SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
______________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): October 7, 1996
Brown Group, Inc.
(Exact Name of Registrant as Specified in Charter)
New York 1-2191 43-0197190
(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification Number)
Incorporation)
8300 Maryland Avenue, St. Louis, Missouri 63105
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code:
(314) 854-4000
<PAGE>
Item 2. Acquisition or Disposition of Assets.
On October 7, 1996, Brown Group, Inc. completed the sale of
$100,000,000 of its 9-1/2% Senior Notes due 2006 (the "Notes") in a
private offering exempt from the registration requirements of the
Securities Act of 1933, as amended (the "Act") to Smith Barney
Inc., First Chicago Capital Markets, Inc. and Dillon, Read & Co.
Inc. for resale of the Notes in accordance with Rule 144A of the
Act. The net proceeds from the sale of the Notes were used to
pay down Brown Group's revolving credit facility.
As a result of the completion of the sale of its Notes, the
Company elected to reduce the lenders' commitment to $150 million
from $200 million under its Bank Credit Agreement, as amended,
dated as of December 22, 1993 between the Company and The First
National Bank of Chicago, as Agent for certain Lenders and The
Boatmen's National Bank of St. Louis and Citibank, N.A., as Co-
Agents for such Lenders (as amended, the "Bank Credit
Agreement"). Such election by the Company, pursuant to the terms
of the Bank Credit Agreement, was made as of October 16, 1996.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 Indenture dated as of October 1, 1996 between
Brown Group, Inc. and State Street Bank and Trust
Company, as Trustee.
4.2 Registration Rights Agreement dated as of October
7, 1996 between Brown Group, Inc. and Smith
Barney Inc., First Chicago Capital Markets, Inc.
and Dillon, Read & Co. Inc., as Initial
Purchasers.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this report
to be signed on its behalf by the undersigned, hereunto duly
authorized.
Date: October 21, 1996 By: /s/ Harry E. Rich
Executive Vice President
and Chief Financial
Officer and on Behalf of
the Corporation as the
Principal Financial Officer
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 Indenture dated as of October 1, 1996 between
Brown Group, Inc. and State Street Bank and Trust
Company, as Trustee.
4.2 Registration Rights Agreement dated as of October
7, 1996 between Brown Group, Inc. and Smith
Barney Inc., First Chicago Capital Markets, Inc.
and Dillon, Read & Co. Inc., as Initial
Purchasers.
INDENTURE
Dated as of October 1, 1996
BROWN GROUP, INC., as Issuer
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
$150,000,000
9-1/2% Senior Notes due 2006
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of October 1, 1996
Trust Indenture Indenture
Act Section Section
--------------- ---------
Sec. 310(a)(1) . . . . . . . . . . . . . . . . . 7.11
(a)(2) . . . . . . . . . . . . . . . . . 7.11
(a)(3) . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . 7.11
(b). . . . . . . . . . . . . . . . . . . 7.09; 7.11; 10.02
(c). . . . . . . . . . . . . . . . . . . N.A.
Sec. 311(a). . . . . . . . . . . . . . . . . . . 7.12
(b). . . . . . . . . . . . . . . . . . . 7.12
(c) . . . . . . . . . . . . . . . . . . N.A.
Sec. 312(a) . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . 10.03
(c) . . . . . . . . . . . . . . . . . . 10.03
Sec. 313(a) . . . . . . . . . . . . . . . . . . 7.07
(b) . . . . . . . . . . . . . . . . . . 7.07
(c) . . . . . . . . . . . . . . . . . . 7.07; 10.02
(d) . . . . . . . . . . . . . . . . . . 7.07
Sec. 314(a) . . . . . . . . . . . . . . . . . . 4.07; 10.02
(b) . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . 10.04
(c)(2) . . . . . . . . . . . . . . . . . 10.04
(c)(3) . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . 10.05
Sec. 315(a) . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . 7.05; 10.02
(c) . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . 7.01(c)
(e) . . . . . . . . . . . . . . . . . . 6.11
Sec. 316(a)(last sentence) . . . . . . . . . . . 2.09
(a)(1)(A). . . . . . . . . . . . . . . . 6.05
(a)(1)(B). . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . 6.07; 9.04
Sec. 317(a)(1) . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . 2.04
Sec. 318(a) . . . . . . . . . . . . . . . . . . 10.01
(c) . . . . . . . . . . . . . . . . . . 10.01
________________________
Note: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions. . . . . . . . . . . . . . . . . . . . 1
Section 1.02 Incorporation by Reference of Trust
Indenture Act. . . . . . . . . . . . . . . . . . . 33
Section 1.03 Rules of Construction. . . . . . . . . . . . . . . 33
ARTICLE TWO
THE SECURITIES
Section 2.01 Issuance of Securities . . . . . . . . . . . . . . 29
Section 2.02 Execution and Authentication. . . . . . . . . . . . 36
Section 2.03 Registrar and Paying Agent. . . . . . . . . . . . . 37
Section 2.04 Paying Agent To Hold Money in Trust . . . . . . . . 38
Section 2.05 Securityholder Lists. . . . . . . . . . . . . . . . 39
Section 2.06 Transfer and Exchange . . . . . . . . . . . . . . . 39
Section 2.07 Replacement Securities. . . . . . . . . . . . . . . 40
Section 2.08 Outstanding Securities. . . . . . . . . . . . . . . 41
Section 2.09 Treasury Securities . . . . . . . . . . . . . . . . 42
Section 2.10 Temporary Securities. . . . . . . . . . . . . . . . 42
Section 2.11 Cancellation. . . . . . . . . . . . . . . . . . . . 42
Section 2.12 Defaulted Interest. . . . . . . . . . . . . . . . . 43
Section 2.13 CUSIP Number. . . . . . . . . . . . . . . . . . . . 43
Section 2.14 Deposit of Moneys . . . . . . . . . . . . . . . . . 44
Section 2.15 Book-Entry Provisions for Global Securities . . . . 44
SECTION 2.16 Registration of Transfers and Exchanges . . . . . . 46
SECTION 2.17 Designation . . . . . . . . . . . . . . . . . . . . 52
ARTICLE THREE
REDEMPTION OF SECURITIES
Section 3.01 Notices to the Trustee . . . . . . . . . . . . . . 52
Section 3.02 Selection of Securities To Be Redeemed . . . . . . 53
Section 3.03 Notice of Redemption . . . . . . . . . . . . . . . 54
Section 3.04 Effect of Notice of Redemption . . . . . . . . . . 55
Section 3.05 Deposit of Redemption Price. . . . . . . . . . . . 55
Section 3.06 Securities Redeemed or Purchased in Part . . . . . 56
ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Securities . . . . . . . . . . . . . . 56
Section 4.02 Maintenance of Office or Agency . . . . . . . . . 57
Section 4.03 Corporate Existence . . . . . . . . . . . . . . . 58
Section 4.04 Payment of Taxes and Other Claims . . . . . . . . 58
Section 4.05 Maintenance of Properties;Insurance;
Books and Records; Compliance with Law. . . . . . 59
Section 4.06 Compliance Certificate. . . . . . . . . . . . . . 60
Section 4.07 SEC Reports . . . . . . . . . . . . . . . . . . . 62
Section 4.08 Limitation on Indebtedness. . . . . . . . . . . . 62
Section 4.09 Limitation on Restricted Payments . . . . . . . . 63
Section 4.10 Limitation on Issuances and
Sale of Preferred Stock by Subsidiaries . . . . . 67
Section 4.11 Limitation on Liens . . . . . . . . . . . . . . . 68
Section 4.12 Change of Control . . . . . . . . . . . . . . . . 68
Section 4.13 Disposition of Proceeds of Asset Sales. . . . . . 72
Section 4.14 Limitation on Transactions
with Interested Persons . . . . . . . . . . . . . 76
Section 4.15 Limitation on Dividends and Other
Payment Restrictions Affecting Subsidiaries . . . 78
Section 4.16 Limitations on Sale-Leaseback Transactions. . . . 79
Section 4.17 Limitation on Guarantees by Subsidiaries. . . . . 80
Section 4.18 Waiver of Stay, Extension or Usury Laws . . . . . 81
Section 4.19 Limitation on Applicability of
Certain Covenants . . . . . . . . . . . . . . . . 68
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 When Company May Merge, etc. . . . . . . . . . . 82
Section 5.02 Successor Substituted . . . . . . . . . . . . . . 84
ARTICLE SIX
EVENTS OF DEFAULT AND REMEDIES
Section 6.01 Events of Default . . . . . . . . . . . . . . . . 85
Section 6.02 Acceleration. . . . . . . . . . . . . . . . . . . 87
Section 6.03 Other Remedies. . . . . . . . . . . . . . . . . . 88
Section 6.04 Waiver of Past Defaults . . . . . . . . . . . . . 89
Section 6.05 Control by Majority . . . . . . . . . . . . . . . 89
Section 6.06 Limitation on Suits . . . . . . . . . . . . . . . 90
Section 6.07 Right of Holders To Receive Payment . . . . . . . 91
Section 6.08 Collection Suit by Trustee. . . . . . . . . . . . 91
Section 6.09 Trustee May File Proofs of Claims . . . . . . . . 91
Section 6.10 Priorities. . . . . . . . . . . . . . . . . . . . 92
Section 6.11 Undertaking for Costs . . . . . . . . . . . . . . 93
Section 6.12 Restoration of Rights and Remedies. . . . . . . . 93
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties. . . . . . . . . . . . . . . . . . . . . . 94
Section 7.02 Rights of Trustee . . . . . . . . . . . . . . . . 95
Section 7.03 Individual Rights of Trustee. . . . . . . . . . . 97
Section 7.04 Trustee's Disclaimer. . . . . . . . . . . . . . . 97
Section 7.05 Notice of Default . . . . . . . . . . . . . . . . 98
Section 7.06 Money Held in Trust . . . . . . . . . . . . . . . 98
Section 7.07 Reports by Trustee to Holders . . . . . . . . . . 98
Section 7.08 Compensation and Indemnity. . . . . . . . . . . . 99
Section 7.09 Replacement of Trustee . . . . . . . . . . . . . 100
Section 7.10 Successor Trustee by Merger, etc. . . . . . . . . 102
Section 7.11 Eligibility; Disqualification . . . . . . . . . . 102
Section 7.12 Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . 102
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01 Termination of the Company's Obligations . . . .103
Section 8.02 Legal Defeasance and Covenant Defeasance . . . . .105
Section 8.03 Application of Trust Money . . . . . . . . . . . .111
Section 8.04 Repayment to Company . . . . . . . . . . . . . . .111
Section 8.05 Reinstatement. . . . . . . . . . . . . . . . . . .112
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders . . . . . . . . . . . .113
Section 9.02 With Consent of Holders . . . . . . . . . . . . .114
Section 9.03 Compliance with Trust Indenture Act. . . . . . . .116
Section 9.04 Revocation and Effect of Consents. . . . . . . . .116
Section 9.05 Notation on or Exchange of Securities. . . . . . .117
Section 9.06 Trustee May Sign Amendments, etc. . . . . . . . .118
ARTICLE TEN
MISCELLANEOUS
Section 10.01 Trust Indenture Act of 1939 . . . . . . . . . . .118
Section 10.02 Notices . . . . . . . . . . . . . . . . . . . . .118
Section 10.03 Communication by Holders with Other Holders . . .120
Section 10.04 Certificate and Opinion as to
Conditions Precedent. . . . . . . . . . . . . . .120
Section 10.05 Statements Required in Certificate or Opinion . .120
Section 10.06 Rules by Trustee, Paying Agent, Registrar . . . .121
Section 10.07 Governing Law . . . . . . . . . . . . . . . . . .121
Section 10.08 No Interpretation of Other Agreements . . . . . .122
Section 10.09 No Recourse Against Others. . . . . . . . . . . .122
Section 10.10 Successors. . . . . . . . . . . . . . . . . . . .122
Section 10.11 Duplicate Originals . . . . . . . . . . . . . . .122
Section 10.12 Separability. . . . . . . . . . . . . . . . . . .122
Section 10.13 Table of Contents Headings, etc.. . . . . . . . .123
Section 10.14 Benefits of Indenture . . . . . . . . . . . . . .104
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . .104
<PAGE>
EXHIBIT A Form of Security
EXHIBIT B Form of Private Placement Legend
EXHIBIT C Form of Legend for Global Securities
EXHIBIT D Transfer Certificate
EXHIBIT E Transfer Certificate for Institutional
Accredited Investors
EXHIBIT F Form of Certificate To Be Delivered in
Connection with Regulation S Transfers
________________________
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE>
INDENTURE, dated as of October 1, 1996,
between BROWN GROUP, INC., a corporation incorporated
under the laws of the State of New York ("the Company")
and STATE STREET BANK AND TRUST COMPANY, a Massachusetts
Trust Company, as trustee (the "Trustee").
Each party hereto agrees as follows for the
benefit of each other party and for the equal and ratable
benefit of the Holders of the Company's 9-1/2% Senior Notes
due 2006 (the "Securities").
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions.
"Acquired Indebtedness" means Indebtedness of a
person (a) assumed in connection with an Asset
Acquisition from such person or (b) existing at the time
such person becomes a Subsidiary of any other person.
"Affiliate" means, with respect to any
specified person, any other person directly or indirectly
controlling or controlled by or under direct or indirect
common control with such specified person.
"Agent" means any Registrar or Paying Agent of
the Securities.
"Asset Acquisition" means (a) an Investment by
the Company or any Subsidiary of the Company in any other
person pursuant to which such person shall become a
Subsidiary of the Company, or shall be merged with or
into the Company or any Subsidiary of the Company, (b)
the acquisition by the Company or any Subsidiary of the
Company of the assets of any person (other than a
Subsidiary of the Company) which constitute all or
substantially all of the assets of such person or (c) the
acquisition by the Company or any Subsidiary of the
Company of any division or line of business of any person
(other than a Subsidiary of the Company).
"Asset Sale" means any direct or indirect sale,
issuance, conveyance, transfer, lease or other
disposition to any person other than the Company or a
Wholly-Owned Subsidiary of the Company, in one or a
series of related transactions, of (a) any Capital Stock
of any Subsidiary of the Company (other than in respect
of directors' qualifying shares or investments by foreign
nationals mandated by applicable law); (b) all or
substantially all of the properties and assets of any
division or line of business of the Company or any
Subsidiary of the Company; or (c) any other properties or
assets of the Company or any Subsidiary of the Company
other than in the ordinary course of business and
consistent with past business practices. For the
purposes of this definition, the term "Asset Sale" shall
not include (i) any sale, transfer or other disposition
of equipment, tools or other assets (including Capital
Stock of any Subsidiary of the Company) by the Company or
any of its Subsidiaries in one or a series of related
transactions in respect of which the Company or such
Subsidiary receives cash or property with an aggregate
Fair Market Value of $5,000,000 or less; or (ii) any
sale, issuance, conveyance, transfer, lease or other
disposition of properties or assets that is governed by
and done in accordance with Article Five.
"Asset Sale Offer" shall have the meaning set
forth in Section 4.13.
"Asset Sale Offer Price" shall have the meaning
set forth in Section 4.13.
"Asset Sale Purchase Date" shall have the
meaning set forth in Section 4.13.
"Attributable Value" means, as to any
particular lease under which any person is at the time
liable other than a Capitalized Lease Obligation, 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 initial
term thereof as determined in accordance with GAAP,
discounted from the last date of such initial term to the
date of determination at a rate per annum equal to the
discount rate which would be applicable to a Capitalized
Lease Obligation with a like term in accordance with
GAAP. The net amount of rent required to be paid under
any such lease for any such period shall 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. In the
case of any lease which is terminable by the lessee upon
the payment of a penalty, such net amount shall also
include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease
subsequent to the first date upon which it may be so
terminated. "Attributable Value" means, as to a
Capitalized Lease Obligation under which any person is at
the time liable and at any date as of which the amount
thereof is to be determined, the capitalized amount
thereof that would appear on the face of a balance sheet
of such person in accordance with GAAP.
"Average Life to Stated Maturity" means, with
respect to any Indebtedness, as at any date of
determination, the quotient obtained by dividing (a) the
sum of the products of (i) the number of years (or any
fraction thereof) from such date to the date or dates of
each successive scheduled principal payment (including,
without limitation, any sinking fund requirements) of
such Indebtedness multiplied by (ii) the amount of each
such principal payment by (b) the sum of all such
principal payments.
"Bankruptcy Law" means Title 11 United States
Code or any similar law for the relief of debtors.
"Board of Directors" means the board of
directors of the Company 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 to have been duly adopted by the Board of
Directors of the Company and to be in full force and
effect on the date of such certification, and delivered
to the Trustee.
"Business Day" means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on
which banking institutions in The City of New York, State
of New York are authorized or obligated by law,
regulation or executive order to close.
"Capital Stock" means, with respect to any
person, any and all shares, interests, participations,
rights in or other equivalents (however designated) of
such person's capital stock, and any rights (other than
debt securities convertible into capital stock), warrants
or options exchangeable for or convertible into such
capital stock.
"Capitalized Lease Obligation" means any
obligation under a lease of (or other agreement conveying
the right to use) any property (whether real, personal or
mixed) that is required to be classified and accounted
for as a capital lease obligation under GAAP, and the
amount of any such obligation at any date shall be the
capitalized amount thereof at such date, determined in
accordance with GAAP.
"Cash Equivalents" means, at any time, (i) any
evidence of Indebtedness with a maturity of 180 days or
less issued or directly and fully guaranteed or insured
by the United States of America or any agency or
instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in
support thereof); (ii) certificates of deposit or
acceptances or time deposits with a maturity of 180 days
or less of any financial institution that is a member of
the Federal Reserve System having combined capital and
surplus and undivided profits of not less than
$500,000,000; (iii) certificates of deposit or time
deposits with a maturity of 180 days or less of any
financial institution that is not organized under the
laws of the United States, any state thereof or the
District of Columbia that are rated at least A-1 by S&P
or at least P-1 by Moody's or at least an equivalent
rating category of another nationally recognized
securities rating agency; (iv) repurchase agreements and
reverse repurchase agreements relating to marketable
direct obligations issued or unconditionally guaranteed
by the government of the United States of America or
issued by any agency thereof and backed by the full faith
and credit of the United States of America, in each case
maturing within 180 days from the date of acquisition;
provided that the terms of such agreements comply with
the guidelines set forth in the Federal Financial
Agreements of Depository Institutions With Securities
Dealers and Others, as adopted by the Comptroller of the
Currency on October 31, 1985; and (v) commercial paper
with a maturity of 180 days or less that is rated at
least A-1 by S&P or at least P-1 by Moody's.
"Change of Control" means the occurrence of any
of the following events: (a) 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 securities that such person has the
right to acquire, whether such right is exercisable
immediately, or only after the passage of time, upon the
happening of an event or otherwise), directly or
indirectly, of more than 35% of the total Voting Stock of
the Company; (b) the Company consolidates with, or merges
with or into, another person or sells, assigns, conveys,
transfers, leases or otherwise disposes of all or
substantially all of its assets to any person, or any
person consolidates with, or merges with or into, 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 (i) the
outstanding Voting Stock of the Company is converted into
or exchanged for (1) Voting Stock (other than Redeemable
Capital Stock) of the surviving or transferee corporation
or (2) cash, securities and other property in an amount
which could then be paid by the Company as a Restricted
Payment pursuant to Section 4.09, or a combination
thereof, and (ii) immediately after such transaction no
"person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) 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, upon the happening of an event or otherwise),
directly or indirectly, of more than 35% of the total
Voting Stock of the surviving or transferee corporation;
(c) at any time during any consecutive two-year period,
individuals who at the beginning of such period
constituted the Board of Directors of the Company
(together with any new directors whose election by such
Board of Directors or whose nomination for election by
the stockholders of the Company was approved by a vote of
66-2/3% 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 the Board of Directors of the Company then in office;
or (d) the Company is liquidated or dissolved or adopts a
plan of liquidation.
"Change of Control Date" shall have the meaning
set forth in Section 4.12.
"Change of Control Offer" shall have the
meaning set forth in Section 4.12.
"Change of Control Purchase Date" shall have
the meaning set forth in Section 4.12.
"Common Stock" means, with respect to any
person, any and all shares, interests or other
participations in, and other equivalents (however
designated and whether voting or nonvoting) of, such
person's common stock, whether outstanding at the Issue
Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common
stock.
"Company" means the party named as such in this
Indenture until a successor replaces it (or any previous
successor) pursuant to this Indenture, and thereafter
means such successor.
"Consolidated Cash Flow Available for Fixed
Charges" means, with respect to any person for any
period, (A) the sum of, without duplication, the amounts
for such period, taken as a single accounting period, of
(a) Consolidated Net Income, (b) Consolidated Non-cash
Charges, (c) Consolidated Interest Expense and (d)
Consolidated Income Tax Expense less (B) any non-cash
items increasing Consolidated Net Income for such period.
"Consolidated Fixed Charge Coverage Ratio"
means, with respect to any person, the ratio of the
aggregate amount of Consolidated Cash Flow Available for
Fixed Charges of such person for the four full fiscal
quarters immediately preceding the date of the
transaction (the "Transaction Date") giving rise to the
need to calculate the Consolidated Fixed Charge Coverage
Ratio (such four full fiscal quarter period being
referred to herein as the "Four Quarter Period") to the
aggregate amount of Consolidated Fixed Charges of such
person for the Four Quarter Period. In addition to and
without limitation of the foregoing, for purposes of this
definition, "Consolidated Cash Flow Available for Fixed
Charges" and "Consolidated Fixed Charges" shall be
calculated after giving effect on a pro forma basis for
the period of such calculation to, without duplication,
(a) the incurrence of any Indebtedness of such person or
any of its Subsidiaries (and the application of the net
proceeds thereof) during the period commencing on the
first day of the Four Quarter Period to and including the
Transaction Date (the "Reference Period"), including,
without limitation, the incurrence of the Indebtedness
giving rise to the need to make such calculation (and the
application of the net proceeds thereof), as if such
incurrence (and application) occurred on the first day of
the Reference Period, and (b) any Asset Sales or Asset
Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such
calculation as a result of such person or one of its
Subsidiaries (including any person who becomes a
Subsidiary as a result of the Asset Acquisition)
incurring, assuming or otherwise being liable for
Acquired Indebtedness) occurring during the Reference
Period, as if such Asset Sale or Asset Acquisition
occurred on the first day of the Reference Period.
Furthermore, in calculating "Consolidated Fixed Charges"
for purposes of determining the denominator (but not the
numerator) of this "Consolidated Fixed Charge Coverage
Ratio," (i) interest on outstanding Indebtedness
determined on a fluctuating basis as of the Transaction
Date and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed
rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; and
(ii) if interest on any Indebtedness actually incurred on
the Transaction Date may optionally be determined at an
interest rate based upon a factor of a prime or similar
rate, a eurocurrency interbank offered rate, or other
rates, then the interest rate in effect on the
Transaction Date will be deemed to have been in effect
during the Reference Period. If such person or any of
its Subsidiaries directly or indirectly guarantees
Indebtedness of a third person, the above clause shall
give effect to the incurrence of such guaranteed
Indebtedness as if such person or such Subsidiary had
directly incurred or otherwise assumed such guaranteed
Indebtedness.
"Consolidated Fixed Charges" means, with
respect to any person for any period, the sum of, without
duplication, the amounts for such period of (i)
Consolidated Interest Expense, (ii) the product of
(a) the aggregate amount of dividends and other
distributions paid or accrued during such period in
respect of Preferred Stock and Redeemable Capital Stock
of such person and its Subsidiaries on a consolidated
basis and (b) a fraction, the numerator of which is one
and the denominator of which is one minus the then
current combined federal, state and local statutory tax
rate of such person, expressed as a decimal.
"Consolidated Income Tax Expense" means, with
respect to any person for any period, the provision for
federal, state, local and foreign income taxes of such
person and its Subsidiaries for such period as determined
on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with
respect to any person for any period, without
duplication, the sum of (i) the interest expense of such
person and its Subsidiaries for such period as determined
on a consolidated basis in accordance with GAAP,
including, without limitation, (a) any amortization of
debt discount, (b) the net cost under Interest Rate
Protection Obligations, (c) the interest portion of any
deferred payment obligation, (d) all commissions,
discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and
(e) all accrued interest and (ii) the interest component
of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such person and its
Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect
to any person, for any period, the consolidated net
income (or loss) of such person and its Subsidiaries for
such period as determined in accordance with GAAP,
adjusted, to the extent included in calculating such net
income, by excluding, without duplication, (i) all
extraordinary gains or losses, (ii) the portion of net
income (but not losses) of such person and its
Subsidiaries allocable to minority interests in
unconsolidated persons to the extent that cash dividends
or distributions have not actually been received by such
person or one of its Subsidiaries, (iii) net income (or
loss) of any person combined with such person or one of
its Subsidiaries on a "pooling of interests" basis
attributable to any period prior to the date of
combination, (iv) any gain or loss realized upon the
termination of any employee pension benefit plan on an
after tax basis, (v) gains or losses in respect of any
Asset Sales by such person or one of its Subsidiaries,
and (vi) the net income of any Subsidiary of such person
to the extent that the declaration of dividends or
similar distributions by that Subsidiary of that income
is not at the time permitted, directly or indirectly, by
operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or
governmental regulations applicable to that Subsidiary or
its stockholders.
"Consolidated Net Tangible Assets" means the
book value of the assets of the Company and its
Subsidiaries (other than patents, patent rights,
trademarks, trade names, franchises, copyrights,
licenses, permits, goodwill and other intangible assets
classified as such in accordance with GAAP) after all
applicable deductions in accordance with GAAP (including,
without limitation, reserves for doubtful receivables,
obsolescence, depreciation and amortization) less all
liabilities of the Company and its Subsidiaries
determined in accordance with GAAP.
"Consolidated Net Worth" means, with respect to
any person at any date, the consolidated stockholders'
equity of such person less the amount of such
stockholders' equity attributable to Redeemable Capital
Stock of such person and its Subsidiaries, as determined
in accordance with GAAP.
"Consolidated Non-cash Charges" means, with
respect to any person for any period, the aggregate
depreciation, amortization and other non-cash expenses of
such person and its Subsidiaries reducing Consolidated
Net Income of such person and its Subsidiaries for such
period, determined on a consolidated basis in accordance
with GAAP (excluding any such charges constituting an
extraordinary item or loss or any such charge which
required an accrual of or a 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 meaning correlative to the foregoing.
"control" means, with respect to any specified
person, the power to direct the management and policies
of such person, directly or indirectly, whether through
the ownership of Voting Stock, by contract or otherwise;
and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Corporate Trust Office" means the corporate
trust office of the Trustee at which at any particular
time its corporate trust business shall be principally
administered, which on the date hereof is located in
Boston, Massachusetts.
"covenant defeasance" shall have the meaning
set forth in Section 8.02.
"Credit Agreement" means one or more credit
agreements to which the Company is a party as any such
credit agreement may be amended, supplemented or
otherwise modified from time to time, including all
exhibits and schedules thereto.
"Currency Agreement" means any foreign exchange
contract, currency swap agreement or other similar
agreement or arrangement designed to protect the Company
or any of its Subsidiaries against fluctuations in
currency values.
"Custodian" means any receiver, trustee,
assignee, liquidator, sequestrator or similar official
under any Bankruptcy Law.
"Default" means any event that is, or after
notice or passage of time or both would be, an Event of
Default.
"Depository" means, with respect to the
Securities issued in the form of one or more Global
Securities, the Depository Trust Company or another
Person designated as Depository by the Company, which
must be a clearing agency registered under the Exchange
Act.
"Event of Default" has the meaning set forth
under Section 6.01 herein.
