Securities of record as of the close of business on the relevant Regular Record
Date or Special Record Date referred to on the face hereof. Securities (or
portions thereof) for which redemption and payment provision is made in
accordance with the Indenture shall cease to bear interest from and after the
Redemption Date.
In the event of redemption or repurchase of this Security in
accordance with the Indenture in part only, a new Security or Securities for the
unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal amount of all the Securities may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of (a) the entire Indebtedness on the Securities and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions (including
certain amendments permitted without the consent of any Holders and certain
amendments which require the consent of all the Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the Guarantors and the rights of the Holders under the Indenture
and the Securities and the Guarantees at any time by the Company and the
Trustee with the consent of the Holders of at least a majority in aggregate
principal amount of the Securities at the time Outstanding. The Indenture also
contains provisions permitting, with certain exceptions (including certain
waivers which require the consent of all of the Holders) as therein provided,
the Holders of at least a majority
- 51 -
<PAGE>
in aggregate principal amount of the Securities at the time Outstanding, on
behalf of the Holders of all the Securities, to waive compliance by the Company
and the Guarantors with certain provisions of the Indenture and the Securities
and the Guarantees and certain past Defaults under the Indenture and the
Securities and the Guarantees and their consequences. Any such consent or
waiver by or on behalf of the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, any Guarantor or any other obligor on the Securities (in the event such
Guarantor or such other obligor is obligated to make payments in respect of the
Securities), which is joint and several, full, absolute and unconditional, to
pay the principal of, premium, if any, and interest on, this Security at the
times, place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or its attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
Certificated securities shall be transferred to all beneficial
holders in exchange for their beneficial interests in the Rule 144A Global
Securities, the Regulation S Global Securities or the IAI Global Securities if
(i) the Depositary (A) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Security or (B) has ceased to be a
clearing agency registered as such under the Exchange Act, and in either case
the Company fails to appoint a successor Depositary within 90 days, (ii) the
Company, at its option, notifies the Trustee in writing that it elects to cause
the issuance of the Securities in certificated form or (iii) there shall have
occurred and be continuing an Event of Default or any event which after notice
or lapse of time or both would be an Event of Default with respect to such
Global Security. Upon any such issuance, the Trustee is required to register
such certificated Initial Securities in the name of, and cause the same to be
delivered to, such Person or Persons (or the nominee of any thereof). All such
certificated Initial Securities would be required to include the Private
Placement Legend unless the Legend is not required by applicable law.
Initial Securities in certificated form are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Initial Securities are exchangeable for a
like aggregate principal amount of Securities of a differing authorized
denomination, as requested by the Holder surrendering the same.
At any time when the Company is not subject to Sections 13 or
15(d) of the Exchange Act, upon the written request of a Holder of a Initial
Security, the Company will promptly furnish or cause to be furnished such
information as is specified pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto) to such Holder or to a prospective
purchaser of such Initial Security who such Holder informs the Company is
reasonably believed to be a "Qualified Institutional
- 52 -
<PAGE>
Buyer" within the meaning of Rule 144A under the Securities Act, as the case may
be, in order to permit compliance by such Holder with Rule 144A under the
Securities Act.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, any Guarantor, the Trustee and any agent of the Company,
any Guarantor or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security is
overdue, and neither the Company, any Guarantor, the Trustee nor any such agent
shall be affected by notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
All terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
(b) The form of the reverse of the Exchange Securities
shall be substantially as follows:
OXFORD INDUSTRIES, INC.
8 7/8% Senior Note due 2011
This Security is one of a duly authorized issue of Securities
of the Company designated as its 8 7/8% Senior Notes due 2011, Exchange (herein
called the "Securities"), initially limited (except as otherwise provided in the
Indenture referred to below) in aggregate principal amount to $200,000,000,
issued under and subject to the terms of an indenture (herein called the
"Indenture") dated as of May 16, 2003, among the Company, the Guarantors and
SunTrust Bank, as trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
the Company, the Guarantors, the Trustee and the Holders of the Securities, and
of the terms upon which the Securities are, and are to be, authenticated and
delivered.
The Company may, from time to time, without notice to or the
consent of the Holders of the Securities, create and issue Additional Securities
under the Indenture ranking equally with the Initial Securities in all respects
(or in all respects other than the payment of interest accruing prior to the
issue date of such Additional Securities or except for the first payment of
interest following the issue date of such Additional Securities), subject to the
limitations described in Section 1008 of the Indenture. Such Additional
Securities will be consolidated and form a single series with the Initial
Securities and have the same terms as to status, redemption or otherwise as the
Initial Securities.
For any period in which the Initial Security exchanged for
this Exchange Security was outstanding, in the event that (a) the Exchange Offer
shall not have been consummated on or prior to September 30, 2004 or (b) a Shelf
Registration Statement required to have been filed shall not have been declared
effective on or prior to the 180th day following the date a Shelf Registration
Statement is
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<PAGE>
required to be filed with the Commission (each such event referred to in clauses
(a) and (b) above, a "Registration Default"), additional interest will accrue on
the principal amount of the Initial Securities at a rate of 2% per year from and
including the date any such event occurs through the date on which such event is
cured, at which point the additional interest will cease to accrue; provided,
however, that, if after any such additional interest ceases to accrue, a
different event specified in clause (a) or (b) above occurs, additional interest
again shall accrue pursuant to the foregoing provisions. If the Shelf
Registration Statement is declared effective but thereafter shall become
unusable for more than 60 days in the aggregate, then the interest rate borne by
the Initial Securities will be increased by 0.25% per annum of the principal
amount of the Initial Securities for the first 90-day period (or portion
thereof) beginning on the 61st such date that such Shelf Registration Statement
ceases to be usable, which rate shall be increased by an additional 0.25% per
annum of the principal amount of the Initial Securities at the beginning of each
subsequent 90-day period, provided that the maximum aggregate increase in the
interest rate will in no event exceed one percent (1%) per annum. Upon the Shelf
Registration Statement once again becoming usable, the interest rate borne by
the Initial Securities will be reduced to the original interest rate.
The Securities are subject to redemption at any time on or
after June 1, 2007, at the option of the Company, in whole or in part, on not
less than 30 nor more than 60 days' prior notice, in amounts of $1,000 or an
integral multiple thereof, at the following Redemption Prices (expressed as
percentages of the principal amount), if redeemed during the 12-month period
beginning June 1 of the years indicated below:
<TABLE>
<CAPTION>
Redemption
Year Price
- ---- ----------
<S> <C>
2007 104.438%
2008 102.219%
</TABLE>
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest, if any, to the Redemption Date (subject to the
rights of Holders of record on relevant record dates to receive interest due on
an Interest Payment Date).
In addition, at any time prior to June 1, 2006, the Company may, at its
option, use the net proceeds of one or more Equity Offerings to redeem up to an
aggregate of 35% of the aggregate principal amount of Securities originally
issued under the Indenture at a Redemption Price equal to 108.875% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon, if
any, to the Redemption Date (subject to the rights of Holders of record on
relevant record dates to receive interest due on an Interest Payment Date);
provided that this redemption provision shall not be applicable with respect to
any transaction that results in a Change of Control; provided, further that at
least 65% of the initial aggregate principal amount of Securities must remain
outstanding immediately after the occurrence of such redemption.
In addition, at any time prior to June 1, 2007, the Company
may redeem all or a portion of the Securities in amounts of $1,000 or an
integral multiple thereof, at a price equal to the greater of:
(i) 100% of the aggregate principal amount of the
Securities to be redeemed, together with accrued and unpaid interest,
if any, to the date of redemption, and
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<PAGE>
(ii) as determined by an Independent Investment Banker,
the sum of the present values of 104.438% of the principal of the
Securities being redeemed plus scheduled payments of interest (not
including any portion of such payments of interest accrued as of the
date of redemption) from the date of redemption to June 1, 2007,
discounted to the Redemption Date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate plus 50 basis points, together with accrued and unpaid
interest, if any, to the date of redemption.
If less than all of the Securities are to be redeemed, the
Trustee shall select the Securities or portions thereof to be redeemed in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are listed or, if the Securities are not so
listed, pro rata, by lot or by any other method the Trustee shall deem fair and
reasonable. Securities redeemed in part must be redeemed only in integral
multiples of $1,000. Redemption pursuant to the provisions relating to an Equity
Offering must be made on a pro rata basis or on as nearly a pro rata basis as
practicable (subject to the procedures of DTC or any other depositary).
If: (1) the Release has not occurred on or prior to 5:00 p.m.,
New York City time, on the Deadline or (2) the Company has earlier notified the
Securities Intermediary that it will not proceed with the Acquisition then the
Company shall, on a Business Day designated by the Company that is not more than
20 Business Days following the Deadline or such earlier date as permitted by
applicable law (the "Special Mandatory Redemption Date") redeem all of the
Securities (the "Special Mandatory Redemption") at the Special Redemption Price.
Upon the occurrence of a Change of Control, each Holder may
require the Company to purchase such Holder's Securities in whole or in part in
integral multiples of $1,000, at a purchase price in cash in an amount equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the date of purchase, pursuant to a Change of Control Offer in accordance
with the procedures set forth in the Indenture.
Under certain circumstances described in the Indenture, the
Company will be required to apply the proceeds of Asset Sales to the repayment
of the Securities and Pari Passu Indebtedness.
In the case of any redemption or repurchase of Securities in
accordance with the Indenture, interest installments whose Stated Maturity is on
or prior to the Redemption Date will be payable to the Holders of such
Securities of record as of the close of business on the relevant Regular Record
Date or Special Record Date referred to on the face hereof. Securities (or
portions thereof) for which redemption and payment provision is made in
accordance with the Indenture shall cease to bear interest from and after the
Redemption Date.
In the event of redemption or repurchase of this Security in
accordance with the Indenture in part only, a new Security or Securities for the
unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal amount of all the Securities may be declared due and payable in the
manner and with the effect provided in the Indenture.
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<PAGE>
The Indenture contains provisions for defeasance at any time
of (a) the entire Indebtedness on the Securities and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions (including
certain amendments permitted without the consent of any Holders and certain
amendments which require the consent of all the Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the Guarantors and the rights of the Holders under the Indenture and
the Securities and the Guarantees at any time by the Company and the Trustee
with the consent of the Holders of at least a majority in aggregate principal
amount of the Securities at the time Outstanding. The Indenture also contains
provisions permitting, with certain exceptions (including certain waivers which
require the consent of all of the Holders) as therein provided, the Holders of
at least a majority in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company and the Guarantors with certain provisions of the Indenture and
the Securities and the Guarantees and certain past Defaults under the Indenture
and the Securities and the Guarantees and their consequences. Any such consent
or waiver by or on behalf of the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, any Guarantor or any other obligor on the Securities (in the event such
Guarantor or such other obligor is obligated to make payments in respect of the
Securities), which is joint and several, full, absolute and unconditional, to
pay the principal of, and premium, if any, and interest on, this Security at the
times, place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or its attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
Certificated securities shall be transferred to all beneficial
holders in exchange for their beneficial interests in the Exchange Securities if
(i) the Depositary (A) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Security or (B) has ceased to be a
clearing agency registered as such under the Exchange Act, and in either case
the Company fails to appoint a successor Depositary within 90 days, (ii) the
Company, at its option, notifies the Trustee in writing that it elects to cause
the issuance of the Securities in certificated form or (iii) there shall have
occurred and be continuing an Event of Default or any event which after notice
or lapse of time or both would be an Event of Default with respect to such
Global Security. Upon any such issuance, the Trustee is required to register
such certificated Exchange Securities in the name of, and cause the same to be
delivered to, such Person or Persons (or the nominee of any thereof).
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<PAGE>
Exchange Securities in certificated form are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Exchange Securities are exchangeable for a
like aggregate principal amount of Securities of a differing authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, any Guarantor, the Trustee and any agent of the Company,
any Guarantor or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security is
overdue, and neither the Company, any Guarantor, the Trustee nor any such agent
shall be affected by notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
All terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
SECTION 204. FORM OF GUARANTEE.
The form of Guarantee shall be set forth on the Securities
(including both Initial Securities and Exchange Securities) substantially as
follows:
GUARANTEE
For value received, each of the undersigned hereby absolutely,
fully and unconditionally and irrevocably guarantees, jointly and severally with
each other Guarantor, to the holder of this Security the payment of principal
of, premium, if any, and interest on this Security upon which these Guarantees
are endorsed in the amounts and at the time when due and payable whether by
declaration thereof, or otherwise, and interest on the overdue principal and
interest, if any, of this Security, if lawful, and the payment or performance of
all other obligations of the Company under the Indenture or the Securities, to
the holder of this Security and the Trustee, all in accordance with and subject
to the terms and limitations of this Security and Article Thirteen of the
Indenture. This Guarantee will not become effective until the Trustee duly
executes the certificate of authentication on this Security. These Guarantees
shall be governed by and construed in accordance with the laws of the State of
New York, without regard to conflict of law principles thereof.
Dated:
[GUARANTORS]
By: _________________________________________
Name:
- 57 -
<PAGE>
Title:
ARTICLE THREE
THE SECURITIES
SECTION 301. TITLE AND TERMS.
The initial aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is $200,000,000 in principal
amount of Securities, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 303, 304, 305, 306, 307, 308, 906, 1012, 1014 or 1108.
Notwithstanding the foregoing, the Company may, from time to time, without
notice to or the consent of the Holders of Securities, create and issue
Additional Securities under this Indenture ranking equally with the Initial
Securities in all respects (or in all respects other than the payment of
interest accruing prior to the issue date of such Additional Securities or
except for the first payment of interest following the issue date of such
Additional Securities), subject to the limitations described in Section 1008
hereof. Such Additional Securities will be consolidated and form a single series
with the Initial Securities and have the same terms as to status, redemption or
otherwise as the Initial Securities.
The Securities shall be known and designated as the "8 7/8%
Senior Notes due 2011" of the Company. The Stated Maturity of the Securities
shall be May 16, 2011, and the Securities shall each bear interest at the rate
of 8 7/8% per annum, as such interest rate may be adjusted as set forth in the
Securities, from May 16, 2003, or from the most recent Interest Payment Date to
which interest has been paid, payable semiannually on June 1 and December 1 in
each year, commencing December 1, 2003, until the principal thereof is paid or
duly provided for. Interest on any overdue principal, interest (to the extent
lawful) or premium, if any, shall be payable on demand.
The principal of, premium, if any, and interest on, the
Securities shall be payable and the Securities shall be exchangeable and
transferable at an office or agency of the Company in The City of New York
maintained for such purposes (which initially will be a corporate trust office
of an affiliate of the Trustee, located at SunTrust Bank c/o Computershare Trust
Co. of New York, 88 Pine Street, Wall Street Plaza, 19th Floor, New York, NY
10005); provided, however, that payment of interest may be made at the option of
the Company by check mailed to addresses of the Persons entitled thereto as
shown on the Security Register.
For all purposes hereunder, the Initial Securities and the
Exchange Securities will be treated as one class and are together referred to as
the "Securities." The Initial Securities rank pari passu in right of payment
with the Exchange Securities.
The Securities shall be subject to repurchase by the Company
pursuant to an Offer as provided in Section 1012.
Holders shall have the right to require the Company to
purchase their Securities, in whole or in part, in the event of a Change of
Control pursuant to Section 1014.
The Securities shall be redeemable as provided in Article
Eleven and in the Securities.
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<PAGE>
The Securities shall be senior Indebtedness of the Company
ranking equal to all other existing and future senior Indebtedness of the
Company and senior to all Subordinated Indebtedness of the Company.
At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article Four.
SECTION 302. DENOMINATIONS.
The Securities shall be issuable only in fully registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by
one of its Chairman of the Board, its President, its Chief Executive Officer,
its Chief Financial Officer or one of its Vice Presidents. The signatures of any
of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee (with Guarantees endorsed thereon if required pursuant to
the provisions of this Indenture) for authentication, together with a Company
Order for the authentication and delivery of such Securities; and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities as provided in this Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security or Guarantee endorsed thereon shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of an authorized officer, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
In case the Company or any Guarantor, pursuant to Article
Eight, shall, in a single transaction or through a series of related
transactions, be consolidated or merged with or into any other Person or shall
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person, and the successor
Person resulting from such consolidation or surviving such merger, or into which
the Company or such Guarantor shall have been merged, or the successor Person
which shall have participated in the sale, assignment, conveyance, transfer,
lease or other disposition as aforesaid, shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article Eight, any of the
Securities authenticated or delivered prior to such consolidation, merger, sale,
assignment, conveyance, transfer, lease or other disposition may, from time to
time, at the request of the successor Person, be exchanged for other Securities
executed in the name of the
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successor Person with such changes in phraseology and form as may be
appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon the written request of the successor Person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section 303 in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities on behalf of the Trustee.
Unless limited by the terms of such appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Security Registrar or
Paying Agent to deal with the Company and the Guarantors.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause the Trustee to keep, so long as it is
the Security Registrar, at the Corporate Trust Office of the Trustee, or such
other office as the Trustee may designate, a register (the register maintained
in such office or in any other office or agency designated pursuant to Section
1002 being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as the Security Registrar may prescribe,
the Company shall provide for the registration of Securities and of transfers of
Securities. The Trustee shall initially be the "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided. The Company may change the Security Registrar or appoint one or more
co-Security Registrars without notice.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section 1002, the
Company shall execute, and the Trustee shall
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authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series of any authorized
denomination or denominations, of a like aggregate principal amount.
Furthermore, any Holder of the Global Security shall, by
acceptance of such Global Security, agree that transfers of beneficial interests
in such Global Security may be effected only through a book-entry system
maintained by the Holder of such Global Security (or its agent), and that
ownership of a beneficial interest in a Security shall be required to be
reflected in a book entry.