"Excess Proceeds" shall have the meaning set
forth in Section 4.13.
"Exchange Act" means the Securities Exchange
Act of 1934, as amended.
"Fair Market Value" means, with respect to any
asset, the price, as determined by the Board of Directors
of the Company, acting in good faith, which could be
negotiated in an arm's-length free market transaction,
for cash, between a willing seller and a willing buyer,
neither of which is under pressure or compulsion to
complete the transaction; provided, however, that with
respect to any transaction which involves an asset or
assets in excess of $5,000,000; such determination shall
be evidenced by a Board Resolution delivered to the
Trustee.
"Final Maturity Date" means October 15, 2006.
"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
may be approved by a significant segment of the
accounting profession of the United States of America,
which are applicable from time to time and are
consistently applied.
"Global Security" means a security evidencing
all or a part of the Securities issued to the Depository
in accordance with Section 2.01 and bearing the legend
prescribed in Exhibit C.
"Guarantee" shall mean each guarantee created
pursuant to Section 4.17.
"guarantee" means, as applied to any
obligation, (i) a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner,
of any part or all of such obligation and (ii) an
agreement, direct or indirect, contingent or otherwise,
the practical effect of which is to assure in any way the
payment or performance (or payment of damages in the
event of non-performance) of all or any part of such
obligation, including, without limiting the foregoing,
the payment of amounts drawn down by letters of credit.
"Guarantor" shall mean each person who delivers
a Guarantee pursuant to Section 4.17 and shall include
any successor replacing it pursuant to this Indenture,
and thereafter means such successor.
"Holder" or "Securityholder" means the person
in whose name a Security is registered on the Registrar's
books.
"Indebtedness" means, with respect to any
person, without duplication, (a) all liabilities of such
person for borrowed money or for the deferred purchase
price of property or services, including, without
limitation, all obligations, contingent or otherwise, of
such person in connection with any letters of credit,
banker's acceptance or other similar credit transaction,
excluding any trade payables and other accrued current
liabilities incurred in the ordinary course of business
and which are not overdue by more than 90 days, any trade
letters of credit incurred in the ordinary course of
business provided that reimbursement obligations with
respect thereto are extinguished within 30 days of the
incurrence thereof and any obligation to pay for
utilities incurred in the ordinary course of business,
(b) all obligations of such person evidenced by bonds,
notes, debentures or other similar instruments, (c) 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 accounts payable
arising in the ordinary course of business, (d) all
Capitalized Lease Obligations and Operating Lease
Obligations of such person, (e) all Indebtedness referred
to in the preceding clauses of other persons and all
dividends 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 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 (the amount
of such obligation being deemed to be the lesser of the
value of such property or asset or the amount of the
obligation so secured), (f) all guarantees of
Indebtedness referred to in this definition by such
person, (g) all Redeemable Capital Stock of such person
valued at the greater of its voluntary or involuntary
maximum fixed repurchase price plus accrued dividends,
(h) all obligations under or in respect of Currency
Agreements and Interest Rate Protection Obligations of
such person, (i) any Preferred Stock of any Subsidiary of
such person valued at the sum of (without duplication)
(A) the liquidation preference thereof, (B) any mandatory
redemption payment obligations in respect thereof and (C)
accrued dividends thereon, and (j) any amendment,
supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in
clauses (a) through (i) above. For purposes hereof, 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 shall be determined
in good faith by the board of directors of the issuer of
such Redeemable Capital Stock.
"Indenture" means this Indenture, as amended,
modified or supplemented from time to time.
"Independent Financial Advisor" means a firm
(i) which does not, and whose directors, officers and
employees or Affiliates do not, have a direct or indirect
financial interest in the Company and (ii) which, in the
judgment of the Board of Directors of the Company, is
otherwise independent and qualified to perform the task
for which it is to be engaged.
"interest" means, with respect to any Security,
the amount of all interest accruing on such Security,
including all interest accruing subsequent to the
occurrence of any events specified in Sections 6.01(f)
and (g) or which would have accrued but for any such
event, whether or not such claims are allowable under
applicable law.
"Initial Purchasers" means Smith Barney Inc.,
First Chicago Capital Markets, Inc. and Dillon, Read &
Co. Inc.
"Interest Payment Date" means the Stated
Maturity of an installment of interest on the Securities,
as set forth therein.
"Interest Rate Protection Agreement" means any
arrangement with any other person whereby, directly or
indirectly, such person is entitled to receive from time
to time periodic payments calculated by applying either a
floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such
person calculated by applying a fixed or a floating rate
of interest on the same notional amount and shall include
without limitation, interest rate swaps, caps, floors,
collars and similar agreements.
"Interest Rate Protection Obligations" means
the obligations of any person under any Interest Rate
Protection Agreement.
"Investment" means, with respect to any person,
any direct or indirect loan 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 and
including, without limitation, a guarantee), or any
purchase or acquisition by such person of any Capital
Stock, bonds, notes, debentures or other securities or
evidences of Indebtedness issued by, any other person.
In addition, the Fair Market Value of the assets of any
Subsidiary of the Company at the time that such
Subsidiary is designated as an Unrestricted Subsidiary
shall be deemed to be an Investment made by the Company
in such Unrestricted Subsidiary at such time.
"Investments" shall exclude extensions of trade credit by
the Company and its Subsidiaries in the ordinary course
of business in accordance with normal trade practices of
the Company or such Subsidiary, as the case may be.
"Issue Date" means October 7, 1996; provided
that, with respect to any Securities other than the
Series 1 Securities, issued after October 7, 1996 as
contemplated by Section 2.01 hereof, Issue Date, solely
for purposes of calculating interest therein, shall be
the date of original issuance of such Security.
"legal defeasance" shall have the meaning set
forth in Section 8.02.
"Lien" means any mortgage, charge, pledge, lien
(statutory or other), security interest, hypothecation,
assignment for security, claim, or preference or priority
or other encumbrance upon or with respect to any property
of any kind. A person shall be deemed to own subject to
a Lien any property which such person has acquired or
holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other
title retention agreement.
"Maturity Date" means, with respect to any
Security, the date on which any principal of such
Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity with respect to
such principal or by declaration of acceleration, call
for redemption or purchase or otherwise.
"Moody's" means Moody's Investors Service, Inc.
and its successors.
"Net Cash Proceeds" means, with respect to any
Asset Sale, the proceeds thereof in the form of cash or
Cash Equivalents including payments in respect of
deferred payment obligations when received in the form of
cash or Cash Equivalents (except to the extent that such
obligations are financed or sold with recourse to the
Company or any Subsidiary of the Company) net of
(i) brokerage commissions and other fees and expenses
(including, without limitation, fees and expenses of
legal counsel and investment bankers) related to such
Asset Sale, (ii) provisions for all taxes payable as a
result of such Asset Sale, (iii) amounts required to be
paid to any person (other than the Company or any
Subsidiary of the Company) owning a beneficial interest
in the assets subject to the Asset Sale and
(iv) appropriate amounts to be provided by the Company or
any Subsidiary of the Company, as the case may be, as a
reserve required in accordance with GAAP against any
liabilities associated with such Asset Sale and retained
by the Company or any Subsidiary of the Company, 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.
"Note Agreement" has the meaning attributed to
it in Section 4.15.
"Officer" means the Chairman of the Board, the
President, any Executive Vice President, any Vice
President, the Chief Financial Officer, the Treasurer,
the Secretary or the Controller of the Company.
"Officers' Certificate" means a certificate
signed by two Officers or by an Officer and an Assistant
Treasurer or Assistant Secretary of the Company and
delivered to the Trustee.
"Operating Lease Obligation" means any
obligation under a lease of (or other agreement conveying
the right to use) any property (whether real, personal or
mixed) that is not required to be classified and
accounted for as a capital lease obligation under GAAP,
and, for the purpose of the Indenture, the amount of
such obligation at any date shall be the Attributable
Value with respect to such lease at such date.
"Opinion of Counsel" means a written opinion
from legal counsel who is reasonably acceptable to the
Trustee. The counsel may be an employee of or counsel to
the Company.
"Pari Passu Indebtedness" means Indebtedness of
the Company which ranks pari passu in right of payment
with the Securities.
"Paying Agent" has the meaning set forth in
Section 2.03, except that, for the purposes of Section
4.12 and Section 4.13 and Articles Three and Eight, the
Paying Agent shall not be the Company or a Subsidiary of
the Company or any of their respective Affiliates.
"Permitted Indebtedness" means the following
Indebtedness (each of which shall be given independent
effect):
(a) Indebtedness of the Company evidenced by
the Series 1 Securities;
(b) Indebtedness of the Company and its
Subsidiaries outstanding on the Issue Date;
(c) Indebtedness of the Company under any
Credit Agreement in an aggregate principal amount at
any one time outstanding not to exceed $200,000,000
less any permanent repayment thereof made in
accordance with the provisions of Section 4.13;
(d)(i) Interest Rate Protection Obligations of
the Company covering Indebtedness of the Company or
a Subsidiary of the Company and (ii) Interest Rate
Protection Obligations of any Subsidiary of the
Company covering Indebtedness of such Subsidiary;
provided, however, that, in the case of either
clause (i) or (ii), the notional principal amount of
any such Interest Rate Protection Obligations does
not exceed the principal amount of the Indebtedness
to which such Interest Rate Protection Obligations
relate;
(e) Indebtedness of a Wholly-Owned Subsidiary
owed to and held by the Company or another Wholly-
Owned Subsidiary, in each case which is not
subordinated in right of payment to any Indebtedness
of such Subsidiary, except that (i) any transfer of
such Indebtedness by the Company or a Wholly-Owned
Subsidiary (other than to the Company or to a
Wholly-Owned Subsidiary) and (ii) the sale, transfer
or other disposition by the Company or any
Subsidiary of the Company of Capital Stock of a
Wholly-Owned Subsidiary which is owed Indebtedness
of another Wholly-Owned Subsidiary such that it
ceases to be a Wholly-Owned Subsidiary of the
Company shall, in each case, be an incurrence of
Indebtedness by such Subsidiary subject to the other
provisions of Section 4.08;
(f) Indebtedness of the Company owed to and
held by a Wholly-Owned Subsidiary of the Company
which is unsecured and subordinated in right of
payment to the payment and performance of the
Company's obligations under this Indenture and the
Securities except that (i) any transfer of such
Indebtedness by a Wholly-Owned Subsidiary of the
Company (other than to another Wholly-Owned
Subsidiary of the Company) and (ii) the sale,
transfer or other disposition by the Company or any
Subsidiary of the Company of Capital Stock of a
Wholly-Owned Subsidiary which holds Indebtedness of
the Company such that it ceases to be a Wholly-Owned
Subsidiary shall, in each case, be an incurrence of
Indebtedness by the Company, subject to the other
provisions of Section 4.08;
(g) Indebtedness under Currency Agreements;
provided that in the case of Currency Agreements
which relate to Indebtedness, such Currency
Agreements do not increase the Indebtedness of the
Company and its Subsidiaries outstanding other than
as a result of fluctuations in foreign currency
exchange rates or by reason of fees, indemnities and
compensation payable thereunder;
(h) Indebtedness 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) drawn against
insufficient funds in the ordinary course of
business; provided, however, that such Indebtedness
is extinguished within five business days of the
Company's obtaining knowledge of the incurrence
thereof;
(i) Indebtedness of the Company or any of its
Subsidiaries represented by (x) letters of credit
for the account of the Company or such Subsidiary,
as the case may be, or (y) other obligations to
reimburse third parties pursuant to any surety bond
or other similar arrangement, which letters of
credit or other obligations, as the case may be, are
intended to provide security for workers'
compensation claims, payment obligations in
connection with self-insurance or other similar
requirements in the ordinary course of business;
(j) Indebtedness of the Company in addition to
that described in clauses (a) through (i) above, in
an aggregate principal amount outstanding at any
time not exceeding $15,000,000; and
(k)(i)Indebtedness of the Company the proceeds
of which are used solely to refinance (whether by
amendment, renewal, extension or refunding)
Indebtedness of the Company or any of its
Subsidiaries and (ii) Indebtedness of any Subsidiary
of the Company the proceeds of which are used solely
to refinance (whether by amendment, renewal,
extension or refunding) Indebtedness of such
Subsidiary, in each case other than Indebtedness, if
any, refinanced, redeemed or retired with net
proceeds from the issuance of the Securities or
incurred under clause (c), (d), (e), (f), (g), (h),
(i) or (j) above; provided, however, that (x) the
principal amount of Indebtedness incurred pursuant
to this clause (k) (or, if such Indebtedness
provides for an amount less than the principal
amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof,
the original issue price of such Indebtedness) shall
not exceed the sum of the principal amount of
Indebtedness so refinanced, plus the amount of any
premium required to be paid in connection with such
refinancing pursuant to the terms of such
Indebtedness or the amount of any premium reasonably
determined by the Board of Directors of the Company
as necessary to accomplish such refinancing by means
of a tender offer or privately negotiated purchase,
plus the amount of expenses in connection therewith,
(y) in the case of Indebtedness incurred by the
Company pursuant to this clause (k) to refinance
Subordinated Indebtedness, such Indebtedness (A) has
an Average Life to Stated Maturity greater than the
remaining Average Life to Stated Maturity of the
Securities and (B) is subordinated to the Securities
in the same manner and to the same extent that the
Subordinated Indebtedness being refinanced is
subordinated to the Securities and (z) in the case
of Indebtedness incurred by the Company pursuant to
this clause (k) to refinance Pari Passu
Indebtedness, such Indebtedness (A) has an Average
Life to Stated Maturity greater than the remaining
Average Life to Stated Maturity of the Securities
and (B) constitutes Pari Passu Indebtedness or
Subordinated Indebtedness.
"Permitted Investments" means any of the
following: (i) Investments in any Wholly-Owned
Subsidiary of the Company (including any person that
pursuant to such Investment becomes a Wholly-Owned
Subsidiary of the Company) and any person that is merged
or consolidated with or into, or transfers or conveys all
or substantially all of its assets to, the Company or any
Wholly-Owned Subsidiary of the Company at the time such
Investment is made; (ii) Investments in Cash Equivalents;
(iii) Investments in deposits with respect to leases or
utilities provided to third parties in the ordinary
course of business; (iv) Investments in the Securities;
(v) Investments in Currency Agreements on commercially
reasonable terms entered into by the Company or any of
its Subsidiaries in the ordinary course of business in
connection with the operations of the business of the
Company or its Subsidiaries to hedge against fluctuations
in foreign exchange rates; (vi) loans or advances to
officers, employees or consultants of the Company and its
Subsidiaries in the ordinary course of business for bona
fide business purposes of the Company and its
Subsidiaries (including travel and moving expenses) not
in excess of $2,000,000 in the aggregate at any one time
outstanding; (vii) Investments in evidences of
Indebtedness, securities or other property received from
another person by the Company or any of its Subsidiaries
in connection with any bankruptcy proceeding or by reason
of a composition or readjustment of debt or a
reorganization of such person or as a result of
foreclosure, perfection or enforcement of any Lien in
exchange for evidences of Indebtedness, securities or
other property of such person held by the Company or any
of its Subsidiaries, or for other liabilities or
obligations of such other person to the Company or any of
its Subsidiaries that were created, in accordance with
the terms of this Indenture; (viii) Investments in
Interest Rate Protection Agreements on commercially
reasonable terms entered into by the Company or any of
its Subsidiaries in the ordinary course of business in
connection with the operations of the business of the
Company or its Subsidiaries to hedge against fluctuations
in interest rates; (ix) loans or advances made to
customers in the ordinary course of business; provided,
however, that the net proceeds of such loans or advances
are used to purchase footwear products of the Company and
the aggregate principal amount of such loans and advances
outstanding shall not at any time exceed $8,000,000.
"Permitted Liens" means the following types of
Liens:
(a) Liens for taxes, assessments or
governmental charges or claims either (a) not
delinquent or (b) contested in good faith by
appropriate proceedings and as to which the Company
or any of its Subsidiaries shall have set aside on
its books such reserves as may be required pursuant
to GAAP;
(b) statutory or other similar Liens of
landlords and Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen and
other Liens imposed by law and incurred in the
ordinary course of business for sums not yet
delinquent or being contested in good faith, if such
reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made in
respect thereof;
(c) Liens incurred or deposits made in the
ordinary course of business in connection with
workers' compensation, unemployment insurance and
other types of social security, or to secure the
performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, governmental
contracts, performance and return-of-money bonds and
other similar obligations (exclusive of obligations
for the payment of borrowed money);
(d) judgment Liens not giving rise to an Event
of Default 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
shall not have been finally terminated or the period
within which such proceedings may be initiated shall
not have expired;
(e) Easements, rights-of-way, zoning
restrictions and other similar charges or
encumbrances in respect of real property not
interfering in any material respect with the
ordinary conduct of the business of the Company of
any of its Subsidiaries;
(f) any interest or title of a lessor under
any Capitalized Lease Obligation or operating lease;
(g) purchase money Liens to finance the
acquisition or construction of property or assets of
the Company or any Subsidiary of the Company
acquired or constructed in the ordinary course of
business; provided, however, that (i) the related
purchase money Indebtedness shall not be secured by
any property or assets of the Company or any
Subsidiary of the Company other than the property
and assets so acquired or constructed and (ii) the
Lien securing such Indebtedness either (x) exists at
the time of such acquisition or construction or
(y) shall be created within 90 days of such
acquisition or construction;
(h) Liens in favor of customs and revenue
authorities arising as a matter of law to secure
payment of customs duties in connection with the
importation of goods;
(i) Liens on inventory securing the Company's
reimbursement obligations under a trade letter of
credit entered into to finance the purchase of such
inventory; provided, however, that such Liens are
released no later than fifteen days after the draw
down on such trade letter of credit used to finance
the purchase of such inventory; and
(j) Liens on tangible assets securing
Indebtedness representing the Attributable Value of
a Sale-Leaseback Transaction provided that the
aggregate fair market value (valued in good faith by
the Board of Directors of the Company) of such
tangible assets subject to such Liens shall not
exceed, on the date of creation of any such Lien, 5%
of the Consolidated Net Tangible Assets of the
Company.
"person" means any individual, corporation,
limited liability company, partnership, joint venture,
association, joint-stock company, trust, charitable
foundation, unincorporated organization, government or
any agency or political subdivision thereof.
"Physical Securities" has the meaning provided
in Section 2.01.
"Predecessor Security" means, with respect to
any particular Security, 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 2.07 hereof 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 and all shares, interests, participations or
other equivalents (however designated) of such person's
preferred or preference stock, whether now outstanding or
issued after the date of this Indenture, and including,
without limitation, all classes and series of preferred
or preference stock of such person.
"principal" means, with respect to any debt
security, the principal of the security plus, when
appropriate, the premium, if any, on the security and any
interest on overdue principal.
"Private Placement Legend" means the legend
initially set forth on the Securities in the form set
forth in Exhibit B.
"Qualified Institutional Buyer" or "QIB" shall
have the meaning specified in Rule 144A under the
Securities Act.
"Record Date" shall have the meaning attributed
to it in the Securities.
"Redeemable Capital Stock" means any shares of
any class or series of Capital Stock that, either by the
terms thereof, by the terms of any security into which it
is convertible or exchangeable or by contract or
otherwise, is or upon the happening of an event or
passage of time would be, required to be redeemed prior
to the Stated Maturity with respect to the principal of
any Security or is redeemable at the option of the holder
thereof at any time prior to any such Stated Maturity, or
is convertible into or exchangeable for debt securities
at any time prior to any such Stated Maturity.
"Redemption Date" means, with respect to any
Security to be redeemed, the date fixed by the Company
for such redemption pursuant to this Indenture and the
Securities.
"Redemption Price" means, with respect to any
Security to be redeemed, the price fixed for such
redemption pursuant to the terms of this Indenture and
the Securities.
"Registrar" has the meaning set forth in
Section 2.03.
"Registration Rights Agreement" means the
Registration Rights Agreement dated as of the Issue Date
among the Company and the Initial Purchasers or any other
registration rights agreement entered into after the
Issue Date granting registration rights to holders of
Securities.
"Registration Statement" means any Registration
Statement defined in the Registration Rights Agreement.
"Regulation S" means Regulation S under the
Securities Act.
"Restricted Payment" has the meaning set forth
in Section 4.09.
"Restricted Security" has the meaning set forth
in Section 2.01.
"Rule 144A" means Rule 144A under the
Securities Act.
"Sale-Leaseback Transaction" of any person
means an arrangement with any lender or investor or to
which such lender or investor is a party providing for
the leasing by such person of any property or asset of
such person which has been or is being sold or
transferred by such person after the acquisition thereof
or the completion of construction or commencement of
operation thereof to such lender or investor or to any
person to whom funds have been or are to be advanced by
such lender or investor on the security of such property
or asset. The stated maturity of such arrangement shall
be the date of the last payment of rent or any other
amount due under such arrangement prior to the first date
on which such arrangement may be terminated by the lessee
without payment of a penalty.
"SEC" means the Securities and Exchange
Commission, as from time to time constituted, or if at
any time after the execution of the Indenture such
Commission is not existing and performing the applicable
duties now assigned to it, then the body or bodies
performing such duties at such time.
"Securities" means the securities that are
issued under this Indenture, as amended or supplemented
from time to time pursuant to this Indenture.
"Securities Act" means the Securities Act of
1933, as amended from time to time.
"Series 1 Securities" means the $100,000,000
aggregate principal amount of 9-1/2% Senior Notes due 2006,
of the Company issued pursuant to this Indenture on
October 7, 1996.
"Significant Subsidiary" shall have the same
meaning as in Rule 1.02(v) of Regulation S-X under the
Securities Act.
"S&P" means Standard & Poor's Corporation, and
its successors.
"Stated Maturity" means, when used with respect
to any Security or any installment of interest thereon,
the date specified in such Security as the fixed date on
which the principal of such Security or such installment
of interest is due and payable, and when used with
respect to any other Indebtedness, means the date
specified in the instrument governing such Indebtedness
as the fixed date on which the principal of such
Indebtedness, or any installment of interest thereon, is
due and payable.
"Subordinated Indebtedness" means Indebtedness
of the Company which is expressly subordinated in right
of payment to the Securities.
"Subsidiary" means, with respect to any person,
(i) a corporation a majority of whose Voting Stock is at
the time, directly or indirectly, owned by such person,
by one or more Subsidiaries of such person or by such
person and one or more Subsidiaries thereof and (ii) any
other person (other than a corporation), including,
without limitation, a joint venture, in which such
person, one or more Subsidiaries thereof or such person
and one or more Subsidiaries thereof, directly or
indirectly, at the date of determination thereof, has at
least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or
other person performing similar functions). For purposes
of this definition, any directors' qualifying shares or
investments by foreign nationals mandated by applicable
law shall be disregarded in determining the ownership of
a Subsidiary. Notwithstanding the foregoing, an
Unrestricted Subsidiary shall not be deemed a Subsidiary
of the Company under this Indenture, other than for
purposes of the definition of an Unrestricted Subsidiary,
unless the Company shall have designated an Unrestricted
Subsidiary as a "Subsidiary" by written notice to the
Trustee under this Indenture, accompanied by an Officers'
Certificate as to compliance with the Indenture;
provided, however, that the Company shall not be
permitted to designate any Unrestricted Subsidiary as a
Subsidiary unless, after giving pro forma effect to such
designation, (i) the Company would be permitted to incur
$1.00 of additional Indebtedness (other than Permitted
Indebtedness) under Section 4.08 (assuming a market rate
of interest with respect to such Indebtedness) and
(ii) all Indebtedness and Liens of such Unrestricted
Subsidiary would be permitted to be incurred by a
Subsidiary of the Company under this Indenture. A
designation of an Unrestricted Subsidiary as a Subsidiary
may not thereafter be rescinded.
"Surviving Entity" shall have the meaning set
forth in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15
U.S. Code Sec. 77aaa-77bbbb) as in effect on the Issue
Date.
"Trust Officer" means any officer in the
Corporate Trust Administration of the Trustee or any
other officer of the Trustee customarily performing
functions similar to those performed by any of the
above-designated officers and also means, with respect to
a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Trustee" means the party named as such in this
Indenture until a successor replaces such party (or any
previous successor) in accordance with the provisions of
this Indenture, and thereafter means such successor.
"Unrestricted Subsidiary" means a Subsidiary of
the Company other than a Guarantor (i) none of whose
properties or assets were owned by the Company or any of
its Subsidiaries prior to the Issue Date, other than any
such assets as are transferred to such Unrestricted
Subsidiary in accordance with Section 4.09 hereof,
(ii) whose properties and assets, to the extent that they
secure Indebtedness, secure only Non-Recourse
Indebtedness and (iii) which has no Indebtedness other
than Non-Recourse Indebtedness. As used above, "Non-
Recourse Indebtedness" means Indebtedness as to which
(i) neither the Company nor any of its Subsidiaries
(other than the relevant Unrestricted Subsidiary or
another Unrestricted Subsidiary) (1) provides credit
support (including any undertaking, agreement or
instrument which would constitute Indebtedness),
(2) guarantees or is otherwise directly or indirectly
liable or (3) constitutes the lender (in each case, other
than pursuant to and in compliance with Section 4.09) and
(ii) no default with respect to such Indebtedness
(including any rights which the holders thereof may have
to take enforcement action against the relevant
Unrestricted Subsidiary or its assets) would permit (upon
notice, lapse of time or both) any holder of any other
Indebtedness of the Company or its Subsidiaries (other
than Unrestricted Subsidiaries) to declare a default on
such other Indebtedness or cause the payment thereof to
be accelerated or payable prior to its stated maturity.
"U.S. Government Obligations" shall have the
meaning set forth in Section 8.02.
"Voting Stock" means any class or classes of
Capital Stock 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 any 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 Subsidiary" means any Subsidiary
of the Company of which 100% of the outstanding Capital
Stock is owned by the Company, one or more Wholly-Owned
Subsidiaries of the Company or by the Company and one or
more Wholly-Owned Subsidiaries of the Company. For
purposes of this definition, any directors' qualifying
shares or investments by foreign nationals mandated by
applicable law shall be disregarded in determining the
ownership of a Subsidiary.
Section 1.02 Incorporation by Reference of
Trust Indenture Act.
Whenever this Indenture refers to a provision
of the TIA, the provision is incorporated by reference in
and made a part of this Indenture. The following TIA
terms used in this Indenture have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities and
any Guarantees;
"indenture security holder" means a
Securityholder or Holder;
"indenture to be qualified" means this
Indenture;
"indenture trustee" or "institutional trustee"
means the Trustee; and
"obligor" on the indenture securities means the
Company, any Guarantor or any other obligor on the
Securities or the Guarantees, if any.
All other TIA terms used in this Indenture that
are defined by the TIA, defined by TIA reference to
another statute or defined by SEC rule and not otherwise
defined herein have the meanings assigned to them
therein.
Section 1.03 Rules of Construction.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
(b) words in the singular include the plural,
and words in the plural include the singular;
(c) "or" is not exclusive;
(d) provisions apply to successive events and
transactions;
(e) all accounting terms not otherwise defined
herein have the meanings assigned to them in
accordance with GAAP;
(f) 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;
and
(g) all references to $ or dollars shall refer
to the lawful currency of the United States of
America.
ARTICLE TWO
THE SECURITIES
2.01 Issuance of Securities.
The aggregate principal amount of Securities
which may be outstanding at any time under this Indenture
may not exceed $150,000,000 outstanding at any time,
except to the extent permitted by Section 2.07. The
Securities are being issued in one or more series. Upon
the execution and delivery of this Indenture, Series 1
Securities in an aggregate principal amount of
$100,000,000 are being executed by the Company and
delivered to the Trustee for authentication. From time
to time thereafter the Company may, without limitation,
also issue under this Indenture additional Securities of
the same tenor as the Series 1 Securities so that such
additional Securities, together with the Series 1
Securities and any other prior issued series of
Securities, shall form a single series; provided that
with respect to any such additional Securities the Issue
Date solely for purposes of calculating interest thereon
shall be the date of original issuance of such Security
and interest thereon shall accrue as and from such Issue
Date thereof. The Securities of each series and the
Trustee's certificate of authentication thereon shall be
in substantially the form of Exhibit A hereto, with such
appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this
Indenture (including notations relating to any
Guarantees) 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 any
applicable law or with the rules of any securities
exchange or as may, consistently herewith, be determined
by the Officers executing such Securities, as evidenced
by their execution thereof. The Securities shall be
issuable only in registered form without coupons and only
in denominations of $1,000 and integral multiples
thereof.
Securities offered and sold in reliance on
Rule 144A shall be issued initially in the form of one or
more permanent Global Securities in registered form,
deposited with the Trustee, as custodian for the
Depository, and shall bear the legend set forth on
Exhibit C. The aggregate principal amount of any Global
Security may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as
custodian for the Depository, as hereinafter provided.
Securities offered and sold in reliance on any
other exemption from registration under the Securities
Act other than as described in the preceding paragraph
shall be issued, and Securities offered and sold in
reliance on Rule 144A may be issued, in the form of
certificated Securities in registered form (the "Physical
Securities").
Securities, the offer and sale of which are
registered pursuant to the Securities Act may be either
Global Securities or Physical Securities.
Unless and until a Security (i) is sold under
an effective Registration Statement or (ii) is exchanged
for a Security containing terms substantially identical
to such Security in connection with an effective
Registration Statement, in each case as provided for in
the Registration Rights Agreement, then each Security
shall be deemed to be a "Restricted Security" and shall
bear the Private Placement Legend set forth in Exhibit B
hereto.
The definitive Securities shall be printed,
typewritten, 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. Each
Security shall be dated the date of its authentication.
The terms and provisions contained in the form
of the Securities, annexed hereto as Exhibit A, shall
constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company and
the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions
and to be bound thereby.
Section 2.02 Execution and Authentication.
Two Officers shall execute the Securities of
each series on behalf of the Company by either manual or
facsimile signature. The Company's seal may, but need
not, be impressed, affixed, imprinted or reproduced on
the Securities.
If an Officer whose signature is on a Security
no longer holds that office at the time the Trustee
authenticates the Security or at any time thereafter, the
Security shall be valid nevertheless.
A Security shall not be valid until an
authorized signatory of the Trustee manually signs the
certificate of authentication on the Security. Such
signature shall be conclusive evidence that the Security
has been authenticated under this Indenture.
The Trustee shall authenticate (i) Securities
for original issue and (ii) Securities from time to time
for issue only in exchange for a like principal amount of
Securities as contemplated by the Registration Rights
Agreement, in each case upon a written order of the
Company in the form of an Officers' Certificate signed by
two Officers of the Company directing the Trustee to
authenticate the Securities. The Officers' Certificate
shall certify that all conditions precedent to the
issuance of the Securities contained herein have been
complied with, specify the amount of Securities to be
authenticated, the series of Securities and the date on
which the Securities are to be authenticated.
With the prior written approval of the Company,
the Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Securities.
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. Such authenticating agent shall have the
same rights as the Trustee in any dealings hereunder with
the Company or with any of the Company's Affiliates.
Section 2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency
(which shall be located in the Borough of Manhattan, City
of New York, State of New York) where Securities may be
presented for registration of transfer or for exchange
(the "Registrar"), an office or agency (which shall be
located in the Borough of Manhattan, City of New York,
State of New York) where Securities may be presented for
payment of principal, premium, if any, and interest (the
"Paying Agent") and an office or agency where notices and
demands to or upon the Company in respect of the
Securities and this Indenture may be served. The
Registrar shall keep a register of the Securities and of
their transfer and exchange. The Company may have one or
more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional
paying agent. Except as otherwise expressly provided in
this Indenture, the Company or any Affiliate thereof may
act as Paying Agent.
The Company shall enter into an appropriate
agency agreement with any Registrar or Paying Agent not a
party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such
Registrar or Paying Agent. The Company shall notify the
Trustee of the name and address of any such Registrar or
Paying Agent. If the Company fails to maintain a
Registrar, Paying Agent or agent for service of notices
and demands, or fails to give the foregoing notice, the
Trustee shall act as such and shall be entitled to
appropriate compensation in accordance with Section 7.08.
The Company initially appoints the Trustee as
Registrar, Paying Agent and agent for service of notices
and demands in connection with the Securities.
Section 2.04 Paying Agent To Hold Money in
Trust.
Each Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal of, or interest
on, the Securities and the Company and the Paying Agent
shall notify the Trustee of any default by the Company in
making any such payment. If the Company or an Affiliate
of the Company acts as Paying Agent, it shall segregate
and hold as a separate trust fund all money held by it as
paying agent. The Company at any time may require a
Paying Agent to distribute all money held by it to the
Trustee and account for any funds disbursed and the
Trustee may at any time during the continuance of any
Default upon written request to a Paying Agent, require
such Paying Agent to pay all money held by it to the
Trustee and to account for any funds distributed. Upon
doing so, the Paying Agent (other than an obligor on the
Securities or any Guarantees) shall have no further
liability for the money so paid over to the Trustee.
Section 2.05 Securityholder Lists.
The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list
available to it of the names and addresses of Holders and
shall otherwise comply with TIA Sec. 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the
Trustee at least ten Business Days before each Interest
Payment Date and at such other times as the Trustee may
request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names
and addresses of Holders, which list may be conclusively
relied upon by the Trustee.
Section 2.06 Transfer and Exchange.
Subject to the provisions of Sections 2.15 and
2.16, when Securities are presented to the Registrar or a
co-Registrar with a request to register the transfer of
such Securities or to exchange such Securities for an
equal principal amount of Securities of other authorized
denominations, the Registrar or co-Registrar shall
register the transfer or make the exchange as requested
if its requirements for such transaction are met;
provided, however, that the Securities surrendered for
transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar or co-
Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing. To permit
registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate
Securities at the Registrar's or co-Registrar's request.
No service charge shall be made for any transfer,
exchange or redemption, but the Company may require
payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers
pursuant to Sections 2.02, 2.10, 3.06, 4.12, 4.13 or
9.05). The Registrar or co-Registrar shall not be
required to register the transfer of or exchange of any
Security (i) during a period beginning at the opening of
business 15 days before the mailing of a notice of
redemption of Securities and ending at the close of
business on the day of such mailing and (ii) selected for
redemption in whole or in part pursuant to Article Three,
except the unredeemed portion of any Security being
redeemed in part.
Any Holder of a 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 Depository (or its agent), and that ownership of a
beneficial interest in a Global Security shall be
required to be reflected in a book entry system.
Section 2.07 Replacement Securities.
If a mutilated Security is surrendered to the
Trustee or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall
authenticate a replacement Security if the Trustee's
requirements are met. If required by the Trustee or the
Company, such Holder must provide an indemnity bond or
other indemnity, sufficient in the judgment of both the
Company and the Trustee, to protect the Company, the
Trustee or any Paying Agent or Registrar from any loss
which any of them may suffer if a Security is replaced.
The Company may charge such Holder for its reasonable,
out-of-pocket expenses in replacing a Security, including
reasonable fees and expenses of counsel. Every
replacement Security is an additional obligation of the
Company.
Section 2.08 Outstanding Securities.
Subject to Section 2.09, Securities outstanding
at any time are all the Securities that have been
authenticated by the Trustee except those cancelled by
it, those delivered to it for cancellation and those
described in this Section as not outstanding. Subject to
the provisions of Section 2.09, a Security does not cease
to be outstanding because the Company or any of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section
2.07 (other than a mutilated Security surrendered for
replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser. A
mutilated Security ceases to be outstanding upon
surrender of such Security and replacement thereof
pursuant to Section 2.07.
If on a Redemption Date or a Maturity Date the
Paying Agent (other than the Company or an Affiliate of
the Company) holds cash or U.S. Government Obligations
sufficient to pay all of the principal and interest due
on the Securities payable on that date, and is not
prohibited from paying such cash or U.S. Government
Obligations to the Holders of such Securities pursuant to
the terms of this Indenture, then on and after that date
such Securities cease to be outstanding and interest on
them shall cease to accrue.
Section 2.09 Treasury Securities.
In determining whether the Holders of the
required principal amount of Securities have concurred in
any direction, waiver or consent, Securities owned by the
Company or any of its Affiliates shall be disregarded,
except that, for the purposes of determining whether the
Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that the
Trustee knows or has reason to know are so owned shall be
disregarded.
Section 2.10 Temporary Securities.
Until definitive Securities are prepared and
ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the
Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate definitive Securities in
exchange for temporary Securities. Until such exchange,
temporary Securities shall be entitled to the same
rights, benefits and privileges as definitive Securities.
Section 2.11 Cancellation.
The Company at any time may deliver Securities
to the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Securities
surrendered to them for transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the
Registrar or the Paying Agent (other than the Company or
an Affiliate of the Company), and no one else, shall
promptly cancel and, at the written direction of the
Company, shall dispose of all Securities surrendered for
transfer, exchange, payment or cancellation. The Company
may not issue new Securities to replace Securities that
it has paid or delivered to the Trustee for cancellation.
If the Company shall acquire any of the Securities, such
acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such
Securities unless and until the same are surrendered to
the Trustee for cancellation pursuant to this Section
2.11.
Section 2.12 Defaulted Interest.
If the Company defaults on a payment of
interest on the Securities, it shall pay the defaulted
interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, in accordance
with the terms hereof, to the persons who are Holders on
a subsequent special record date, which date shall be at
least five Business Days prior to the payment date. The
Company shall fix such special record date and payment
date in a manner satisfactory to the Trustee. At least
15 days before such special record date, the Company
shall mail to each Holder a notice that states the
special record date, the payment date and the amount of
defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.
Section 2.13 CUSIP Number.
The Company in issuing the Securities of each
series may use a "CUSIP" number (if then generally in
use) with respect to each such series, and if so, the
Trustee may use the 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 or accuracy
of the CUSIP number printed in the notice or on the
Securities, and that reliance may be placed only on the
other identification numbers printed on the Securities.
The Company will promptly notify the Trustee of any
change in the CUSIP number.
Section 2.14 Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each
Interest Payment Date and Maturity Date, the Company
shall have either delivered by wire transfer or check
such interest or principal and interest, as the case may
be to Holders at such Holders registered address or
deposited with the Paying Agent in immediately available
funds money sufficient to make cash payments, if any, due
on such Interest Payment Date or Maturity Date, as the
case may be, in a timely manner which permits the Paying
Agent to remit payment to the Holders on such Interest
Payment Date or Maturity Date, as the case may be.
Section 2.15 Book-Entry Provisions for Global
Securities.
(a) The Global Securities initially shall (i)
be registered in the name of the Depository or the
nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear
legends as set forth in Exhibit C.
Members of, or participants in, the Depository
("Participants") shall have no rights under this
Indenture with respect to any Global Security held on
their behalf by the Depository, or the Trustee as its
custodian, or under the Global Security, and the
Depository may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute
owner of the Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, 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 Depository or impair, as between the
Depository and Participants, the operation of customary
practices governing the exercise of the rights of a
Holder of any Security.
(b) Transfers of Global Securities shall be
limited to transfers in whole, but not in part, to the
Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global
Securities may be transferred or exchanged for Physical
Securities in accordance with the rules and procedures of
the Depository and the provisions of Section 2.16. In
addition, Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial
interests in Global Securities if (i) the Depository
notifies the Company that it is unwilling or unable to
continue as Depository for any Global Security and a
successor depositary is not appointed by the Company
within 90 days of such notice or (ii) an Event of Default
has occurred and is continuing and the Registrar has
received a request from the Depository to issue Physical
Securities.
(c) In connection with the transfer of Global
Securities as an entirety to beneficial owners pursuant
to paragraph (b) of this Section 2.15, the Global
Securities shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute,
and the Trustee shall upon written instructions from the
Company authenticate and deliver, to each beneficial
owner identified by the Depository in exchange for its
beneficial interest in the Global Securities, an equal
aggregate principal amount of Physical Securities of
authorized denominations.
(d) Any Physical Security constituting a
Restricted Security delivered in exchange for an interest
in a Global Security pursuant to paragraph (b) or (c) of
this Section 2.15 shall, except as otherwise provided by
Section 2.16, bear the Private Placement Legend.
(e) The Holder of any Global Security may
grant proxies and otherwise authorize any Person,
including Participants and Persons that may hold
interests through Participants, to take any action which
a Holder is entitled to take under this Indenture or the
Securities.
SECTION 2.16 Registration of Transfers and
Exchanges.
(a) Transfer and Exchange of Physical
Securities. When Physical Securities are presented to
the Registrar with a request:
(i) to register the transfer of the Physical
Securities; or
(ii) to exchange such Physical Securities for
an equal number of Physical Securities of other
authorized denominations,
the Registrar shall register the transfer or make the
exchange as requested if the requirements under this
Indenture as set forth in this Section 2.16 for such
transactions are met; provided, however, that the
Physical Securities presented or surrendered for
registration of transfer or exchange:
(I) shall be duly endorsed or accompanied by
a written instrument of transfer in form
satisfactory to the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly
authorized in writing; and
(II) in the case of Physical Securities the
offer and sale of which have not been registered
under the Securities Act, such Physical Securities
shall be accompanied, in the sole discretion of the
Company, by the following additional information and
documents, as applicable:
(A) if such Physical Security is being
delivered to the Registrar by a holder for
registration in the name of such holder,
without transfer, a certification from such
holder to that effect (in substantially the
form of Exhibit D hereto); or
(B) if such Physical Security is being
transferred to a Qualified Institutional Buyer
in accordance with Rule 144A under the
Securities Act, a certification to that effect
(in substantially the form of Exhibit D
hereto); or
(C) if such Physical Security is being
transferred to an Institutional Accredited
Investor, delivery of a certification to that
effect (in substantially the form of Exhibit D
hereto) and a Transferee Certificate for
Institutional Accredited Investors in
substantially the form of Exhibit E hereto; or
(D) if such Physical Security is being
transferred in reliance on Regulation S,
delivery of a certification to that effect (in
substantially the form of Exhibit D hereto) and
a Transferee Certificate for Regulation S
Transfers in substantially the form of Exhibit
F hereto and an Opinion of Counsel reasonably
satisfactory to the Company to the effect that
such transfer is in compliance with the
Securities Act; or
(E) if such Physical Security is being
transferred in reliance on Rule 144 under the
Securities Act, delivery of a certification to
that effect (in substantially the form of
Exhibit D hereto) and an Opinion of Counsel
reasonably satisfactory to the Company to the
effect that such transfer is in compliance with
the Securities Act; or
(F) if such Physical Security is being
transferred in reliance on another exemption
from the registration requirements of the
Securities Act, a certification to that effect
(in substantially the form of Exhibit D hereto)
and an Opinion of Counsel reasonably
satisfactory to the Company to the effect that
such transfer is in compliance with the
Securities Act.
(b) Restrictions on Transfer of a Physical
Security for a Beneficial Interest in a Global Security.
A Physical Security which is a Restricted Security may
not be exchanged for a beneficial interest in a Global
Security except upon satisfaction of the requirements set
forth below. Upon receipt by the Registrar of a Physical
Security which is a Restricted Security, duly endorsed or
accompanied by appropriate instruments of transfer, in
form satisfactory to the Registrar, together with:
(A) a certification, in substantially the
form of Exhibit D hereto, that such Physical
Security is being transferred to a Qualified
Institutional Buyer; and
(B) written instructions directing the
Registrar to make, or to direct the Depository
to make, an endorsement on the Global Security
to reflect an increase in the aggregate amount
of the Securities represented by the Global
Security,
then the Registrar shall cancel such Physical Security
and cause, or direct the Depository to cause, in
accordance with the standing instructions and procedures
existing between the Depository and the Registrar, the
number of Securities represented by the Global Security
to be increased accordingly. If no Global Security is
then outstanding, the Company shall issue and the Trustee
shall upon written instructions from the Company
authenticate a new Global Security in the appropriate
amount.
(c) Transfer and Exchange of Global
Securities. The transfer and exchange of Global
Securities or beneficial interests therein shall be
effected through the Depository, in accordance with this
Indenture (including the restrictions on transfer set
forth herein) and the procedures of the Depository
therefor.
(d) Transfer of a Beneficial Interest in a
Global Security for a Physical Security.
(i) Any Person having a beneficial interest
in a Global Security may upon request exchange such
beneficial interest for a Physical Security. Upon
receipt by the Registrar of written instructions or
such other form of instructions as is customary for
the Depository from the Depository or its nominee on
behalf of any Person having a beneficial interest in
a Global Security and upon receipt by the Trustee of
a written order or such other form of instructions
as is customary for the Depository or the Person
designated by the Depository as having such a
beneficial interest containing registration
instructions and, in the case of any such transfer
or exchange of a beneficial interest in Securities
the offer and sale of which have not been registered
under the Securities Act, the following additional
information and documents:
(A) if such beneficial interest is being
transferred to the Person designated by the
Depository as being the beneficial owner, a
certification from such Person to that effect
(in substantially the form of Exhibit D
hereto); or
(B) if such beneficial interest is being
transferred to a Qualified Institutional Buyer
in accordance with Rule 144A under the
Securities Act, a certification to that effect
(in substantially the form of Exhibit D
hereto); or .
(C) if such beneficial interest is being
transferred to an Institutional Accredited
Investor, delivery of a certification to that
effect (in substantially the form of Exhibit D
hereto) and a Certificate for Institutional
Accredited Investors in substantially the form
of Exhibit E hereto; or
(D) if such beneficial interest is being
transferred in reliance on Regulation S,
delivery of a certification to that effect (in
substantially the form of Exhibit D hereto) and
a Transferee Certificate for Regulation S
Transfers in substantially the form of Exhibit
F hereto and an Opinion of Counsel reasonably
satisfactory to the Company to the effect that
such transfer is in compliance with the
Securities Act; or
(E) if such beneficial interest is being
transferred in reliance on Rule 144 under the
Securities Act, delivery of a certification to
that effect (in substantially the form of
Exhibit D hereto) and an Opinion of Counsel
reasonably satisfactory to the Company to the
effect that such transfer is in compliance with
the Securities Act; or
(F) if such beneficial interest is being
transferred in reliance on another exemption
from the registration requirements of the
Securities Act, a certification to that effect
(in substantially the form of Exhibit D hereto)
and an Opinion of Counsel reasonably
satisfactory to the Company to the effect that
such transfer is in compliance with the
Securities Act,
then the Registrar will cause, in accordance with the
standing instructions and procedures existing between the
Depository and the Registrar, the aggregate amount of the
Global Security to be reduced and, following such
reduction, the Company will execute and, upon receipt of
an authentication order in the form of an Officers'
Certificate, the Trustee will authenticate and deliver to
the transferee a Physical Security.
(ii) Securities issued in exchange for a
beneficial interest in a Global Security pursuant to
this Section 2.16(d) shall be registered in such
names and in such authorized denominations as the
Depository, pursuant to instructions from its direct
or indirect participants or otherwise, shall
instruct the Registrar in writing. The Registrar
shall deliver such Physical Securities to the
Persons in whose names such Physical Securities are
so registered.
(e) Restrictions on Transfer and Exchange of
Global Securities. Notwithstanding any other provisions
of this Indenture, a Global Security may not be
transferred as a whole except by the Depository to a
nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor
Depository.
(f) Private Placement Legend. Upon the
transfer, exchange or replacement of Securities not
bearing the Private Placement Legend, the Registrar shall
deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the
Registrar shall deliver only Securities that bear the
Private Placement Legend unless, and the Trustee is
hereby authorized to deliver Securities without the
Private Placement Legend if, (i) there is delivered to
the Trustee an Opinion of Counsel reasonably satisfactory
to the Company and the Trustee to the effect that neither
such legend nor the related restrictions on transfer are
required in order to maintain compliance with the
provisions of the Securities Act or (ii) such Security
has been sold pursuant to an effective registration
statement under the Securities Act.
(g) General. 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 Registrar shall retain copies of all
letters, notices and other written communications
received pursuant to Section 2.15 or this Section 2.16.
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 Registrar.
SECTION 2.17 Designation.
The Indebtedness evidenced by the Securities is
hereby irrevocably designated as "senior indebtedness" or
such other term denoting seniority for the purposes of
any future Indebtedness of the Company which the Company
makes subordinate to any senior indebtedness or such other
term denoting seniority.
ARTICLE THREE
REDEMPTION OF SECURITIES
Section 3.01 Notices to the Trustee.
If the Company elects to redeem Securities
pursuant to Paragraph 5 of the Securities, it shall
notify the Trustee of the Redemption Date and principal
amount of Securities to be redeemed.
The Company shall give notice of redemption to
the Trustee at least 30 days but not more than 60 days
before the Redemption Date (unless a shorter notice shall
be agreed to by the Trustee in writing), together with an
Officers' Certificate stating that such redemption will
comply with the conditions contained herein.
Section 3.02 Selection 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 from the outstanding
Securities not previously called for redemption in such
manner as complies with the requirements of the principal
national securities exchange, if any, on which the
Securities being redeemed are listed or, if the
Securities are not then listed on a national securities
exchange, on a pro rata basis, by lot or by such other
method as the Trustee considers to be fair and
appropriate. The amounts to be redeemed shall be equal
to $1,000 or any integral multiple thereof.
The Trustee shall promptly notify the Company
and the 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 3.03 Notice of Redemption.
Notice of redemption shall be given by first-
class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed, at the address of
such Holder appearing in the Security register maintained
by the Registrar.
All notices of redemption shall identify the
Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of
accrued interest, if any, to be paid on
the Securities called for redemption;
(3) that, unless the Company defaults in
making the redemption payment, interest on
Securities called for redemption ceases to
accrue on and after the Redemption Date,
and the only remaining right of the
Holders of such Securities is to receive
payment of the Redemption Price upon
surrender to the Paying Agent of the
Securities redeemed;
(4) if any Security is to be redeemed in part,
the portion of the principal amount (equal
to $1,000 or any integral multiple
thereof) of such Security to be redeemed
and that on and after the Redemption Date,
upon surrender for cancellation of such
original Security to the Paying Agent, a
new Security or Securities in the
aggregate principal amount equal to the
unredeemed portion thereof will be issued
without charge to the Holder;
(5) that Securities called for redemption must
be surrendered to the Paying Agent to
collect the Redemption Price and the name
and address of the Paying Agent;
(6) the CUSIP number, if any, relating to such
Securities, but no representation is made
as to the correctness or accuracy of any
such CUSIP numbers; and
(7) the paragraph of the Securities pursuant
to which the Securities are being
redeemed.
Notice of redemption of Securities to be
redeemed at the election of the Company shall be given by
the Company with written notice to the Trustee or, at the
Company's written request, by the Trustee in the name and
at the expense of the Company.
Section 3.04 Effect of Notice
of Redemption.
Once notice of redemption is mailed, Securities
called for redemption become due and payable on the
Redemption Date and at the Redemption Price. Upon
surrender to the Paying Agent, such Securities called for
redemption shall be paid at the Redemption Price plus
accrued interest to the Redemption Date, but interest
installments whose maturity is on or prior to such
Redemption Date will be payable on the relevant Interest
Payment Dates to the Holders of record at the close of
business on the relevant record dates referred to in the
Securities.
Section 3.05 Deposit of Redemption Price.
On or prior to any Redemption Date, the Company
shall deposit with the Paying Agent an amount of money in
same day funds sufficient to pay the Redemption Price of,
and accrued interest on, all the Securities or portions
thereof which are to be redeemed on that date, other than
Securities or portions thereof called for redemption on
that date which have been delivered by the Company to the
Trustee for cancellation.
If the Company complies with the preceding
paragraph, then, unless the Company defaults in the
payment of such Redemption Price, interest on the
Securities to be redeemed will cease to accrue on and
after the applicable Redemption Date, whether or not such
Securities are presented for payment. If any Security
called for redemption shall not be so paid upon surrender
thereof for redemption, the principal, premium, if any,
and, to the extent lawful, accrued interest thereon
shall, until paid, bear interest from the Redemption Date
at the rate provided in the Securities.
Section 3.06 Securities Redeemed or Purchased
in Part.
Upon surrender to the Paying Agent of a
Security which is to be redeemed in part, the Company
shall execute, any Guarantor shall Guarantee and the
Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or
Securities (accompanied by a notation of Guarantee duly
endorsed by any Guarantor), 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.
ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Securities.
The Company will pay, or cause to be paid, the
principal of and interest on the Securities on the dates
and in the manner provided in the Securities and this
Indenture. An installment of principal or interest shall
be considered paid on the date due if the Trustee or
Paying Agent (other than the Company, a Subsidiary of the
Company or any Affiliate thereof) holds on that date
money designated and set aside for and sufficient to pay
the installment in a timely manner and is not prohibited
from paying such money to the Holders of the Securities
pursuant to the terms of this Indenture.
The Company will pay interest on overdue
principal at the rate and in the manner provided in the
Securities; it shall pay interest on overdue installments
of interest at the same rate and in the same manner, to
the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Company will maintain in the Borough of
Manhattan, the City of New York, an office or agency
where Securities may be surrendered for registration of
transfer or exchange or for presentation for payment and
where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be
served. The Company will give prompt written notice to
the Trustee of the location, and any change in the
location, of such office or agency. If at any time the
Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices
and demands may be made or served at the address of the
Trustee as set forth in Section 10.02.
The Company may also from time to time
designate one or more other offices or agencies where the
Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such
designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of
its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such
purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of
any change in the location of any such other office or
agency.
The Company hereby initially designates the
office of the Trustee located at State Street Bank and
Trust Company, National Association, 61 Broadway, New
York, New York 10006, Attn: Corporate Trust Window -
Concourse Level, as such office of the Company in
accordance with this Section 4.02.
Section 4.03 Corporate Existence.
Subject to Article Five, the Company shall do
or cause to be done all things necessary to and will
cause each of its Subsidiaries to, preserve and keep in
full force and effect the corporate or partnership
existence and rights (charter and statutory), licenses
and/or franchises of the Company and each of its
Significant Subsidiaries; provided, however, that the
Company or any of its Subsidiaries shall not be required
to preserve any such rights, licenses or franchises if
the Board of Directors of the Company shall reasonably
determine that (x) the preservation thereof is no longer
desirable in the conduct of the business of the Company
and its Subsidiaries taken as a whole and (y) the loss
thereof is not materially adverse to either the Company
and its Subsidiaries taken as a whole or to the ability
of the Company to otherwise satisfy its obligations
hereunder.
Section 4.04 Payment of Taxes and Other
Claims.
The Company will pay or discharge or cause to
be paid or discharged, before the same shall become
delinquent, (a) all taxes, assessments and governmental
charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of
the Company or any of its Subsidiaries, and (b) all
lawful claims for labor, materials and supplies which, if
unpaid, might by law become a Lien upon the property of
the Company or any Subsidiary of the Company; 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 the amount, applicability or
validity of which is being contested in good faith by
appropriate proceedings and for which adequate provision
has been made or where the failure to effect such payment
or discharge is not adverse in any material respect to
the Company.
Section 4.05 Maintenance of Properties;
Insurance; Books and Records;
Compliance with Law.