At the option of the Holder, Securities of any authorized
denomination or denominations may be exchanged for other Securities of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver,
Securities of the same series which the Holder making the exchange is entitled
to receive; provided that no exchange of Initial Securities for Exchange
Securities shall occur until an Exchange Offer Registration Statement shall have
been declared effective by the Commission and the Exchange Offer shall have
expired; and provided, further, however that the Initial Securities exchanged
for the Exchange Securities shall be canceled.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same Indebtedness, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer, or for exchange, repurchase or redemption, shall (if so required by
the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made to a Holder for any
registration of transfer, exchange or redemption of Securities, except for any
tax or other governmental charge that may be imposed in connection therewith,
other than exchanges pursuant to Sections 303, 304, 305, 308, 906, 1012, 1014 or
1108 not involving any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the selection of Securities to be redeemed under Section
1104 and ending at the close of business on the day of such selection, (b) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of Securities being redeemed in
part, (c) to register the transfer of or exchange any Security during a period
beginning 15 days before an Interest Payment Date or (d) to register the
transfer of or exchange any Security that has been tendered in a Change of
Control or an Excess Proceeds Offer.
Every Security shall be subject to the restrictions on
transfer provided in the legend required to be set forth on the face of each
Security pursuant to Section 202, and the restrictions set forth in this Section
305, and the Holder of each Security, by such Holder's acceptance thereof (or
interest therein), agrees to be bound by such restrictions on transfer.
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Except as provided in Section 306(b) hereof, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security, whether pursuant to this Section 305,
Section 304, 308, 906 or 1108 or otherwise, shall also be a Global Security and
bear the legend specified in Section 202.
SECTION 306. BOOK ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(a) Each Global Security initially shall (i) be
registered in the name of the Depositary for such Global Security or the nominee
of such Depositary, (ii) be deposited with, or on behalf of, the Depositary or
with the Trustee as custodian for such Depositary and (iii) bear legends as set
forth in Section 202.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under such Global Security, and the Depositary may be treated by
the Company, the Guarantors, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Guarantors, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or shall impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a Holder of any Security.
(b) Notwithstanding any other provision in this
Indenture, no Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (i) such Depositary (A) has notified
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or (B) has ceased to be a clearing agency registered as such
under the Exchange Act, and in either case the Company fails to appoint a
successor Depositary within 90 days, (ii) the Company, at its option, executes
and delivers to the Trustee a Company Order stating that it elects to cause the
issuance of the Securities in certificated form and that all Global Securities
shall be exchanged in whole for Securities that are not Global Securities (in
which case such exchange shall be effected by the Trustee) or (iii) there shall
have occurred and be continuing an Event of Default or any event which after
notice or lapse of time or both would be an Event of Default with respect to
such Global Security.
(c) If any Global Security is to be exchanged for other
Securities or canceled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Trustee, as Security Registrar, for exchange or
cancellation as provided in this Article Three. If any Global Security is to be
exchanged for other Securities or canceled in part, or if another Security is to
be exchanged in whole or in part for a beneficial interest in any Global
Security, then either (i) such Global Security shall be so surrendered for
exchange or cancellation as provided in this Article Three or (ii) the principal
amount thereof shall be reduced or increased by an amount equal to the portion
thereof to be so exchanged or canceled, or equal to the principal amount of such
other Security to be so exchanged for a beneficial interest therein, as the case
may be, by means of an appropriate adjustment made on the records of the
Trustee, as Security Registrar, whereupon the Trustee, in accordance with the
Applicable Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Security, the Trustee shall, subject to this
Section 306(c) and as otherwise provided in this Article Three, authenticate and
deliver any Securities issuable in exchange for such Global Security (or any
portion
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thereof) to or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative. Upon the request
of the Trustee in connection with the occurrence of any of the events specified
in the preceding paragraph, the Company shall promptly make available to the
Trustee a reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is given or
made pursuant to this Article Three if such order, direction or request is given
or made in accordance with the Applicable Procedures.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global Security
or any portion thereof, whether pursuant to this Article Three or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of
a Global Security, shall be the Holder of such Global Security for all purposes
under this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
SECTION 307. SPECIAL TRANSFER AND EXCHANGE PROVISIONS.
(a) Certain Transfers and Exchanges. Transfers and
exchanges of Securities and beneficial interests in a Global Security of the
kinds specified in this Section 307 shall be made only in accordance with this
Section 307 and subject in each case to the Applicable Procedures.
(i) Rule 144A Global Security to Regulation S Global
Security. If the owner of a beneficial interest in the Rule 144A Global
Security wishes at any time to transfer such interest to a Person who
wishes to acquire the same in the form of a beneficial interest in the
Regulation S Global Security, such transfer may be effected only in
accordance with the provisions of this paragraph and paragraph (viii)
below and subject to the Applicable Procedures. Upon receipt by the
Trustee, as Security Registrar, of (a) an order given by the Depositary
or its authorized representative directing that a beneficial interest
in the Regulation S Global Security in a specified principal amount be
credited to a specified Agent Member's account and that a beneficial
interest in the Rule 144A Global Security in an equal principal amount
be debited from another specified Agent Member's account and (b) a
Regulation S Certificate in the form of Exhibit A hereto, satisfactory
to the Trustee and duly executed by the owner of such beneficial
interest in the Rule 144A Global Security or his attorney duly
authorized in writing, then the Trustee, as Security Registrar but
subject to paragraph (viii) below, shall reduce the principal amount of
the Rule 144A Global Security and increase the principal amount of the
Regulation S Global Security by such specified principal amount as
provided in Section 306(c).
(ii) Rule 144A Global Security to IAI Global Security. If
the owner of a beneficial interest in the Rule 144A Global Security
wishes at any time to transfer such interest to a Person who wishes to
acquire the same in the form of a beneficial interest in the IAI Global
Security, such transfer may be effected only in accordance with the
provisions of this paragraph and subject to the Applicable Procedures.
Upon receipt by the Trustee, as Security Registrar,
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of (a) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the IAI Global
Security in a specified principal amount be credited to a specified
Agent Member's account and that a beneficial interest in the Rule 144A
Global Security in an equal principal amount be debited from another
specified Agent Member's account and (b) an Institutional Accredited
Investor Certificate in the form of Exhibit C hereto, satisfactory to
the Trustee, then the Trustee, as Security Registrar, shall reduce the
principal amount of the Rule 144A Global Security and increase the
principal amount of the IAI Global Security by such specified principal
amount as provided in Section 306(c).
(iii) Regulation S Global Security to Rule 144A Global
Security. If the owner of a beneficial interest in the Regulation S
Global Security wishes at any time to transfer such interest to a
Person who wishes to acquire the same in the form of a beneficial
interest in the Rule 144A Global Security, such transfer may be
effected only in accordance with this paragraph and subject to the
Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of (a) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the Rule 144A
Global Security in a specified principal amount be credited to a
specified Agent Member's account and that a beneficial interest in the
Regulation S Global Security in an equal principal amount be debited
from another specified Agent Member's account and (b) if such transfer
is to occur during the Restricted Period, a Restricted Securities
Certificate in the form of Exhibit B hereto, satisfactory to the
Trustee and duly executed by the owner of such beneficial interest in
the Regulation S Global Security or his attorney duly authorized in
writing, then the Trustee, as Security Registrar, shall reduce the
principal amount of the Regulation S Global Security and increase the
principal amount of the Rule 144A Global Security by such specified
principal amount as provided in Section 306(c).
(iv) Regulation S Global Security to IAI Global Security.
If the owner of a beneficial interest in the Regulation S Global
Security wishes at any time to transfer such interest to a Person who
wishes to acquire the same in the form of a beneficial interest in the
IAI Global Security, such transfer may be effected only in accordance
with this paragraph and subject to the Applicable Procedures. Upon
receipt by the Trustee, as Security Registrar, of (a) an order given by
the Depositary or its authorized representative directing that a
beneficial interest in the IAI Global Security in a specified principal
amount be credited to a specified Agent Member's account and that a
beneficial interest in the Regulation S Global Security in an equal
principal amount be debited from another specified Agent Member's
account and (b) if such transfer is to occur during the Restricted
Period, an Institutional Accredited Investor Certificate in the form of
Exhibit C hereto, satisfactory to the Trustee, then the Trustee, as
Security Registrar, shall reduce the principal amount of the Regulation
S Global Security and increase the principal amount of the IAI Global
Security by such specified principal amount as provided in Section
306(c).
(v) IAI Global Security to Regulation S Global Security.
If the owner of a beneficial interest in the IAI Global Security wishes
at any time to transfer such interest to a Person who wishes to acquire
the same in the form of a beneficial interest in the Regulation S
Global Security, such transfer may be effected only in accordance with
the provisions of this paragraph and paragraph (viii) below and subject
to the Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of (a) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the IAI Global
Security in a specified principal amount be credited to a specified
Agent Member's account and that a beneficial interest in the IAI Global
Security in an equal principal amount be debited from another
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specified Agent Member's account and (b) a Regulation S Certificate in
the form of Exhibit A hereto, satisfactory to the Trustee and duly
executed by the owner of such beneficial interest in the IAI Global
Security or his attorney duly authorized in writing, then the Trustee,
as Security Registrar but subject to paragraph (viii) below, shall
reduce the principal amount of the IAI Global Security and increase the
principal amount of the Regulation S Global Security by such specified
principal amount as provided in Section 306(c).
(vi) IAI Global Security to Rule 144A Global Security. If
the owner of a beneficial interest in the IAI Global Security wishes at
any time to transfer such interest to a Person who wishes to acquire
the same in the form of a beneficial interest in the Rule 144A Global
Security, such transfer may be effected only in accordance with this
paragraph and subject to the Applicable Procedures. Upon receipt by the
Trustee, as Security Registrar, of (a) an order given by the Depositary
or its authorized representative directing that a beneficial interest
in the Rule 144A Global Security in a specified principal amount be
credited to a specified Agent Member's account and that a beneficial
interest in the IAI Global Security in an equal principal amount be
debited from another specified Agent Member's account and (b) if such
transfer is to occur during the Restricted Period, a Restricted
Securities Certificate in the form of Exhibit B hereto, satisfactory to
the Trustee and duly executed by the owner of such beneficial interest
in the IAI Global Security or his attorney duly authorized in writing,
then the Trustee, as Security Registrar, shall reduce the principal
amount of the IAI Global Security and increase the principal amount of
the Rule 144A Global Security by such specified principal amount as
provided in Section 306(c).
(vii) Exchanges between Global Security and Non-Global
Security. A beneficial interest in a Global Security may be exchanged
for a Security that is not a Global Security as provided in Section
307(b), provided that, if such interest is a beneficial interest in the
Rule 144A Global Security, or if such interest is a beneficial interest
in the IAI Global Security, or if such interest is a beneficial
interest in the Regulation S Global Security and such exchange is to
occur during the Restricted Period, then such interest shall bear the
Private Placement Legend (subject in each case to Section 307(b)).
(viii) Regulation S Global Security to be Held Through
Euroclear or Clearstream during Restricted Period. The Company shall
use its commercially reasonable efforts to cause the Depositary to
ensure that, until the expiration of the Restricted Period, beneficial
interests in the Regulation S Global Security may be held only in or
through accounts maintained at the Depositary by Euroclear or
Clearstream (or by Agent Members acting for the account thereof), and
no person shall be entitled to effect any transfer or exchange that
would result in any such interest being held otherwise than in or
through such an account; provided that this paragraph (iv) shall not
prohibit any transfer or exchange of such an interest in accordance
with paragraph (ii) above.
(b) Private Placement Legends. Rule 144A Global
Securities and their Successor Securities, IAI Global Securities and their
Successor Securities and Regulation S Global Securities and their Successor
Securities shall bear a Private Placement Legend, subject to the following:
(i) subject to the following clauses of this Section
307(b), a Security or any portion thereof which is exchanged, upon
transfer or otherwise, for a Global Security or any portion thereof
shall bear the Private Placement Legend borne by such Global Security
while represented thereby;
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(ii) subject to the following clauses of this Section
307(b) herein, a new Security which is not a Global Security and is
issued in exchange for another Security (including a Global Security)
or any portion thereof, upon transfer or otherwise, shall bear the
Private Placement Legend borne by such other Security;
(iii) all Securities sold or otherwise disposed of pursuant
to an effective registration statement under the Securities Act,
together with their respective Successor Securities, shall not bear a
Private Placement Legend;
(iv) at any time after the Securities may be freely
transferred without registration under the Securities Act or without
being subject to transfer restrictions pursuant to the Securities Act,
a new Security which does not bear a Private Placement Legend may be
issued in exchange for or in lieu of a Security (other than a Global
Security) or any portion thereof which bears such a legend if the
Trustee has received an Unrestricted Securities Certificate
substantially in the form of Exhibit D hereto, satisfactory to the
Trustee and duly executed by the Holder of such legended Security or
his attorney duly authorized in writing, and after such date and
receipt of such certificate, the Trustee shall authenticate and deliver
such a new Security in exchange for or in lieu of such other Security
as provided in this Article Three;
(v) a new Security which does not bear a Private
Placement Legend may be issued in exchange for or in lieu of a Security
(other than a Global Security) or any portion thereof which bears such
a legend if, in the Company's judgment, placing such a legend upon such
new Security is not necessary to ensure compliance with the
registration requirements of the Securities Act, and the Trustee, at
the direction of the Company, shall authenticate and deliver such a new
Security as provided in this Article Three; and
(vi) notwithstanding the foregoing provisions of this
Section 307(b), a Successor Security of a Security that does not bear a
particular form of Private Placement Legend shall not bear such form of
legend unless the Company has reasonable cause to believe that such
Successor Security is a "restricted security" within the meaning of
Rule 144, in which case the Trustee, at the direction of the Company,
shall authenticate and deliver a new Security bearing a Private
Placement Legend in exchange for such Successor Security as provided in
this Article Three.
By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Security Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 306 or
this Section 307. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Security Registrar.
SECTION 308. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If (a) any mutilated Security is surrendered to the Trustee,
or (b) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company, any Guarantor and the Trustee, such security or indemnity, in each
case,
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as may be required by them to save each of them harmless, then, in the absence
of notice to the Company, any Guarantor or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall execute and upon a
Company Request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a replacement Security of like tenor and principal amount, bearing a
number not contemporaneously outstanding and each Guarantor shall execute a
replacement Guarantee.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this
Section, the Company may require the payment of a sum sufficient to pay all
documentary, stamp or similar issue or transfer taxes or other governmental
charges that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every replacement Security and Guarantee issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company and any Guarantor,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this Indenture
equally and proportionately with any and all other Securities duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 309. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on the Stated Maturity of such interest shall be paid
to the Person in whose name the Security (or any Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
payment.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on an Interest Payment Date, and interest
on such defaulted interest at the then applicable interest rate borne by the
Securities, to the extent lawful (such defaulted interest and interest thereon
herein collectively called "Defaulted Interest"), shall forthwith cease to be
payable to the Holder on the Regular Record Date; and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in
subsection (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities (or any relevant
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment (the "Special Payment Date"), and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the Special
Payment Date, such money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted
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Interest as in this subsection provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the Special
Payment Date and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company in
writing of such Special Record Date. In the name and at the expense of the
Company, the Trustee shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at its address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date and Special Payment Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities are
registered on such Special Record Date and shall no longer be payable pursuant
to the following subsection (b).
(b) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by this Indenture not inconsistent with the
requirements of such exchange, if, after written notice given by the Company to
the Trustee of the proposed payment pursuant to this subsection, such payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 309, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 310. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and the Trustee, on behalf of the Company, shall use
such CUSIP numbers in notices of redemption or exchange as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or exchange and
that reliance may be placed only on the other identification numbers printed on
the Securities; and provided further, however, that failure to use CUSIP numbers
in any notice of redemption or exchange shall not affect the validity or
sufficiency of such notice.
SECTION 311. PERSONS DEEMED OWNERS.
Prior to and at the time of due presentment of a Security for
registration of transfer, the Company, any Guarantor, the Trustee and any agent
of the Company, any Guarantor or the Trustee may treat the Person in whose name
any Security is registered as the owner of such Security for the purpose of
receiving payment of principal of, premium, if any, and (subject to Section 309)
interest on, such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and neither the Company, any Guarantor, the Trustee
nor any agent of the Company, any Guarantor or the Trustee shall be affected by
notice to the contrary. All such payments so made to any such Person shall be
valid and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any Security.
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SECTION 312. CANCELLATION.
All Securities surrendered for payment, purchase, redemption,
registration of transfer or exchange shall be delivered to the Trustee and, if
not already canceled, shall be promptly canceled by it. The Company and any
Guarantor may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company or such
Guarantor may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section 312, except as expressly permitted by this Indenture. All
canceled Securities held by the Trustee shall be destroyed and certification of
their destruction delivered to the Company, unless by a Company Order received
by the Trustee prior to such destruction, the Company shall direct that the
canceled Securities be returned to it. The Trustee shall provide the Company a
list of all Securities that have been canceled from time to time as requested by
the Company.
SECTION 313. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a
360-day year comprised of twelve 30-day months.
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at its option, at any time, with respect to
the Securities, elect to have either Section 402 or Section 403 be applied to
all of the Outstanding Securities (the "Defeased Securities"), upon compliance
with the conditions set forth below in this Article Four.
SECTION 402. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 401 of the option
applicable to this Section 402, the Company, each Guarantor and any other
obligor upon the Securities, if any, shall be deemed to have been discharged
from its obligations with respect to the Defeased Securities on the date the
conditions set forth in Section 404 below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company, each
Guarantor and any other obligor under this Indenture shall be deemed to have
paid and discharged the entire Indebtedness represented by the Defeased
Securities, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 405 and the other Sections of this Indenture referred to in
(a) and (b) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company and upon Company Request, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of Defeased Securities to receive, solely from the trust fund described
in Section 404 and as more fully set forth in such Section, payments in respect
of the principal of, premium, if any, and interest on, such Securities, when
such payments are due, (b) the Company's obligations with respect to such
Defeased Securities under Sections 304, 305, 308, 1002 and 1003, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, including,
without limitation, the Trustee's rights under Section 607, and (d) this Article
Four. Subject
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to compliance with this Article Four, the Company may exercise its option under
this Section 402 notwithstanding the prior exercise of its option under Section
403 with respect to the Securities.
SECTION 403. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 401 of the option
applicable to this Section 403, the Company and each Guarantor shall be released
from its obligations under any covenant or provision contained or referred to in
Sections 1005 through 1018, inclusive, and the provisions of Section 801, with
respect to the Defeased Securities, on and after the date the conditions set
forth in Section 404 below are satisfied (hereinafter, "covenant defeasance"),
and the Defeased Securities shall thereafter be deemed to be 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.
For this purpose, such covenant defeasance means that, with respect to the
Defeased Securities, the Company and each Guarantor may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 501(c) or otherwise, and Defaults or Events of Default under Section
501(d), (e) and (f) shall cease to apply, but, except as specified above, the
remainder of this Indenture and such Defeased Securities shall be unaffected
thereby.
SECTION 404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of
Section 402 and Section 403 to the Defeased Securities unless noted otherwise:
(1) The Company shall irrevocably have deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
such Securities, (a) cash in United States dollars, (b) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms and with no
further reinvestment will provide, not later than one day before the
due date of payment, money in an amount, or (c) a combination thereof,
in each case, in such amounts as will be sufficient, in the opinion of
a nationally recognized firm of independent public accountants or a
nationally recognized investment banking firm expressed in a written
certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee to pay and discharge, the
principal of, premium, if any, and interest on, the Defeased
Securities, on the Stated Maturity of such principal or interest (or on
any date after June 1, 2007 (such date being referred to as the
"Defeasance Redemption Date") if at or prior to electing to exercise
either its option applicable to Section 402 or its option applicable to
Section 403, the Company has delivered to the Trustee an irrevocable
notice to redeem the Defeased Securities on the Defeasance Redemption
Date). For this purpose, "U.S. Government Obligations" means securities
that are (i) direct obligations of the United States of America for the
timely payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued
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by a bank (as defined in Section 3(a)(2) of the Securities Act), as
custodian with respect to any such U.S. Government Obligation or a
specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt;
(2) In the case of an election under Section
402, the Company shall have delivered to the Trustee an Opinion of
Independent Counsel in the United States stating that (A) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date hereof, there has been a change
in the applicable federal income tax law, in either case to the effect
that, and based thereon such Opinion of Independent Counsel in the
United States shall confirm that, the Holders of the Outstanding
Securities will not recognize income, gain or loss for federal income
tax purposes as a result of such defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance had not
occurred;
(3) In the case of an election under Section
403, the Company shall have delivered to the Trustee an Opinion of
Independent Counsel in the United States to the effect that the Holders
of the Outstanding Securities will not recognize income, gain or loss
for federal income tax purposes as a result of such covenant defeasance
and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
covenant defeasance had not occurred;
(4) No Default or Event of Default shall have
occurred and be continuing on the date of such deposit or insofar as
Section 501(g) or (h) is concerned, at any time during the period
ending on the 91st day after the date of deposit (it being understood
that this condition shall not be deemed satisfied until the expiration
of such period);
(5) Such defeasance or covenant defeasance shall
not result in a breach or violation of, or constitute a Default under,
this Indenture or any other material agreement or instrument to which
the Company, any Guarantor or any Restricted Subsidiary is a party or
by which it is bound;
(6) The Company will have delivered to the
Trustee an Opinion of Independent Counsel in the United States to the
effect that (assuming no Holder of the Securities would be considered
an insider of the Company or any Guarantor under any applicable
bankruptcy or insolvency law and assuming no intervening bankruptcy or
insolvency of the Company or any Guarantor between the date of deposit
and the 91st day following the deposit) after the 91st day following
the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(7) No event or condition shall exist that would
prevent the Company from making payments of the principal of, premium,
if any, and interest on the Securities on the date of such deposit or
at any time ending on the 91st day after the date of such deposit; and
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(8) The Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Independent Counsel,
each stating that all conditions precedent to either the defeasance
under Section 402 or the covenant defeasance under Section 403 (as the
case may be) have been complied with.
Opinions of Counsel or Opinions of Independent Counsel
required to be delivered under this Section may have qualifications customary
for opinions of the type required and counsel delivering such opinions may rely
on certificates of the Company or government or other officials customary for
opinions of the type required, which certificates shall be limited as to matters
of fact, including that various financial covenants have been complied with.
SECTION 405. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section
1003, all United States dollars and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section 404 in respect
of the Defeased Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (excluding the Company or
any of its Affiliates 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 Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is imposed, assessed or for the account of the Holders of the Defeased
Securities.
Anything in this Article Four to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any United States dollars or U.S. Government Obligations held by it as
provided in Section 404 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect defeasance or covenant defeasance under
this Article Four.
SECTION 406. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Obligations in accordance with Section 402 or
403, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities and any Guarantor's obligations under any Guarantee shall be revived
and reinstated, with present and prospective effect, as though no deposit had
occurred pursuant to Section 402 or 403, as the case may be, until such time as
the Trustee or Paying Agent is permitted to apply all such United States dollars
or U.S. Government Obligations in accordance with Section 402 or 403, as the
case may be; provided, however, that if the Company makes any payment to the
Trustee or Paying Agent of principal of, premium, if any, or interest on any
Security following the reinstatement of its obligations, the Trustee or Paying
Agent shall promptly pay any such amount to the Holders of the Securities and
the Company
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shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the United States dollars and U.S. Government Obligations held
by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) there shall be a default in the payment of any
interest on any Security when it becomes due and payable, and such default shall
continue for a period of 30 days;
(b) there shall be a default in the payment of the
principal of (or premium, if any, on) any Security at its Maturity (upon
acceleration, optional redemption, required repurchase or otherwise);
(c) (i) there shall be a default in the performance, or
breach, of any covenant or agreement of the Company or any Guarantor under this
Indenture or any Guarantee (other than a default in the performance, or breach,
of a covenant or agreement which is specifically dealt with in clause (a), (b)
or in clause (ii), (iii) or (iv) of this clause (c)) and such default or breach
shall continue for a period of 30 days with respect to defaults or breaches of
the items set forth under Article Ten hereof and 60 days in all other cases, in
each case after written notice has been given, by certified mail, (x) to the
Company by the Trustee or (y) to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities; (ii)
there shall be a default in the performance or breach of the provisions
described in Article Eight herein; (iii) the Company shall have failed to make
or consummate an Offer in accordance with the provisions of Section 1012 herein;
or (iv) the Company shall have failed to make or consummate a Change of Control
Offer in accordance with the provisions of Section 1014 herein;
(d) (i) any default in the payment of the principal or
premium, if any, on any Indebtedness when due under any Material Indebtedness
and such default shall have continued after giving effect to any applicable
grace period and shall not have been cured or waived and, if not already matured
at its final maturity in accordance with its terms, the holder of such
Indebtedness shall have the right to accelerate such Indebtedness or (ii) an
event of default as defined in any of the agreements, indentures or instruments
described in clause (i) of this clause (d) shall have occurred and the
Indebtedness thereunder, if not already matured at its final maturity in
accordance with its terms, shall have been accelerated;
(e) any Guarantee of any Significant Subsidiary or any
group of Restricted Subsidiaries which collectively (as of the latest audited
consolidated financial statements for the Company) would constitute a
Significant Subsidiary shall for any reason cease to be, or shall for any reason
be asserted in writing by any Guarantor or the Company not to be, in full force
and effect and enforceable in accordance with its terms, except to the extent
contemplated by this Indenture and any such Guarantee;
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(f) one or more final, non-appealable judgments or orders
of any court or regulatory or administrative agency for the payment of money in
excess of $15 million (net of any amounts to the extent that they are covered by
insurance), either individually or in the aggregate, shall be rendered against
the Company, any Guarantor or any Subsidiary which has not been discharged,
fully bonded or stayed for a period of 60 consecutive days;
(g) there shall have been the entry of a decree or order
that remains unstayed and in effect for 60 consecutive days by a court of
competent jurisdiction under any applicable Bankruptcy Law (a) for relief in an
involuntary case or proceeding in respect of the Company, any Significant
Subsidiary or any group of Restricted Subsidiaries which collectively (as of the
latest audited consolidated financial statements for the Company and its
Restricted Subsidiaries) would constitute a Significant Subsidiary or (b)
adjudging the Company, any Significant Subsidiary or any group of Restricted
Subsidiaries which collectively (as of the latest audited consolidated financial
statements for the Company and its Restricted Subsidiaries) would constitute a
Significant Subsidiary bankrupt or insolvent or (c) seeking reorganization,
arrangement, adjustment or composition under any applicable federal or state law
of or in respect of the Company, any Significant Subsidiary or any group of
Restricted Subsidiaries which collectively (as of the latest audited
consolidated financial statements for the Company and its Restricted
Subsidiaries) would constitute a Significant Subsidiary or (d) appointing a
Custodian of the Company, any Significant Subsidiary or any group of Restricted
Subsidiaries which collectively (as of the latest audited consolidated financial
statements for the Company and its Restricted Subsidiaries) would constitute a
Significant Subsidiary or of substantially all of the assets of the Company or
such Significant Subsidiary, or ordering the winding up or liquidation of their
affairs; or
(h) the Company, any Significant Subsidiary or any group
of Restricted Subsidiaries which collectively (as of the latest audited
consolidated financial statements for the Company and its Restricted
Subsidiaries) would constitute a Significant Subsidiary (i) commences a
voluntary case or proceeding under any applicable Bankruptcy Law or any other
case or proceeding to be adjudicated bankrupt or insolvent, (ii) consents to the
entry of a decree or order for relief in respect of the Company, such
Significant Subsidiary or such group of Restricted Subsidiaries in an
involuntary case or proceeding under any applicable Bankruptcy Law or to the
commencement of any bankruptcy or insolvency case or proceeding against it,
(iii) files a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, (iv) consents to the filing of such
petition or the appointment of, or taking possession by, a Custodian of the
Company, such Significant Subsidiary or such group of Restricted Subsidiaries or
of substantially all of the assets of the Company or such Significant
Subsidiary, (v) makes an assignment for the benefit of creditors, (vi) admits in
writing its inability to pay its debts generally as they become due or (vii)
takes any corporate action to authorize any such actions in this paragraph (h).
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default
specified in Section 501(g) and (h) within) shall occur and be continuing with
respect to this Indenture, the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities then Outstanding may, and the
Trustee at the request of such Holders shall, declare all unpaid principal of,
premium, if any, and accrued interest on all Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by the Holders of the Securities) and upon any such declaration, such principal,
premium, if any, and interest shall become due and payable immediately. If an
Event of Default specified in clause (g) or (h) of Section 501 occurs and is
continuing, then all the Securities
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shall automatically become and be due and payable immediately in an amount equal
to the principal amount of the Securities, together with accrued and unpaid
interest, if any, to the date the Securities become due and payable, without any
declaration or other act on the part of the Trustee or any Holder. Thereupon,
the Trustee may, at its discretion, proceed to protect and enforce the rights of
the Holders of the Securities by appropriate judicial proceedings.
After a declaration of acceleration with respect to the
Securities, but before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in aggregate principal amount of the Securities
Outstanding, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a
sum sufficient to pay (i) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, (ii) all overdue interest on all
Outstanding Securities, (iii) the principal of and premium, if any, on any
Outstanding Securities which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the Securities, and
(iv) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate borne by the Securities; and
(b) all Events of Default, other than the non-payment of
principal of, premium, if any, and interest on the Securities which have become
due solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
(b) default is made in the payment of the principal of or
premium, if any, on any Security at the Stated Maturity thereof or otherwise,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and premium, if any, and interest, with interest upon
the overdue principal and premium, if any, and, to the extent that payment of
such interest shall be legally enforceable, upon overdue installments of
interest, at the rate borne by the Securities; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid
and may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any Guarantor (in accordance with the applicable
Guarantee) or any other obligor upon the Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company, any Guarantor or any other obligor upon the Securities,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders under this Indenture or any Guarantee by such appropriate private
or judicial proceedings as the Trustee shall deem most effectual to protect and
enforce such rights, including seeking recourse against any Guarantor pursuant
to the terms of any Guarantee, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein or therein, or to enforce any other proper remedy, including,
without limitation, seeking recourse against any Guarantor pursuant to the terms
of a Guarantee, or to enforce any other proper remedy, subject however to
Section 512. No recovery of any such judgment upon any property of the Company
or any Guarantor shall affect or impair any rights, powers or remedies of the
Trustee or the Holders.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor,
including any Guarantor, upon the Securities or the property of the Company or
of such other obligor or their creditors, the Trustee (irrespective of whether
the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
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(a) to file and prove a claim for the whole amount of
principal, and premium, if any, and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture, the
Securities or the Guarantees may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name and as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or any arrangement or restructuring in anticipation or in
lieu of any proceeding contemplated by this Article shall be applied, subject to
applicable law, in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities for principal, premium, if any, and interest, in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal, premium, if any, and interest; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto, including the Company, provided that all sums due and owing to the
Holders and the Trustee have been paid in full as required by this Indenture.
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SECTION 507. LIMITATION ON SUITS.
No Holder of any Securities shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in
its own name as trustee hereunder and under the Securities;
(c) such Holder or Holders have offered to the Trustee a
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee for 15 days after its receipt of such
notice, request and offer (and if requested, provision) of indemnity has failed
to institute any such proceeding; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such 15-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture, any Security or any Guarantee to affect, disturb or prejudice
the rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture,
any Security or any Guarantee, except in the manner provided in this Indenture
and for the equal and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture,
including Section 507 without limitation, the Holder of any Security shall have
the right based on the terms stated herein, which is absolute and unconditional,
to receive payment of the principal of, premium, if any, and (subject to Section
309) interest on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption or repurchase, on the Redemption
Date or the repurchase date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture or any Guarantee and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, any Guarantor, any other obligor on the Securities, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for exercising any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, provided that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture (including, without limitation, Section 507) or
any Guarantee, expose the Trustee to personal liability, or be unduly
prejudicial to Holders not joining therein; and
(b) subject to the provisions of Section 315 of the Trust
Indenture Act, the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may on behalf of the Holders of all
Outstanding Securities waive any past Default hereunder and its consequences,
except:
(a) a Default in the payment of the principal of,
premium, if any, or interest on any Security (which may only be waived with the
consent of each Holder of Securities effected); or
(b) a Default in respect of a covenant or a provision
hereof which under this Indenture cannot be modified or amended without the
consent of the Holder of each Security Outstanding affected by such modification
or amendment.
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
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SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant,
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of, premium, if any, or interest on, any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company and the Guarantors covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury or other law wherever enacted, now or at
any time hereafter in force, which would prohibit or forgive the Company or any
Guarantor from paying all or any portion of the principal of, premium, if any,
or interest on the Securities contemplated herein or in the Securities or which
may affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 516. REMEDIES SUBJECT TO APPLICABLE LAW.
All rights, remedies and powers provided by this Article Five
may be exercised only to the extent that the exercise thereof does not violate
any applicable provision of law in the premises, and all the provisions of this
Indenture are intended to be subject to all applicable mandatory provisions of
law which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Indenture invalid, unenforceable or
not entitled to be recorded, registered or filed under the provisions of any
applicable law.
ARTICLE SIX
THE TRUSTEE
SECTION 601. DUTIES OF TRUSTEE.
Subject to the provisions of Trust Indenture Act Sections
315(a) through 315(d):
(a) if a Default or an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in its
exercise thereof as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs;
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(b) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or obligations shall
be implied in this Indenture against the Trustee; and
(c) in the absence of bad faith or willful misconduct on
its part, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this Indenture;
(d) 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 subsection (c) does not limit the
effect of subsection (b) of this Section 601;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was 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 of the Holders of a majority in principal amount of
Outstanding Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power confirmed upon the Trustee under this
Indenture;
(e) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it;
(f) whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
subsections (a), (b), (c) and (d) of this Section 601; and
(g) the Trustee shall not be liable for interest on any
money or assets received by it. Assets held in trust by the Trustee need not be
segregated from other assets except to the extent required by law.
SECTION 602. NOTICE OF DEFAULTS.
Subject to the provisions of Section 603(h) hereof, within 30
days after a Responsible Officer of the Trustee receives notice of the
occurrence of any Default, the Trustee shall transmit by mail to all Holders and
any other Persons entitled to receive reports pursuant to Section 313(c) of the
Trust Indenture Act, as their names and addresses appear in the Security
Register, notice of such Default hereunder known to the Trustee, unless such
Default shall have been cured or waived; provided, however, that, except in the
case of a Default in the payment of the principal of, premium, if any, or
interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as a trust committee of Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders.
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SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601 hereof and Trust
Indenture Act Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon receipt by it of any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of Indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) the Trustee may consult with counsel of its selection
and any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon in accordance with such Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred
therein or thereby in compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture other than any
liabilities arising out of the gross negligence, bad faith or willful misconduct
of the Trustee;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, approval, appraisal, bond, debenture, note, coupon, security or other
paper or document unless requested in writing to do so by the Holders of not
less than a majority in aggregate principal amount of the Securities then
Outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every such
investigation so requested by the Holders of not less than a majority in
aggregate principal amount of the Securities Outstanding shall be paid by the
Company or, if paid by the Trustee or any predecessor Trustee, shall be repaid
by the Company upon demand; provided, further, the Trustee in its discretion may
make such further inquiry or investigation into such facts or matters as it may
deem fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be
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responsible for any misconduct or gross negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be deemed to have knowledge of
any Default or Event of Default unless a responsible officer (with direct
responsibility for the administration of this Indenture) of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
a Default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture.
SECTION 604. TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITIONS OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company and the Guarantors, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in any Statement of Eligibility and Qualification on Form
T-1 to be supplied to the Company will be true and accurate subject to the
qualifications set forth therein. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS; ETC.