(a) The Company shall, and shall cause each of
its Subsidiaries to, cause all properties and assets to
be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and
supplied with all necessary equipment, and shall cause to
be made all necessary repairs, renewals, replacements,
additions, betterments and improvements thereto, as
shall, in the judgment of the Company, be reasonably
necessary for the proper conduct of its business;
provided, however, that nothing in this Section 4.05(a)
shall prevent the Company or any of its Subsidiaries from
discontinuing the operation and maintenance of any of its
properties or assets if such discontinuance is desirable
in the conduct of its business and if such discontinuance
is not materially adverse to either the Company and its
Subsidiaries taken as a whole or the ability of the
Company to otherwise satisfy its obligations hereunder.
(b) The Company shall, and shall cause each of
its Subsidiaries to, maintain with financially sound and
reputable insurers such insurance as may be required by
law (other than with respect to any environmental
impairment liability insurance not commercially
available) and such other insurance to such extent and
against such hazards and liabilities, as is customarily
maintained by companies similarly situated (which may
include self-insurance in the same form as is customarily
maintained by companies similarly situated).
(c) The Company shall, and shall cause each of
its Subsidiaries to, keep proper books of record and
account, in which full and correct entries shall be made
of all business and financial transactions of the Company
and each Subsidiary of the Company and reflect on its
financial statements adequate accruals and appropriations
to reserves, all in accordance with GAAP consistently
applied to the Company and its Subsidiaries taken as a
whole.
(d) The Company shall and shall cause each of
its Subsidiaries to comply with all statutes, laws,
ordinances, or government rules and regulations to which
it is subject, non-compliance with which would materially
adversely affect the business, earnings, properties,
assets or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole.
Section 4.06 Compliance
Certificate.
(a) The Company will deliver to the Trustee
within 60 days after the end of each of the Company's
first three fiscal quarters and within 95 days after the
end of the Company's fiscal year an Officers' Certificate
stating whether or not the signers know of any Default or
Event of Default under this Indenture by the Company. If
they do know of such a Default or Event of Default, the
certificate shall describe any such Default or Event of
Default and its status. The first certificate to be
delivered pursuant to this Section 4.06(a) shall be for
the first fiscal quarter of the Company beginning after
the Issue Date. The Company shall also deliver a
certificate to the Trustee at least annually from its
principal executive, financial or accounting officer as
to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture, such
compliance to be determined without regard to any period
of grace or requirement of notice provided herein.
(b) The Company shall deliver to the Trustee
within 95 days after the end of each fiscal year a
written statement by the Company's independent certified
public accountants stating (A) that their audit
examination has included a review of the terms of this
Indenture, the Securities and the Credit Agreement as
they relate to accounting matters, and (B) whether, in
connection with their audit examination, any Default or
Event of Default under this Indenture or an event which,
with notice or lapse of time or both, would constitute a
default under the Credit Agreement has come to their
attention and, if such a Default, Event of Default or
event under the Credit Agreement has come to their
attention, specifying the nature and period of existence
thereof; provided, however, that, without any restriction
as to the scope of the audit examination, such
independent certified public accountants shall not be
liable by reason of any failure to obtain knowledge of
any such Default, Event of Default or event that would
not be disclosed in the course of an audit examination
conducted in accordance with GAAP.
(c) The Company will deliver to the Trustee as
soon as possible, and in any event within 5 days after
the Company becomes aware or should reasonably have
become aware of the occurrence of any Default, Event of
Default or an event which, with notice or lapse of time
or both, would constitute a default by the Company under
the Credit Agreement, an Officers' Certificate specifying
such Default, Event of Default or event and what action
the Company is taking or proposes to take with respect
thereto.
Section 4.07 SEC Reports.
The Company shall file with the SEC the annual
reports, quarterly reports and the information, documents
and other reports required to be filed with the SEC
pursuant to Sections 13 and 15 of the Exchange Act,
whether or not the Company has a class of securities
registered under the Exchange Act. In accordance with
the provisions of TIA Sec. 314(a), the Company shall file
with the Trustee, within 15 days after it files them with
the SEC (or if such filing is not permitted under the
Exchange Act, 15 days after the Company would have been
required to make such filing), copies of such annual
reports, quarterly reports, information, documents and
other reports filed with the SEC. The Company also shall
comply with the other provisions of TIA Sec. 314(a). To the
extent the Company does not file such reports,
information, documents or other reports with the SEC it
shall provide or cause the Trustee to provide them to
each Holder of Securities with 15 days after the Company
would have been required to file such reports or other
documents with the SEC. In addition, the Company shall
provide any such report or document to any holder or
prospective purchaser of Securities who so requests.
Section 4.08 Limitation on Indebtedness.
The Company will not, and will not permit any
of its Subsidiaries to, directly or indirectly, create,
incur, issue, assume, guarantee or in any manner become
directly or indirectly liable, contingently or otherwise
with respect to, (collectively, to "incur") any
Indebtedness (including, without limitation, any
Acquired Indebtedness), other than Permitted
Indebtedness; provided, however, that the Company will
be permitted to incur Indebtedness (including, without
limitation, Acquired Indebtedness) if at the time of
such incurrence, and after giving pro forma effect
thereto, the Consolidated Fixed Charge Coverage Ratio of
the Company is at least equal to 2.25 to 1.00 if the
date of such incurrence is on or prior to October 7,
1998 and 2.50 to 1.00 if the date of such incurrence is
thereafter.
Section 4.09 Limitation on Restricted
Payments.
The Company will not, and will not permit any
of its Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any
other distribution or payment on or in
respect of Capital Stock of the Company or
any of its Subsidiaries or any payment
made to the direct or indirect holders (in
their capacities as such) of Capital Stock
of the Company or any of its Subsidiaries
(other than (x) dividends or distributions
payable solely in Capital Stock of the
Company (other than Redeemable Capital
Stock) or in options, warrants or other
rights to purchase Capital Stock of the
Company (other than Redeemable Capital
Stock), (y) the declaration or payment of
dividends or other distributions to the
extent declared or paid to the Company or
any Subsidiary of the Company and (z) the
declaration or payment of dividends or
other distributions by any Subsidiary of
the Company to all holders of Common Stock
of such Subsidiary on a pro rata basis),
(2) purchase, redeem, defease or otherwise
acquire or retire for value any Capital
Stock of the Company or any of its
Subsidiaries (other than any such Capital
Stock owned by the Company or a
Wholly-Owned Subsidiary of the Company),
(3) make any principal payment on, or
purchase, defease, repurchase, redeem or
otherwise acquire or retire for value,
prior to any scheduled maturity, scheduled
repayment, scheduled sinking fund payment
or other Stated Maturity, any Subordinated
Indebtedness (other than any such
Indebtedness owned by the Company or a
Wholly-Owned Subsidiary of the Company),
or
(4) make any Investment (other than any
Permitted Investment) in any person
(such payments or Investments described in the preceding
clauses (a), (b), (c) and (d) are collectively referred
to as "Restricted Payments"), unless, subject to the last
sentence of this paragraph, at the time of and after
giving effect to the proposed Restricted Payment (the
amount of any such Restricted Payment, if other than
cash, shall be the Fair Market Value on the date of such
Restricted Payment of the asset(s) proposed to be
transferred by the Company or such Subsidiary, as the
case may be, pursuant to such Restricted Payment), (A) no
Default or Event of Default shall have occurred and be
continuing, (B) immediately prior to and after giving
effect to such Restricted Payment, the Company would be
able to incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to Section 4.08
(assuming a market rate of interest with respect to such
additional Indebtedness) and (C) the aggregate amount of
all Restricted Payments declared or made from and after
the Issue Date would not exceed the sum of (1) 50% of the
aggregate Consolidated Net Income of the Company accrued
on a cumulative basis during the period beginning on the
first day of the fiscal quarter of the Company during
which the Issue Date occurs and ending on the last day of
the fiscal quarter of the Company immediately preceding
the date of such proposed Restricted Payment, which
period shall be treated as a single accounting period
(or, if such aggregate cumulative Consolidated Net Income
of the Company for such period shall be a deficit, minus
100% of such deficit) plus (2) the aggregate net cash
proceeds received by the Company either (x) as capital
contributions to the Company after the Issue Date from
any person (other than a Subsidiary of the Company) or
(y) from the issuance or sale of Capital Stock (excluding
Redeemable Capital Stock, but including Capital Stock
issued upon the conversion of convertible Indebtedness or
from the exercise of options, warrants or rights to
purchase Capital Stock (other than Redeemable Capital
Stock)) of the Company to any person (other than to a
Subsidiary of the Company) after the Issue Date plus (3)
in the case of the disposition or repayment of any
Investment constituting a Restricted Payment made after
the Issue Date (excluding any Investment described in
clause (iv) of the following paragraph), an amount equal
to the lesser of the return of capital with respect to
such Investment and the cost of such Investment, in
either case, less the cost of the disposition of such
Investment plus (4) $20,000,000. For purposes of the
preceding clause (C)(2), the value of the aggregate net
proceeds received by the Company upon the issuance of
Capital Stock upon the conversion of convertible
Indebtedness or upon the exercise of options, warrants or
rights will be the net cash proceeds received upon the
issuance of such Indebtedness, options, warrants or
rights plus the incremental cash amount received by the
Company upon the conversion or exercise thereof.
Notwithstanding the foregoing, with respect to any
Restricted Payment consisting solely of a dividend on the
Company's Common Stock, the Company need not comply with
the restrictions contained in the foregoing clause (B).
None of the foregoing provisions will prohibit
(i) the payment of any dividend within 60 days after the
date of its declaration, if at the date of declaration
such payment would be permitted by the foregoing
paragraph; (ii) so long as no Default or Event of Default
shall have occurred and be continuing, the redemption,
repurchase or other acquisition or retirement of any
shares of any class of Capital Stock of the Company or
any Subsidiary of the Company in exchange for, or out of
the net cash proceeds of, a substantially concurrent
(x) capital contribution to the Company from any person
(other than a Subsidiary of the Company) or (y) issue and
sale of other shares of Capital Stock (other than
Redeemable Capital Stock) of the Company to any person
(other than to a Subsidiary of the Company); provided,
however, that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase or
other acquisition or retirement are excluded from
clause (C)(2) of the preceding paragraph; (iii) so long
as no Default or Event of Default shall have occurred and
be continuing, any redemption, repurchase or other
acquisition or retirement of Subordinated Indebtedness by
exchange for, or out of the net cash proceeds of, a
substantially concurrent (x) capital contribution to the
Company from any person (other than a Subsidiary of the
Company) or (y) issue and sale of (1) Capital Stock
(other than Redeemable Capital Stock) of the Company to
any person (other than to a Subsidiary of the Company);
provided, however, that the amount of any such net cash
proceeds that are utilized for any such redemption,
repurchase or other acquisition or retirement are
excluded from clause (C)(2) of the preceding paragraph;
or (2) Indebtedness of the Company issued to any person
(other than to a Subsidiary of the Company) so long as
such Indebtedness is Subordinated Indebtedness which
(x) has no Stated Maturity earlier than the 91st day
after the Final Maturity Date, (y) has an Average Life to
Stated Maturity equal to or greater than the remaining
Average Life to Stated Maturity of the Securities and
(z) is subordinated to the Securities in the same manner
and at least to the same extent as the Subordinated
Indebtedness so purchased, exchanged, redeemed, acquired
or retired; (iv) Investments constituting Restricted
Payments made as a result of the receipt of non-cash
consideration from any Asset Sale made pursuant to and in
compliance with Section 4.13; (v) so long as no Default
or Event of Default has occurred and is continuing,
repurchases by the Company of Common Stock of the Company
from employees of the Company or any of its Subsidiaries
or their authorized representatives upon the death,
disability or termination of employment of such
employees, in an aggregate amount not exceeding
$2,000,000 in any calendar year; and (vi) as long as no
Default or Event of Default shall have occurred and be
continuing, Investments in joint ventures, partnerships
or other persons that are not Wholly-Owned Subsidiaries
and that are engaged in a business similar or
complementary to the business of the Company on the Issue
Date; provided, however, that the aggregate amount of
such net Investments outstanding at any such time shall
not exceed $8,000,000 and the aggregate amount of any
such Investments made during any consecutive twelve month
period shall not exceed $4,000,000. In computing the
amount of Restricted Payments previously made for
purposes of clause (C) of the preceding paragraph,
Restricted Payments made under the preceding clauses (i)
and (v) shall be included and clauses (ii), (iii), (iv)
and (vi) shall not be so included.
Section 4.10 Limitation on
Issuances and Sale of Preferred
Stock by Subsidiaries.
The Company (a) will not permit any of its
Subsidiaries to issue any Preferred Stock (other than to
the Company or a Wholly-Owned Subsidiary of the Company)
and (b) will not permit any person (other than the
Company or a Wholly-Owned Subsidiary of the Company) to
own any Preferred Stock of any Subsidiary of the Company;
provided, however, that this covenant shall not prohibit
the issuance and sale of (x) all, but not less than all,
of the issued and outstanding Capital Stock of any
Subsidiary of the Company owned by the Company or any of
its Subsidiaries in compliance with the other provisions
of this Indenture (including, without limitation,
Section 4.13) or (y) directors' qualifying shares or
investments by foreign nationals mandated by applicable
law.
Section 4.11 Limitation on Liens.
The Company will not, and will not permit any
of its Subsidiaries to, create, incur, assume or suffer
to exist any Liens of any kind against or upon any of its
property or assets, or any proceeds therefrom, unless
(x) in the case of Liens securing Subordinated
Indebtedness, the Securities are secured by a Lien on
such property, assets or proceeds that is senior in
priority to such Liens and (y) in all other cases, the
Company or any of its Subsidiaries, as the case may be,
secures the Securities on an equal and ratable basis,
except for (a) Liens existing as of the Issue Date;
(b) Liens securing the Securities or any Guarantee;
(c) Liens in favor of the Company; (d) Liens securing
Indebtedness which is incurred to refinance Indebtedness
which has been secured by a Lien permitted under this
Indenture and which has been incurred in accordance with
the provisions of this Indenture; provided, however, that
such Liens do not extend to or cover any property or
assets of the Company or any of its Subsidiaries not
securing the Indebtedness so refinanced; and
(e) Permitted Liens.
Section 4.12 Change of Control.
Upon the occurrence of a Change of Control (the
date of such occurrence, the "Change of Control Date"),
the Company will notify the Holders of Securities in
writing of such occurrence and shall make an offer to
purchase (the "Change of Control Offer") on a Business
Day (the "Change of Control Purchase Date") not more than
60 nor less than 30 days following the Change of Control
Date all Securities then outstanding at a purchase price
equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the Change of
Control Purchase Date.
Notice of a Change of Control Offer shall be
mailed by the Company not later than the 30th day after
the Change of Control Date to the Holders of Securities
at their last registered addresses with a copy to the
Trustee and the Paying Agent. The Change of Control
Offer shall remain open from the time of mailing for at
least 20 Business Days and until 5:00 p.m., New York City
time, on the Change of Control Purchase Date. The
notice, which shall govern the terms of the Change of
Control Offer, shall include such disclosures as are
required by law and shall state:
(1) that the Change of Control Offer is being
made pursuant to this Section 4.12 and
that all Securities validly tendered into
the Change of Control Offer and not
withdrawn will be accepted for payment;
(2) the purchase price (including the amount
of accrued interest, if any) for each
Security, the Change of Control Purchase
Date and the date on which the Change of
Control Offer expires;
(3) that any Security not tendered for payment
will continue to accrue interest in
accordance with the terms thereof;
(4) that, unless the Company shall default in
the payment of the purchase price, any
Security accepted for payment pursuant to
the Change of Control Offer shall cease to
accrue interest after the Change of
Control Purchase Date;
(5) that Holders electing to have Securities
purchased pursuant to a Change of Control
Offer will be required to surrender their
Securities to the Paying Agent at the
address specified in the notice prior to
5:00 p.m., New York City time, on the
Change of Control Purchase Date and must
complete any form of letter of transmittal
proposed by the Company and reasonably
acceptable to the Trustee and the Paying
Agent;
(6) that Holders of Securities will be
entitled to withdraw their election if the
Paying Agent receives, not later than 5:00
p.m., New York City time, on the Change of
Control Purchase Date, a tested telex,
facsimile transmission or letter setting
forth the name of the Holder, the
principal amount of Securities the Holder
delivered for purchase, the Security
certificate number (if any) and a
statement that such Holder is withdrawing
its election to have such Securities
purchased;
(7) that Holders whose Securities are
purchased only in part will be issued
Securities equal in principal amount to
the unpurchased portion of the Securities
surrendered;
(8) the instructions that Holders must follow
in order to tender their Securities; and
(9) information concerning the business of the
Company, the most recent annual and
quarterly reports of the Company filed
with the SEC pursuant to the Exchange Act
(or, if the Company is not then permitted
to file any such reports with the SEC, the
comparable reports prepared pursuant to
Section 4.07), a description of material
developments in the Company's business,
information with respect to pro forma
historical financial information after
giving effect to such Change of Control
and such other information concerning the
circumstances and relevant facts regarding
such Change of Control Offer as would be
material to a Holder of Securities in
connection with the decision of such
Holder as to whether or not it should
tender Securities pursuant to the Change
of Control Offer.
On the Change of Control Purchase Date, the
Company shall (i) accept for payment Securities or
portions thereof validly tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent
money, in immediately available funds, sufficient to pay
the purchase price of all Securities or portions thereof
so tendered and accepted and (iii) deliver to the Trustee
the Securities so accepted together with an Officers'
Certificate setting forth the Securities or portions
thereof tendered to and accepted for payment by the
Company. The Paying Agent shall promptly mail or deliver
to the Holders of Securities so accepted payment in an
amount equal to the purchase price, 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 Company to the Holder thereof. The
Company will publicly announce the results of the Change
of Control Offer not later than the first Business Day
following the Change of Control Purchase Date.
The Company shall 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 a
manner, at the times and otherwise in compliance with the
requirements applicable to a Change of Control Offer made
by the Company and purchases all Securities validly
tendered and not withdrawn under such Change of Control
Offer.
The Company shall comply, to the extent
applicable, with the requirements of Section 14(e) of the
Exchange Act, and any other securities laws or
regulations in connection with the repurchase of
Securities pursuant to a Change of Control Offer.
Section 4.13 Disposition of
Proceeds of Asset Sales.
The Company will not, and will not permit any
of its Subsidiaries to, make any Asset Sale unless (a)
the Company or such Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale at
least equal to the Fair Market Value of the shares or
assets sold or otherwise disposed of and (b) at least 75%
of such consideration consists of cash or Cash
Equivalents. To the extent the Net Cash Proceeds of any
Asset Sale are not required to be applied to repay, and
permanently reduce the commitments under, the Credit
Agreement, as required by the terms thereof, or are not
so applied, the Company or such Subsidiary, as the case
may be, may, within 180 days of such Asset Sale, apply
the Net Cash Proceeds from such Asset Sale to an
investment in properties and assets that replace the
properties and assets that were the subject of such Asset
Sale or in properties and assets that will be used in the
business of the Company and its Subsidiaries existing on
the Issue Date or in businesses reasonably related
thereto ("Replacement Assets"). Any Net Cash Proceeds
from any Asset Sale that are neither used to repay, and
permanently reduce the commitments under, the Credit
Agreement, nor invested in, Replacement Assets within the
180 day period described above constitute "Excess
Proceeds" subject to disposition as provided below.
When the aggregate amount of Excess Proceeds
exceeds $10,000,000, the Company shall make an offer (an
"Asset Sale Offer") to purchase from all Holders, on a
day not more than 40 Business Days thereafter (the "Asset
Sale Purchase Date"), the maximum principal amount
(expressed as a multiple of $1,000) of Securities that
may be purchased with the aggregate Excess Proceeds at a
price, payable in cash, equal to 100% of the principal
amount of the Securities plus accrued and unpaid
interest, if any, to the purchase date (the "Asset Sale
Offer Price"); provided, however, that the Company may,
at the time that it makes any such Asset Sale Offer, also
offer to purchase at a price in cash equal to 100% of the
outstanding principal amount thereof plus accrued and
unpaid interest, if any, to the purchase date, any Pari
Passu Indebtedness which was outstanding on the Issue
Date (a "Pari Passu Asset Sale Offer") and to the extent
the Company so elects to make a Pari Passu Asset Sale
Offer, the Securities and such Pari Passu Indebtedness
shall be purchased pursuant to such Asset Sale Offer and
Pari Passu Asset Sale Offer, respectively, on a pro rata
basis based on the aggregate principal amount of
Securities and such Pari Passu Indebtedness then
outstanding. To the extent that the aggregate principal
amount of Securities tendered pursuant to an Asset Sale
Offer is less than the Excess Proceeds or, to the extent
the Company elects to make a Pari Passu Asset Sale Offer,
the Securities' pro rata share of such Excess Proceeds,
the Company may use such deficiency for general corporate
purposes. To the extent that the aggregate principal
amount of Pari Passu Indebtedness tendered pursuant to a
Pari Passu Asset Sale Offer is less than such Pari Passu
Indebtedness' pro rata share of such Excess Proceeds, the
Company shall use such remaining Excess Proceeds to
purchase any Securities validly tendered and not
withdrawn pursuant to such Asset Sale Offer. If the
aggregate principal amount of Securities validly tendered
and not withdrawn by holders thereof exceeds the Excess
Proceeds or, to the extent the Company elects to make a
Pari Passu Asset Sale Offer, the Securities' pro rata
shares of such Excess Proceeds, Securities to be
purchased will be selected on a pro rata basis. Upon
completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset to zero.
Notice of an Asset Sale Offer shall be mailed
by the Company to all Holders of Securities not less than
20 Business Days nor more than 40 Business Days before
the Asset Sale Purchase Date at their last registered
address with a copy to the Trustee and the Paying Agent.
The Asset Sale Offer shall remain open from the time of
mailing for at least 20 Business Days and until at least
5:00 p.m., New York City time, on the Asset Sale Purchase
Date. The notice, which shall govern the terms of the
Asset Sale Offer, shall include such disclosures as are
required by law and shall state:
(1) that the Asset Sale Offer is being made
pursuant to this Section 4.13;
(2) the Asset Sale Offer Price (including the
amount of accrued interest, if any) for each Security,
the Asset Sale Purchase Date and the date on which the
Asset Sale Offer expires;
(3) that any Security not tendered or accepted
for payment will continue to accrue interest in
accordance with the terms thereof;
(4) that, unless the Company shall default in
the payment of the Asset Sale Offer Price, any Security
accepted for payment pursuant to the Asset Sale Offer
shall cease to accrue interest after the Asset Sale
Purchase Date;
(5) that Holders electing to have Securities
purchased pursuant to an Asset Sale Offer will be
required to surrender their Securities to the Paying
Agent at the address specified in the notice prior to
5:00 p.m., New York City time, on the Asset Sale Purchase
Date and must complete any form of letter of transmittal
proposed by the Company and reasonably acceptable to the
Trustee and the Paying Agent;
(6) that Holders will be entitled to withdraw
their election if the Paying Agent receives, not later
than 5:00 p.m., New York City time, on the Asset Sale
Purchase Date, a tested telex, facsimile transmission or
letter setting forth the name of the Holder, the
principal amount of Securities the Holder delivered for
purchase, the Security certificate number (if any) and a
statement that such Holder is withdrawing its election to
have such Securities purchased;
(7) that if Securities in a principal amount
in excess of the Holder's pro rata share of the amount of
Excess Proceeds are tendered pursuant to the Asset Sale
Offer, the Company shall purchase Securities on a pro
rata basis among the Securities tendered (with such
adjustments as may be deemed appropriate by the Company
so that only Securities in denominations of $1,000 or
integral multiples of $1,000 shall be acquired);
(8) that Holders whose Securities are
purchased only in part will be issued new Securities
equal in principal amount to the unpurchased portion of
the Securities surrendered;
(9) the instructions that Holders must follow
in order to tender their Securities; and
(10) information concerning the business of the
Company, the most recent annual and quarterly reports of
the Company filed with the SEC pursuant to the Exchange
Act (or, if the Company is not permitted to file any such
reports with the Commission, the comparable reports
prepared pursuant to Section 4.07), a description of
material developments in the Company's business,
information with respect to pro forma historical
financial information after giving effect to such Asset
Sale and Asset Sale Offer and such other information
concerning the circumstances and relevant facts regarding
such Asset Sale Offer as would be material to a Holder of
Securities in connection with the decision of such Holder
as to whether or not it should tender Securities pursuant
to the Asset Sale Offer.
On the Asset Sale Purchase Date, the Company
shall (i) accept for payment, on a pro rata basis,
Securities or portions thereof tendered pursuant to the
Asset Sale Offer, (ii) deposit with the Paying Agent
money, in immediately available funds, in an amount
sufficient to pay the Asset Sale Offer Price of all
Securities or portions thereof so tendered and accepted
and (iii) deliver to the Trustee the Securities so
accepted together with an Officers' Certificate setting
forth the Securities or portions thereof tendered to and
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 Asset Sale
Offer Price, 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 Company to
the Holder thereof. The Company will publicly announce
the results of the Asset Sale Offer not later than the
first Business Day following the Asset Sale Purchase
Date. For purposes of this Section 4.13, the Trustee
shall act as Paying Agent.
The Company shall comply, to the extent
applicable, with the requirements of Section 14(e) of the
Exchange Act, Rule 14e-1 promulgated thereunder, and any
other securities laws or regulations in connection with
the repurchase of Securities pursuant to the Asset Sale
Offer.
Section 4.14 Limitation on Transactions with
Interested Persons.
The Company will not, and will not permit any
of its Subsidiaries to, directly or indirectly, enter
into or suffer to exist any transaction or series of
related transactions (including, without limitation, the
sale, transfer, disposition, purchase, exchange or lease
of assets, property or services) with, or for the benefit
of, any Affiliate of the Company or any 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, after the passage of time or
upon the happening of an event) of 5% or more of the
Company's outstanding Common Stock ("Interested
Persons"), unless (a) such transaction or series of
related transactions is on terms that are no less
favorable to the Company, or such Subsidiary, as the case
may be, than those which could have been obtained in a
comparable transaction at such time from persons who are
not Affiliates of the Company or Interested Persons,
(b) with respect to a transaction or series of
transactions involving aggregate payments or value equal
to or greater than $5,000,000, the Company has obtained a
written opinion from an Independent Financial Advisor
stating that the terms of such transaction or series of
transactions are fair to the Company or such Subsidiary,
as the case may be, from a financial point of view and
(c) with respect to a transaction or series of
transactions involving aggregate payments or value equal
to or greater than $1,000,000, the Company has delivered
an Officers' Certificate to the Trustee certifying that
such transaction or series of transactions comply with
the preceding clause (a) and, if applicable, certifying
that the opinion referred to in the preceding clause (b)
has been delivered and that such transaction or series of
transactions have been approved by a majority of the
Board of Directors of the Company; provided, however,
that this covenant will not restrict the Company from
(i) paying dividends in respect of its Capital Stock
permitted under Section 4.09, (ii) paying reasonable and
customary fees to directors of the Company who are not
employees of the Company, (iii) making loans or advances
to officers, employees or consultants of the Company and
its Subsidiaries (including travel and moving expenses)
in the ordinary course of business for bona fide business
purposes of the Company or such Subsidiary not in excess
of $2,000,000 in the aggregate at any one time
outstanding, or (iv) making loans to Wholly-Owned
Subsidiaries in the ordinary course of business and
consistent with past business practices and making loans
to joint ventures, partnerships or other persons that are
not Wholly-Owned Subsidiaries pursuant to and in
accordance with Section 4.09.
Section 4.15 Limitation on Dividends and
Other Payment Restrictions
Affecting Subsidiaries.