The Trustee, any Paying Agent, Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities, with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar or such other agent and,
subject to Trust Indenture Act Sections 310 and 311, may otherwise deal with the
Company and receive, collect, hold and retain collections from the Company with
the same rights it would have if it were not the Trustee, Paying Agent, Security
Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
All moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Except for funds or securities
deposited with the Trustee pursuant to Article Four, the Trustee shall be
required to invest all moneys received by the Trustee, until used or applied as
herein provided, in Cash Equivalents in accordance with the written directions
of the Company.
SECTION 607. COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR
CLAIM.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust) and the Company covenants and agrees to pay or reimburse the Trustee and
each predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all
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agents and other persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its gross negligence, bad faith or
willful misconduct. The Company also covenants and agrees to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any
claim, loss, liability, tax, assessment, governmental charge (other than taxes
applicable to the Trustee's compensation hereunder) or expense incurred without
gross negligence, bad faith or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including the costs of enforcement of
this Section 607 and the costs and expenses of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder (including the reasonable
fees and expenses of its counsel). The obligations of the Company under this
Section 607 to compensate and indemnify the Trustee and each predecessor Trustee
and to pay or reimburse the Trustee and each predecessor Trustee for reasonable
expenses, disbursements and advances shall constitute an additional obligation
hereunder and shall survive the satisfaction and discharge of this Indenture and
the resignation or removal of the Trustee and each predecessor Trustee.
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SECTION 608. CONFLICTING INTERESTS.
The Trustee shall comply with the provisions of Section 310(b)
of the Trust Indenture Act.
SECTION 609. TRUSTEE ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under Trust Indenture Act Section 310(a) and which
shall have a combined capital and surplus of at least $100,000,000, to the
extent there is an institution eligible and willing to serve. If the Trustee
does not have a Corporate Trust Office in The City of New York, the Trustee may
appoint an agent in The City of New York reasonably acceptable to the Company to
conduct any activities which the Trustee may be required under this Indenture to
conduct in The City of New York. If such Trustee publishes reports of condition
at least annually, pursuant to law or to the requirements of federal, state,
territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section 609, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
609, the Trustee shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) No resignation or removal of the Trustee and no
appointment of a successor trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor trustee under
Section 611.
(b) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice thereof to the
Company no later than 20 Business Days prior to the proposed date of
resignation. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee by written instrument executed by authority
of the Board of Directors of the Company, a copy of which shall be delivered to
the resigning Trustee and a copy to the successor trustee. If an instrument of
acceptance by a successor trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may, or any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper, appoint and prescribe a successor trustee.
(c) The Trustee may be removed at any time for any cause
or for no cause by an Act of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of Trust Indenture Act Section 310(b) after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months,
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(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 514, the Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor trustee and shall comply with the applicable requirements of Section
611. If, within 60 days after such resignation, removal or incapability, or the
occurrence of such vacancy, the Company has not appointed a successor Trustee, a
successor trustee shall be appointed by the Act of the Holders of a majority in
principal amount of the Outstanding Securities delivered to the Company and the
retiring Trustee. Such successor trustee so appointed shall forthwith upon its
acceptance of such appointment become the successor trustee and supersede the
successor trustee appointed by the Company. If no successor trustee shall have
been so appointed by the Company or the Holders of the Securities and accepted
appointment in the manner hereinafter provided, the Trustee or the Holder of any
Security who has been a bona fide Holder for at least six months may, subject to
Section 514, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor trustee by
mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor trustee and the
address of its Corporate Trust Office or agent hereunder.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee as if originally named as
Trustee hereunder; but, nevertheless, on the written request of the Company or
the successor trustee, upon payment of its charges pursuant to Section 607 then
unpaid, such retiring Trustee shall pay over to the successor trustee all moneys
at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers.
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No successor trustee with respect to the Securities shall
accept appointment as provided in this Section 611 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under the
provisions of Trust Indenture Act Section 310(a) and this Article Six and shall
have a combined capital and surplus of at least $100,000,000 and have a
Corporate Trust Office or an agent selected in accordance with Section 609.
Upon acceptance of appointment by any successor trustee as
provided in this Section 611, the Company shall give notice thereof to the
Holders of the Securities, by mailing such notice to such Holders at their
addresses as they shall appear on the Security Register. If the acceptance of
appointment is substantially contemporaneous with the appointment, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 610. If the Company fails to give such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Company.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee (including the trust created by this
Indenture) shall be the successor of the Trustee hereunder, provided that such
corporation shall be eligible under Trust Indenture Act Section 310(a) and this
Article Six and shall have a combined capital and surplus of at least
$100,000,000 and have a Corporate Trust Office or an agent selected in
accordance with Section 609, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case at the time such successor 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, in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor trustee; and in all such cases such certificate
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided that
the right to adopt the certificate of authentication of any predecessor Trustee
or to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or other obligor under the Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor). A Trustee who has resigned or
been removed shall be subject to Trust Indenture Act Section 311(a) to the
extent indicated therein.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee
(a) semiannually, not more than 10 days after each
Regular Record Date, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of such Regular Record Date; and
(b) at such other times as the Trustee may reasonably
request in writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content to that in subsection (a) hereof as
of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
SECTION 702. DISCLOSURE OF NAMES AND ADDRESSES OF 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, and the Trustee shall comply with Trust Indenture
Act Section 312(b). The Company, the Guarantors, the Trustee, the Security
Registrar and any other Person shall have the protection of Trust Indenture Act
Section 312(c). Further, every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that none of the Company, the
Guarantors, the Trustee or any agent of any of them shall be held accountable by
reason of the disclosure of any information as to the names and addresses of the
Holders in accordance with Trust Indenture Act Section 312, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under Trust Indenture Act Section 312.
SECTION 703. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with the
first May 15 after the issuance of Securities, the Trustee, if so required under
the Trust Indenture Act, shall transmit by mail to all Holders, in the manner
and to the extent provided in Trust Indenture Act Section 313(c), a brief report
dated as of such May 15 in accordance with and with respect to the matters
required by Trust Indenture Act Section 313(a). The Trustee shall also transmit
by mail to all Holders, in the manner and to the extent provided in Trust
Indenture Act Section 313(c), a brief report in accordance with and with respect
to the matters required by Trust Indenture Act Section 313(b)(2).
SECTION 704. REPORTS BY COMPANY AND GUARANTORS.
The Company, and each Guarantor, as the case may be, shall
(a) file with the Trustee any information required by the
Trust Indenture Act; and
(b) within 15 day after the filing thereof with the
Trustee, transmit by mail to all Holders in the manner and to the extent
provided in Trust Indenture Act Section 313(c), such
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summaries of any information, documents and reports required to be filed by the
Company or any Guarantor, as the case may be, pursuant to Section 1018 hereunder
and subsection (a) of this Section as are required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF ASSETS
SECTION 801. COMPANY AND GUARANTORS MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS.
(a) The Company will not, in a single transaction or
through a series of related transactions, consolidate with or merge with or into
any other Person or sell, assign, convey, transfer, lease or otherwise dispose
of all or substantially all of its properties and assets to any Person or group
of Persons, or permit any of its Restricted Subsidiaries to enter into any such
transaction or series of transactions, if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Company and its Restricted Subsidiaries on a Consolidated basis to
any other Person or group of Persons (other than the Company or a Guarantor),
unless at the time and after giving effect thereto:
(1) either (a) the Company will be the
continuing corporation or (b) the Person (if other than the Company)
formed by or surviving such consolidation or merger or the Person which
acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of
the Company and its Restricted Subsidiaries on a Consolidated basis
(the "Surviving Entity") will be a corporation duly organized and
validly existing under the laws of the United States of America, any
state thereof or the District of Columbia and such Person expressly
assumes, by a supplemental indenture, in a form reasonably satisfactory
to the Trustee, all the obligations of the Company under the Securities
and this Indenture and the Registration Rights Agreement (to the extent
any obligations remain under the Registration Rights Agreement), as the
case may be, and the Securities and this Indenture and the Registration
Rights Agreement will remain in full force and effect as so
supplemented (and any Guarantees will be confirmed as applying to such
Surviving Entity's obligations);
(2) after giving effect to such transaction, no
Default or Event of Default exists;
(3) after giving effect to such transaction, the
Company (or the Surviving Entity if the Company is not the continuing
obligor under this Indenture) could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 1008
hereof;
(4) at the time of the transaction, each
Guarantor, if any, unless it is the other party to the transactions
described above, will have by supplemental indenture confirmed that its
Guarantee shall apply to such Person's obligations under this Indenture
and the Securities; and
(5) at the time of the transaction, the Company
or the Surviving Entity will have delivered, or caused to be delivered,
to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each to
the
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effect that such consolidation, merger, transfer, sale, assignment,
conveyance, transfer, lease or other transaction and the supplemental
indenture in respect thereof comply with this Indenture and that all
conditions precedent therein provided for relating to such transaction
have been complied with.
Notwithstanding the foregoing, (1) any Restricted Subsidiary
may consolidate with, merge into or transfer all or part of its properties and
assets to another Restricted Subsidiary and (2) the Company may merge with an
Affiliate that has no significant assets or liabilities and was formed solely
for the purpose of changing the Company's jurisdiction of organization to
another state of the United States, provided that the surviving entity assumes,
by supplemental indenture in form reasonably satisfactory to the Trustee, the
Company's obligation under this Indenture and the Registration Rights Agreement
(to the extent any obligations remain under the Registration Rights Agreement).
(b) Each Guarantor will not, and the Company will not
permit a Guarantor to, in a single transaction or through a series of related
transactions, consolidate with or merge with or into any other Person (other
than the Company or any Guarantor) or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its properties and assets to
any Person or group of Persons (other than the Company or any Guarantor) or
permit any of its Restricted Subsidiaries to enter into any such transaction or
series of transactions if such transaction or series of transactions, in the
aggregate, would result in a sale, assignment, conveyance, transfer, lease or
disposition of all or substantially all of the properties and assets of the
Guarantor and its Restricted Subsidiaries on a Consolidated basis to any other
Person or group of Persons (other than the Company or any Guarantor), unless at
the time and after giving effect thereto:
(1) either (a) the Guarantor will be the
continuing corporation in the case of a consolidation or merger
involving the Guarantor or (b) the Person (if other than the Guarantor)
formed by or surviving such consolidation or merger or the Person which
acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of
the Guarantor and its Restricted Subsidiaries on a Consolidated basis
(the "Surviving Guarantor Entity") will be a corporation, limited
liability company, limited liability partnership, partnership or trust
duly organized and validly existing under the laws of the United States
of America, any state thereof or the District of Columbia and such
Person expressly assumes, by a supplemental indenture, in a form
reasonably satisfactory to the Trustee, all the obligations of such
Guarantor under its Guarantee of the Securities and this Indenture and
the Registration Rights Agreement (to the extent any obligations remain
under the Registration Rights Agreement) and such Guarantee, Indenture
and Registration Rights Agreement will remain in full force and effect;
(2) after giving effect to such transaction, no
Default or Event of Default exists; and
(3) at the time of the transaction such
Guarantor or the Surviving Guarantor Entity will have delivered, or
caused to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers' Certificate and an
Opinion of Counsel, each to the effect that such consolidation, merger,
transfer, sale, assignment, conveyance, lease or other transaction and
the supplemental indenture in respect thereof comply with this
Indenture and that all conditions precedent therein provided for
relating to such transaction have been complied with.
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(c) Notwithstanding the foregoing, the provisions of
paragraph (b) of this Section 801 shall not apply to any Guarantor whose
Guarantee of the Securities is unconditionally released and discharged in
accordance with paragraph (b) of Section 1013 herein.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Company or any Guarantor, if any, in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company or such Guarantor, as the case may be, is merged, or the
successor Person to which such sale, assignment, conveyance, transfer, lease or
disposition is made, shall succeed to, and be substituted for, and may exercise
every right and power of, the Company or such Guarantor, as the case may be,
under this Indenture, the Securities and/or the related Guarantee, as the case
may be, and the Registration Rights Agreement, with the same effect as if such
successor had been named as the Company or such Guarantor, as the case may be,
herein, in the Securities and/or in the Guarantee, as the case may be, and the
Registration Rights Agreement, and the Company and such Guarantor, as the case
may be, would be discharged from all obligations and covenants under this
Indenture and the Securities or its Guarantee, as the case may be, and the
Registration Rights Agreement; provided that in the case of a transfer by lease,
the predecessor shall not be released from the payment of principal and interest
on the Securities or its Guarantee, as the case may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES AND AGREEMENTS WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company, the
Guarantors, if any, and any other obligor under the Securities when authorized
by or pursuant to a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto or agreements
or other instruments with respect to this Indenture, the Securities or any
Guarantee, in form and substance satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the
Company or a Guarantor or any other obligor upon the Securities, and the
assumption by any such successor of the covenants of the Company or such
Guarantor or obligor herein and in the Securities and in any Guarantee in
accordance with Article Eight;
(b) to add to the covenants of the Company, any Guarantor
or any other obligor upon the Securities for the benefit of the Holders, or to
surrender any right or power conferred upon the Company or any Guarantor or any
other obligor upon the Securities, as applicable, herein, in the Securities or
in any Guarantee;
(c) to cure any ambiguity, or to correct or supplement
any provision herein or in any supplemental indenture, the Securities or any
Guarantee which may be defective or inconsistent with any other provision
herein, in the Securities or any Guarantee or to make any other changes herein,
to the Securities or the Guarantees; provided that, in each case, such changes
shall not adversely affect the interest of the Holders in any material respect;
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(d) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 905 or otherwise;
(e) to add a Guarantor pursuant to the requirements of
Section 1013 hereof or otherwise;
(f) to evidence and provide the acceptance of the
appointment of a successor trustee hereunder; or
(g) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Trustee for the benefit of the Holders as security for
the payment and performance of the Company's and any Guarantor's Indenture
Obligations, in any property, or assets, including any of which are required to
be mortgaged, pledged or hypothecated, or in which a security interest is
required to be granted to the Trustee pursuant to this Indenture or otherwise.
SECTION 902. SUPPLEMENTAL INDENTURES AND AGREEMENTS WITH CONSENT OF
HOLDERS.
Except as permitted by Section 901, with the consent of the
Holders of at least a majority in aggregate principal amount of the Outstanding
Securities (including consents obtained in connection with a tender offer or
exchange offer for Securities), by Act of said Holders delivered to the Company,
each Guarantor, if any, and the Trustee, the Company and each Guarantor (if a
party thereto) when authorized by or pursuant to Board Resolutions, and the
Trustee may (i) enter into an indenture or indentures supplemental hereto or
agreements or other instruments with respect to any Guarantee in form and
substance satisfactory to the Trustee, for the purpose of adding any provisions
to or amending, modifying or changing in any manner or eliminating any of the
provisions of this Indenture, the Securities or any Guarantee (including but not
limited to, for the purpose of modifying in any manner the rights of the Holders
under this Indenture, the Securities or any Guarantee) or (ii) waive compliance
with any provision in this Indenture, the Securities or any Guarantee (other
than waivers of past Defaults which are covered by Section 513 and waivers of
covenants which are covered by Section 1007); provided, however, that no such
supplemental indenture, agreement or instrument shall, without the consent of
the Holder of each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or
any installment of interest on, or change to an earlier date any Redemption Date
of, or waive a default in the payment of the principal of, premium, if any, or
interest on, any such Security or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the redemption thereof, or
change the coin or currency in which the principal of any such Security or any
premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date);
(b) amend, change or modify the obligation of the Company
to make and consummate a Change of Control Offer in the event of a Change of
Control in accordance with Section 1014 hereof, including, in each case,
amending, changing or modifying any definitions related thereto;
(c) reduce the percentage in principal amount of such
Outstanding Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver or compliance with certain provisions of this Indenture;
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(d) modify any of the provisions of this Section 902 or
Section 513 or 1007, except to increase the percentage of such Outstanding
Securities required for such actions or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of the Holder
of each such Security affected thereby;
(e) amend or modify any of the provisions of this
Indenture in any manner which subordinates the Securities issued thereunder in
right of payment to any other Indebtedness of the Company or which subordinates
any Guarantee in right of payment to any other Indebtedness of the Guarantor
issuing any such Guarantee;
(f) release any Guarantee except in compliance with the
terms of this Indenture; or
(g) amend or modify any of the provisions of this
Indenture or any Guarantee in any manner adverse to the Holders of the
Securities except for release in compliance with the terms of this Indenture.
Upon the written request of the Company and each Guarantor, if
any, accompanied by a copy of Board Resolutions authorizing the execution of any
such supplemental indenture or Guarantee, and upon the filing with the Trustee
of evidence of the consent of Holders as aforesaid, the Trustee shall join with
the Company and each Guarantor in the execution of such supplemental indenture
or Guarantee.
It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed supplemental
indenture or Guarantee or agreement or instrument relating to any Guarantee, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES AND AGREEMENTS.
In executing, or accepting the additional trusts created by,
any supplemental indenture, agreement, instrument or waiver permitted by this
Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Trust
Indenture Act Sections 315(a) through 315(d) and Section 602 hereof) shall be
fully protected in relying upon, an Opinion of Counsel and an Officers'
Certificate stating that the execution of such supplemental indenture, agreement
or instrument (a) is authorized or permitted by this Indenture and (b) does not
violate the provisions of any agreement or instrument evidencing any other
Indebtedness of the Company, any Guarantor or any other Restricted Subsidiary.
The Trustee may, but shall not be obligated to, enter into any such supplemental
indenture, agreement or instrument which affects the Trustee's own rights,
duties or immunities under this Indenture, any Guarantee or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
Nine shall conform to the requirements of the Trust Indenture Act as then in
effect.
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SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article Nine may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and each Guarantor and authenticated and
delivered by the Trustee in exchange for Outstanding Securities.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company, any Guarantor and
the Trustee of any supplemental indenture pursuant to the provisions of Section
902, the Company shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 106, setting forth in
general terms the substance of such supplemental indenture. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 908. REVOCATION AND EFFECTS OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to
it by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
Indebtedness as the consenting Holder's Security, even if a notation of the
consent is not made on any Security. An amendment or waiver shall become
effective in accordance with its terms and thereafter bind every Holder.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall duly and punctually pay the principal of,
premium, if any, and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain an office or agency where
Securities may be presented or surrendered for payment. The Company also will
maintain in The City of New York an office or agency where Securities may be
surrendered for registration of transfer, redemption or exchange and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The office of an affiliate of the Trustee, SunTrust
Bank, at its corporate trust office initially located at SunTrust Bank c/o
Computershare Trust Co. of New York, 88 Pine Street, Wall Street Plaza, 19th
Floor, New York, New York 10005, will be such office or agency of the Company,
unless the Company shall designate and maintain some other office or agency for
one or more of such purposes. The Company will give prompt written notice to the
Trustee of the location and any change in the location of any such offices or
agencies. If at any time the Company shall fail to maintain any such required
offices or agencies or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the office of the Trustee and
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the Company hereby appoints the Trustee such agent as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Securities
may be presented or surrendered for any or all such purposes, and may from time
to time rescind such designation. The Company will give prompt written notice to
the Trustee of any such designation or rescission and any change in the location
of any such office or agency.
The Trustee shall initially act as Paying Agent for the
Securities.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as Paying Agent, it will,
on or before each due date of the principal of, premium, if any, or interest on
any of the Securities, segregate and hold in trust for the benefit of the
Holders entitled thereto a sum sufficient to pay the principal, premium, if any,
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
If the Company is not acting as Paying Agent, the Company
will, on or before each due date of the principal of, premium, if any, or
interest on any of the Securities, deposit with a Paying Agent a sum in same day
funds sufficient to pay the principal, premium, if any, or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of such action or any
failure so to act.
If the Company is not acting as Paying Agent, the Company will
cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of, premium, if any, or interest on the Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company
or any Guarantor (or any other obligor upon the Securities) in the making of any
payment of principal, premium, if any, or interest on the Securities;
(c) at any time during the continuance of any such
Default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all
aspects with the provisions of this Indenture relating to the duties, rights and
liabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company
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or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, 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
promptly be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification, publication and
mailing, any unclaimed balance of such money then remaining will promptly be
repaid to the Company.
SECTION 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence and related rights and franchises (charter and statutory) of
the Company and each Restricted Subsidiary; provided, however, that the Company
shall not be required to preserve any such right or franchise or the corporate
existence of any such Restricted Subsidiary if the Board of Directors of the
Company shall determine that the preservation thereof is no longer necessary or
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries as a whole and that the loss thereof could not reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations hereunder; and provided, further, however, that the
foregoing shall not prohibit a sale, transfer or conveyance of a Restricted
Subsidiary or any of its assets in compliance with the terms of this Indenture.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or
discharged, on or before the date the same shall become due and payable, (a) all
taxes, assessments and governmental charges levied or imposed upon the Company
or any of its Restricted Subsidiaries shown to be due on any return of the
Company or any of its Restricted Subsidiaries or otherwise assessed or upon the
income, profits or property of the Company or any of its Restricted Subsidiaries
if failure to pay or discharge the same could reasonably be expected to have a
material adverse effect on the ability of the Company or any Guarantor to
perform its obligations hereunder and (b) all lawful claims for labor, materials
and supplies, which, if unpaid, would by law become a Lien upon the property of
the Company or any of its Restricted Subsidiaries, except for any Lien permitted
to be incurred under Section 1011, if failure to pay or discharge the same could
reasonably be expected to have a material adverse effect on the ability of the
Company or any Guarantor to perform its obligations hereunder; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and in respect of which
appropriate reserves (in the good faith judgment of management of the Company)
are being maintained in accordance with GAAP.
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SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company shall cause all material properties owned by the
Company and its Restricted Subsidiaries or used or held for use in the conduct
of its business or the business of any of its Restricted Subsidiaries to be
maintained and kept in good condition, repair and working order (ordinary wear
and tear excepted) and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the reasonable judgment of the Company may be
necessary so that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the maintenance of any of such
properties if such discontinuance is in the ordinary course of business or, in
the reasonable judgment of the Company, desirable in the conduct of its business
or the business of any of its Restricted Subsidiaries and not reasonably
expected to have a material adverse effect on the ability of the Company to
perform its obligations hereunder; and provided, further, however, that the
foregoing shall not prohibit a sale, transfer or conveyance of a Restricted
Subsidiary or any of its properties or assets in compliance with the terms of
this Indenture.
SECTION 1007. WAIVER OF CERTAIN COVENANTS.
The Company and the Guarantors may omit in any particular
instance to comply with any covenant or condition set forth in Sections 1006
through 1012 and 1015 through 1019, if, before or after the time for such
compliance, the Holders of not less than a majority in aggregate principal
amount of the Securities at the time Outstanding shall, by Act of such Holders,
waive such compliance in such instance with such covenant or provision, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
SECTION 1008. LIMITATION ON INDEBTEDNESS.
(a) The Company will not, and will not cause or permit
any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee
or otherwise in any manner become directly or indirectly liable for,
contingently or otherwise (collectively, "incur"), any Indebtedness (including
any Acquired Indebtedness), unless such Indebtedness is incurred by the Company
or any Guarantor or constitutes Acquired Indebtedness of the Company or a
Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge
Coverage Ratio for the most recent four full fiscal quarters for which
consolidated financial statements are available immediately preceding the
incurrence of such Indebtedness taken as one period is at least equal to or
greater than 2.25:1.
(b) Notwithstanding the foregoing, the Company and, to
the extent specifically set forth below, the Restricted Subsidiaries may incur
the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company (and guarantees by
Restricted Subsidiaries of such Indebtedness) under a Credit Facility
in an aggregate principal amount at any one time outstanding not to
exceed the greater of:
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(A) $275 million, less, without duplication, any
permanent repayment thereof or permanent reduction in commitments thereunder
from the proceeds of one or more Asset Sales which are used to repay a Credit
Facility pursuant to clause (b)(i) of Section 1012; or
(B) (1) 85% of accounts receivable of the
Company and its Restricted Subsidiaries (excluding any Receivables and Related
Assets sold, conveyed or otherwise transferred to a Securitization Entity in
connection with a Qualified Securitization Transaction) as of the end of the
most recently ended fiscal quarter for which consolidated financial statements
are available, plus (2) 60% of inventory of the Company and its Restricted
Subsidiaries as of the end of the most recently ended fiscal quarter for which
consolidated financial statements are available;
(ii) Indebtedness pursuant to (A) the Securities
(excluding any Additional Securities) and any Guarantee of the
Securities, and (B) any Securities issued in exchange for the
Securities pursuant to the Registration Rights Agreement and any
Guarantee thereof;
(iii) Indebtedness under any of the Acquisition Agreements
and Indebtedness of Viewpoint and its Subsidiaries existing on the date
of the Acquisition after giving effect to the Acquisition (including
any Indebtedness assumed by the Company or any of its Restricted
Subsidiaries pursuant to the Acquisition Agreements);
(iv) Indebtedness of the Company or any Restricted
Subsidiary outstanding on the date of this Indenture other than
Indebtedness referred to in clause (i) or (ii) of this definition of
"Permitted Indebtedness;"
(v) Indebtedness of the Company owing to a Restricted
Subsidiary; provided that any Indebtedness of the Company owing to a
Restricted Subsidiary that is not a Guarantor incurred after the Issue
Date is unsecured and is subordinated in right of payment to the
Securities; provided, further, that any disposition or transfer of any
such Indebtedness to a Person (other than to a Restricted Subsidiary)
shall be deemed to be an incurrence of such Indebtedness by the Company
or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the
Company or another Restricted Subsidiary; provided, that any
disposition or transfer of any such Indebtedness to a Person (other
than a disposition or transfer to the Company or a Restricted
Subsidiary or a Person that becomes a Restricted Subsidiary) shall be
deemed to be an incurrence of such Indebtedness by the obligor not
permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary of
Indebtedness of the Company or any of its Restricted Subsidiaries which
are permitted to be incurred under this Indenture; provided that such
guarantees are made in accordance with the provisions of Section 1013;
(viii) Indebtedness of the Company or any Restricted
Subsidiary pursuant to any:
(A) Interest Rate Agreements,
(B) Currency Hedging Agreements, and
(C) Commodity Price Protection Agreements;
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(ix) Indebtedness of the Company or any Restricted
Subsidiary represented by Capital Lease Obligations or Purchase Money
Obligations or other Indebtedness in connection with the acquisition or
development of real or personal, movable or immovable, property, in
each case incurred or assumed for the purpose of financing or
refinancing all or any part of the purchase price or cost of
construction or improvement of property used in the business of the
Company or such Restricted Subsidiary, in an aggregate principal amount
not to exceed $10 million outstanding at any one time;
(x) Indebtedness incurred by a Securitization Entity in
connection with a Qualified Securitization Transaction that is
Non-recourse Indebtedness with respect to the Company and its
Restricted Subsidiaries; provided, however, that in the event such
Securitization Entity ceases to qualify as a Securitization Entity or
such Indebtedness ceases to constitute such Non-recourse Indebtedness,
such Indebtedness will be deemed, in each case, to be incurred at such
time;
(xi) Indebtedness of the Company or any of its Restricted
Subsidiaries in connection with surety, performance, appeal or similar
bonds, completion guarantees or similar instruments entered into in the
ordinary course of business or from letters of credit or other
obligations in respect of self-insurance and workers' compensation
obligations or similar arrangements; provided that, in each case
contemplated by this clause (xi), upon the drawing of such instrument,
such obligations are reimbursed within 30 days following such drawing;
(xii) Indebtedness of Foreign Subsidiaries in the aggregate
principal amount of $10 million outstanding at any one time;
(xiii) Indebtedness arising under the Earn-Out Agreement and
Indebtedness incurred to finance payments due or becoming due
thereunder in an amount not to exceed (a) up to $6.25 million per year
in respect of each Earn-Out Year and (b) the Cumulative Additional
Earn-Out Payment, less, in each case, the amount of cash paid in
respect of each Earn-Out Year (excluding cash received upon the
incurrence of Indebtedness pursuant to this clause (xiii) in respect of
such year);
(xiv) Indebtedness of the Company or any of its Restricted
Subsidiaries arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts such amount need not be
inadvertent) drawn against insufficient funds in the ordinary course of
business; provided however, that such Indebtedness is extinguished
within three business days of receipt by the Company or any Restricted
Subsidiary of notice of such insufficient funds;
(xv) Indebtedness of the Company or any Restricted
Subsidiary to the extent the net proceeds thereof are promptly
deposited to defease the Securities as described under Article Four;
(xvi) Indebtedness of the Company or any Restricted
Subsidiary arising from agreements for indemnification or purchase
price adjustment obligations or similar obligations, or from guarantees
or letters of credit, surety bonds or performance bonds securing any
obligation of the Company or a Restricted Subsidiary pursuant to such
an agreement, in each case, incurred or assumed in connection with the
acquisition or disposition of any business, assets or properties;
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(xvii) any renewals, extensions, substitutions, refundings,
refinancings or replacements (collectively, a "refinancing") of any
Indebtedness incurred pursuant to paragraph (a) of this Section 1008
and clauses (ii), (iii), (iv) and (xiii) of this paragraph (b),
including any successive refinancings so long as Indebtedness of the
Company or a Guarantor may only be refinanced with Indebtedness of the
Company or a Guarantor and the aggregate principal amount of
Indebtedness refinanced is not increased by such refinancing except by
an amount equal to the lesser of (A) the stated amount of any premium
or other payment contractually required to be paid in connection with
such a refinancing pursuant to the terms of the Indebtedness being
refinanced or (B) the amount of premium or other payment actually paid
at such time to refinance the Indebtedness, plus, in either case, the
amount of expenses of the Company incurred in connection with such
refinancing and (1) in the case of any refinancing of Indebtedness that
is Subordinated Indebtedness, such new Indebtedness is made
subordinated to the Securities at least to the same extent as the
Indebtedness being refinanced and (2) in the case of Pari Passu
Indebtedness or Subordinated Indebtedness, as the case may be, such
refinancing does not reduce the Average Life to Stated Maturity or the
Stated Maturity of such Indebtedness; and
(xviii) Indebtedness of the Company or any Restricted
Subsidiary in addition to that described in clauses (i) through (xvii)
above, and any refinancings of such Indebtedness, so long as the
aggregate principal amount of all such Indebtedness shall not exceed
$10 million outstanding at any one time.
(c) For purposes of determining compliance with this
Section 1008, in the event that an item of Indebtedness meets the criteria of
more than one of the categories of Permitted Indebtedness, or is permitted to be
incurred pursuant to clause (a) of this Section 1008, the Company will be
permitted to classify such item of Indebtedness on the date of its incurrence,
or subject to the remainder of this sentence, later reclassify all or a portion
of such item of Indebtedness, in any manner that complies with this Section
1008; and Indebtedness under the Credit Agreement which is in existence or
available on or prior to the date of the consummation of the Acquisition, and
any renewals, extensions, substitutions, refundings, refinancings or
replacements thereof, will be deemed to have been incurred on such date under
clause (i) of the definition of "Permitted Indebtedness," and the Company will
not be permitted to reclassify any portion of such Indebtedness thereafter.
(d) Indebtedness permitted by this Section 1008 need not
be permitted solely by reference to one provision permitting such Indebtedness
but may be permitted in part by one such provision and in part by one or more
other provisions of this Section 1008 permitting such Indebtedness.
(e) Accrual of interest, accretion or amortization of
original issue discount and the payment of interest on any Indebtedness in the
form of additional Indebtedness with the same terms, and the payment of
dividends on any Redeemable Capital Stock or Preferred Stock in the form of
additional shares of the same class of Redeemable Capital Stock or Preferred
Stock will not be deemed to be an incurrence of Indebtedness for purposes of
this Section 1008; provided, in each such case, that the amount thereof as
accrued is included in Consolidated Fixed Charge Coverage Ratio of the Company.
(f) For purposes of determining compliance with any
dollar-denominated restriction on the incurrence of Indebtedness denominated in
a foreign currency, the dollar-equivalent principal
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amount of such Indebtedness incurred pursuant thereto shall be calculated based
on the relevant currency exchange rate in effect on the date that such
Indebtedness was incurred.
(g) For purposes of determining compliance with this
Section 1008, the outstanding principal amount of any particular Indebtedness
shall be counted only once and any obligations arising under any guarantee,
Lien, letter of credit or similar instrument supporting such Indebtedness shall
not be double counted.
(h) The amount of Indebtedness issued at a price less
than the amount of the liability thereof shall be determined in accordance with
GAAP.
SECTION 1009. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company will not, and will not cause or permit
any Restricted Subsidiary to, directly or indirectly (each a "Restricted
Payment"):
(i) declare or pay any dividend on, or make any
distribution to holders of, any shares of the Company's Capital Stock
(other than dividends or distributions payable solely in shares of its
Qualified Capital Stock or in options, warrants or other rights to
acquire shares of such Qualified Capital Stock);
(ii) purchase, redeem, defease or otherwise acquire or
retire for value, directly or indirectly, shares of the Company's
Capital Stock or any Capital Stock of any Subsidiary of the Company
(other than Capital Stock of any Restricted Subsidiary of the Company);
(iii) make any principal payment on, or repurchase, redeem,
defease, retire or otherwise acquire for value, prior to any scheduled
principal payment, sinking fund payment or maturity, any Subordinated
Indebtedness (other than (A) Indebtedness permitted under clause (v) or
(vi) of the definition of "Permitted Indebtedness" in paragraph (b) of
Section 1008 or (B) the purchase, repurchase or other acquisition of
such Subordinated Indebtedness purchased in anticipation of satisfying
a sinking fund obligation, principal installment or final maturity, in
each case due within one year of the date of purchase, repurchase or
acquisition), or make any cash payment pursuant to the Earn-Out
Agreement;
(iv) declare or pay any dividend or distribution on any
Capital Stock of any Restricted Subsidiary to any Person (other than
(a) dividends or distributions payable solely in shares of Capital
Stock of such Restricted Subsidiary or in options, warrants or other
rights to acquire shares of such Capital Stock, (b) to the Company or
any of its Restricted Subsidiaries or (c) dividends or distributions
made by a Restricted Subsidiary on a pro rata basis to all stockholders
of such Restricted Subsidiary); or
(v) make any Investment (other than any Permitted
Investments);
(the amount of any such Restricted Payment, if other than cash, shall be the
Fair Market Value of the assets proposed to be transferred), unless
(1) at the time of and after giving effect to
such proposed Restricted Payment, no Default or Event of Default shall
have occurred and be continuing;
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(2) at the time of and after giving effect to
such Restricted Payment, the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under the provisions
described under paragraph (a) of Section 1008; and
(3) after giving effect to the proposed
Restricted Payment, the aggregate amount of all such Restricted
Payments (other than any Permitted Payment except for (i) Permitted
Payments pursuant to clause (viii)(B) of paragraph (b) of this Section
1009) and (ii) Permitted Payments in respect of the Cumulative
Additional Earn-Out Payment in excess of 50% of the maximum amount that
could be paid in respect of the Cumulative Additional Earn-Out Payment
pursuant to clause (viii)(A) of paragraph (b) of this covenant)
declared (with respect to dividends) or made after the date of this
Indenture and all Designation Amounts does not exceed the sum of:
(A) 50% of the aggregate Consolidated Net Income
(Loss) of the Company accrued on a cumulative basis during the period beginning
on the first day of the Company's fiscal quarter in which the Securities are
originally issued and ending on the last day of the Company's last fiscal
quarter ending prior to the date of the Restricted Payment (or, if such
aggregate cumulative Consolidated Net Income (Loss) shall be a loss, minus 100%
of such loss);
(B) 100% of the aggregate Net Cash Proceeds
received after the date of this Indenture by the Company either (1) as capital
contributions in the form of nonredeemable equity to the Company or (2) from the
issuance or sale (other than to any of its Subsidiaries) of Qualified Capital
Stock of the Company or any options, warrants or rights to purchase such
Qualified Capital Stock of the Company, plus 100% of the Fair Market Value as of
the date of issuance of any Qualified Capital Stock issued by the Company as
consideration for the purchase by the Company or any of its Restricted
Subsidiaries (including by means of a merger, consolidation or other business
combination permitted under this Indenture) of any assets or properties of, or a
majority of the Voting Stock of, any Person whose primary business is a
Permitted Business (except, in each case, to the extent such proceeds are used
to purchase, redeem or otherwise retire Capital Stock or Subordinated
Indebtedness as set forth below in clause (ii) or (iii) of paragraph (b) below)
(excluding the Net Cash Proceeds from the issuance of Qualified Capital Stock
financed, directly or indirectly, using funds borrowed from the Company or any
Subsidiary until and to the extent such borrowing is repaid);
(C) 100% of the aggregate Net Cash Proceeds
received after the date of this Indenture by the Company (other than from any of
its Subsidiaries) upon the exercise of any options, warrants or rights to
purchase Qualified Capital Stock of the Company (excluding the Net Cash Proceeds
from the exercise of any options, warrants or rights to purchase Qualified
Capital Stock financed, directly or indirectly, using funds borrowed from the
Company or any Subsidiary until and to the extent such borrowing is repaid);
(D) 100% of the aggregate Net Cash Proceeds
received after the date of this Indenture by the Company from the conversion or
exchange, if any, of debt securities or Redeemable Capital Stock of the Company
or its Restricted Subsidiaries into or for Qualified Capital Stock of the
Company plus, to the extent such debt securities or Redeemable Capital Stock so
converted or exchanged were issued after the date of this Indenture, the
aggregate of Net Cash Proceeds from their original issuance (excluding the Net
Cash Proceeds from the conversion or exchange of debt securities or Redeemable
Capital Stock financed, directly or indirectly, using funds borrowed from the
Company or any Subsidiary until and to the extent such borrowing is repaid);
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(E) (a) in the case of the disposition or
repayment of any Investment constituting a Restricted Payment made after the
date of this Indenture, an amount (to the extent not included in Consolidated
Net Income (Loss)) equal to the lesser of the return of capital with respect to
such Investment and the initial amount of such Investment, in either case, less
the cost of the disposition of such Investment and net of taxes, and
(b) in the case of the designation of
an Unrestricted Subsidiary as a Restricted Subsidiary (as long
as the designation of such Subsidiary as an Unrestricted
Subsidiary was deemed a Restricted Payment), the Fair Market
Value of the Company's interest in such Subsidiary as of the
date of such designation; provided that such amount shall not
in any case exceed the amount of the Restricted Payment deemed
made at the time the Subsidiary was designated as an
Unrestricted Subsidiary;
(F) any amount which previously qualified as a
Restricted Payment on account of any Guarantee entered into by the Company or
any Restricted Subsidiary; provided that such Guarantee has not been called upon
and the obligation arising under such Guarantee no longer exists; and
(G) $5 million.