The Company will not, and will not permit any
of its Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any
Subsidiary of the Company to (a) pay dividends, in cash
or otherwise, or make any other distributions on or in
respect of its Capital Stock or any other interest or
participation in, or measured by, its profits, (b) pay
any Indebtedness owed to the Company or any other
Subsidiary of the Company, (c) make loans or advances to,
or any other Investment in, the Company or any other
Subsidiary of the Company, (d) transfer any of its
properties or assets to the Company or any other
Subsidiary of the Company or (e) guarantee any
Indebtedness of the Company or any other Subsidiary of
the Company, except for such encumbrances or restrictions
existing under or by reason of (i) applicable law, (ii)
customary non-assignment provisions of any contract or
any lease governing a leasehold interest of the Company
or any Subsidiary of the Company, (iii) customary
restrictions on transfers of property subject to a Lien
permitted under this Indenture which could not materially
adversely affect the Company's ability to satisfy its
obligations under this Indenture and the Securities,
(iv) any agreement or other instrument of a person
acquired by the Company or any Subsidiary of the Company
(or a Subsidiary of such person) in existence at the time
of such acquisition (but not created in contemplation
thereof), which encumbrance or restriction is not
applicable to any person, or the properties or assets of
any person, other than the person, or the property or
assets of the person, so acquired, (v) provisions
contained in agreements or instruments relating to
Indebtedness which prohibit the transfer of all or
substantially all of the assets of the obligor thereunder
unless the transferee shall assume the obligations of the
obligor under such agreement or instrument and
(vi) encumbrances and restrictions under the Credit
Agreement or the Note Agreement between the Company and
the Prudential Life Insurance Company of America (the
"Note Agreement"), each as in effect on the Issue Date
and encumbrances and restrictions in permitted
refinancings or replacements thereof which are no less
favorable to the Holders of the Securities than those
contained in the Credit Agreement or the Note Agreement,
each as in effect on the Issue Date.
Section 4.16 Limitations on Sale-Leaseback
Transactions.
The Company will not, and will not permit any
of its Subsidiaries to, enter into any Sale-Leaseback
Transaction with respect to any property of the Company
or any of its Subsidiaries (whether such property is
owned on, or acquired or constructed after, the Issue
Date) provided that the Company or any of its
Subsidiaries may enter a Sale-Leaseback Transaction if
(i) the Company could have (A) incurred Indebtedness
(other than Permitted Indebtedness) in an amount equal to
the Attributable Value relating to such Sale-Leaseback
Transaction pursuant to Section 4.08 and (B) secured such
Indebtedness with a Lien pursuant to Section 4.11,
(ii) the value (considering the proceeds therefrom and
any other benefits or options granted to the Company in
connection therewith) of such Sale-Leaseback Transaction
is at least equal to the Fair Market Value of the
property that is the subject of such Sale-Leaseback
Transaction, and (iii) the Company shall apply or cause
to be applied the Net Cash Proceeds of such transactions
in accordance with Section 4.13.
Section 4.17 Limitation on Guarantees by
Subsidiaries.
The Company will not permit any Subsidiary,
directly or indirectly, to assume, guarantee or in any
manner become liable with respect to any other
Indebtedness of the Company unless such Subsidiary
simultaneously executes and delivers a supplemental
indenture to this Indenture providing for the guarantee
of payment of the Securities by such Subsidiary on the
same terms as such Subsidiary's assumption or guarantee
of such other Indebtedness. In connection with the
execution and delivery of the supplemental indenture,
such Subsidiary shall execute and deliver a Guarantee
evidencing its obligations pursuant to this Section 4.17
and such supplemental indenture.
Notwithstanding the foregoing, upon any sale or
disposition (by merger or otherwise) of any Guarantor by
the Company or a Subsidiary of the Company to any person
that is not an Affiliate of the Company or any of its
Subsidiaries which is otherwise in compliance with the
terms of this Indenture, such Guarantor will be deemed to
be released from all obligations under its Guarantee;
provided, however, that each such Guarantor is sold or
disposed of in accordance with this Indenture and the
guarantee by such Guarantor of such other Indebtedness of
the Company is simultaneously released; and provided,
further, that the foregoing proviso shall not apply to
the sale or disposition of a Guarantor in a foreclosure
to the extent that such proviso will be inconsistent with
the requirements of the Uniform Commercial Code.
Section 4.18 Waiver of Stay, Extension or
Usury Laws.
The Company and each Guarantor, if any,
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 law or other
law which would prohibit or forgive the Company or such
Guarantor, as the case may be, from paying all or any
portion of the principal of, premium, if any, or interest
on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which
may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so)
the Company and each Guarantor, if any, 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 4.19 Limitation on Applicability of
Certain Covenants.
During any period of time that (i) the ratings
assigned to the Securities by each of S&P and Moody's
(collectively, the "Rating Agencies") are no less than
BBB- and Baa3 or the equivalents thereof, respectively
(the "Investment Grade Ratings"), and (ii) no Default or
Event of Default has occurred and is continuing, the
Company and its Subsidiaries, will not be subject to the
covenants contained in Sections 4.08, 4.09, 4.13 and
clauses (iii) and (iv) of Section 5.01 (collectively, the
"Suspended Covenants"). If one or both Rating Agencies
withdraws its rating or downgrades its Investment Grade
Rating, then thereafter the Company and its Subsidiaries
will be subject, on a prospective basis, to the Suspended
Covenants (until the Rating Agencies have again assigned
Investment Grade Ratings to the Securities) and
compliance with the Suspended Covenants with respect to
Restricted Payments made after the time of such
withdrawal or downgrade will be calculated in accordance
with the covenant contained in Section 4.09 as if such
covenant had been in effect at all times after the Issue
Date.
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 When Company May Merge, etc.
(1) The Company will not, in any transaction or
series of transactions, merge or consolidate with or
into, or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its
properties and assets as an entirety to, any person or
persons, and the Company will not permit any of its
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 other
disposition of all or substantially all of the properties
and assets of the Company or the Company and its
Subsidiaries, taken as a whole, to any other person or
persons, unless at the time of and after giving effect
thereto (i) either (x) if the transaction or transactions
is a merger or consolidation, the Company shall be the
surviving person of such merger or consolidation, or (y)
the person formed by such consolidation or into which the
Company or such Subsidiary is merged or to which the
properties and assets of the Company or such Subsidiary,
as the case may be, are transferred (any such surviving
person or transferee person being the "Surviving Entity")
shall be a corporation organized and existing under the
laws of the United States of America, any state thereof
or the District of Columbia and shall expressly assume by
a supplemental indenture executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee,
the due and punctual payment of the principal of,
premium, if any, and interest on all the Securities and
the performance and observance of every covenant and
obligation of this Indenture and the Securities on the
part of the Company to be performed or observed and, in
each case, the Indenture shall remain in full force and
effect; (ii) immediately before and immediately after
giving effect to such transaction or series of
transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to
be incurred in connection with or in respect of such
transaction or series of transactions), no Default or
Event of Default shall have occurred and be continuing;
(iii) the Company, or the Surviving Entity, as the case
may be, after giving effect to such transaction or series
of transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to
be incurred in connection with or in respect of such
transaction or series of transactions), could incur $1.00
of additional Indebtedness (other than Permitted
Indebtedness) under Section 4.08 (assuming a market rate
of interest with respect to such additional
Indebtedness); (iv) immediately after giving effect to
such transaction or series of transactions on a pro forma
basis (including, without limitation, any Indebtedness
incurred or anticipated to be incurred in connection with
or in respect of such transaction or series of
transactions), the Consolidated Net Worth of the Company
or the Surviving Entity, as the case may be, is at least
equal to the Consolidated Net Worth of the Company
immediately before such transaction or series of
transactions, and (v) the Company or the Surviving
Entity, as the case may be, shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each in form and substance reasonably
satisfactory to the Trustee, each stating that such
consolidation, merger, sale, assignment, conveyance,
transfer, lease or other disposition and, if a
supplemental indenture is required in connection with
such transaction or series of transactions, such
supplemental indenture, complies with this Indenture and
that all conditions precedent herein provided for
relating to such transaction or series of transactions
have been complied with.
In addition, each Guarantor, if any, unless it
is the other party to the transaction or unless its
Guarantee will be released and discharged in accordance
with Section 4.18 as a result of the transaction, will be
required to confirm, by supplemental indenture that its
Guarantee of the Securities will apply to the obligations
of the Company or the Surviving Entity under this
Indenture.
Section 5.02 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 in accordance with Section 5.01 hereof, the
successor person or persons formed by such consolidation
or into which the Company is merged or the successor
person to which such sale, assignment, conveyance,
transfer, lease or other disposition is made, shall
succeed to, and be substituted for, and may exercise
every right and power of, the Company under this
Indenture and the Securities with the same effect as if
such successor had been named as the Company herein;
provided, however, that solely for purposes of computing
amounts described in subclause (C) of Section 4.09, any
such successor person shall only be deemed to have
succeeded to and be substituted for the Company with
respect to periods subsequent to the effective time of
such merger, consolidation or transfer of assets.
ARTICLE SIX
EVENTS OF DEFAULT AND REMEDIES
Section 6.01 Events of Default.
An "Event of Default" means any of the
following events:
(a) default in the payment of the principal of or
premium, if any, on any Security when the same
becomes due and payable (upon Stated Maturity,
acceleration, optional redemption, required
purchase, scheduled principal payment or otherwise);
or
(b) default in the payment of an installment of interest
on any of the Securities, when the same becomes due
and payable, and any such Default continues for a
period of 30 days; or
(c) failure to perform or observe any other term,
covenant or agreement contained in the Securities or
the Indenture (other than Defaults specified in
clause (a) or (b) above) and such Default continues
for a period of 30 days after written notice of such
Default requiring the Company to remedy the same
shall have been given (i) to the Company by the
Trustee or (ii) to the Company and the Trustee by
Holders of at least 25% in aggregate principal
amount of the Securities then outstanding; or
(d) default or defaults under one or more agreements,
instruments, mortgages, bonds, debentures or other
evidences of Indebtedness under which the Company or
any Subsidiary of the Company then has outstanding
Indebtedness in excess of $10,000,000, individually
or in the aggregate, and either (i) such
Indebtedness is already due and payable in full or
(ii) such default or defaults have resulted in the
acceleration of the maturity of such Indebtedness;
or
(e) one or more judgments, orders or decrees of any
court or regulatory or administrative agency of
competent jurisdiction for the payment of money in
excess of $10,000,000, either individually or in the
aggregate, shall be entered against the Company or
any Subsidiary of the Company or any of their
respective properties and shall not be discharged or
fully bonded and there shall have been a period of
60 days after the date on which any period for
appeal has expired and during which a stay of
enforcement of such judgment, order or decree, shall
not be in effect; or
(f) (a) the Company or any Significant Subsidiary of the
Company pursuant to or under or within the meaning
of any Bankruptcy Law:
(i) commences a voluntary case or
proceeding; (ii) consents to the entry of an
order for relief against it in an involuntary
case or proceeding; (iii) consents to the
appointment of a Custodian of it or for all or
substantially all of its property; (iv) makes a
general assignment for the benefit of its
creditors; or (v) shall generally not pay its
debts when such debts become due or shall admit
in writing its inability to pay its debts
generally; or
(g) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or
any Significant Subsidiary of the Company in an
involuntary case or proceeding, (ii) appoints a
Custodian of the Company or any Significant
Subsidiary of the Company for all or substantially
all of its properties, or (iii) orders the
liquidation of the Company or any Significant
Subsidiary of the Company,
and in each case the order or decree remains unstayed and
in effect for 60 days.
Subject to the provisions of Sections 7.01 and
7.02, the Trustee shall not be charged with knowledge of
any Default or Event of Default unless written notice
thereof shall have been given to a Trust Officer at the
Corporate Trust Office of the Trustee by the Company, the
Paying Agent, any Holder, or any of their respective
agents.
Section 6.02 Acceleration.
If an Event of Default (other than as specified
in Section 6.01(f) or (g)) occurs and is continuing, the
Trustee, by written notice to the Company, or the Holders
of at least 25% in aggregate principal amount of the
Securities then outstanding, by written notice to the
Trustee and the Company, may declare the principal of,
premium, if any, and accrued and unpaid interest, if any,
on all of the Securities to be due and payable
immediately, upon which declaration, all amounts payable
in respect of the Securities shall be immediately due and
payable. If an Event of Default specified in Section
6.01(f) or (g) occurs and is continuing, then the
principal of, premium, if any, and accrued and unpaid
interest, if any, on all of the Securities shall ipso
facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee
or any Holder of Securities.
After a declaration of acceleration under the
Indenture, but before a judgment or decree for payment of
the money due has been obtained by the Trustee, the
Holders of a majority in aggregate principal amount of
the outstanding Securities, by written notice to the
Company and the Trustee, may rescind such declaration if
(a) the Company has paid or deposited with the Trustee a
sum sufficient to pay (i) all amounts due the Trustee
under Section 7.08 and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel, (ii) all overdue interest on all
Securities, (iii) the principal of and premium, if any,
on any 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 which has become due otherwise than by
such declaration of acceleration at the rate borne by the
Securities; (b) the rescission would not conflict with
any judgment or decree of a court of competent
jurisdiction; and (c) all Events of Default, other than
the non-payment of principal of, premium, if any, and
interest on the Securities that has become due solely by
such declaration of acceleration, have been cured or
waived as provided in Section 6.04.
No such rescission shall affect any subsequent
Default or Event of Default or impair any right
subsequent thereto.
Section 6.03 Other Remedies.
If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy
by proceeding at law or in equity to collect the payment
of principal of, premium, if any, or interest on the
Securities or to enforce the performance of any provision
of the Securities or this Indenture.
All rights of action and claims under this
Indenture or the Securities may be enforced by the
Trustee even if it does not possess any of the Securities
or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy.
All available remedies are cumulative to the extent
permitted by law.
Section 6.04 Waiver of Past Defaults.
Subject to the provisions of Sections 6.07 and
9.02, the Holders of not less than a majority in
aggregate principal amount of the outstanding Securities
by notice to the Trustee may, on behalf of the Holders of
all the Securities, waive any existing Default or Event
of Default and its consequences, except a Default or
Event of Default specified in Section 6.01(a) or (b) or
in respect of any provision hereof which cannot be
modified or amended without the consent of the Holder so
affected pursuant to Section 9.02. When a Default or
Event of Default is so waived, it shall be deemed cured
and shall cease to exist.
Section 6.05 Control by Majority.
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 any remedy available to
the Trustee, or exercising any trust or power conferred
on the Trustee, provided, however, that the Trustee may
refuse to follow any direction (a) that conflicts with
any rule of law or this Indenture, (b) that the Trustee
determines may be unduly prejudicial to the rights of
another Securityholder, or (c) that may expose the
Trustee to personal liability unless the Trustee has been
provided reasonable indemnity against any loss or expense
caused by its following such direction; and provided,
further, that the Trustee may take any other action
deemed proper by the Trustee that is not inconsistent
with such direction.
Section 6.06 Limitation on Suits.
No Holder of any Securities shall have any
right to institute any proceeding or pursue any remedy
with respect to this Indenture or the Securities unless:
(1) the Holder gives written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate
principal amount of the outstanding
Securities make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer and, if
requested, provide to the Trustee
reasonable indemnity against any loss,
liability or expense;
(4) the Trustee does not comply with the
request within 30 days after receipt of
the request and the offer and, if
requested, provision of indemnity; and
(5) during such 30-day period the Holders of a
majority in aggregate principal amount of
the outstanding Securities do not give the
Trustee a direction which is inconsistent
with the request;
The foregoing limitations shall not apply to a
suit instituted by a Holder for the enforcement of the
payment of principal of, premium, if any, or accrued
interest on, such Security on or after the respective
due dates set forth in such Security.
A Holder may not use this Indenture to
prejudice the rights of any other Holders or to obtain
priority or preference over such other Holders.
Section 6.07 Right of Holders To Receive
Payment.
Notwithstanding any other provision in this
Indenture, the right of any Holder of a Security to
receive payment of the principal of, premium, if any, and
interest on such Security, on or after the respective
Stated Maturities expressed in such Security, or to bring
suit for the enforcement of any such payment on or after
the respective Stated Maturities, is absolute and
unconditional and shall not be impaired or affected
without the consent of the Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in clause (a)
or (b) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as
trustee of an express trust against the Company, any
Guarantor or any other obligor on the Securities for the
whole amount of principal of, premium, if any, and
accrued interest remaining unpaid, together with interest
on overdue principal and, to the extent that payment of
such interest is lawful, interest on overdue installments
of interest, in each case at the rate per annum borne by
the Securities and such further amount as shall be
sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
Section 6.09 Trustee May File Proofs of
Claims.
The Trustee may file such proofs of claim and
other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel) and the Holders allowed in any
judicial proceedings relative to the Company or the
Subsidiaries of the Company (or any other obligor upon
the Securities), their creditors or their property and
shall be entitled and empowered to collect and receive
any monies or other property payable or deliverable on
any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby
authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any
other amounts due the Trustee under Section 7.08.
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 6.10 Priorities.
If the Trustee collects any money pursuant to
this Article Six, it shall pay out such money in the
following order:
First: to the Trustee for amounts due under
Section 7.08;
Second: to Holders for interest accrued on the
Securities, ratably, without preference or priority of
any kind, according to the amounts due and payable on the
Securities for interest;
Third: to Holders for principal amounts
(including any premium) owing under the Securities,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the
Securities for principal (including any premium); and
Fourth: the balance, if any, to the Company or
to the extent the Trustee collects any amount from any
Guarantor, to such Guarantor.
The Trustee, upon prior written notice to the
Company, may fix a record date and payment date for any
payment to Securityholders pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the
Trustee for any action taken or omitted by it as Trustee,
a court may in its discretion require the filing by any
party litigant in the suit of an undertaking to pay the
costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11
does not apply to any suit by the Trustee, any suit by a
Holder pursuant to Section 6.07, or a suit by Holders of
more than 10% in aggregate principal amount of the
outstanding Securities.
Section 6.12 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 Security 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, each Guarantor, if any, 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.
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties.
(a) In case 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 their exercise, as a
prudent person would exercise or use under the
circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of
Default,
the Trustee need perform only such duties
as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the
opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case
of any such certificates or opinions which by any
provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or
not they conform to the requirements of this
Indenture.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability for its
own negligent action, its own negligent failure to act,
or its own willful misconduct, except that
this paragraph does not limit the effect
of paragraph (b) of this Section 7.01;
the Trustee shall not be liable for any
error of judgment made in good faith by a Trust
Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
the Trustee shall not be liable with
respect to any action it takes or omits to take in
good faith in accordance with a direction received
by it pursuant to Section 6.05;
(d) 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.
(e) Every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (d) of this Section 7.01.
Section 7.02 Rights of Trustee.
Subject to Section 7.01 hereof and the
provisions of TIA Sec. 315:
(a) the Trustee may rely on any document
reasonably believed by it to be genuine
and to have been signed or presented by
the proper person. The Trustee need not
investigate any fact or matter stated in
the document.
(b) before the Trustee acts or refrains from
acting, it may consult with counsel and
may require an Officers' Certificate or an
Opinion of Counsel, which shall conform to
Sections 10.04 and 10.05. The Trustee
shall not be liable for any action it
takes or omits to take in good faith in
reliance on such certificate or opinion.
(c) the Trustee may act through its attorneys
and agents and shall not be responsible
for the misconduct or negligence of any
agent appointed with due care.
(d) the Trustee shall not be liable for any
action taken or omitted by it in good
faith and reasonably 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 its own negligence.
(e) the Trustee may consult with counsel of
its own choosing and the advice or opinion
of such counsel as to matters of law shall
be full and complete authorization and
protection in respect of any action taken,
omitted or suffered by it hereunder in
good faith and in accordance with the
advice or opinion of such counsel.
(f) the Trustee shall not be bound to make any
investigation into the facts or matters
stated in any resolution, certificate,
statement, instrument, opinion, notice,
request, direction, consent, order, bond,
debenture, or other paper or document, but
the Trustee, in its discretion, may make
such further inquiry or investigation into
such facts or matters as it may see fit.
(g) the Trustee shall be under no obligation
to exercise any of the rights or powers
vested in it by this Indenture at the
request, order or direction of any of the
Holders pursuant to the provisions of this
Indenture, unless such Holders shall have
offered to the Trustee reasonable security
or indemnity against the costs, expenses
and liabilities which may be incurred
therein or thereby.
Section 7.03 Individual Rights
of Trustee.
The Trustee, any Paying Agent, Registrar or any
other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of
Securities and, subject to Sections 7.11 and 7.12 and TIA
Sec. 310 and 311, may otherwise deal with the Company and
its Subsidiaries with the same rights it would have if it
were not the Trustee, Paying Agent, Registrar or such
other agent.
Section 7.04 Trustee's Disclaimer.
The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the
Securities, it shall not be accountable for the Company's
use or application of the proceeds from the Securities,
it shall not be responsible for the use or application of
any money received by any Paying Agent other than the
Trustee and it shall not be responsible for any statement
in the Securities other than the Trustee's certificate of
authentication.
Section 7.05 Notice of Default.
If a Default or an Event of Default occurs and
is continuing and if it is known to the Trustee, the
Trustee shall mail to each Holder notice of the Default
or Event of Default within 30 days thereafter; 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 the board of
directors, the executive committee of the board of
directors or a committee of the directors of the Trustee
and/or Trust Officers in good faith determines that the
withholding of such notice is in the interest of the
Holders.
Section 7.06 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 herein or by law. The Trustee shall not be
under any liability for interest on any moneys received
by it hereunder, except as the Trustee may agree with the
Company.
Section 7.07 Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with
the May 15 following the date of this Indenture, the
Trustee shall, to the extent that any of the events
described in TIA Sec. 313(a) shall have occurred within the
previous twelve months, but not otherwise, mail to each
Holder a brief report dated as of such May 15 that
complies with TIA Sec. 313(a). The Trustee also shall
comply with TIA Sec. 313(b) and 313(c).
A copy of each report at the time of its
mailing to Holders shall be mailed to the Company and
filed with the SEC and each securities exchange, if any,
on which the Securities are listed.
The Company shall notify the Trustee in writing
if the Securities become listed on any securities
exchange.
Section 7.08 Compensation and Indemnity.
The Company covenants and agrees to pay the
Trustee from time to time reasonable compensation for its
services. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee
upon request for all reasonable disbursements, expenses
and advances incurred or made by it. Such expenses shall
include the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for,
and hold it harmless against, any loss or liability
incurred by it arising out of or in connection with the
administration of this trust and its rights or duties
hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with
the exercise or performance of any of its powers or
duties hereunder. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for
which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement
made without its prior written consent. The Company need
not reimburse any expense or indemnify against any loss
or liability to the extent incurred by the Trustee
through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in
this Section 7.08, the Trustee shall have a Lien prior to
the Securities on all assets held or collected by the
Trustee, in its capacity as Trustee, except assets held
in trust to pay principal of, premium, if any, or
interest on particular Securities.
When the Trustee incurs expenses or renders
services in connection with an Event of Default specified
in Section 6.01(f) or (g), the expenses and the
compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
The Company's obligations under this Section
7.08 and any Lien arising hereunder shall survive the
resignation or removal of any trustee, the discharge of
the Company's obligations pursuant to Article Eight
and/or the termination of this Indenture.
Section 7.09 Replacement of Trustee.
The Trustee may resign by so notifying the
Company. The Holders of a majority in principal amount
of the outstanding Securities may remove the Trustee by
so notifying the Company and the Trustee and may appoint
a successor trustee with the Company's prior written
consent. The Company may remove the Trustee if:
(a) the Trustee fails to comply with
Section 7.11;
(b) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect
to the Trustee under any Bankruptcy Law;
(c) a receiver or other public officer takes
charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a
vacancy exists in the office of Trustee for any reason,
the Company shall notify each Holder of such event and
shall promptly appoint a successor Trustee. The Trustee
shall be entitled to payment of its fees and
reimbursement of its expenses while acting as Trustee,
and to the extent such amounts remain unpaid, the Trustee
that has resigned or has been removed shall retain the
Lien afforded by Section 7.08. Within one year after the
successor Trustee takes office, the Holders of a majority
in principal amount of the outstanding Securities may,
with the Company's prior written consent, appoint a
successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and
to the Company. Immediately after that, the retiring
Trustee shall transfer all property held by it as Trustee
to the successor Trustee, subject to the Lien provided in
Section 7.08, the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee
shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall
mail notice of its succession to each Securityholder.
If a successor Trustee does not take office
within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders
of at least 10% in principal amount of the outstanding
Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with
Section 7.11, any Holder who has been a Holder for at
least six months may petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Notwithstanding replacement of the Trustee
pursuant to this Section 7.09, the Company's obligations
under Section 7.08 shall continue for the benefit of the
retiring Trustee.
Section 7.10 Successor Trustee by Merger,
etc.
If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of
its corporate trust business to, another corporation or
national banking association, the resulting, surviving or
transferee corporation or national banking association
without any further act shall, if such resulting,
surviving or transferee corporation or national banking
association is otherwise eligible hereunder, be the
successor Trustee.
Section 7.11 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder
which shall be eligible to act as Trustee under TIA
Sec. 310(a)(1), 310(a)(5) and 310(b) and which shall have a
combined capital and surplus of at least $50,000,000. If
such corporation 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, 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, the Trustee shall resign immediately in the
manner and with the effect hereinafter specified in this
Article.
Section 7.12 Preferential Collection of
Claims Against Company.
The Trustee shall comply with TIA Sec. 311(a),
excluding from the operation of such Section any creditor
relationship listed in TIA Sec. 311(b). If the present or
any future Trustee shall resign or be removed, it shall
be subject to TIA Sec. 311(a) to the extent provided
therein.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01 Termination of the Company's
Obligations.
The Company and each Guarantor may, if any,
terminate their obligations under the Securities, any
Guarantee, and this Indenture, except those obligations
referred to in the penultimate paragraph of this Section
8.01, if all Securities previously authenticated and
delivered (other than destroyed, lost or stolen
Securities which have been replaced or paid or Securities
for whose payment money has theretofore been deposited
with the Trustee or the Paying Agent in trust or
segregated and held in trust by the Company and
thereafter repaid to the Company, as provided in
Section 8.04) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by
it hereunder, or if:
(a) either (i) pursuant to Article Three, the
Company shall have given notice to the
Trustee and mailed a notice of redemption
to each Holder of the redemption of all of
the Securities under arrangements
satisfactory to the Trustee for the giving
of such notice or (ii) all Securities have
otherwise become due and payable
hereunder;
(b) the Company shall have irrevocably
deposited or caused to be deposited with
the Trustee or a trustee reasonably
satisfactory to the Trustee, under the
terms of an irrevocable trust agreement in
form and substance satisfactory to the
Trustee, as trust funds in trust solely
for the benefit of the Holders for that
purpose, money in such amount as is
sufficient without consideration of
reinvestment of such interest, to pay
principal of, premium, if any, and
interest on the outstanding Securities to
maturity or redemption, as certified in a
certificate of a nationally recognized
firm of independent public accountants;
provided that the Trustee shall have been
irrevocably instructed to apply such money
to the payment of said principal, premium,
if any, and interest with respect to the
Securities;
(c) no Default or Event of Default with
respect to this Indenture or the
Securities shall have occurred and be
continuing on the date of such deposit or
shall occur as a result of such deposit
and such deposit will not result in a
breach or violation of, or constitute a
default under, any other instrument to
which the Company is a party or by which
it is bound; and
(d) the Company shall have paid all other sums
payable by it hereunder;
(e) the Company shall have delivered to the
Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all
conditions precedent providing for the
termination of the Company's and any
Guarantor's obligation under the
Securities and this Indenture and any
Guarantee have been complied with.