(b) The foregoing provisions shall not prohibit the
following Restricted Payments (each a "Permitted Payment"):
(i) the payment of any dividend or redemption of any
Capital Stock within 60 days after the date of declaration thereof or
call for redemption, if at such date of declaration or call for
redemption such payment or redemption was permitted by the provisions
of paragraph (a) of this Section 1009 (the declaration of such payment
will be deemed a Restricted Payment under paragraph (a) of this Section
1009 as of the date of declaration, and the payment itself will be
deemed to have been paid on such date of declaration and will not also
be deemed a Restricted Payment under paragraph (a) of this Section
1009);
(ii) the repurchase, redemption, or other acquisition or
retirement for value of any shares of any class of Capital Stock of the
Company in exchange for (including any such exchange pursuant to the
exercise of a conversion right or privilege in connection with which
cash is paid in lieu of the issuance of fractional shares or scrip), or
out of the Net Cash Proceeds of a substantially concurrent issuance and
sale for cash (other than to a Subsidiary) of, Qualified Capital Stock
of the Company; provided that the Net Cash Proceeds from the issuance
of such shares of Qualified Capital Stock are excluded from clause
(3)(B) of paragraph (a) of this Section 1009;
(iii) the repurchase, redemption, defeasance, retirement or
acquisition for value or payment of principal of any Subordinated
Indebtedness in exchange for, or out of the Net Cash Proceeds of, a
substantially concurrent issuance and sale for cash (other than to any
Subsidiary) of any Qualified Capital Stock of the Company, provided
that the Net Cash Proceeds from the issuance of such shares of
Qualified Capital Stock are excluded from clause (3)(B) of paragraph
(a) of this Section 1009;
(iv) the repurchase, redemption, defeasance, retirement,
or acquisition for value of any Subordinated Indebtedness (other than
Redeemable Capital Stock) (a "refinancing") in
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exchange for, or out of the Net Cash Proceeds of, the substantially
concurrent issuance of new Subordinated Indebtedness of the Company,
provided that any such new Subordinated Indebtedness
(A) shall be in a principal amount that
does not exceed the principal amount so refinanced, plus the
amount of premium or other payment reasonably determined as
necessary to refinance the Indebtedness, plus the amount of
expenses of the Company incurred in connection with such
refinancing;
(B) has an Average Life to Stated
Maturity equal to or greater than the remaining Average Life
to Stated Maturity of the Subordinated Indebtedness being
refinanced;
(C) has a Stated Maturity for its final
scheduled principal payment later than the Stated Maturity for
the final scheduled principal payment of the Subordinated
Indebtedness being refinanced; and
(D) is expressly subordinated in right
of payment to the Securities at least to the same extent as
the Subordinated Indebtedness to be refinanced;
(v) the repurchase of Capital Stock deemed to occur upon
(A) exercise of stock options to the extent that shares of such Capital
Stock represent a portion of the exercise price of such options and (B)
the withholding of a portion of the Capital Stock granted or awarded to
an employee to pay taxes associated therewith;
(vi) the payment of cash in lieu of the issuance of
fractional shares in connection with the exercise of warrants, options
or other securities convertible into or exercisable for Capital Stock
of the Company;
(vii) the repurchase, redemption, or other acquisition or
retirement for value of Redeemable Capital Stock of the Company made by
exchange for, or out of the proceeds of the sale of, Redeemable Capital
Stock;
(viii) so long as no Default or Event of Default exists or
would occur, cash payments made pursuant to the Earn-Out Agreement in
an amount (A)(1) up to $6.25 million per year in respect of each
Earn-Out Year and (2) the Cumulative Additional Earn-Out Payment, plus
(B) up to $6.25 million per year in respect of each Earn-Out Year, if
on the date of such payment pursuant to this clause (B) the Company's
Consolidated Fixed Charge Coverage Ratio for the most recent four full
fiscal quarters for which consolidated financial statements are
available immediately preceding such Earn-Out Agreement payment taken
as one period is at least equal to or greater than 3:1 (to the extent
any portion of any payment made pursuant to the Earn-Out Agreement in
respect of any Earn-Out Year is paid in cash, such amount so paid in
cash shall be deemed to be paid first pursuant to clause (A) up to the
amounts permitted thereby and then pursuant to clause (B));
(ix) so long as no Default or Event of Default exists or
would occur, the repurchase, redemption, or other acquisition or
retirement for value of any shares of Capital Stock of the Company from
employees, former employees, directors or former directors of the
Company or any Restricted Subsidiary or their authorized
representatives upon the death, disability or
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termination of employment of such employees, former employees,
directors or former directors, in an amount of up to $5 million in the
aggregate during the term of the Securities; and
(x) so long as no Default or Event of Default exists or
would occur, payments or distributions to stockholders pursuant to
appraisal rights required under applicable law in connection with any
consolidation, merger or transfer of assets, including the Acquisition,
that complies with Article Eight hereof.
For clarity purposes, (1) any cash Earn-Out Agreement payments
made pursuant to clause (viii)(B) of paragraph (b) of this Section 1009 shall be
Restricted Payments and shall reduce the amount that would otherwise be
available for Restricted Payments under paragraph (a) of this Section 1009, and
(2) all payments made pursuant to clauses (i) through (viii)(A), (ix) and (x) of
paragraph (b) of this Section 1009 shall not reduce the amount that would
otherwise be available for Restricted Payments under paragraph (a) of this
Section 1009.
SECTION 1010. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into any transaction
or series of related transactions (including, without limitation, the sale,
purchase, exchange or lease of assets, property or services) with or for the
benefit of any Affiliate of the Company (other than the Company or a Restricted
Subsidiary), including any Person that becomes a Restricted Subsidiary as a
result of such transaction) unless:
(1) such transaction or series of related transactions is
on terms that are no less favorable to the Company or such Restricted
Subsidiary, as the case may be, than those that would be available in a
comparable transaction in arm's-length dealings with an unrelated third party,
(2) with respect to any transaction or series of related
transactions involving aggregate value in excess of $2.5 million, the Company
delivers an Officers' Certificate to the Trustee certifying that such
transaction or series of related transactions complies with clause (1) above,
and
(3) with respect to any transaction or series of related
transactions involving aggregate value in excess of $10 million, either
(a) such transaction or series of related transactions
has been approved by a majority of the Disinterested Directors of the Board of
Directors of the Company, or in the event there is only one Disinterested
Director, by such Disinterested Director, or
(b) the Company delivers to the Trustee a written opinion
of an investment banking firm of national standing or other recognized
independent expert stating that the transaction or series of related
transactions is fair to the Company or such Restricted Subsidiary from a
financial point of view; provided, however, that this provision shall not apply
to:
(i) directors' fees, consulting fees, employee salaries,
bonuses or employment agreements, incentive arrangements, compensation
or employee benefit arrangements with any officer, director or employee
of the Company or a Subsidiary of the Company, including under any
stock option or stock incentive plans, customary indemnification
arrangements with officers, directors or employees of the Company or a
Subsidiary of the Company, in each case entered into in the ordinary
course of business;
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(ii) any Restricted Payments or Permitted Payments made in
compliance with Section 1009;
(iii) any Qualified Securitization Transaction;
(iv) any issuance or sale of Qualified Capital Stock of
the Company to Affiliates;
(v) transactions among the Company and/or any Restricted
Subsidiary (other than a Securitization Entity) and/or any Related
Business Entity;
(vi) loans or advances to employees or consultants of the
Company in the ordinary course of business for bona fide business
purposes of the Company and its Restricted Subsidiaries (including
travel, entertainment and moving expenses) made in compliance with
applicable law;
(vii) transactions pursuant to any of the Acquisition
Agreements or agreements of Viewpoint and its Subsidiaries in effect on
the date the Acquisition is consummated; and
(viii) any transactions undertaken pursuant to any
agreements in existence on the Issue Date or the date the Acquisition
is consummated in the case of Viewpoint and its Subsidiaries (as in
effect on the Issue Date or the date the Acquisition is consummated in
the case of Viewpoint and its Subsidiaries) and any renewals,
replacements or modifications of such contracts (pursuant to new
transactions or otherwise) on terms no less favorable in any material
respect to the Holders of the Securities than those in effect on the
Issue Date or the date the Acquisition is consummated in the case of
Viewpoint and its Subsidiaries;
SECTION 1011. LIMITATION ON LIENS.
(a) The Company will not, and will not cause or permit
any Restricted Subsidiary to, directly or indirectly, create or incur any Lien
of any kind (other than Permitted Liens) securing Indebtedness of the Company or
any Restricted Subsidiary unless the Securities (or a Guarantee in the case of
Liens of a Guarantor) are directly secured equally and ratably with (or, in the
case of Subordinated Indebtedness, prior or senior thereto, with the same
relative priority as the Securities shall have with respect to such Subordinated
Indebtedness) the Indebtedness secured by such Lien.
Notwithstanding the foregoing, any Lien securing the
Securities granted pursuant to this Section 1011 shall be automatically and
unconditionally released and discharged upon the release by the holders of the
Indebtedness described above of their Lien on the property or assets of the
Company or any Restricted Subsidiary (including any deemed release upon payment
in full of all obligations under such Indebtedness), securing such Indebtedness,
or upon any sale, exchange or transfer to any Person not an Affiliate of the
Company of the property or assets subject to such Lien, or of all of the Capital
Stock held by the Company or any Restricted Subsidiary in, or all or
substantially all the assets of, any Restricted Subsidiary that owns the
property or assets subject to such Lien.
SECTION 1012. LIMITATION ON SALE OF ASSETS.
(a) The Company will not, and will not cause or permit
any of its Restricted Subsidiaries to, directly or indirectly, consummate an
Asset Sale unless (1) at least 75% of the consideration from such Asset Sale is
received in cash, Cash Equivalents or Replacement Assets and (2) the Company or
such Restricted Subsidiary receives consideration at the time of such Asset Sale
at
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least equal to the Fair Market Value of the shares or assets subject to such
Asset Sale. For purposes of Section (a)(1) of this Section 1012, the following
will be deemed to be cash: (A) the amount of any liabilities (other than
Subordinated Indebtedness) of the Company or any Restricted Subsidiary that is
actually assumed by the transferee in such Asset Sale and from which the Company
and the Restricted Subsidiaries are fully and unconditionally released
(excluding any liabilities that are incurred in connection with or in
anticipation of such Asset Sale and contingent liabilities); (B) the amount of
any notes, securities or other similar obligations received by the Company or
any Restricted Subsidiary from such transferee that is converted, sold or
exchanged within 90 days of the related Asset Sale by the Company or the
Restricted Subsidiaries into cash in an amount equal to the net cash proceeds
realized upon such conversion, sale or exchange; and (C) the amount of any
Designated Non-cash Consideration received by the Company or any of its
Restricted Subsidiaries in the Asset Sale; provided that the aggregate of such
Designated Non-cash Consideration received in connection with Asset Sales (and
still held) shall not exceed $5 million at any one time (with the Fair Market
Value in each case being measured at the time received and without giving effect
to subsequent changes in value).
(b) All or a portion of the Net Cash Proceeds of any
Asset Sale may be applied by the Company or a Restricted Subsidiary, to the
extent the Company or such Restricted Subsidiary elects (or is required by the
terms of any Indebtedness under the Credit Agreement or any Credit Facility):
(i) to repay permanently any Indebtedness under the
Credit Agreement or any other Credit Facility or Indebtedness of any
non-Guarantor with respect to the proceeds from the sale of assets of
any non-Guarantor then outstanding as required by the terms thereof
(and in the case of any such Indebtedness under the Credit Agreement or
any other Credit Facility, effect a permanent reduction in the
availability under the Credit Agreement or any other Credit Facility);
(excluding any Indebtedness created in connection with any registered
offering of securities under the Securities Act or a private placement
of securities (including under Rule 144A) pursuant to an exemption from
the registration requirements of the Securities Act);
(ii) to repay or repurchase any secured Indebtedness;
(iii) to repay or repurchase, within one year of its final
Stated Maturity, any Indebtedness with a final Stated Maturity that is
prior to the final Stated Maturity of the Securities;
(iv) to acquire all or substantially all of the assets of,
or a majority of the Voting Stock of, a Permitted Business;
(v) to make a capital expenditure; or
(vi) to invest the Net Cash Proceeds (or enter into a
legally binding agreement to invest) in Replacement Assets.
Pending the final application of any such Net Cash Proceeds,
the Company may temporarily reduce Indebtedness or otherwise invest such Net
Cash Proceeds in any manner that is not prohibited by this Indenture. If any
such legally binding agreement to invest such Net Cash Proceeds is terminated,
the Company shall, within 90 days of such termination or within 365 days of such
Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in
clauses (i) through (vi) above
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(without regard to the parenthetical contained in clause (vi)). The amount of
such Net Cash Proceeds not used or invested in accordance with the preceding
clauses (i) through (vi) within 365 days of the Asset Sale constitutes "Excess
Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds
$15 million or more, the Company will apply the Excess Proceeds to the repayment
of the Securities and at the Company's option, any other Pari Passu Indebtedness
outstanding with similar provisions requiring the Company to make an offer to
purchase such Indebtedness with the proceeds from any Asset Sale as follows:
(A) the Company will make an offer to purchase
(an "Offer") from all holders of the Securities in accordance with the
procedures set forth in this Indenture in the maximum principal amount
(expressed as a multiple of $1,000) of Securities that may be purchased out of
an amount (the "Security Amount") equal to the product of such Excess Proceeds
multiplied by a fraction, the numerator of which is the outstanding principal
amount of the Securities, and the denominator of which is the sum of the
outstanding principal amount (or accreted value in the case of Indebtedness
issued with original issue discount) of the Securities and such Pari Passu
Indebtedness (subject to proration in the event such amount is less than the
aggregate Offered Price (as defined herein) of all Securities tendered) and
(B) to the extent required by such Pari Passu
Indebtedness to permanently reduce the principal amount of such Pari Passu
Indebtedness (or accreted value in the case of Indebtedness issued with original
issue discount), the Company will make an offer to purchase or otherwise
repurchase or redeem Pari Passu Indebtedness (a "Pari Passu Offer") in an amount
(the "Pari Passu Debt Amount") equal to the excess of the Excess Proceeds over
the Security Amount; provided that in no event will the Company be required to
make a Pari Passu Offer in a Pari Passu Debt Amount exceeding the principal
amount (or accreted value) of such Pari Passu Indebtedness plus the amount of
any premium required to be paid to repurchase such Pari Passu Indebtedness.
The offer price for the Securities will be payable in cash in
an amount equal to 100% of the principal amount of the Securities plus accrued
and unpaid interest, if any, to the date (the "Offer Date") such Offer is
consummated (the "Offered Price"), in accordance with the procedures set forth
in this Indenture. To the extent that the aggregate Offered Price of the
Securities tendered pursuant to the Offer is less than the Security Amount
relating thereto, or the aggregate amount of Pari Passu Indebtedness that is
purchased in a Pari Passu Offer is less than the Pari Passu Debt Amount, the
Company may use any remaining Excess Proceeds for general corporate purposes,
subject to the other covenants contained in this Indenture. If the aggregate
principal amount of Securities and Pari Passu Indebtedness surrendered by
holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Securities to be purchased on a pro rata basis. Upon the completion of the
Offer and the completion of any Pari Passu Offer, the amount of Excess Proceeds,
if any, shall be reset at zero.
(d) If the Company becomes obligated to make an Offer
pursuant to clause (c) above, the Securities and the Pari Passu Indebtedness
shall be purchased by the Company, at the option of the holders thereof, in
whole or in part in integral multiples of $1,000, on a date that is not earlier
than 30 days and not later than 60 days from the date the notice of the Offer is
given to holders, or such later date as may be necessary for the Company to
comply with the requirements under the Exchange Act.
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(e) The Company will comply with the applicable tender
offer rules, including Rule 14e-1 under the Exchange Act, and any other
applicable securities laws or regulations in connection with an Offer.
(f) Subject to paragraph (e) above, within 30 days after
the date on which the amount of Excess Proceeds equals or exceeds $15 million,
the Company shall send or cause to be sent by first-class mail, postage prepaid,
to the Trustee and to each Holder, at his address appearing in the Security
Register, a notice stating or including:
(1) that the Holder has the right to require the
Company to repurchase, subject to proration, such Holder's Securities
at the Offered Price;
(2) the Offer Date;
(3) the instructions a Holder must follow in
order to have his Securities purchased in accordance with paragraph (c)
of this Section;
(4) the Offered Price;
(5) the names and addresses of the Paying Agent
and the offices or agencies referred to in Section 1002;
(6) that Securities must be surrendered prior to
the Offer Date to the Paying Agent at the office of the Paying Agent or
to an office or agency referred to in Section 1002 to collect payment;
(7) that any Securities not tendered will
continue to accrue interest and that unless the Company defaults in the
payment of the Offered Price, any Security accepted for payment
pursuant to the Offer shall cease to accrue interest on and after the
Offer Date;
(8) the procedures for withdrawing a tender; and
(9) that the Offered Price for any Security
which has been properly tendered and not withdrawn and which has been
accepted for payment pursuant to the Offer will be paid promptly
following the Offered Date.
(g) Holders electing to have Securities purchased
hereunder will be required to surrender such Securities at the address specified
in the notice prior to the Offer Date. Holders will be entitled to withdraw
their election to have their Securities purchased pursuant to this Section 1012
if the Company receives, not later than one Business Day prior to the Offer
Date, a telegram, telex, facsimile transmission or letter setting forth (1) the
name of the Holder, (2) the certificate number of the Security in respect of
which such notice of withdrawal is being submitted, (3) the principal amount of
the Security (which shall be $1,000 or an integral multiple thereof) delivered
for purchase by the Holder as to which his election is to be withdrawn, (4) a
statement that such Holder is withdrawing his election to have such principal
amount of such Security purchased, and (5) the principal amount, if any, of such
Security (which shall be $1,000 or an integral multiple thereof) that remains
subject to the original notice of the Offer and that has been or will be
delivered for purchase by the Company.
(h) The Company shall (i) not later than the Offer Date,
accept for payment Securities or portions thereof tendered pursuant to the
Offer, (ii) not later than 10:00 a.m. (New York
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time) on the Offer Date, deposit with the Trustee or with a Paying Agent an
amount of money in same day funds sufficient to pay the aggregate Offered Price
of all the Securities or portions thereof which are to be purchased on that date
and (iii) not later than 10:00 a.m. (New York time) on the Offer Date, deliver
to the Paying Agent an Officers' Certificate stating the Securities or portions
thereof accepted for payment by the Company. The Paying Agent shall promptly
mail or deliver to Holders of Securities so accepted payment in an amount equal
to the Offered Price of the Securities purchased from each such Holder, and the
Company shall execute and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities not so accepted
shall be promptly mailed or delivered by the Paying Agent at the Company's
expense to the Holder thereof. For purposes of this Section 1012, the Company
shall choose a Paying Agent which shall not be the Company.
Subject to applicable escheat laws, the Trustee and the Paying
Agent shall return to the Company any cash that remains unclaimed, together with
interest, if any, thereon, held by them for the payment of the Offered Price;
provided, however, that (x) to the extent that the aggregate amount of cash
deposited by the Company with the Trustee in respect of an Offer exceeds the
aggregate Offered Price of the Securities or portions thereof to be purchased,
then the Trustee shall hold such excess for the Company and (y) unless otherwise
directed by the Company in writing, promptly after the Business Day following
the Offer Date the Trustee shall return any such excess to the Company together
with interest or dividends, if any, thereon.
(i) Securities to be purchased shall, on the Offer Date,
become due and payable at the Offered Price and from and after such date (unless
the Company shall default in the payment of the Offered Price) such Securities
shall cease to bear interest. Such Offered Price shall be paid to such Holder
promptly following the later of the Offer Date and the time of delivery of such
Security to the relevant Paying Agent at the office of such Paying Agent by the
Holder thereof in the manner required. Upon surrender of any such Security for
purchase in accordance with the foregoing provisions, such Security shall be
paid by the Company at the Offered Price; provided, however, that installments
of interest whose Stated Maturity is on or prior to the Offer Date shall be
payable to the Person in whose name the Securities (or any Predecessor
Securities) is registered as such on the relevant Regular Record Dates according
to the terms and the provisions of Section 309; provided, further, that
Securities to be purchased are subject to proration in the event the Excess
Proceeds are less than the aggregate Offered Price of all Securities tendered
for purchase, with such adjustments as may be appropriate by the Trustee so that
only Securities in denominations of $1,000 or integral multiples thereof, shall
be purchased. If any Security tendered for purchase shall not be so paid upon
surrender thereof by deposit of funds with the Trustee or a Paying Agent in
accordance with paragraph (h) above, the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Offer Date at the rate borne
by such Security. Any Security that is to be purchased only in part shall be
surrendered to a Paying Agent at the office of such Paying Agent (with, if the
Company, the Security Registrar or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Security Registrar or the Trustee duly executed by, the Holder thereof or such
Holder's attorney duly authorized in writing), and the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge, one or more new Securities of any authorized
denomination as requested by such Holder in an aggregate principal amount equal
to, and in exchange for, the portion of the principal amount of the Security so
surrendered that is not purchased. The Company shall publicly announce the
results of the Offer on or as soon as practicable after the Offer Date.
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SECTION 1013. LIMITATION ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS.
(a) The Company will not cause or permit any Restricted
Subsidiary (which is not a Guarantor), directly or indirectly, to guarantee,
assume or in any other manner become liable with respect to any Material
Indebtedness (other than Acquired Indebtedness) of the Company or any other
Restricted Subsidiary (other than any Permitted Indebtedness which may be
incurred by a Restricted Subsidiary which is not a Guarantor) unless such
Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture to this Indenture in the form of Exhibit E hereto or as reasonably
acceptable to the Trustee providing for a Guarantee of the Securities on the
same terms as the guarantee of such Indebtedness except that: (A) such Guarantee
need not be secured unless required pursuant to Section 1011 herein and (B) if
such Indebtedness is by its terms expressly subordinated to the Securities, any
such assumption, guarantee or other liability of such Restricted Subsidiary with
respect to such Indebtedness shall be subordinated to such Restricted
Subsidiary's Guarantee of the Securities at least to the same extent as such
Indebtedness is subordinated to the Securities.
(b) Notwithstanding the foregoing, any Guarantee by a
Restricted Subsidiary of the Securities shall provide by its terms that it (and
all Liens securing the same) shall be automatically and unconditionally released
and discharged upon:
(1) any sale, exchange, transfer or disposition,
to any Person not a Subsidiary of the Company, of all of the Company's
Capital Stock in, or all or substantially all the assets of, such
Restricted Subsidiary (including by way of merger or consolidation), or
the designation of such Restricted Subsidiary as an Unrestricted
Subsidiary, which transaction is in compliance with the terms of this
Indenture,
(2) the merger or dissolution of a Guarantor
into the Company or another Guarantor or the transfer or sale of all or
substantially all of the assets of a Guarantor to the Company or
another Guarantor, or
(3) the release by the holders of the
Indebtedness of the Company or such other Restricted Subsidiary
described in clause (a) above of their guarantee by such Restricted
Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness), at such time as:
(A) no other Indebtedness of the Company (other
than the Securities) or any other Restricted Subsidiary has been guaranteed by
such Restricted Subsidiary, or
(B) the holders of all such other Indebtedness
which is guaranteed by such Restricted Subsidiary also release their guarantee
by such Restricted Subsidiary (including any deemed release upon payment in full
of all obligations under such Indebtedness).
SECTION 1014. PURCHASE OF SECURITIES UPON A CHANGE OF CONTROL.
(a) If a Change of Control occurs, each Holder of
Securities will have the right to require that the Company purchase all or any
part (in integral multiples of $1,000) of such Holder's Securities pursuant to a
"Change of Control Offer." In the Change of Control Offer, the Company will
offer to purchase all of the Securities, at a purchase price (the "Change of
Control Purchase Price") in cash in an amount equal to 101% of the principal
amount of such Securities, plus accrued and unpaid
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interest, if any, to the date of purchase (the "Change of Control Purchase
Date") (subject to the rights of Holders of record on relevant record dates to
receive interest due on an interest payment date).
(b) Within 30 days of any Change of Control or, at the
Company's option, prior to such Change of Control but after it is publicly
announced, the Company must notify the Trustee and give written notice (a
"Change of Control Purchase Notice") of the Change of Control to each Holder of
Securities, by first-class mail, postage prepaid, at his address appearing in
the Security Register. The notice must state, among other things:
(1) that a Change of Control has occurred or
will occur, the date of such event, and that such Holder has the right
to require the Company to repurchase such Holder's Securities at the
Change of Control Purchase Price;
(2) that the Change of Control Offer is being
made pursuant to this Section 1014 and that all Securities properly
tendered pursuant to the Change of Control Offer will be accepted for
payment at the Change of Control Purchase Price;
(3) the Change of Control Purchase Date, which
shall be fixed by the Company on a Business Day no earlier than 30 days
nor later than 60 days from the date such notice is mailed, or such
later date as is necessary to comply with requirements under the
Exchange Act; provided that the Change of Control Purchase Date may not
occur prior to the Change of Control;
(4) the Change of Control Purchase Price;
(5) the names and addresses of the Paying Agent
and the offices or agencies referred to in Section 1002;
(6) that Securities must be surrendered on or
prior to the Change of Control Purchase Date to the Paying Agent at the
office of the Paying Agent or to an office or agency referred to in
Section 1002 to collect payment;
(7) that the Change of Control Purchase Price
for any Security which has been properly tendered and not withdrawn
will be paid promptly following the Change of Control Offer Purchase
Date;
(8) the procedures that a Holder must follow to
accept a Change of Control Offer or to withdraw such acceptance;
(9) that any Security not tendered will continue
to accrue interest; and
(10) that, unless the Company defaults in the
payment of the Change of Control Purchase Price, any Securities
accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Purchase Date.
(c) Upon receipt by the Company of the proper tender of
Securities, the Holder of the Security in respect of which such proper tender
was made shall (unless the tender of such Security is properly withdrawn)
thereafter be entitled to receive solely the Change of Control Purchase Price
with respect to such Security. Upon surrender of any such Security for purchase
in accordance with the foregoing provisions, such Security shall be paid by the
Company at the Change of Control
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Purchase Price; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Change of Control Purchase Date shall be payable
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the relevant Regular Record Dates according to the terms
and the provisions of Section 309. If any Security tendered for purchase in
accordance with the provisions of this Section 1014 shall not be so paid upon
surrender thereof, the principal thereof (and premium, if any, thereon) shall,
until paid, bear interest from the Change of Control Purchase Date at the rate
borne by such Security. Holders electing to have Securities purchased will be
required to surrender such Securities to the Paying Agent at the address
specified in the Change of Control Purchase Notice at least one Business Day
prior to the Change of Control Purchase Date. Any Security that is to be
purchased only in part shall be surrendered to a Paying Agent at the office of
such Paying Agent (with, if the Company, the Security Registrar or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Security Registrar or the Trustee, as the
case may be, duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
one or more new Securities of any authorized denomination as requested by such
Holder in an aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Security so surrendered that is not
purchased.
(d) The Company shall (i) not later than the Change of
Control Purchase Date, accept for payment Securities or portions thereof
tendered pursuant to the Change of Control Offer, (ii) not later than 10:00 a.m.
(New York time) on the Business Day following the Change of Control Purchase
Date, deposit with the Trustee or with a Paying Agent an amount of money in same
day funds sufficient to pay the aggregate Change of Control Purchase Price of
all the Securities or portions thereof which have been so accepted for payment
and (iii) not later than 10:00 a.m. (New York time) on the Business Day
following the Change of Control Purchase Date, deliver to the Paying Agent an
Officers' Certificate stating the Securities or portions thereof accepted for
payment by the Company. The Paying Agent shall promptly mail or deliver to
Holders of Securities so accepted payment in an amount equal to the Change of
Control Purchase Price of the Securities purchased from each such Holder, and
the Company shall execute and the Trustee shall promptly authenticate and mail
or deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities not so accepted
shall be promptly mailed or delivered by the Paying Agent at the Company's
expense to the Holder thereof. The Company will publicly announce the results of
the Change of Control Offer on the Change of Control Purchase Date. For purposes
of this Section 1014, the Company shall choose a Paying Agent which shall not be
the Company.
(e) A tender made in response to a Change of Control
Purchase Notice may be withdrawn if the Company receives, not later than one
Business Day prior to the Change of Control Purchase Date, a telegram, telex,
facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Security in
respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Security (which
shall be $1,000 or an integral multiple thereof) delivered for purchase
by the Holder as to which such notice of withdrawal is being submitted;
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(4) a statement that such Holder is withdrawing
his election to have such principal amount of such Security purchased;
and
(5) the principal amount, if any, of such
Security (which shall be $1,000 or an integral multiple thereof) that
remains subject to the original Change of Control Purchase Notice and
that has been or will be delivered for purchase by the Company.
(f) Subject to applicable escheat laws, the Trustee and
the Paying Agent shall return to the Company any cash that remains unclaimed,
together with interest or dividends, if any, thereon, held by them for the
payment of the Change of Control Purchase Price; provided, however, that, (x) to
the extent that the aggregate amount of cash deposited by the Company pursuant
to clause (ii) of paragraph (d) above exceeds the aggregate Change of Control
Purchase Price of the Securities or portions thereof to be purchased, then the
Trustee shall hold such excess for the Company and (y) unless otherwise directed
by the Company in writing, promptly after the Business Day following the Change
of Control Purchase Date the Trustee shall return any such excess to the Company
together with interest, if any, thereon.
(g) The Company shall comply, to the extent applicable,
with the applicable tender offer rules, including Rule 14e-1 under the Exchange
Act, and any other applicable securities laws or regulations in connection with
a Change of Control Offer.
(h) Notwithstanding the foregoing, the Company will not
be required to make a Change of Control Offer upon a Change of Control if a
third party makes the Change of Control Offer, in the manner, at the times and
otherwise in compliance with the requirements set forth in this Indenture
applicable to a Change of Control Offer made by the Company and purchases all
the Securities validly tendered and not withdrawn under such Change of Control
Offer.
SECTION 1015. LIMITATION ON SUBSIDIARY PREFERRED STOCK.
(a) The Company will not permit any Restricted Subsidiary
of the Company to issue, sell or transfer any Preferred Stock of such Restricted
Subsidiary, except for (1) Preferred Stock issued or sold to, held by or
transferred to the Company or a Restricted Subsidiary, and (2) Preferred Stock
issued by a Person prior to the time (A) such Person becomes a Restricted
Subsidiary, (B) such Person consolidates or merges with or into the Company or a
Restricted Subsidiary or (C) a Restricted Subsidiary consolidates or merges with
or into such Person; provided that such Preferred Stock was not issued or
incurred by such Person in anticipation of the type of transaction contemplated
by subclause (A), (B) or (C). This clause (a) shall not apply upon the
acquisition by a third party of all the outstanding Preferred Stock of such
Restricted Subsidiary in accordance with the terms of this Indenture.
(b) The Company will not permit any Person (other than
the Company or a Restricted Subsidiary) to acquire Preferred Stock of any
Restricted Subsidiary from the Company or any Restricted Subsidiary, except upon
the acquisition of all the outstanding Preferred Stock of such Restricted
Subsidiary in accordance with the terms of this Indenture.
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SECTION 1016. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
(a) The Company will not, and will not cause or permit
any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other
distributions on its Capital Stock;
(2) pay any Indebtedness owed to the Company or
any other Restricted Subsidiary;
(3) make any Investment in the Company or any
other Restricted Subsidiary, or
(4) transfer any of its properties or assets to
the Company or any other Restricted Subsidiary.
(b) However, paragraph (a) of this Section 1016 will not
prohibit any:
(1) encumbrance or restriction pursuant to an
agreement or instrument (including the Credit Agreement, the
Securities, this Indenture and the Guarantees) in effect on the date of
this Indenture (or in respect of the Credit Agreement on the date of
the Credit Agreement);
(2) encumbrance or restriction with respect to a
Restricted Subsidiary that is not a Restricted Subsidiary of the
Company on the date of this Indenture, in existence at the time such
Person becomes a Restricted Subsidiary of the Company and not incurred
in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary, provided that such encumbrances and restrictions
are not applicable to the Company or any Restricted Subsidiary or the
properties or assets of the Company or any Restricted Subsidiary other
than such Subsidiary which is becoming a Restricted Subsidiary;
(3) encumbrance or restriction pursuant to any
agreement governing any Indebtedness represented by Capital Lease
Obligations or Purchase Money Obligations permitted to be incurred
under the provisions of Section 1008 or otherwise existing as a result
of the Acquisition;
(4) encumbrance or restriction contained in any
Acquired Indebtedness (including Acquired Indebtedness incurred in
connection with the Acquisition) or other agreement of any Person or
related to assets acquired (whether by merger, consolidation or
otherwise) by the Company or any Restricted Subsidiaries, so long as
such encumbrance or restriction (A) was not entered into in
contemplation of the acquisition, merger or consolidation transaction,
and (B) is not applicable to any Person, or the properties or assets of
any Person, other than the Person, or the property or assets of the
Person, so acquired, so long as the agreement containing such
restriction does not violate any other provision of this Indenture;
(5) encumbrance or restriction existing under
applicable law or any requirement of any regulatory body;
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(6) in the case of clause (4) of paragraph (a)
of this Section 1016, Liens securing Indebtedness otherwise permitted
to be incurred under the provisions of Section 1011 herein that limit
the right of the debtor to dispose of the assets subject to such Liens;
(7) customary non-assignment provisions in
leases, licenses or contracts;
(8) customary restrictions contained in (A)
asset sale agreements permitted to be incurred under the provisions of
Section 1012 herein that limit the transfer of such assets pending the
closing of such sale and (B) any other agreement for the sale or other
disposition of a Restricted Subsidiary that restricts distributions by
that Restricted Subsidiary pending its sale or other disposition;
(9) customary restrictions imposed by the terms
of shareholders', partnership or joint venture agreements entered into
in the ordinary course of business in connection with a joint venture
arrangement which is permitted pursuant to clause (8) of the definition
of Permitted Investment; provided, however, that such restrictions do
not apply to any Restricted Subsidiaries other than the applicable
company, partnership or joint venture;
(10) restrictions contained in Indebtedness of
Foreign Subsidiaries permitted to be incurred under clause (xii) of the
definition of Permitted Indebtedness, so long as such restrictions or
encumbrances are customary for Indebtedness of the type incurred;
(11) encumbrance or restriction with respect to a
Securitization Entity in connection with a Qualified Securitization
Transaction; provided, however, that such encumbrances and restrictions
are customarily required by the institutional sponsor or arranger of
such Qualified Securitization Transaction in similar types of documents
relating to the purchase of similar receivables in connection with the
financing thereof;
(12) restrictions on cash or other deposits or
net worth imposed by customers under contracts entered into in the
ordinary course of business;
(13) encumbrance or restriction under any of the
Acquisition Agreements;
(14) encumbrance or restriction under any
agreement that amends, extends, renews, refinances or replaces the
agreements containing the encumbrances or restrictions in the foregoing
clauses (1) through (13), or in this clause (14), provided that the
terms and conditions of any such encumbrances or restrictions are no
more restrictive in any material respect than those under or pursuant
to the agreement evidencing the Indebtedness so extended, renewed,
refinanced or replaced.
SECTION 1017. LIMITATIONS ON UNRESTRICTED SUBSIDIARIES.
The Company may designate after the Issue Date any Subsidiary
as an Unrestricted Subsidiary under this Indenture (a "Designation") only if:
(a) no Default shall have occurred and be continuing at
the time of or after giving effect to such Designation;
(b) the Company would be permitted to make an Investment
(other than a Permitted Investment) at the time of Designation (assuming the
effectiveness of such Designation) pursuant to
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paragraph (a) of Section 1009 hereof in an amount (the "Designation Amount")
equal to the Fair Market Value of the Company's interest in such Subsidiary;
(c) such Unrestricted Subsidiary does not own any Capital
Stock in any Restricted Subsidiary of the Company which is not simultaneously
being designated an Unrestricted Subsidiary;
(d) such Unrestricted Subsidiary is not liable, directly
or indirectly, with respect to any Indebtedness other than Non-recourse
Indebtedness, provided that an Unrestricted Subsidiary may provide a Guarantee
for the Securities; and
(e) such Unrestricted Subsidiary is not a party to any
agreement, contract, arrangement or understanding at such time with the Company
or any Restricted Subsidiary unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company or, in the event such condition is not
satisfied, the value of such agreement, contract, arrangement or understanding
to such Unrestricted Subsidiary from and after the date of Designation shall be
deemed a Restricted Payment.
In the event of any such Designation, the Company shall be
deemed to have made an Investment constituting a Restricted Payment pursuant to
Section 1009 hereof for all purposes of this Indenture in the Designation
Amount.
The Company shall not and shall not cause or permit any
Restricted Subsidiary to at any time provide credit support for, guarantee, be
directly or indirectly liable for or subject any of its property or assets
(other than the Capital Stock of any Unrestricted Subsidiary) to the
satisfaction of, any Indebtedness of any Unrestricted Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness) (other than
Permitted Investments in Unrestricted Subsidiaries). For purposes of the
foregoing, the Designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be deemed to be the Designation of all of the Subsidiaries of
such Subsidiary as Unrestricted Subsidiaries. Unless so designated as an
Unrestricted Subsidiary, any Person that becomes a Subsidiary of the Company
will be classified as a Restricted Subsidiary.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(a) no Default shall have occurred and be continuing at
the time of and after giving effect to such Revocation;
(b) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Revocation would, if incurred
at such time, have been permitted to be incurred for all purposes of this
Indenture; and
(c) unless such redesignated Subsidiary shall not have
any Indebtedness outstanding (other than Indebtedness that would be Permitted
Indebtedness), (x) if prior to such Revocation the Company could incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to Section
1008 immediately after giving effect to such proposed Revocation, and after
giving pro forma effect to the incurrence of any such Indebtedness of such
redesignated Subsidiary as if such Indebtedness was incurred on the date of the
Revocation, the Company could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 1008 herein or (y) if prior to
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such Revocation the Company could not incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to Section 1008 herein, the
Company's Consolidated Fixed Charge Coverage Ratio does not decline as a result
of such Revocation.
All Designations and Revocations must be evidenced by a
resolution of the Board of Directors of the Company delivered to the Trustee
certifying compliance with the foregoing provisions.
SECTION 1018. PROVISION OF FINANCIAL STATEMENTS.
Whether or not the Company is subject to Section 13(a) or
15(d) of the Exchange Act, the Company will, to the extent permitted under the
Exchange Act, file with the Commission the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to Section 13(a) or 15(d) if the Company were so subject,
such documents to be filed with the Commission on or prior to the date (the
"Required Filing Date") by which the Company would have been required so to file
such documents if the Company were so subject.
The Company will also in any event within 15 days of each
Required Filing Date (a) file with the Trustee copies of the annual reports,
quarterly reports and other documents which the Company filed with the
Commission or would have been required to file with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act if the Company were subject to either
of such Sections and (b) if filing such reports and documents by the Company
with the Commission is not accepted by the Commission or is not permitted under
the Exchange Act, transmit by mail to all Holders of the Securities, as their
names and addresses appear in the Security Register, without cost to such
Holders, copies of such reports and documents.
In addition, so long as any of the Securities remain
outstanding, the Company will make available to any prospective purchaser of
Securities or beneficial owner of Securities in connection with any sale thereof
the information required by Rule 144A(d)(4) under the Securities Act, until such
time as the Company has either exchanged the Securities for securities identical
in all material respects which have been registered under the Securities Act or
until such time as the Holders thereof have disposed of such Securities pursuant
to an effective registration statement under the Securities Act.
SECTION 1019. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company will deliver to the Trustee, on or before
a date not more than 120 days after the end of each fiscal year of the Company
and 60 days after the end of each fiscal quarter, an Officers' Certificate, as
to compliance herewith, including whether or not, after a review of the
activities of the Company during such year or such quarter and of the Company's
and each Guarantor's performance under this Indenture, to the best knowledge,
based on such review, of the signers thereof, the Company and each Guarantor
have fulfilled all of their respective obligations and are in compliance with
all conditions and covenants under this Indenture throughout such year or
quarter, as the case may be, and, if there has been a Default specifying each
Default and the nature and status thereof and any actions being taken by the
Company and the Guarantors with respect thereto.
(b) When any Default or Event of Default has occurred and
is continuing, the Company shall deliver to the Trustee by registered or
certified mail or facsimile transmission of an
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Officers' Certificate specifying such Default or Event of Default, within five
Business Days after the occurrence of such Default or Event of Default.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. RIGHTS OF REDEMPTION.
(a) The Securities are subject to redemption at any time
on or after June 1, 2007, at the option of the Company, in whole or in part,
subject to the conditions, and at the Redemption Prices specified in the form of
Security, together with accrued and unpaid interest, if any, to the Redemption
Date (subject to the right of Holders of record on relevant Regular Record Dates
and Special Record Dates to receive interest due on relevant Interest Payment
Dates and Special Payment Dates).
(b) In addition, at any time prior to June 1, 2006, the
Company, at its option, may use the net proceeds of one or more Equity Offerings
to redeem up to an aggregate of 35% of the aggregate principal amount of
Securities originally issued under this Indenture at a Redemption Price equal to
108.875% of the aggregate principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the Redemption Date (subject to the rights of
Holders of record on relevant record dates to receive interest due on an
Interest Payment Date); provided that this redemption provision shall not be
applicable with respect to any transaction that results in a Change of Control;
provided, further, that at least 65% of the initial aggregate principal amount
of Securities must remain outstanding immediately after the occurrence of such
redemption. In order to effect the foregoing redemption, the Company must mail a
notice of redemption no later than 60 days after the closing of the related
Equity Offering and must complete such redemption within 90 days of the closing
of the Equity Offering.
(c) In addition, at any time prior to June 1, 2007, the
Company may redeem all or a portion of the Securities in amounts of $1,000 or an
integral multiple thereof, at a price equal to the greater of:
(i) 100% of the aggregate principal amount of the
Securities to be redeemed, together with accrued and unpaid interest,
if any, to the date of redemption, and
(ii) as determined by an Independent Investment Banker,
the sum of the present values of 104.438% of the principal of the
Securities being redeemed plus scheduled payments of interest (not
including any portion of such payments of interest accrued as of the
date of redemption) from the date of redemption to June 1, 2007
discounted to the Redemption Date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate plus 50 basis points, together with accrued and unpaid
interest, if any, to the date of redemption.
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article Eleven.
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SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant
to Section 1101 shall be evidenced by a Company Order and an Officers'
Certificate. In case of any redemption at the election of the Company, the
Company shall, not less than 45 nor more than 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice period shall be satisfactory
to the Trustee), notify the Trustee in writing of such Redemption Date and of
the principal amount of Securities to be redeemed.
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the
particular Securities or portions thereof to be redeemed shall be selected not
more than 30 days prior to the Redemption Date. The Trustee shall select the
Securities or portions thereof to be redeemed in compliance with the
requirements of the principal national security exchange, if any, on which the
Securities are listed, or if the Securities are not so listed, pro rata, by lot
or by any other method the Trustee shall deem fair and reasonable. The amounts
to be redeemed shall be equal to $1,000 or any integral multiple thereof.
Redemption pursuant to the provisions of Section 1101(b) relating to an Equity
Offering must be made on a pro rata basis or on as nearly a pro rata basis as
practicable (subject to the procedures of DTC or any other depositary).
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 days nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at its address
appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be
redeemed, the identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the
principal amount of such Security to be redeemed and that after the Redemption
Date upon surrender of such Security, new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof will be
issued;
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(e) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or portion thereof to be
redeemed, and that (unless the Company shall default in payment of the
Redemption Price) interest thereon shall cease to accrue on and after said date;
(g) the names and addresses of the Paying Agent and the
offices or agencies referred to in Section 1002 where such Securities are to be
surrendered for payment of the Redemption Price;
(h) the CUSIP number, if any, relating to such
Securities; and
(i) the procedures that a Holder must follow to surrender
the Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
written request, by the Trustee in the name and at the expense of the Company.
If the Company elects to give notice of redemption, it shall provide the Trustee
with a certificate stating that such notice has been given in compliance with
the requirements of this Section 1105.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company or any of its
Affiliates is acting as Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in same day funds sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date or Special Payment Date) accrued interest on, all the Securities or
portions thereof which are to be redeemed on that date. The Paying Agent shall
promptly mail or deliver to Holders of Securities so redeemed payment in an
amount equal to the Redemption Price of the Securities purchased from each such
Holder. All money, if any, earned on funds held in trust by the Trustee or any
Paying Agent shall be remitted to the Company. For purposes of this Section
1106, the Company shall choose a Paying Agent which shall not be the Company.
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price together with
accrued interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to
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the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the relevant Regular Record Dates and Special Record Dates
according to the terms and the provisions of Section 309.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate borne by such
Security.
SECTION 1108. SECURITIES REDEEMED OR PURCHASED IN PART.
Any Security which is to be redeemed or purchased only in part
shall be surrendered to the Paying Agent at the office or agency maintained for
such purpose pursuant to Section 1002 (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar or the Trustee, as the case may be, duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the unredeemed portion of the principal of
the Security so surrendered that is not redeemed or purchased.
SECTION 1109. SPECIAL MANDATORY REDEMPTION; NOTICES TO TRUSTEE AND
SECURITIES INTERMEDIARY.
If (1) the Release has not occurred on or before 5:00 p.m.,
New York City time, on the Deadline, or (2) the Company has earlier notified the
Securities Intermediary that it will not proceed with the Acquisition, then the
Company will, on a Business Day designated by the Company that is not more than
20 Business Days following the Deadline, or such earlier date as permitted by
applicable law, (the "Special Mandatory Redemption Date"), notify the Trustee
thereof and deliver to the Trustee an Officers' Certificate stating that such
redemption will comply with the conditions contained in form of Security (the
"Special Mandatory Redemption") and setting forth the Special Mandatory
Redemption Price applicable to such Special Mandatory Redemption. Simultaneously
with the giving of such notice by the Company to the Trustee, the Company shall
notify the Securities Intermediary thereof pursuant to Section 3(b) of the
Escrow Agreement.
SECTION 1110. NOTICE OF SPECIAL MANDATORY REDEMPTION TO HOLDERS.
Notice of the Special Mandatory Redemption will be promptly
mailed by first class mail by the Company to each Holder of Securities at his or
her last address as the same appears in the Security Register.
The notice shall state that all the Securities will be
redeemed (including the CUSIP numbers thereof) and shall state:
(1) the Special Mandatory Redemption Date;
(2) the Special Mandatory Redemption Price;
(3) the name and address of the Paying Agent;
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(4) that Securities must be surrendered to the Paying
Agent to collect the redemption price;
(5) that unless the Company defaults in making the
redemption payment, interest on the Securities ceases to accrue on and after the
Special Mandatory Redemption Date; and
(6) that the Securities are being redeemed pursuant to
the provision of the Securities related to Special Mandatory Redemption.
SECTION 1111. EFFECT OF NOTICE OF SPECIAL MANDATORY REDEMPTION.
Once the notice of redemption described in Section 1110 is
mailed, the Securities will become due and payable on the Special Mandatory
Redemption Date at the Special Mandatory Redemption Price. Upon surrender to the
Paying Agent, the Securities shall be paid at the Special Mandatory Redemption
Price.
SECTION 1112. DEPOSIT OF SPECIAL MANDATORY REDEMPTION PRICE.
On or prior to 10:00 A.M., New York City time, on the Special
Mandatory Redemption Date, the Company shall direct the Securities Intermediary,
pursuant to Section 3(b) of the Escrow Agreement, to deposit with the Paying
Agent the applicable Special Mandatory Redemption Price.
On and after the Special Mandatory Redemption Date, if money
sufficient to pay the applicable Special Mandatory Redemption Price shall have
been made available in accordance with the immediately preceding paragraph, the
Securities will cease to accrue interest and the only right of the Holders of
the Securities will be to receive payment of the Special Mandatory Redemption
Price. If any Securities surrendered for redemption shall not be so paid,
interest will be paid, from the Special Mandatory Redemption Date until such
redemption payment is made, on the unpaid principal of the Securities and any
interest not paid on such unpaid principal, in each case at the rate and in the
manner provided in the Securities.
SECTION 1113. NO OTHER MANDATORY REDEMPTIONS.
The Company is not required to make mandatory redemption or
sinking fund payments with respect to the Securities, other than a Special
Mandatory Redemption.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
SECTION 1201. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture will be discharged and will cease to be of
further effect (except as to surviving rights of registration of transfer or
exchange of Securities as expressly provided for herein) as to all Outstanding
Securities hereunder, and the Trustee, upon Company Request and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
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(1) all the Securities theretofore authenticated
and delivered (other than (i) lost, stolen or destroyed Securities
which have been replaced or paid as provided in Section 308 or (ii) all
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(2) all such Securities not theretofore
delivered to the Trustee for cancellation (i) have become due and
payable, (ii) will become due and payable at their Stated Maturity
within one year or (iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of
the Company;
(b) the Company or any Guarantor has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust an
amount in United States dollars sufficient to pay and discharge the entire
Indebtedness on the Securities not theretofore delivered to the Trustee for
cancellation, including the principal of, premium, if any, and accrued interest
on, such Securities at such Maturity, Stated Maturity or Redemption Date;
(c) after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing under any Indebtedness of the
Company or any Restricted Subsidiary on the date of such deposit;
(d) such satisfaction and discharge will not result in a
breach or violation of, or constitute a default under, any other material
agreement or instrument to which the Company, any Guarantor or any Restricted
Subsidiary is a party or by which the Company, any Guarantor or any Restricted
Subsidiary is bound;
(e) the Company or any Guarantor has paid or caused to be
paid all other sums payable hereunder by the Company and any Guarantor; and
(f) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel, in form and substance
satisfactory to the Trustee, each stating that (i) all conditions precedent
herein relating to the satisfaction and discharge hereof have been complied
with.
Notwithstanding the satisfaction and discharge hereof, the
obligations of the Company to the Trustee under Section 607 and, if United
States dollars shall have been deposited with the Trustee pursuant to subclause
(2) of subsection (a) of this Section 1201, the obligations of the Trustee under
Section 1202 and the last paragraph of Section 1003 shall survive.
SECTION 1202. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
1003, all United States dollars deposited with the Trustee pursuant to Section
1201 shall be held in trust and applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal of,
premium, if any, and interest on, the Securities for whose payment such United
States dollars have been deposited with the Trustee.
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AR