Notwithstanding the foregoing paragraph, the
Company's obligations in Sections 2.05, 2.06, 2.07, 2.08,
4.01, 4.02 and 7.08 and any Guarantor's obligations in
respect thereof shall survive until the Securities are no
longer outstanding pursuant to the last paragraph of
Section 2.08. After the Securities are no longer
outstanding, the Company's obligations in Sections 7.08,
8.03, 8.04 and 8.05 and any Guarantor's obligations in
respect thereof shall survive.
After such delivery or irrevocable deposit the
Trustee upon request shall acknowledge in writing the
discharge of the Company's and any Guarantor's
obligations under the Securities and this Indenture
except for those surviving obligations specified above.
Section 8.02 Legal Defeasance
and Covenant Defeasance.
(a) The Company may, at its option by Board
Resolution of the Board of Directors of the Company, at
any time, with respect to the Securities, elect to have
either paragraph (b) or paragraph (c) below be applied to
the outstanding Securities upon compliance with the
conditions set forth in paragraph (d).
(b) Upon the Company's exercise under
paragraph (a) of the option applicable to this
paragraph (b), the Company and any Guarantor shall be
deemed to have been released and discharged from its
obligations with respect to the outstanding Securities on
the date the conditions set forth below are satisfied
(hereinafter, "legal defeasance"). For this purpose,
such legal defeasance means that the Company and any
Guarantor shall be deemed to have paid and discharged the
entire indebtedness represented by the outstanding
Securities, which shall thereafter be deemed to be
"outstanding" only for the purposes of paragraph (e)
below and the other Sections of and matters under this
Indenture referred to in (i) and (ii) below, and to have
satisfied all their other obligations under such
Securities, any Guarantee and this Indenture insofar as
such Securities and Guarantee are concerned (and the
Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same) except for the
following which shall survive until otherwise terminated
or discharged hereunder: (i) the rights of Holders of
outstanding Securities to receive solely from the trust
fund described in paragraph (d) below and as more fully
set forth in such paragraph, payments in respect of the
principal of, premium, if any, and interest on such
Securities when such payments are due, (ii) the Company's
obligations with respect to such Securities under
Sections 2.06, 2.07 and 4.02, and, with respect to the
Trustee, under Section 7.08 and any Guarantor's
obligations in respect thereof, (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder
and (iv) this Article Eight. Subject to compliance with
this Section 8.02, the Company may exercise its option
under this paragraph (b) notwithstanding the prior
exercise of its option under paragraph (c) below with
respect to the Securities.
(c) Upon the Company's exercise under
paragraph (a) of the option applicable to this
paragraph (c), the Company shall be released and
discharged from its obligations under any covenant
contained in Article Five and in Sections 4.07 through
4.18 with respect to the outstanding Securities on and
after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"), and the
Securities shall thereafter be deemed to be not
"outstanding" for the purpose 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
outstanding Securities, the Company and any Guarantor may
omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such
covenant to any other provision herein or in any other
document and such omission to comply shall not constitute
a Default or an Event of Default under Section 6.01(c),
but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected
thereby.
(d) The following shall be the conditions to
application of either paragraph (b) or paragraph (c)
above to the outstanding Securities:
(1) the Company shall irrevocably have
deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of
Section 7.11 who shall agree to comply with the
provisions of this Section 8.02 applicable to it) as
trust funds in trust for the purpose of making the
following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the
Holders of such Securities, (x) cash, in United
States dollars, in an amount sufficient, or
(y) direct non-callable obligations of, or
non-callable obligations guaranteed by, the United
States of America for the payment of which guarantee
or obligation the full faith and credit of the
United States is pledged ("U.S. Government
Obligations") maturing as to principal, premium, if
any, and interest in such amounts of cash, in United
States dollars, and at such times as are sufficient
without consideration of any reinvestment of such
interest, to pay principal of, premium, if any, and
interest on the outstanding Securities not later
than one day before the due date of any payment, or
(z) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of
independent public accountants expressed in a
written certification thereof delivered to, and in
form and substance reasonably satisfactory to, the
Trustee, to pay and discharge and which shall be
applied by the Trustee (or other qualifying trustee)
to pay and discharge principal of, premium, if any,
and interest on the outstanding Securities (except
lost, stolen or destroyed Securities which have been
replaced or repaid) on the Final Maturity Date or
otherwise in accordance with the terms of this
Indenture and of such Securities; provided, however,
that the Trustee (or other qualifying trustee) shall
have received an irrevocable written order from the
Company instructing the Trustee (or other qualifying
trustee) to apply such money or the proceeds of such
U.S. Government Obligations to said payments with
respect to the Securities;
(2) no Default or Event of Default or event
which with notice or lapse of time or both would
become a Default or an Event of Default with respect
to the Securities shall have occurred and be
continuing on the date of such deposit;
(3) such legal defeasance or covenant
defeasance shall not cause the Trustee to have a
conflicting interest with respect to any securities
of the Company;
(4) such legal defeasance or covenant
defeasance shall not result in a breach or violation
of, or constitute a Default or Event of Default
under, this Indenture or any other material
agreement or instrument to which the Company or any
Guarantor is a party or by which it is bound;
(5) in the case of an election under
paragraph (b) above, the Company shall have
delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or
there has been published by, the Internal Revenue
Service a ruling or (y) since the date of this
Indenture, there has been a change in the applicable
Federal income tax law, in either case to the effect
that, and based thereon such opinion 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 legal
defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the
same times as would have been the case if such legal
defeasance had not occurred;
(6) in the case of an election under
paragraph (c) above, the Company shall have
delivered to the Trustee an Opinion of Counsel 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;
(7) in the case of an election under either
paragraph (b) or (c) above, an Opinion of Counsel to
the effect that, (x) the trust funds will not be
subject to any rights of any other holders of
Indebtedness of the Company, and (y) after the 91st
day following the deposit, the trust funds will not
be subject to the effect of any applicable
Bankruptcy Law, insolvency, reorganization or
similar laws affecting creditor's rights; provided,
however, that if a court were to rule under any such
law in any case or proceeding that the trust funds
remained property of the Company, no opinion needs
to be given as to the effect of such laws on the
trust funds except the following: (A) assuming such
trust funds remained in the Trustee's possession
prior to such court ruling to the extent not paid to
Holders of Securities, the Trustee will hold, for
the benefit of the Holders of Securities, a valid
and enforceable security interest in such trust
funds that is not avoidable in bankruptcy or
otherwise, subject only to principles of equitable
subordination, (B) the Holders of Securities will be
entitled to receive adequate protection of their
interests in such trust funds if such trust funds
are used, and (C) no property, rights in property or
other interests granted to the Trustee or the
Holders of Securities in exchange for or with
respect to any of such funds will be subject to any
prior rights of any other person, subject only to
prior Liens granted under Section 364 of Title 11 of
the U.S. Bankruptcy Code (or any section of any
other Bankruptcy Law having the same effect), but
still subject to the foregoing clause (B); and
(8) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that (x) all conditions
precedent provided for relating to either the legal
defeasance under paragraph (b) above or the covenant
defeasance under paragraph (c) above, as the case
may be, have been complied with and (y) if any other
Indebtedness of the Company shall then be
outstanding or committed, such legal defeasance or
covenant defeasance will not violate the provisions
of the agreements or instruments evidencing such
Indebtedness.
(e) All money and U.S. Government Obligations
(including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for
purposes of this paragraph (e), the "Trustee") pursuant
to paragraph (d) above in respect of the outstanding
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 (other than the
Company or any Affiliate of the Company) 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 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 paragraph (d) above or the
principal, premium, if any, and interest received in
respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of
the outstanding Securities.
Anything in this Section 8.02 to the contrary
notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon the request, in writing,
by the Company any money or U.S. Government Obligations
held by it as provided in paragraph (d) above which, in
the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required
to be deposited to effect an equivalent legal defeasance
or covenant defeasance.
Section 8.03 Application of
Trust Money.
The Trustee shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to
Sections 8.01 and 8.02, and shall apply the deposited
money and the money from U.S. Government Obligations in
accordance with this Indenture to the payment of
principal of, premium, if any, and interest on the
Securities.
Section 8.04 Repayment to Company.
Subject to Sections 7.08, 8.01 and 8.02, the
Trustee shall promptly pay to the Company or if deposited
with the Trustee by any Guarantor, to such Guarantor,
upon receipt by the Trustee of an Officers' Certificate,
any excess money, determined in accordance with Section
8.02, held by it at any time. The Trustee and the Paying
Agent shall pay to the Company or any Guarantor, upon
receipt by the Trustee or the Paying Agent, as the case
may be, of an Officers' Certificate, any money held by it
for the payment of principal, premium, if any, or
interest that remains unclaimed for two years after
payment to the Holders is required; provided, however,
that the Trustee and the Paying Agent before being
required to make any payment may, but need not, at the
expense of the Company cause to be published once in a
newspaper of general circulation in The City of New York
or mail to each Holder entitled to such money notice that
such money remains unclaimed and that after a date
specified therein, which shall be at least 30 days from
the date of such publication or mailing, any unclaimed
balance of such money then remaining will be repaid to
the Company. After payment to the Company or any
Guarantor, Holders entitled to money must look solely to
the Company for payment as general creditors unless an
applicable abandoned property law designates another
person, and all liability of the Trustee or Paying Agent
with respect to such money shall thereupon cease.
Section 8.05 Reinstatement.
If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in
accordance with this Indenture by reason of any legal
proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then and only
then the Company's and any Guarantor's obligations under
this Indenture and the Securities shall be revived and
reinstated as though no deposit had been made pursuant to
this Indenture until such time as the Trustee is
permitted to apply all such money or U.S. Government
Obligations in accordance with this Indenture; provided,
however, that if the Company or a Guarantor has made any
payment of principal of, premium, if any, or interest on
any Securities because of the reinstatement of its
obligations, the Company or such Guarantor, as the case
may be, shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders.
The Company, when authorized by a Board
Resolution of its Board of Directors, and the Trustee may
amend, waive or supplement this Indenture or the
Securities without notice to or consent of any Holder:
(a) to cure any ambiguity, defect or
inconsistency;
(b) to comply with Article Five or Section
4.17;
(c) to provide for uncertificated Securities
in addition to certificated Securities;
(d) to comply with any requirements of the SEC
in order to effect or maintain the
qualification of this Indenture under the
TIA;
(e) to make any change that would provide any
additional benefit or rights to the
Holders or that does not adversely affect
the rights of any Holder.
Notwithstanding the above, the Trustee and the
Company may not make any change that adversely affects
the rights of any Holders hereunder. The Company shall
be required to deliver to the Trustee an Opinion of
Counsel stating that any such change made pursuant to
paragraph (a) or (e) of this Section 9.01 does not
adversely affect the rights of any Holder.
Section 9.02 With Consent of Holders.
Subject to Section 6.04, the Company, when
authorized by a Board Resolution of its Board of
Directors, and the Trustee may amend this Indenture or
the Securities with the written consent of the Holders of
not less than a majority in aggregate principal amount of
the Securities then outstanding, and the Holders of not
less than a majority in aggregate principal amount of the
Securities then outstanding by written notice to the
Trustee may waive future compliance by the Company or any
Guarantor with any provision of this Indenture, the
Guarantees or the Securities.
Notwithstanding the provisions of this
Section 9.02, without the consent of each Holder
affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(a) reduce the percentage in outstanding
aggregate principal amount of Securities
the Holders of which must consent to an
amendment, supplement or waiver of any
provision of this Indenture, any Guarantee
or the Securities;
(b) reduce or change the rate or time for
payment of interest on any Security;
(c) change the currency in which any Security,
or any premium or interest thereon, is
payable;
(d) reduce the principal amount outstanding of
or extend the fixed maturity of any
Security or alter the redemption
provisions with respect thereto;
(e) waive a default in the payment of the
principal of, premium, if any, or interest
on, or redemption or an offer to purchase
required hereunder with respect to, any
Security;
(f) make the principal of, premium, if any, or
interest on any Security payable in money
other than that stated in the Security;
(g) modify this Section 9.02 or Section 6.04
or Section 6.07;
(h) amend, alter, 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 or make
and consummate the offer with respect to
any Asset Sale or modify any of the
provisions or definitions with respect
thereto;
(i) modify or change any provision of this
Indenture affecting the subordination or
ranking of the Securities or any Guarantee
in a manner adverse to the Holders; or
(j) impair the right to institute suit for the
enforcement of any payment on or with
respect to the Securities; or
(k) release any Guarantor from any of its
obligations under its Guarantee or this
Indenture other than in compliance with
Section 4.17.
It shall not be necessary for the consent of
the Holders under this Section 9.02 to approve the
particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under
this Section 9.02 becomes effective, the Company shall
mail to the Holder of each Security affected thereby,
with a copy to the Trustee, a notice briefly describing
the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of
any amendment, supplement or waiver.
Section 9.03 Compliance with
Trust Indenture Act.
Every amendment of or supplement to this
Indenture, any Guarantee or the Securities shall comply
with the TIA as then in effect.
Section 9.04 Revocation and Effect of
Consents.
Until an amendment, supplement or waiver
becomes effective, a consent to it by a Holder is a
continuing consent by such Holder and every subsequent
Holder of that Security or portion of that Security that
evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent
Holder may revoke the consent as to his Security or
portion of a Security prior to such amendment, supplement
or waiver becoming effective. Such revocation shall be
effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or
waiver becomes effective. Notwithstanding the above,
nothing in this paragraph shall impair the right of any
Holder under Sec. 316(b) of the TIA.
The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the
Holders entitled to consent to any amendment, supplement
or waiver. If a record date is fixed, then
notwithstanding the second and third sentences of the
immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated
proxies), and only those persons, shall be entitled to
consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such
persons continue to be Holders after such record date.
Such consent shall be effective only for actions taken
within 90 days after such record date.
After an amendment, supplement or waiver
becomes effective, it shall bind every Holder; unless it
makes a change described in any of clauses (a) through
(k) of Section 9.02; if it makes such a change, the
amendment, supplement or waiver shall bind every
subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder's
Security.
Section 9.05 Notation on or Exchange of
Securities.
If an amendment, supplement or waiver changes
the terms of a Security, the Trustee shall (in accordance
with the specific direction of the Company) request the
Holder of the Security to deliver it to the Trustee. The
Trustee shall (in accordance with the specific direction
of the Company) place an appropriate notation on the
Security about the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new
Security that reflects the changed terms. Failure to
make the appropriate notation or issue a new Security
shall not affect the validity and effect of such
amendment, supplement or waiver.
Section 9.06 Trustee May Sign Amendments,
etc.
The Trustee shall sign any amendment,
supplement or waiver authorized pursuant to this Article
Nine if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may,
but need not, sign it. In signing or refusing to sign
such amendment, supplement or waiver, the Trustee shall
be entitled to receive, and shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of any amendment,
supplement or waiver is authorized or permitted by this
Indenture, that it is not inconsistent herewith and that
it will be valid and binding upon the Company in
accordance with its terms.
ARTICLE TEN
MISCELLANEOUS
Section 10.01 Trust Indenture Act of 1939.
This Indenture is subject to the provisions of
the TIA that are required to be a part of this Indenture,
and shall, to the extent applicable, be governed by such
provisions.
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 excluded, as the case may be.
Section 10.02 Notices.
Any notice or communication shall be
sufficiently given if in writing and delivered in person
or mailed by first class mail, postage prepaid, addressed
as follows:
If to the Company to:
Brown Group, Inc.
8300 Maryland Avenue
St. Louis, Missouri 63105
Attention: Secretary
With a copy to:
Bryan Cave LLP
1 Metropolitan Square, Suite 3600
St. Louis, Missouri 63102
Attention: James L. Nouss, Jr., Esq.
If to the Trustee to:
State Street Bank and Trust Company
2 International Place
Boston, Massachusetts 02110
Attention: Corporate Trust Administration
The parties hereto by notice to the other
parties may designate additional or different addresses
for subsequent notices or communications.
Any notice or communication mailed, postage
prepaid, to a Holder, including any notice delivered in
connection with TIA Sec. 310(b), TIA Sec. 313(c), TIA Sec.
314(a) and TIA Sec. 315(b), shall be mailed by first class mail to
such Holder at the address of such Holder as it appears
on the Securities register maintained by the Registrar
and shall be sufficiently given to such Holder if so
mailed within the time prescribed. Copies of any such
communication or notice to a Holder shall also be mailed
to the Trustee.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its
sufficiency with respect to other Holders. Except for a
notice to the Trustee, which is deemed given only when
received, if a notice or communication is mailed in the
manner provided above, it is duly given, whether or not
the addressee receives it.
Section 10.03 Communication by Holders with
Other Holders.
Holders may communicate pursuant to TIA
Sec. 312(b) with other Holders with respect to their rights
under this Indenture or the Securities. The obligors,
the Trustee, the Registrar and any other person shall
have the protection of TIA Sec. 312(c).
Section 10.04 Certificate and Opinion as to
Conditions Precedent.
Upon any request or application by the Company
or any Guarantor to the Trustee to take any action under
this Indenture, such obligor shall furnish to the
Trustee:
(1) an Officers' Certificate stating that, in
the opinion of the signers, all conditions
precedent, if any, provided for in this
Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel stating that, in the
opinion of such counsel, all such
conditions precedent have been complied
with.
Section 10.05 Statements Required in
Certificate or Opinion.
Each certificate or opinion with respect to
compliance with a condition or covenant provided for in
this Indenture shall include:
(1) a statement that the person making such
certificate or opinion has read such
covenant or condition;
(2) a brief statement as to the nature and
scope of the examination or investigation
upon which the statement or opinions
contained in such certificate or opinion
are based;
(3) a statement that, in the opinion of such
person, he has made such examination or
investigation as is necessary to enable
him to express an opinion as to whether or
not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the
opinion of such person, such condition or
covenant has been complied with; provided,
however, that with respect to matters of
fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of
public officials.
Section 10.06 Rules by Trustee,
Paying Agent, Registrar.
The Trustee may make reasonable rules for
action by or at a meeting of Securityholders. The Paying
Agent or Registrar may make reasonable rules for its
functions.
Section 10.07 Governing Law.
The laws of the State of New York shall govern
this Indenture and the Securities without regard to
principles of conflicts of law. The Trustee, the Company
and the Holders agree to submit to the jurisdiction of
the courts of the State of New York in any action or
proceeding arising out of or relating to this Indenture
or the Securities.
Section 10.08 No Interpretation of Other
Agreements.
This Indenture may not be used to interpret
another indenture, loan or debt agreement of the Company
or any of its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this
Indenture.
Section 10.09 No Recourse Against Others.
A director, officer, employee, stockholder or
Affiliate, as such, of the Company or any Guarantor shall
not have any liability for any obligations of the Company
under the Securities or this Indenture or for any
obligations of a Guarantor under any Guarantee or for any
claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder by accepting
a Security waives and releases all such liability.
Section 10.10 Successors.
All agreements of the Company and any Guarantor
in this Indenture and the Securities and the Guarantees
shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successors.
Section 10.11 Duplicate Originals.
The parties may sign any number of copies of
this Indenture. Each signed copy shall be an original,
but all such executed copies together represent the same
agreement.
Section 10.12 Separability.
In case any provision in this Indenture, any
Guarantee or the Securities 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, and a Holder shall have no
claim therefor against any party hereto.
Section 10.13 Table of Contents, Headings,
etc.
The Table of Contents, Cross-Reference Table
and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall
in no way modify or restrict any of the terms or
provisions hereof.
<PAGE>
Section 10.14 Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give to any person, other than
the parties hereto and their successors hereunder, and
the Holders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BROWN GROUP, INC.
By:
Name:
Title:
STATE STREET BANK AND
TRUST COMPANY
By:
Name:
Title:
<PAGE>
EXHIBIT A
FORM OF SECURITY
BROWN GROUP, INC.
9-1/2% Senior Notes
Due 2006
CUSIP No.:
No. [ ] $[ ]
BROWN GROUP, INC., a New York corporation (the
"Company", which term includes any successor
corporation), for value received promises to pay to
[ ] or registered assigns, the principal sum of
$[ ] Dollars, on October 15, 2006.
Interest Payment Dates: April 15 and
October 15 commencing April 15, 1997
Record Dates: April 1 and October 1
Reference is made to the further provisions of
this Security contained herein, which will for all
purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this
Security to be signed manually or by facsimile by its
duly authorized officers.
Dated: BROWN GROUP, INC.
By:
Name:
Title:
By:
Name:
Title:
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 9-1/2% Senior Notes due 2006,
described in the within-mentioned Indenture.
Dated: STATE STREET BANK
AND TRUST COMPANY,
as Trustee
By:
Authorized Signatory
<PAGE>
(REVERSE OF SECURITY)
BROWN GROUP, INC.
Senior Notes
due October 15, 2006
BROWN GROUP, INC., a New York corporation (the
"Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown
above. The Company will pay interest semi-annually on
April 15 and October 15 of each year (an "Interest
Payment Date"), commencing April 15, 1997. Interest on
the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been
paid, from the original date of issuance. Interest will
be computed on the basis of a 360-day year of twelve
30-day months.
The Company shall pay interest on overdue
principal from time to time on demand at the rate borne
by the Securities plus 2% and on overdue installments of
interest (without regard to any applicable grace periods)
at the same rate to the extent lawful.
2. Method of Payment.
The Company shall pay interest on the
Securities (except defaulted interest) to the persons who
are the registered Holders at the close of business on
the Record Date immediately preceding the Interest
Payment Date even if the Securities are cancelled on
registration of transfer or registration of exchange
after such Record Date. Holders must surrender
Securities to a Paying Agent to collect principal
payments. The Company shall pay principal and interest
in money of the United States that at the time of payment
is legal tender for payment of public and private debts
("U.S. Legal Tender"). However, the Company may pay
principal and interest by wire transfer of Federal funds,
or interest by check payable in such U.S. Legal Tender.
The Company may deliver any such interest payment to the
Paying Agent or to a Holder at the Holder's registered
address.
3. Paying Agent and Registrar.
Initially, State Street Bank and Trust Company
(the "Trustee") will act as Paying Agent and Registrar.
The Company may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders.
4. Indenture.
The Company issued the Securities under an
Indenture, dated as of October 1, 1996 (the "Indenture"),
between the Company and the Trustee. Capitalized terms
herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Securities
include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act
of 1939 (15 U.S.C. Sec. 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture until such time as
the Indenture is qualified under the TIA, and thereafter
as in effect on the date on which the Indenture is
qualified under the TIA. Notwithstanding anything to the
contrary herein, the Securities are subject to all such
terms, and Holders of Securities are referred to the
Indenture and the TIA for a statement of them. The
Securities are general unsecured obligations of the
Company.
5. Optional Redemption.
The Securities will be redeemable, at the
Company's option, in whole at any time or in part from
time to time, on and after October 15, 2001 at the
following redemption prices (expressed as percentages of
the principal amount) if redeemed during the twelve-month
period commencing on October 15 of the years set forth
below, plus, in each case, accrued interest thereon to
the date of redemption:
Year Percentages
---- -----------
2001. . . . . . . . . . . . . . . . . . . . . . . . . 104.750%
2002. . . . . . . . . . . . . . . . . . . . . . . . . 102.375%
2003. . . . . . . . . . . . . . . . . . . . . . . . . 101.188%
2004 and thereafter . . . . . . . . . . . . . . . . . 100.000%
6. Notice of Redemption.
Notice of redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date
to each Holder of Securities to be redeemed at such
Holder's registered address. Securities in denominations
of $1,000 may be redeemed only in whole. The Trustee may
select for redemption portions (equal to $1,000 or any
integral multiple thereof) of the principal of Securities
that have denominations larger than $1,000.
If any Security is to be redeemed in part only,
the notice of redemption that relates to such Security
shall state the portion of the principal amount thereof
to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in
the name of the Holder thereof upon cancellation of the
original Security. On and after the Redemption Date,
interest will cease to accrue on Securities or portions
thereof called for redemption.
7. Change of Control Offer.
Upon the occurrence of a Change of Control, the
Company will be required to offer to purchase all of the
outstanding Securities at a purchase price equal to 101%
of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of repurchase.
8. Limitation on Disposition of Assets.
The Company is, subject to certain conditions,
obligated to make an offer to purchase Securities at 100%
of their principal amount plus accrued and unpaid
interest to the date of repurchase with certain net cash
proceeds of certain sales or other dispositions of assets
in accordance with the Indenture.
9. Denominations; Transfer; Exchange.
The Securities are in registered form, without
coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the
transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and
transfer documents and to pay certain transfer taxes or
similar governmental charges payable in connection
therewith as permitted by the Indenture. The Registrar
need not register the transfer of or exchange any
Securities or portions thereof selected for redemption,
except the unredeemed portion of any security being
redeemed in part.
10. Persons Deemed Owners.
The registered Holder of a Security shall be
treated as the owner of it for all purposes.
11. Unclaimed Funds.
If funds for the payment of principal or
interest remain unclaimed for two years, the Trustee and
the Paying Agent will repay the funds to the Company at
its request. After that, all liability of the Trustee and
such Paying Agent with respect to such funds shall cease.
12. Legal Defeasance and Covenant Defeasance.
The Company may be discharged from its
obligations under the Indenture and the Securities except
for certain provisions thereof, and may be discharged
from its obligations to comply with certain covenants
contained in the Indenture and the Securities, in each
case upon satisfaction of certain conditions specified in
the Indenture.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or
the Securities may be amended or supplemented with the
written consent of the Holders of at least a majority in
aggregate principal amount of the Securities then
outstanding and any existing Default or Event of Default
or compliance with any provision may be waived with the
consent of the Holders of a majority in aggregate
principal amount of the Securities then outstanding.
Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity,
defect or inconsistency, provide for uncertificated
Securities in addition to or in place of certificated
Securities or comply with any requirements of the SEC in
connection with the qualification of the Indenture under
the TIA, or make any other change that does not adversely
affect the rights of any Holder of a Security.
14. Restrictive Covenants.
The Indenture contains certain covenants that,
among other things, limit the ability of the Company and
certain of its subsidiaries to make restricted payments,
to incur indebtedness, to create liens, to issue
preferred or other capital stock of subsidiaries, to sell
assets, to permit restrictions on dividends and other
payments by subsidiaries to the Company, to consolidate,
merge or sell all or substantially all of its assets or
to engage in transactions with affiliates. The
limitations are subject to a number of important
qualifications and exceptions. The Indenture also
provides that during any period of time that (i) the
ratings assigned to the Securities by both Moody's and
S&P are equal to or higher than Baa3 and BBB - or the
equivalents thereof, respectively, and (ii) no Event of
Default or Default has occurred and is continuing, the
Company and its Subsidiaries will not be subject to
certain of the above-referenced covenants.
15. Defaults and Remedies.
If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of Securities then outstanding
may declare all the Securities to be due and payable
immediately in the manner and with the effect provided in
the Indenture. Holders of Securities may not enforce the
Indenture or the Securities except as provided in the
Indenture. The Trustee is not obligated to enforce the
Indenture or the Securities unless it has received
indemnity satisfactory to it. The Indenture permits,
subject to certain limitations therein provided, Holders
of a majority in aggregate principal amount of the
Securities then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold
from Holders of Securities notice of any continuing
Default or Event of Default (except a Default in payment
of principal, premium or interest, including an
accelerated payment) if it determines that withholding
notice is in their interest.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its
individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the
Company, its Subsidiaries and their respective Affiliates
as if it were not the Trustee.
17. No Recourse Against Others.
No stockholder, director, officer, employee or
incorporator, as such, of the Company shall have any
liability for any obligation of the Company under the
Securities or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their
creation. Each Holder of a Security by accepting a
Security waives and releases all such liability. The
waiver and release are part of the consideration for the
issuance of the Securities.
18. Authentication.
This Security shall not be valid until the
Trustee or authenticating agent signs the certificate of
authentication on this Security.
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name
of a Holder of a Security or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST
(= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures,
the Company has caused CUSIP numbers to be printed on the
Securities as a convenience to the Holders of the
Securities. No representation is made as to the accuracy
of such numbers as printed on the Securities and reliance
may be placed only on the other identification numbers
printed hereon.
21. Registration Rights.
The Holder of this Security is entitled to
certain benefits pursuant to the Registration Rights
Agreement. The Holders shall be entitled to receive
certain additional interest payments upon certain
conditions, all pursuant to and in accordance with the
terms of the Registration Rights Agreement.
The Company will furnish to any Holder of a
Security upon written request and without charge a copy
of the Indenture or Registration Rights Agreement.
Requests may be made to: Brown Group, Inc.,
8300 Maryland Avenue, St. Louis, Missouri 63105, Attn:
Corporate Secretary.
<PAGE>
ASSIGNMENT FORM
I or we assign and transfer this Security to
--------------------------------------------------------
--------------------------------------------------------
(Print or type name, address and zip code of assignee or
transferee)
-------------------------------------------------------
(Insert Social Security or other identifying number of
assignee or transferee)
and irrevocably appoint
---------------------------------
agent to transfer this Security on the books of the
Company. The agent may substitute another to act for
him.
Date: Signed: ___________________
(Sign exactly as
name appears on the
other side of this
Security)
Signature Guarantee: ______________________________________
Participant in a recognized Signature
Guarantee Medallion Program
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security
purchased by the Company pursuant to Section 4.12 or
Section 4.13 of the Indenture, check the appropriate box:
Section 4.12 [ ] Section 4.13 [ ]
If you want to elect to have only part of this
Security purchased by the Company pursuant to Section
4.12 or Section 4.13 of the Indenture, state the amount:
$
Date: Your Signature:__________________________
(Sign exactly as your
name appears on the other
side of this Security)
Signature Guarantee:
Participant in a recognized Signature Guarantee
Medallion Program
<PAGE>
EXHIBIT B
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT 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) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR") OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT
WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF,
(B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE AND THE COMPANY A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE
UNITED STATES TO PERSONS OTHER THAN U.S. PERSONS IN
OFFSHORE TRANSACTIONS MEETING THE REQUIREMENTS OF RULE
904 UNDER REGULATION S UNDER THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION
S UNDER THE SECURITIES ACT.
<PAGE>
EXHIBIT C
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered
hereunder shall bear a legend (which would be in addition
to any other legends required in the case of a Restricted
Security) in substantially the following form:
THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A
DEPOSITORY OR A SUCCESSOR
DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITORY OR ITS
NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY)
MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY 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.
<PAGE>
EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 9-1/2% Senior Notes due 2006 (the
"Securities"), of Brown Group, Inc.
This Certificate relates to $ principal
amount of Securities held in the form of* a
beneficial interest in a Global Security or*
Physical Securities by (the "Transferor").
The Transferor:*
* has requested by written
order that the Registrar deliver in
exchange for its beneficial interest in
the Global Security held by the
Depositary a Physical Security or
Physical Securities in definitive,
registered form of authorized
denominations and an aggregate number
equal to its beneficial interest in such
Global Security (or the portion thereof
indicated above); or
* has requested that the
Registrar by written order exchange or
register the transfer of a Physical
Security or Physical Securities.
In connection with such request and in respect
of each such Security, the Transferor does hereby certify
that the Transferor is familiar with the Indenture
relating to the above captioned Securities and the
restrictions on transfers thereof as provided in Section
2.16 of such Indenture, and that the transfer of this
Securities does not require registration under the
Securities Act of 1933, as amended (the "Act") because*:
* Such Security is being
acquired for the Transferor's own
account, without transfer (in
satisfaction of Section 2.16(a)(II)(A)
or Section 2.16(d)(i)(A) of the
Indenture).
* Such Security is being
transferred to a "qualified
institutional buyer" (as defined in Rule
144A under the Act), in reliance on Rule
144A.
* Such Security is being
transferred to an institutional
"accredited investor" (within the
meaning of subparagraphs (a)(1), (2),
(3) or (7) of Rule 501 under the Act.
* Such Security is being
transferred in reliance on Regulation S
under the Act
* Such Security is being
transferred in reliance on Rule 144
under the Act.
* Such Security is being
transferred in reliance on and in
compliance with an exemption from the
registration requirements of the Act
other than Rule 144A, Rule 144 or
Regulation S under the Act (and upon an
opinion of counsel if the Company so
requests) to a person other than an
institutional "accredited investor."
----------------------------
[INSERT NAME OF TRANSFEROR]
By:
---------------------------
[Authorized Signatory]
Date:
-------------------------------
*Check applicable box
<PAGE>
EXHIBIT E
Form of Certificate To Be
Delivered in Connection with
Transfers to Institutional Accredited Investors
____________,
State Street Bank and Trust Company
2 International Place
Boston, Massachusetts 02110
Attention: Corporate Trust Services
Re: Brown Group, Inc. (the "Company")
Indenture (the "Indenture") relating to
9-1/2% Senior Notes due 2006
Ladies and Gentlemen:
In connection with our proposed purchase of 9-1/2%
Senior Notes due 2006 (the "Securities"), of Brown Group,
Inc. (the "Company"), we confirm that:
1. We have received such information as we
deem necessary in order to make our investment decision.
2. We understand that any subsequent transfer
of the Securities is subject to certain restrictions and
conditions set forth in the Indenture and the undersigned
agrees to be bound by, and not to resell, pledge or
otherwise transfer the Securities except in compliance
with, such restrictions and conditions and the Securities
Act of 1933, as amended (the "Securities Act").
3. We understand that the offer and sale of
the Securities have not been registered under the
Securities Act, and that the Securities may not be
offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except as
permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell any
Securities, we will do so only (A) to the Company or any
subsidiary thereof, (B) inside the United States in
accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein),
(C) inside the United States to an institutional
"accredited investor" (as defined below) that, prior to
such transfer, furnishes (or has furnished on its behalf
by a U.S. broker-dealer) to the Trustee a signed letter
substantially in the form hereof, (D) outside the United
States in accordance with Regulations S under the
Securities Act (upon an opinion of counsel if the Company
so requests), (E) pursuant to the exemption from
registration provided by Rule 144 under the Securities
Act (if available), or (F) pursuant to an effective
registration statement under the Securities Act, and we
further agree to provide to any person purchasing
Securities from us a notice advising such purchaser that
resales of the Securities are restricted as stated
herein.
4. We understand that, on any proposed resale
of Securities, we will be required to furnish to the
Trustee and the Company, such certification, legal
opinions and other information as the Trustee and the
Company may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions.
We further understand that the Securities purchased by us
will bear a legend to the foregoing effect.
5. We are an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act) and have such
knowledge and experience in financial and business
matters as to be capable of evaluating the merits and
risks of our investment in the Securities, and we and any
accounts for which we are acting are each able to bear
the economic risk of our or their investment, as the case
may be.
6. We are acquiring the Securities purchased
by us for our account or for one or more accounts (each
of which is an institutional "accredited investor") as to
each of which we exercise sole investment discretion.
<PAGE>
You and the Company are entitled to rely upon
this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
[Authorized Signatory]
<PAGE>
EXHIBIT F
Form of Certificate To Be
Delivered in Connection
with Regulation S Transfers
,
State Street Bank and Trust Company
2 International Place
Boston, Massachusetts 02110
Attention: Corporate Trust Services
Re: Brown Group, Inc. (the "Company") 9-1/2%
Senior Notes due 2006 (the "Securities")
Dear Sirs:
In connection with our proposed sale of
$ aggregate principal amount of the Securities,
we confirm that such sale has been effected pursuant to
and in accordance with Regulation S under the Securities
Act of 1933, as amended (the "Securities Act"), and,
accordingly, we represent that:
(1) the offer of the Securities was not
made to a person in the United States;
(2) either (a) at the time the buy offer
was originated, the transferee was outside the
United States or we and any person acting on our
behalf reasonably believed that the transferee was
outside the United States, or (b) the transaction
was executed in, on or through the facilities of a
designated off-shore securities market and neither
we nor any person acting on our behalf knows that
the transaction has been pre-arranged with a buyer
in the United States;
(3) no directed selling efforts have been
made in the United States in contravention of the
requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan
or scheme to evade the registration requirements
of the Securities Act;
(5) we have advised the transferee of the
transfer restrictions applicable to the
Securities; and
(6) we have provided the Company with an
opinion of counsel if the Company has so
requested.
REGISTRATION RIGHTS AGREEMENT
Dated as of October 7, 1996
by
BROWN GROUP, INC.
and
SMITH BARNEY INC.,
FIRST CHICAGO CAPITAL MARKETS, INC.
and
DILLON, READ & CO. INC.
(as Initial Purchasers)
$100,000,000
9-1/2% SENIOR NOTES DUE 2006
<PAGE>
This Registration Rights Agreement is dated as of
October 7, 1996, by and among Brown Group, Inc., a New York
corporation (the "Company"), and Smith Barney Inc., First
Chicago Capital Markets, Inc. and Dillon, Read & Co. Inc.
(collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase
Agreement, dated October 1, 1996, among the Company and the
Initial Purchasers (the "Purchase Agreement"). In order to
induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide the
registration rights provided for in this Agreement to the
Initial Purchasers and their direct and indirect transferees
and assigns. The execution and delivery of this Agreement
is a condition to the closing of the transactions
contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms
shall have the following meanings:
Additional Interest: As defined in Section 4(a)
hereof.
Affiliate: With respect to any specified person,
"Affiliate" shall mean any other person directly or
indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For the
purposes of this definition, "control," when used with
respect to any person, means the power to direct the
management and policies of such person, directly or
indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms
"affiliated," "controlling" and "controlled" have meanings
correlative to the foregoing.
Agreement: This Registration Rights Agreement, as
the same may be amended, supplemented or modified from time
to time in accordance with the terms hereof.
Business Day: Any day except a Saturday, a Sunday
or a day on which banking institutions in New York, New York
generally are required or authorized by law or other
government action to be closed.
Company: As defined in the preamble hereof.
Company Indemnified Persons: As defined in
Section 7(c) hereof.
Consummate or consummate: When used to qualify
the term "Exchange Offer," shall mean validly and lawfully
to issue and deliver the Exchange Notes pursuant to the
Exchange Offer for all Notes validly tendered and not
validly withdrawn pursuant thereto in accordance with the
terms of this Agreement.
Consummation Date: The date that is 25 Business
Days immediately following the date that the Exchange
Registration Statement shall have been declared effective by
the SEC.
Effectiveness Period: As defined in Section 3(a)
hereof.
Exchange Act: The Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
by the SEC pursuant thereto.
Exchange Date: As defined in Section 2(d) hereof.
Exchange Notes: The 9-1/2% Senior Notes due 2006 of
the Company, that are identical to the Notes in all material
respects, except that the provisions regarding restrictions
on transfer shall be modified, as provided in the Indenture
(or the indenture pursuant to which the Exchange Notes are
issued), and the issuance thereof pursuant to the Exchange
Offer shall have been registered pursuant to an effective
Registration Statement in compliance with the Securities
Act.
Exchange Offer: An offer to issue, in exchange
for any and all of the Notes validly tendered, a like
aggregate principal amount of Exchange Notes, which offer
shall be made by the Company pursuant to Section 2 hereof.
Exchange Registration Statement: As defined in
Section 2(a) hereof.
Indemnified Holder: As defined in Section 7(a)
hereof.
Indemnified Person: As defined in Section 7(a)
hereof.
Indenture: The Indenture, dated as of October 1,
1996, between the Company and State Street Bank and Trust,
as trustee thereunder, pursuant to which the Notes are
issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchasers: As defined in the preamble
hereof.
Issue Date: As defined in Section 2(a).
Notes: The 9-1/2% Senior Notes due 2006 of the
Company, issued pursuant to the Indenture.
Participating Broker-Dealer: As defined in
Section 2(e) hereof.
Private Exchange: As defined in Section 2(c)
hereof.
Private Exchange Notes: As defined in Section
2(c) hereof.
Prospectus: The prospectus included in any
Registration Statement (including, without limitation, a
prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated pursuant to
the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the
offering of any portion of the Notes, Exchange Notes or
Private Exchange Notes covered by such Registration
Statement, and all other amendments and supplements to any
such prospectus, including post-effective amendments, and
all material incorporated by reference or deemed to be
incorporated by reference, if any, in such prospectus.
Registration Default: As defined in Section 4(a)
hereof.
Registration Statement: Any registration
statement of the Company that covers any of the Notes,
Exchange Notes or Private Exchange Notes pursuant to the
provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments,
all exhibits thereto, and all material incorporated by
reference or deemed to be incorporated by reference, if any,
in such registration statement.
Requesting Participating Broker-Dealer: As
defined in Section 2(e) hereof.
Rule 144(k): Rule 144(k) promulgated by the SEC
pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation
hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 144A: Rule 144A promulgated by the SEC
pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation
hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 158: Rule 158 promulgated by the SEC
pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation
hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 174: Rule 174 promulgated by the SEC
pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation
hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 415: Rule 415 promulgated by the SEC
pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation
hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 424: Rule 424 promulgated by the SEC
pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation
hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as
amended, and the rules and regulations promulgated by the
SEC thereunder.
Shelf Blackout Period: As defined in Section 3(a)
hereof.
Shelf Filing Event: As defined in Section 3(a)
hereof.
Shelf Registration: As defined in Section 3(a)
hereof.
Shelf Registration Statement: As defined in
Section 3(a) hereof.
Special Counsel: Chadbourne & Parke LLP, special
counsel to the holders of Transfer Restricted Notes, or such
other counsel as shall be agreed upon by the Company and
holders of a majority in aggregate principal amount of
Transfer Restricted Notes, the reasonable expenses of which
holders of Transfer Restricted Notes will be reimbursed by
the Company pursuant to Section 6 hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Note: Each Note, upon
original issuance thereof, and at all times subsequent
thereto, each Exchange Note as to which Section 3(a)(ii)
hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon
original issuance thereof and at all times subsequent
thereto, until in the case of any such Note, Exchange Note
or Private Exchange Note, as the case may be, the earliest
to occur of (i) the date on which any such Note has been
exchanged by a person other than a Participating Broker-
Dealer for an Exchange Note (other than with respect to an
Exchange Note as to which Section 3(a)(ii) hereof applies)
pursuant to the Exchange Offer, (ii) with respect to
Exchange Notes received by Participating Broker-Dealers in
the Exchange Offer, the date on which such Exchange Note has
been sold by such Participating Broker-Dealer by means of
the Prospectus contained in the Exchange Registration
Statement, (iii) a Shelf Registration Statement covering
such Note, Exchange Note or Private Exchange Note has been
declared effective by the SEC and such Note, Exchange Note
or Private Exchange Note, as the case may be, has been
disposed of in accordance with such effective Shelf
Registration Statement, (iv) the date on which such Note,
Exchange Note or Private Exchange Note, as the case may be,
is eligible for distribution to the public without volume or
manner of sale restrictions pursuant to Rule 144(k) or (v)
the date on which such Note, Exchange Note or Private
Exchange Note, as the case may be, ceases to be outstanding
for purposes of the Indenture or any other indenture under
which such Exchange Note or Private Exchange Note was
issued.
Trustee: The trustee under the Indenture.
Underwritten registration or underwritten
offering: A registration in connection with which
securities are sold to an underwriter for reoffering to the
public pursuant to an effective Registration Statement.
2. Exchange Offer
(a) To the extent not prohibited by any
applicable law or applicable interpretation of the staff of
the SEC, the Company shall (A) use its reasonable best
efforts to prepare and, on or prior to 45 days after the
date of original issuance of the Notes (the "Issue Date"),
file with the SEC a Registration Statement under the
Securities Act with respect to an offer by the Company to
the holders of the Notes to issue and deliver to such
holders, in exchange for Notes, a like principal amount of
Exchange Notes, (B) use its reasonable best efforts to cause
the Registration Statement relating to the Exchange Offer to
be declared effective by the SEC under the Securities Act on
or prior to 90 days after the Issue Date, and (C) promptly
following the declaration of the effectiveness of the
Exchange Registration Statement, commence the Exchange Offer
and use its reasonable best efforts to issue, on or prior to
the Consummation Date, the Exchange Notes in exchange for
all Notes tendered prior thereto into the Exchange Offer.
The offer and sale of the Exchange Notes pursuant to the
Exchange Offer shall be registered pursuant to the
Securities Act on an appropriate form (the "Exchange
Registration Statement") and duly registered or qualified
under all applicable state-securities or Blue Sky laws and
will comply with all applicable tender offer rules and
regulations under the Exchange Act and state securities or
Blue Sky laws. The Exchange Offer shall not be subject to
any condition, other than that the Exchange Offer does not
violate any applicable law or interpretation of the staff of
the SEC. No securities shall be included in the Exchange
Registration Statement other than the Exchange Notes.
(b) The Company may require each holder of Notes,
as a condition to its participation in the Exchange Offer,
to represent and warrant to the Company and its counsel in
writing (which may be contained in the applicable letter of
transmittal) that at the time of the consummation of the
Exchange Offer (i) any Exchange Notes received by such
holder will be acquired in the ordinary course of its
business, (ii) such holder will have no arrangement or
understanding with any person to participate in the
distribution (within the meaning of the Securities Act) of
the Exchange Notes, (iii) such holder is not an Affiliate of
the Company, or if it is an Affiliate of the Company, it
will comply with the registration and prospectus delivery
requirements of the Securities Act, to the extent applicable
and such holder has full power and authority to tender,
sell, assign and transfer the Notes and that upon
consummation of the Exchange Offer the Company will acquire
good, marketable and unencumbered title to the Notes, free
and clear of all security interests, liens, restrictions,
charges, encumbrances, conditional sales agreements or other
obligations relating to the sale or transfer of the Notes.
(c) If, prior to consummation of the Exchange
Offer, any Initial Purchaser holds any Notes acquired by it
and having, or which are reasonably likely to be determined
to have, based on the written advice of Special Counsel, the
status of an unsold allotment in the initial distribution,
or any other holder of Notes is not entitled, as a matter of
law or based on an interpretation or position of the staff
of the SEC, to participate in the Exchange Offer, the
Company, upon the request of such Initial Purchaser or any
such holder, shall, simultaneously with the delivery of the
Exchange Notes in the Exchange Offer, issue and deliver to
such Initial Purchaser and any such holder, in exchange (the
"Private Exchange") for such Notes held by such Initial
Purchaser and any such holder, a like principal amount of
debt securities of the Company that are identical in all
material respects to the Exchange Notes (the "Private
Exchange Notes") (and which are issued pursuant to the same
indenture as the Exchange Notes). The Private Exchange
Notes shall bear the same CUSIP number as the Exchange
Notes.
(d) Unless the Exchange Offer would not be
permitted by any applicable law or interpretation thereof of
the staff of the SEC, the Company shall deliver, or cause to
be delivered, the Exchange Offer Prospectus and appropriate
accompanying documents, including appropriate letters of
transmittal, to each holder of Notes providing, in addition
to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made
pursuant to this Agreement and that all Notes validly
tendered will be accepted for exchange;
(ii) the date of acceptance for exchange (the
"Exchange Date"), which date shall in no event be later
than the Consummation Date (unless otherwise required
by applicable law);
(iii) that a holder of a Note electing to have a
Note exchanged pursuant to the Exchange Offer will be
required to surrender such Note, together with the
enclosed letters of transmittal, to the institution and
at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice prior to
the close of business on the Exchange Date; and
(iv) that holders of Notes that do not validly
tender all such securities pursuant to the Exchange
Offer may no longer have any registration rights
hereunder with respect to Notes not validly tendered.
Promptly after the Exchange Date, the Company
shall:
(i) accept for exchange all Notes or portions
thereof validly tendered and not validly withdrawn
pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the
Trustee for cancellation all Notes or portions thereof
so accepted for exchange by the Company, and issue,
cause the Trustee under the Indenture (or the indenture
pursuant to which the Exchange Notes are issued) to
authenticate, and deliver, or cause to be delivered, to
each holder of Notes, Exchange Notes equal in principal
amount to the principal amount of the Notes surrendered
by such holder.
(e) The Company and the Initial Purchasers
acknowledge that the staff of the SEC has taken the position
that any broker-dealer that elects to exchange Notes that
were acquired by such broker-dealer for its own account as a
result of market-making or other trading activities for
Exchange Notes in the Exchange Offer (a "Participating
Broker-Dealer") may be deemed to be an "underwriter", within
the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes (other
than a resale of an unsold allotment resulting from the
original offering of the Notes).
The Company and the Initial Purchasers also
acknowledge that it is the SEC staff's position that if the
Prospectus contained in the Exchange Registration Statement
includes a plan of distribution containing a statement to
the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming
the Participating Broker-Dealers or specifying the amount of
Exchange Notes owned by them, such Prospectus may be
delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in
connection with resales of Exchange Notes for their own
accounts, so long as the Prospectus otherwise meets the
requirements of the Securities Act.
In light of the foregoing, if requested by a
Participating Broker-Dealer (a "Requesting Participating
Broker-Dealer"), the Company agrees (x) to use its
reasonable best efforts to keep the Exchange Registration
Statement continuously effective for a period of up to 90
days after the Consummation Date or such earlier date as
each Requesting Participating Broker-Dealer shall have
notified the Company in writing that such Requesting
Participating Broker-Dealer has resold all Exchange Notes
acquired in the Exchange Offer and (y) to comply with the
provisions of Section 5 of this Agreement, as they relate to
the Exchange Offer and the Exchange Registration Statement.
(f) The Initial Purchasers shall have no
liability to any Requesting Participating Broker-Dealer with
respect to any request made pursuant to Section 2(e).
(g) Interest on the Exchange Notes and the
Private Exchange Notes will accrue from the last interest
payment date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been
paid on the Notes, from the Issue Date.
(h) The Exchange Notes and the Private Exchange
Notes may be issued under (i) the Indenture or (ii) an
indenture identical in all material respects to the
Indenture, which in either event shall provide that the
Exchange Notes shall not be subject to the transfer
restrictions set forth in the Indenture. The Indenture or
such indenture shall provide that the Exchange Notes, the
Private Exchange Notes and the Notes shall vote and consent
together on all matters as one class and that neither the
Exchange Notes, the Private Exchange Notes nor the Notes
will have the right to vote or consent as a separate class
on any matter.
3. Shelf Registration
(a) If (i) the Company is not permitted to file
the Exchange Offer Registration Statement or to consummate
the Exchange Offer because the Exchange Offer is not
permitted by any applicable law or applicable interpretation
thereof by the staff of the SEC or (ii) any holder of a Note
notifies the Company on or prior to the Consummation Date
that (A) due to a change in law or applicable interpretation
thereof by the Staff of the SEC it is not entitled to
participate in the Exchange Offer, (B) due to a change in
law or applicable interpretation thereof by the Staff of the
SEC it may not resell Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus
and the Prospectus contained in the Exchange Registration
Statement is not appropriate or available for such resales
by such holder or (C) it is a broker-dealer and owns Notes
(including the Initial Purchasers with respect to Notes that
may be deemed to be a part of an unsold allotment from the
original offering of the Notes) acquired directly from the
Company or an Affiliate of the Company or (iii) any holder
of Private Exchange Notes so requests after the consummation
of the Private Exchange or (iv) the Company has not
consummated the Exchange Offer by the within 130 days of the
Issue Date and holders of a majority in principal amount of
Notes outstanding so request (each such event referred to in
clauses (i) through (iv), a "Shelf Filing Event"), the
Company shall cause to be filed with the SEC pursuant to
Rule 415 a shelf registration statement (the "Shelf
Registration Statement") prior to the later of (x) 60 days
after the Issue Date or (y) 30 days after the occurrence of
such Shelf Filing Event, relating to all Transfer Restricted
Notes (the "Shelf Registration") the holders of which have
provided the information required pursuant to Section 3(b)
hereof, and shall use its reasonable best efforts to have
the Shelf Registration Statement declared effective by the
SEC as promptly as possible, but no later than 90 days after
such Shelf Filing Event. In such circumstances, the Company
shall use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective under the
Securities Act, until (A) 36 months following the Issue Date
or (B) if sooner, the date immediately following the date
that all Transfer Restricted Notes covered by the Shelf
Registration Statement have been sold pursuant thereto or
otherwise cease to be Transfer Restricted Notes (the
"Effectiveness Period"); provided that the Effectiveness
Period shall be extended to the extent required to permit
dealers to comply with the applicable prospectus delivery
requirements of Rule 174; provided, further, that the
Company may suspend the effectiveness of a Shelf
Registration Statement, in the event that, and for a period
not to exceed 45 days in any calendar year (a "Shelf
Blackout Period") if, (a) (i) an event occurs and is
continuing as a result of which the Shelf Registration
Statement would, in the Company's good faith judgment,
contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein not misleading and (ii) if the Company
determines in good faith that the disclosure of such event
at such time would have a material adverse effect on the
business, operations or prospects of the Company or (b) the
disclosure otherwise relates to a pending material business
transaction which has not yet been publicly disclosed.
(b) No holder of Transfer Restricted Notes may
include any of its Transfer Restricted Notes in any Shelf
Registration Statement pursuant to Section 3(a) of this
Agreement unless and until such holder furnishes to the
Company in writing, within 7 days after receipt of a request
therefor, such information as the Company may reasonably
request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary prospectus included
therein. No holder of Transfer Restricted Notes shall be
entitled to Additional Interest pursuant to Section 4 hereof
unless and until such holder shall have provided all such
reasonably requested information within the time periods set
forth herein. Each holder of Transfer Restricted Notes as
to which any Shelf Registration Statement is being effected
agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information
previously furnished to the Company by such holder not
materially misleading.
4. Additional Interest
(a) The parties hereto agree that the holders of
Transfer Restricted Notes will suffer damages if the Company
fails to fulfill its obligations pursuant to Section 2 or
Section 3, as applicable, and that it would not be feasible
to ascertain the extent of such damages. Accordingly, in
the event that (i) the applicable Registration Statement is
not filed with the SEC on or prior to the date specified
herein for such filing, (ii) the applicable Registration
Statement has not been declared effective by the SEC on or
prior to the date specified herein for such effectiveness
after such obligation arises, (iii) if the Exchange Offer is
required to be consummated hereunder, the Company has not
exchanged Exchange Notes for all Notes validly tendered and
not validly withdrawn in accordance with the terms of the
Exchange Offer by or on the Consummation Date or (iv) except
during a Shelf Blackout Period, the applicable Registration
Statement is filed and declared effective but shall
thereafter cease to be effective or usable in connection
with the Exchange Offer or resales of Transfer Restricted
Notes during a period in which it is required to be
effective hereunder (each such event referred to in clauses
(i) through (iv), a "Registration Default"), then the
interest rate on Transfer Restricted Notes will increase
("Additional Interest"), with respect to the first 90-day
period immediately following the occurrence of such
Registration Default, by 0.25% per annum and will increase
by an additional 0.25% per annum with respect to each
subsequent 90-day period until such Registration Default has
been cured, up to a maximum amount of 1.5% per annum with
respect to all Registration Defaults. Following the cure of
a Registration Default, the accrual of Additional Interest
with respect to such Registration Default will cease and
upon the cure of all Registration Defaults the interest rate
will revert to the original rate.
(b) The Company shall notify the Trustee and
paying agent under the Indenture (or the trustee and paying
agent under such other indenture under which any Transfer
Restricted Notes are issued) immediately upon the happening
of each and every Registration Default. The Company shall
pay the Additional Interest due on the Transfer Restricted
Notes by depositing with the paying agent (which shall not
be the Company for these purposes) for the Transfer
Restricted Notes, in trust, for the benefit of the holders
thereof, prior to 11:00 A.M. on the next interest payment
date specified by the Indenture (or such other indenture),
sums sufficient to pay the Additional Interest then due.
The Additional Interest due shall be payable on each
interest payment date specified by the Indenture (or such
other indenture) to the record holders entitled to receive
the interest payment to be made on such date. Each
obligation to pay Additional Interest shall be deemed to
accrue from and including the applicable Registration
Default.
(c) The parties hereto agree that the Additional
Interest provided for in this Section 4 constitutes a
reasonable estimate of the damages that will be suffered by
holders of Transfer Restricted Notes by reason of the
happening of any Registration Default.
5. Registration Procedures
In connection with the Company's registration
obligations hereunder, the Company shall effect such
registrations on the appropriate form available for the sale
of the Notes, the Exchange Notes or Private Exchange Notes,
as applicable, to (i) in the case of the Exchange Offer,
permit the exchange of Exchange Notes for Notes in the
Exchange Offer and, if applicable, resales of Exchange Notes
by Participating Broker-Dealers and (ii) in the case of a
Shelf Registration, permit the sale of the applicable
Transfer Restricted Notes in accordance with the method or
methods of disposition thereof specified by the holders of
such Transfer Restricted Notes, and pursuant thereto the
Company shall as expeditiously as reasonably possible:
(a) Furnish to the Initial Purchasers, and with
respect to any Shelf Registration Statement the holders
of the Transferred Restricted Notes included therein,
prior to the filing thereof with the SEC, a copy of a
draft of the Registration Statement and each amendment
thereto and each supplement, if any, to the prospectus
included therein and, in the event that the Initial
Purchasers (with respect to any portion of an unsold
allotment from the original offering) are participating
in the Exchange Offer or the Shelf Registration, shall
use reasonable efforts to reflect in each such
document, when so filed with the SEC, such comments as
the Initial Purchasers or their Special Counsel
reasonably may propose;
(b) Prepare and file with the SEC such
amendments, including post-effective amendments, to
each Registration Statement as may be necessary to keep
such Registration Statement continuously effective for
the applicable time period required hereunder; cause
the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424; and comply with the
provisions of the Securities Act and the Exchange Act
with respect to the disposition of all securities
covered by such Registration Statement during such
period in accordance with the intended methods of
disposition by the sellers thereof set forth in such
Registration Statement as so amended or in such
Prospectus as so supplemented;
(c) Notify the holders of Transfer Restricted
Notes to be sold or, in the case of an Exchange Offer,
tendered for, through their Special Counsel and the
managing underwriters, if any, promptly, and (if
requested by any such person), confirm such notice in
writing, (i)(A) when a Prospectus or any Prospectus
supplement or post-effective amendment is proposed to
be filed, and (B) with respect to a Registration
Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the
SEC or any other Federal or state governmental
authority for amendments or supplements to a
Registration Statement or related Prospectus or for
additional information, (iii) of the issuance by the
SEC, any state securities commission, any other
governmental agency or any court of any stop order or
injunction suspending or enjoining the use of a
Prospectus or the effectiveness of a Registration
Statement or the initiation of any proceedings for that
purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the
qualification or exemption from qualification of any of
the Notes, Exchange Notes or Private Exchange Notes for
sale in any jurisdiction, or the initiation or, to the
knowledge of the Company, threatening of any proceeding
for such purpose, and (v) of the happening of any event
or information becoming known to the Company that makes
any statement made in a Registration Statement or
related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of
any changes in such Registration Statement, Prospectus
or documents so that it will not contain any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or
necessary to make the statements therein, not
misleading, and that in the case of a Prospectus, it
will not contain any untrue statement of a material
fact or omit to state any material fact required to be
stated therein or necessary to make the statements
therein, in light of the circumstances under which they
were made, not misleading;
(d) Use its best efforts to avoid the issuance of
or, if issued, obtain the withdrawal of any order
enjoining or suspending the use of a Prospectus or the
effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or
exemption from qualification) of any of the Notes,
Exchange Notes or Private Exchange Notes for sale in
any jurisdiction, at the earliest practicable moment;
(e) If a Shelf Registration Statement is filed
pursuant to Section 3 hereof and if requested by the
managing underwriters, if any, or the holders of a
majority in aggregate principal amount of the Transfer
Restricted Notes being sold pursuant to such Shelf
Registration Statement, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, and
such holders reasonably believe should be included
therein based on written advice of counsel to such
managing underwriter, if any, and/or Special Counsel,
and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment under the
Securities Act as soon as practicable after the Company
has received notification of the matters to be
incorporated in such Prospectus supplement or post-
effective amendment; provided, however, that the
Company shall not be required to take any action
pursuant to this Section 5(e) that would, in the
opinion of counsel for the Company, violate applicable
law;
(f) Upon written request to the Company by a
holder of Notes, Exchange Notes or Private Exchange
Notes to be exchanged or sold pursuant to a
Registration Statement, their Special Counsel and each
managing underwriter, if any, without charge, furnish
at least one conformed copy of such Registration
Statement and each amendment thereto, including
financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by
reference, and all exhibits to the extent requested
(including those previously furnished or incorporated
by reference) as soon as reasonably practicable after
the filing of such documents with the SEC;
(g) Deliver to each holder of Notes, Exchange
Notes or Private Exchange Notes to be exchanged or sold
pursuant to a Registration Statement, their Special
Counsel, and the underwriters, if any, without charge,
as many copies of the Prospectus (including each form
of prospectus) and each amendment or supplement thereto
as such persons reasonably request; and the Company
hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling
holders of Transfer Restricted Notes and the
underwriters, if any, in connection with the offering
and sale of the Transfer Restricted Notes covered
thereby in accordance with the terms thereof and with
U.S. Federal securities laws and Blue Sky laws covered
by such Prospectus and any amendment or supplement
thereto;
(h) Prior to any public offering of Notes,
Exchange Notes or Private Exchange Notes, use its best
efforts to register or qualify or cooperate with the
holders of Notes, Exchange Notes or Private Exchange
Notes to be sold or tendered for, the underwriters, if
any, and their respective counsel in connection with
the registration or qualification (or exemption from
such registration or qualification) of such Notes,
Exchange Notes or Private Exchange Notes for offer and
sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any such
holder or underwriter reasonably requests in writing;
keep each such registration or qualification (or
exemption therefrom) effective during the period such
Registration Statement is required to be kept effective
hereunder and do any and all other acts or things
necessary or advisable to enable the disposition in
such jurisdictions of the Notes, Exchange Notes or
Private Exchange Notes covered by the applicable
Registration Statement; provided, however, that the
Company shall not be required to (i) qualify generally
to do business in any jurisdiction where it is not then
so qualified or (ii) take any action which would
subject it to general service of process or to taxation
in any jurisdiction where it is not so subject;
(i) In connection with any sale or transfer of
Transfer Restricted Notes that will result in such
securities no longer being Transfer Restricted Notes,
cooperate with the holders thereof and the managing
underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing
Transfer Restricted Notes to be sold, which
certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with The
Depository Trust Company and to enable such Transfer
Restricted Notes to be in such denominations and
registered in such names as the managing underwriters,
if any, or such holders may request at least two
Business Days prior to any sale of Transfer Restricted
Notes;
(j) Upon the occurrence of any event contemplated
by Section 5(c)(v), as promptly as practicable, prepare
a supplement or amendment, including, if appropriate, a
post-effective amendment, to each Registration
Statement or a supplement to the related Prospectus or
any document incorporated or deemed to be incorporated
therein by reference, and file any other required
document so that, as thereafter delivered, such
Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required
to be stated therein or necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading;
(k) Prior to the effective date of the Exchange
Registration Statement, to provide a CUSIP number for
the Exchange Notes (and, as promptly as practicable,
the Private Exchange Notes, if applicable);
(l) In connection with a Shelf Registration
Statement filed pursuant to Section 3 hereof, use its
best efforts to enter into such agreements (including
an underwriting agreement in form, scope and substance
as is customary in underwritten offerings) and take all
such other reasonable actions in connection therewith
(including those reasonably requested by the managing
underwriters, if any, or the holders of a majority in
aggregate principal amount of the Transfer Restricted
Notes being sold) in order to expedite or facilitate
the disposition of such Transfer Restricted Notes, and,
whether or not an underwriting agreement is entered
into and whether or not the registration is an
underwritten registration, (i) make such
representations and warranties to the holders of such
Transfer Restricted Notes and the underwriters, if any,
with respect to the business of the Company and its
subsidiaries (including with respect to businesses or
assets acquired or to be acquired by any of them), and
the Shelf Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in
form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings, and
confirm the same if and when customarily requested;
(ii) use its best efforts to obtain opinions of counsel
to the Company and updates thereof relating to the
applicable Registration Statement and the Notes,
Exchange Notes or Private Exchange Notes covered
thereby in customary form (which counsel and opinions
(in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and
Special Counsel to the holders of the Transfer
Restricted Notes being sold), addressed to each selling
holder of Transfer Restricted Notes and each of the
underwriters, if any, covering the matters customarily
covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested
by such Special Counsel and the managing underwriters,
if any; (iii) use its best efforts to obtain customary
"cold comfort" letters and updates thereof from the
independent certified public accountants of the Company
(and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or
of any business acquired by the Company or any such
subsidiary for which financial statements and financial
data is, or is required to be, included in the Shelf
Registration Statement), addressed (where reasonably
possible) to each selling holder of Transfer Restricted
Notes and each of the underwriters, if any, such
letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters
in connection with underwritten offerings; (iv) if an
underwriting agreement is entered into, the same shall
contain customary indemnification provisions and
procedures (or such other provisions and procedures
acceptable to holders of a majority in aggregate
principal amount of Transfer Restricted Notes covered
by such Shelf Registration Statement and the managing
underwriters, if any); and (v) deliver such documents
and certificates as may be reasonably requested by the
holders of a majority in aggregate principal amount of
the Transfer Restricted Notes being sold, their Special
Counsel and the managing underwriters, if any, to
evidence the continued validity of the representations
and warranties made pursuant to clause (i) above and to
evidence compliance with any customary conditions
contained in the underwriting agreement or other
agreement entered into by the Company;
(m) In the case of a Shelf Registration, make
available for inspection by a representative of the
holders of Transfer Restricted Notes being sold, any
underwriter participating in any such disposition of
Transfer Restricted Notes, and any attorney, consultant
or accountant acting for the holders of a majority in
aggregate principal amount of such Transfer Restricted
Notes or such underwriter, at the offices where
normally kept, during reasonable business hours, all
relevant financial and other records, pertinent
corporate documents and properties of the Company and
their subsidiaries (including with respect to
businesses and assets acquired or to be acquired to the
extent that such information is available to the
Company), and cause the officers, directors, agents and
employees of the Company and their subsidiaries
(including with respect to businesses and assets
acquired or to be acquired to the extent that such
information is available to the Company) to supply all
information in each case reasonably requested by any
such representative, underwriter, attorney, consultant
or accountant in connection with such Shelf
Registration; provided, however, that such persons
shall first agree in writing with the Company that any
information that is reasonably and in good faith
designated by the Company in writing as confidential at
the time of delivery of such information shall be kept
confidential by such persons, unless and to the extent
that (i) disclosure of such information is required by
court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law
(including any disclosure requirements pursuant to
Federal securities laws in connection with the filing
of the Shelf Registration Statement or the use of any
Prospectus), (iii) such information becomes generally
available to the public other than as a result of a
disclosure or failure to safeguard such information by
such person or (iv) such information becomes available
to such person from a source other than the Company and
its subsidiaries and such source is not bound by a
confidentiality agreement;
(n) Provide an indenture trustee for the Notes
and/or the Exchange Notes and Private Exchange Notes,
as the case may be, and cause an indenture to be
qualified under the TIA not later than the effective
date of the first Registration Statement relating to
the Notes and/or the Exchange Notes and Private
Exchange Notes, as the case may be; and if such
indenture shall be the Indenture, in connection
therewith, cooperate with the Trustee and the holders
of the Notes and/or the Exchange Notes and Private
Exchange Notes, to effect such changes to the
Indenture, if any, as may be required for the Indenture
to be so qualified in accordance with the terms of the
TIA; and execute, and use its reasonable efforts to
cause the Trustee to execute, all customary documents
as may be required to effect such changes, and all
other forms and documents required to be filed with the
SEC to enable the Indenture to be so qualified in a
timely manner;
(o) Comply with all applicable rules and
regulations of the SEC and make generally available to
their securityholders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and
Rule 158, no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-
month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which
Transfer Restricted Notes are sold to underwriters in a
firm commitment or reasonable efforts underwritten
offering and (ii) if not sold to underwriters in such
an offering, commencing on the first day of the first
fiscal quarter after the effective date of a
Registration Statement, which statement shall cover
said period, consistent with the requirements of Rule
158; and
(p) Cooperate with each seller of Transfer
Restricted Notes covered by any Registration Statement
and each underwriter, if any, participating in the
disposition of such Transfer Restricted Notes and their
respective counsel in connection with any filings
required to be made with the National Association of
Securities Dealers, Inc.
The Company may require a holder of Transfer
Restricted Notes to be included in a Registration Statement
to furnish to the Company such information regarding the
distribution of such Transfer Restricted Notes as is
required by law to be disclosed in such Registration
Statement and the Company may exclude from such Registration
Statement the Transfer Restricted Notes of any holder who
unreasonably fails to furnish such information within a
reasonable time after receiving such request.
If any such Registration Statement refers to any
holder by name or otherwise as the holder of any securities
of the Company, then such holder shall have the right to (i)
require the insertion therein of language, in form and
substance reasonably satisfactory to such holder, to the
effect that the holding by such holder of such securities is
not to be construed as a recommendation by such holder of
the investment quality of the Company's securities covered
thereby and that such holding does not imply that such
holder will assist in meeting any future financial
requirements of the Company, or (ii) in the event that such
reference to such holder by name or otherwise is not
required by the Securities Act, the deletion of the
reference to such holder in any amendment or supplement to
the Registration Statement filed or prepared subsequent to
the time that such reference ceases to be required.
In the case of a Shelf Registration pursuant to
Section 3 hereof, each holder of Transfer Restricted Notes
agrees by acquisition of such Transfer Restricted Notes
that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section
5(c)(ii), 5(c)(iii), 5(c)(iv) or 5(c)(v) hereof, such holder
will forthwith discontinue disposition of such Transfer
Restricted Notes covered by such Registration Statement or
Prospectus until such holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section
5(j) hereof, or until it is advised in writing by the
Company that the use of the applicable Prospectus may be
resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or
deemed to be incorporated by reference in such Prospectus.
6. Registration Expenses
All fees and expenses incident to the performance
of or compliance with this Agreement by the Company shall be
borne by the Company whether or not any Registration
Statement is filed or becomes effective and whether or not
any Notes, Exchange Notes or Private Exchange Notes are
issued or sold pursuant to any Registration Statement. The
fees and expenses referred to in the foregoing sentence
shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and
expenses (A) with respect to filings required to be made
with the National Association of Securities Dealers, Inc.
and (B) in compliance with securities or Blue Sky laws),
(ii) printing expenses (including, without limitation,
expenses of printing certificates for Notes, Exchange Notes
and Private Exchange Notes in a form eligible for deposit
with The Depository Trust Company and of printing
Prospectuses), (iii) reasonable fees and disbursements of
counsel for the Company and the Special Counsel, (iv) fees
and disbursements of all independent certified public
accountants referred to in Section 2(e) and Section
5(1)(iii) hereof (including, without limitation, the
expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (v) if
required, the reasonable fees and expenses of any "qualified
independent underwriter" and its counsel as may be required
by the rules and regulations of the National Association of
Securities Dealers, Inc., and (vi) fees and expenses of all
other persons retained by the Company. In addition, the
Company shall pay its internal expenses (including, without
limitation, all salaries and expenses of its respective
officers and employees performing legal or accounting
duties) and the expense of any annual audit.
Notwithstanding the foregoing or anything in this Agreement
to the contrary, each holder of Transfer Restricted Notes
shall pay all underwriting discounts and commissions of any
underwriters with respect to any Notes, Exchange Notes or
Private Exchange Notes sold by or on behalf of it.
7. Indemnification
(a) The Company agrees to indemnify and hold
harmless (i) each Initial Purchaser, each holder of Notes,
Exchange Notes and Private Exchange Notes and each
Participating Broker-Dealer (each such person, an
"Indemnified Holder"), (ii) each person, if any, who
controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) any of the foregoing (any of
the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person"), and
(iii) the respective officers, directors, partners,
employees, representatives and agents of each Initial
Purchaser, each holder of Notes, Exchange Notes and Private
Exchange Notes, each Participating Broker-Dealer and any
controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an
"Indemnified Person"), from and against any and all losses,
claims, damages, liabilities and judgments arising out of or
relating to any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus or in any amendment or
supplement thereto, or arising out of or relating to any
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or
preliminary prospectus or supplement thereto, in light of
the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by or arise out of any
untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Indemnified
Person furnished in writing to the Company by or on behalf
of such Indemnified Person expressly for use therein;
provided that the foregoing indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any
Indemnified Person from whom the person asserting such
losses, claims, damages, liabilities and judgments purchased
securities if such untrue statement or omission or alleged
untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the Prospectus and a
copy of the Prospectus shall not have been furnished to such
person in a timely manner due to the wrongful action or
wrongful inaction of such Indemnified Person.
(b) In case any action shall be brought against
any Indemnified Person, based upon any Registration
Statement or any such Prospectus or preliminary prospectus
or any amendment or supplement thereto and with respect to
which indemnity may be sought against the Company hereunder,
such Indemnified Person shall promptly notify the Company in
writing and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory
to such Indemnified Person and payment of all fees and
expenses incurred by the Company in the assumption of such
defense. Any Indemnified Person shall have the right to
employ separate counsel in any such action and participate
in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person,
unless (i) the employment of such counsel shall have been
specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense and employ
counsel or pay all such fees and expenses of the assumption
of such defense or (iii) the named parties to any such
action (including any impleaded parties) include both such
Indemnified Person and the Company and such Indemnified
Person shall have been advised by counsel that there may be
one or more legal defenses available to it which are
different from or additional to those available to the
Company (in which case the Company shall not have the right
to assume the defense of such action on behalf of such
Indemnified Person, it being understood, however, that the
Company shall not, in connection with any one such action or
separate but substantially similar or related actions in the
same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all such
Indemnified Persons, which firm shall be designated in
writing by such Indemnified Persons, and that all such
reasonable fees and expenses shall be reimbursed as they are
incurred upon presentation to the Company of invoices
setting forth and describing such fees and expenses in
reasonable detail). The Company shall not be liable for any
settlement of any such action effected without its written
consent but if settled with the written consent of the
Company, the Company agrees to indemnify and hold harmless
each Indemnified Person from and against any loss or
liability by reason of such settlement. The Company shall
not, without the prior written consent of each Indemnified
Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is a
party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such
proceeding.
(c) In connection with any Registration Statement
pursuant to which an Indemnified Holder offers or sells
Transfer Restricted Notes, such Indemnified Holder agrees,
severally and not jointly, to indemnify and hold harmless
(i) the Company, (ii) its directors and officers and (iii)
any person controlling the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the
Exchange Act (the persons referred to in clauses (i), (ii)
and (iii) hereinafter referred to as "Company Indemnified
Persons") from and against any and all losses, claims,
damages, liabilities and judgments arising out of or
relating to any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus or in any amendment or
supplement thereto, or arising out of or relating to any
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statement therein (in the case of any Prospectus or
preliminary prospectus or supplement thereto, in light of
the circumstances under which they were made) not
misleading, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions made in
a Registration Statement, Prospectus or preliminary
prospectus or in any amendment or supplement thereto in
reliance on and in conformity with written information
furnished to the Company by such Indemnified Holder
expressly for use in such Registration Statement, Prospectus
or preliminary prospectus or in any amendment or supplement
thereto. In any such case in which any action shall be
brought against the Company Indemnified Person based on such
Registration Statement, Prospectus or preliminary prospectus
or in any amendment or supplement thereto and in respect of
which indemnity may be sought against an Indemnified Holder,
such Indemnified Holder shall have the rights and duties
given to the Company (except that if the Company shall have
assumed the defense thereof, such Indemnified Holder shall
not be required to do so, but may employ separate counsel
therein and participate in the defense thereof but the fees
and expenses of such counsel shall be at the expense of such
Indemnified Holder), and the Company Indemnified Persons
shall have the rights and duties given to the Indemnified
Persons by Section 7(b) hereof.
(d) If the indemnification provided for in this
Section 7 is unavailable to an indemnified party in respect
of any losses, claims, damages, liabilities or judgments
referred to herein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments
(i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party on the
one hand and the indemnified party on the other hand from
the offering of the Notes, the Exchange Notes or the Private
Exchange Notes, as the case may be (it being expressly
understood and agreed that the relative benefits received by
the Company from the offering of the Notes, Exchange Notes
or Private Exchange Notes, as the case may be, shall be the
amount of the net proceeds received by the Company from the
sale of the Notes to the Initial Purchasers), or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of each indemnifying
party on the one hand and the indemnified party on the other
hand in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable
considerations. The relative fault of each indemnifying
party on the one hand and the indemnified party on the other
hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact
relates to information supplied by an indemnifying party or
such indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Company and the Initial Purchasers agree that
it would not be just and equitable if contribution pursuant
to this Section 7(d) were determined by pro rata allocation
(even if all Indemnified Persons were treated as one entity
for such purpose) or by any other method of allocation which
does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Indemnified Person shall be
required to contribute any amount in excess of the amount by
which the net proceeds received by it in connection with the
sale of the Notes, Exchange Notes or Private Exchange Notes
contemplated by this Agreement (or, in the case of an
underwriter that is an Indemnified Person, the total
underwriting discounts received by such underwriter) exceeds
the amount of any damages which such Indemnified Person has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Indemnified
Person's obligations to contribute pursuant to this Section
7(d) are several in proportion to the respective amount of
Notes, Exchange Notes or Private Exchange Notes included in
any such Registration Statement by each Indemnified Person
and not joint.
8. Rule 144A
The Company shall use its best efforts to file the
reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time
it is not required to file such reports but in the past had
been required to or did file such reports, it will, upon the
request of any holder of Transfer Restricted Notes, make
available other information as required by, and so long as
necessary to permit sales of Transfer Restricted Notes
pursuant to Rule 144A.
9. Underwritten Registrations
If any of the Transfer Restricted Notes covered by
any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and
manager or managers that will administer the offering will
be selected by the holders of a majority in aggregate
principal amount of the Transfer Restricted Notes included
in such offering, subject to the consent of the Company
(which will not be unreasonably withheld or delayed).
No person may participate in any underwritten
registration hereunder unless such person (i) agrees to sell
such Transfer Restricted Notes on the basis reasonably
provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and
(ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting
arrangements.
10. Miscellaneous
(a) Remedies. In the event of a breach by the
Company or by a holder of Notes, Exchange Notes or Private
Exchange Notes of any of its obligations under this
Agreement, each holder of Notes, Exchange Notes or Private
Exchange Notes and the Company, in addition to being
entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific
performance of its rights under this Agreement.
Notwithstanding the provisions of Section 4 hereof, the
Company and each holder of Notes, Exchange Notes and Private
Exchange Notes agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a
breach of any of the provisions of this Agreement and each
hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall
waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will
not enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the holders
of Notes, Exchange Notes and Private Exchange Notes and
Indemnified Persons in this Agreement or otherwise conflicts
with the provisions hereof. Without the written consent of
the holders of a majority in aggregate principal amount of
the outstanding Transfer Restricted Notes, the Company shall
not grant to any person any rights which conflict with or
are inconsistent with the provisions of this Agreement.
(c) No Piggyback on Registrations. The Company
shall not grant to any of its securityholders (other than
the holders of Transfer Restricted Notes in such capacity)
the right to include any of their securities in any
Registration Statement other than Transfer Restricted Notes.
(d) Amendments and Waivers. The provisions of
this Agreement, including the provisions of this sentence,
may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be
given, otherwise than with the prior written consent of the
holders of not less than a majority of the then outstanding
aggregate principal amount of Transfer Restricted Notes;
provided, however, that, for the purposes of this Agreement,
Transfer Restricted Notes that are owned, directly or
indirectly, by the Company or any of its Affiliates are not
deemed outstanding. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of
holders of Transfer Restricted Notes whose securities are
being sold or tendered pursuant to a Registration Statement
and that does not directly or indirectly affect the rights
of other holders of Transfer Restricted Notes may be given
by holders of a majority in aggregate principal amount of
the Transfer Restricted Notes being sold or tendered by such
holders pursuant to such Registration Statement; provided,
however, that the provisions of this sentence may not be
amended, modified or supplemented except in accordance with
the provisions of the immediately preceding sentence.
Notwithstanding the foregoing, no amendment, modification,
supplement, waiver or consent with respect to Section 7
shall be made or given otherwise than with the prior written
consent of each Indemnified Person affected thereby.
(e) Notices. All notices and other
communications provided for herein shall be made in writing
by hand-delivery, next-day air courier, certified first-\
class mail, return receipt requested, telex or telecopier:
(i) if to the Company, as provided in the
Purchase Agreement,
(ii) if to the Initial Purchasers, as provided in
the Purchase Agreement, or
(iii) if to any other person who is then the
registered holder of Notes, Exchange Notes or Private
Exchange Notes, to the address of such holder as it
appears in the register therefor of the Company.
Except as otherwise provided in this Agreement,
all such communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one
Business Day after being timely delivered to a next-day air
courier; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when answered back, if
telexed; and when receipt is acknowledged by the recipient's
telecopier machine, if telecopied.
(f) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors
and permitted assigns of each of the parties and shall inure
to the benefit of each holder of Notes, Exchange Notes and
Private Exchange Notes and each Indemnified Person. The
Company may not assign any of their rights or obligations
hereunder without the prior written consent of each holder
of Transfer Restricted Notes and each Indemnified Person.
Notwithstanding the foregoing, no successor or assignee of
the Company shall have any of the rights granted under this
Agreement until such person shall acknowledge its rights and
obligations hereunder by a signed written statement of such
person's acceptance of such rights and obligations.
(g) Counterparts. This Agreement may be executed
in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall
be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement.
(h) Governing Law, Submission to Jurisdiction.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT, AND EACH IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
(i) Severability. The remedies provided herein
are cumulative and not exclusive of any remedies provided by
law. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set
forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the
parties hereto shall use their reasonable efforts to find
and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties
that they would have executed the remaining terms,
provisions, covenants and restrictions without including any
of such that may be hereafter declared invalid, illegal,
void or unenforceable.
(j) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or
otherwise affect the meaning hereof. All references made in
this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly
stated otherwise.
(k) This Agreement is intended by the parties as
a final expression of their agreement and is intended to be
a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration
rights granted by the Company with respect to the Notes, the
Exchange Notes and the Private Exchange Notes. This
Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have caused this
Registration Rights Agreement to be duly executed as of the
date first written above.
THE COMPANY:
BROWN GROUP, INC.
By:
Name:
Title:
<PAGE>
THE INITIAL PURCHASERS:
SMITH BARNEY INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
DILLON, READ & CO. INC.
BY: SMITH BARNEY INC.
By:
Name:
Title:
