As filed with the Securities and Exchange Commission on August 21, 1997
Registration No. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
Nine West Group Inc. Delaware 5600 06-1093855
Nine West Development
Corporation Delaware 7300 06-1462089
Nine West Distribution
Corporation Delaware 4200 43-1660658
Nine West Footwear
Corporation Delaware 5130 43-1660656
Nine West Manufacturing
Corporation Delaware 3140 31-1435374
(Exact name of each (State or other (Primary Standard (I.R.S. Employer
each registrant jurisdiction of Industrial Identification
as specified incorporation or Classification Number)
in its charter) organization) Code Number)
Robert C. Galvin
Executive Vice President,
9 West Broad Street Chief Financial Officer and Treasurer
Stamford, Connecticut 06902 Nine West Group Inc.
(203) 324-7567 9 West Broad Street
Stamford, Connecticut 00902
(203) 328-4373
(Address, including zip code, and (Name, address, including zip code,
telephone number, including area and telephone number, including
code, of each registrant's area code, of agent for service)
principal executive offices)
----------------------
Copies to:
Joel K. Bedol, Esq. Laura Palma, Esq.
Senior Vice President Simpson Thacher & Bartlett
and General Counsel 425 Lexington Avenue
Nine West Group Inc. New York, New York 10017
9 West Broad Street (212) 455-2000
Stamford, Connecticut 06902
(203) 328-4386
----------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of the Registration Statement.
If any of the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. __
<TABLE>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
===========================================================================================
Title of Each Proposed Maximum Proposed Maximum Amount of
Class of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Note Offering Price(1) Fee
- -------------------------------------------------------------------------------------------
8-3/8% Series B Senior
Notes due 2005 . . . . $200,000,000 100% $200,000,000 $60,606
- -------------------------------------------------------------------------------------------
9% Series B Senior
Subordinated Notes
due 2007 . . . . . . . $125,000,000 100% $125,000,000 $37,879
- -------------------------------------------------------------------------------------------
Subsidiary Guarantees
of the 8-3/8% Series
B Senior Notes due
2005(3). . . . . . . . (3) (3) (3) (2)
- -------------------------------------------------------------------------------------------
Subsidiary Guarantees
of the 9% Series B
Senior Subordinated
Notes due 2007(3) . . (3) (3) (3) (2)
- -------------------------------------------------------------------------------------------
Total . . . . . . . . $325,000,000 100% $325,000,000 $98,485
===========================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
(2) Each Registrant other than Nine West Group Inc. is a subsidiary of Nine
West Group Inc. and is guaranteeing payment of the Notes. Pursuant to Rule
457(n) under the Securities Act of 1933, no registration fee is required
with respect to these guarantees.
(3) No separate consideration will be received from purchasers of the Notes
with respect to these guarantees.
----------------------
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
===============================================================================
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED AUGUST 21, 1997
PRELIMINARY PROSPECTUS
NINE WEST GROUP INC.
Offer to Exchange up to
$200,000,000 of its 8-3/8% Series B Senior Notes due 2005
for any and all of its outstanding
$200,000,000 8-3/8% Senior Notes due 2005 and up to
$125,000,000 of its 9% Series B Senior Subordinated Notes due 2007
for any and all of its outstanding
$125,000,000 9% Senior Subordinated Notes due 2007
----------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 1997.
----------------------
Nine West Group Inc. (the "Company") hereby offers, upon the terms and
subject to the conditions set forth in this Prospectus and accompanying Letter
of Transmittal (which together constitute the "Exchange Offer"), to exchange an
aggregate of up to $200,000,000 principal amount of its 8-3/8% Series B Senior
Notes due 2005 (the "Senior Exchange Notes") for an identical face amount of the
issued and outstanding 8-3/8% Senior Notes due 2005 (the "Old Senior Notes") of
the Company and to exchange an aggregate of up to $125,000,000 principal amount
of its 9% Series B Senior Subordinated Notes due 2007 (the "Senior Subordinated
Exchange Notes" and, together with the Senior Exchange Notes, the "Exchange
Notes") for an identical face amount of the issued and outstanding 9% Senior
Subordinated Notes due 2007 (the "Old Senior Subordinated Notes" and, together
with the Old Senior Notes, the "Old Notes"; the Old Notes and the Exchange Notes
being referred to collectively as the "Notes") of the Company, in each case,
from the holders thereof. As of the date of this Prospectus, the aggregate
principal amount of Old Senior Notes outstanding is $200,000,000, and the
aggregate principal amount of the Old Senior Subordinated Notes outstanding is
$125,000,000. The terms of the Exchange Notes are identical in all material
respects to the Old Notes, except that the Exchange Notes have been registered
under the Securities Act of 1933, as amended (the "Securities Act"), and
therefore will not bear legends restricting their transfer and will not contain
certain provisions providing for an increase of interest rate on the Old Notes
under certain circumstances relating to the Registration Rights Agreement (as
defined herein), which provisions will terminate as to all of the Notes upon the
consummation of the Exchange Offer.
The Exchange Notes will be fully and unconditionally guaranteed on a senior
basis with respect to the Senior Exchange Notes and on a senior subordinated
basis with respect to the Senior Subordinated Exchange Notes by the Guarantors
(as defined herein). The Senior Exchange Notes will mature on August 15, 2005,
and the Senior Subordinated Exchange Notes will mature on August 15, 2007.
Interest on the Exchange Notes will be payable semi-annually on February 15 and
August 15 of each year, commencing February 15, 1998.
The Exchange Notes will constitute unsecured obligations of the Company.
The Senior Exchange Notes will rank pari passu in right of payment with all
existing and future Senior Indebtedness (as defined herein) of the Company. The
Senior Exchange Notes will be effectively subordinated to secured obligations of
the Company with respect to the assets of the Company securing such obligations,
including Indebtedness under the Credit Agreement (as defined herein) which is
secured by substantially all of the assets of the Company. The Senior
Subordinated Exchange Notes are subordinated to all existing and future Senior
Indebtedness of the Company, including the Company's obligations under the
Credit Agreement, the Old Senior Notes and the Senior Exchange Notes
(collectively, the "Senior Notes"). As of May 3, 1997, on a pro forma basis,
after giving effect to the sale of the Old Notes and the use of the net proceeds
therefrom, the aggregate amount of Senior Indebtedness would have been
approximately $343.2 million, including $143.2 million of secured indebtedness.
The Senior Exchange Notes will not be redeemable at the option of the
Company prior to maturity. The Senior Subordinated Exchange Notes will be
redeemable, in whole or in part, at the option of the Company, at any time on or
after August 15, 2002, at the redemption prices set forth herein, together with
accrued and unpaid interest, if any, to the date of redemption. Prior to August
15, 2000, the Company may redeem up to 30% of the Old Senior Subordinated Notes
and the Senior Subordinated Exchange Notes (collectively, the "Senior
Subordinated Notes") with the net proceeds of one or more Public Equity
Offerings (as defined herein) at a redemption price equal to 109% of the
principal amount thereof, together with accrued and unpaid interest, if any, to
the date of redemption, provided that at least $87.5 million aggregate principal
amount of Senior Subordinated Notes remains outstanding immediately after such
redemption. Following the occurrence of a Change of Control (as defined herein),
each holder of Notes will have the right to require the Company to purchase all
or a portion of such holder's Notes at a purchase price equal to 101% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the date of purchase.
The Old Notes were issued and sold on July 9, 1997 in a transaction not
registered under the Securities Act in reliance upon an exemption from the
registration requirements thereof. In general, the Old Notes may not be offered
or sold unless registered under the Securities Act or unless offered or sold
pursuant to an exemption from, or in a transaction not subject to, the
Securities Act. The Exchange Notes are being offered hereby to satisfy certain
obligations of the Company and the Guarantors contained in the Registration
Rights Agreement. Based on interpretations by the staff of the Securities and
Exchange Commission (the "Commission") set forth in no-action letters issued to
third parties, the Company believes that the Exchange Notes issued pursuant to
the Exchange Offer in exchange for Old Notes may be offered for resale, resold
or otherwise transferred by any holder thereof (other than any holder that is a
broker-dealer or an "affiliate" of the Company within the meaning of Rule 405
under the Securities Act) without further compliance with the registration and
prospectus delivery requirements of the Securities Act, provided that such
Exchange Notes are acquired in the ordinary course of such holder's business,
such holder has no arrangement or understanding with any person to participate
in the distribution of such Exchange Notes and neither such holder nor any such
other person is engaging in or intends to engage in a distribution of the
Exchange Notes. However, the Company has not sought, and does not intend to
seek, its own no-action letter, and there can be no assurance that the
Commission would make a similar determination with respect to the Exchange
Offer. Notwithstanding the foregoing, each broker-dealer that receives Exchange
Notes for its own account pursuant to the Exchange Offer must acknowledge that
it will deliver a prospectus in connection with any resale of such Exchange
Notes. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a broker-
dealer in connection with any resale of Exchange Notes received in exchange for
Old Notes where such Old Notes were acquired by such broker-dealer as a result
of market-making activities or other trading activities (other than Old Notes
acquired directly from the Company). The Company and the Guarantors have agreed
that, for a period of 120 days after the date of this Prospectus, it will make
this Prospectus available to any broker-dealer for use in connection with any
such resale.
The Old Notes are designated for trading in the Private Offerings, Resales
and Trading through Automated Linkages ("PORTAL") market. There is no
established trading market for the Exchange Notes. The Company does not
currently intend to list the Exchange Notes on any securities exchange or to
seek approval for quotation through any automated quotation system. Accordingly,
there can be no assurance as to the development or liquidity of any market for
the Exchange Notes. The certificates representing the Exchange Notes will be
issued in fully registered form.
The Exchange Offer is not conditioned upon any minimum aggregate principal
amount of Old Notes being tendered for exchange. The date of acceptance and
exchange of the Old Notes (the "Exchange Date") will be the fourth business day
following the Expiration Date (as defined herein). Old Notes tendered pursuant
to the Exchange Offer may be withdrawn at any time prior to the Expiration Date.
The Company will not receive any proceeds from the Exchange Offer. The Company
and the Guarantors will pay certain expenses incident to the Exchange Offer. The
Exchange Offer will expire at 5:00 p.m., New York City time, on ,
1997 (the "Expiration Date"). The Company does not currently intend to extend
the Expiration Date.
----------------------
See "Risk Factors" beginning on page 12 for a discussion of certain factors
that should be considered by holders of the Old Notes prior to tendering Old
Notes in the Exchange Offer.
THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE COMMISSION NOR HAS THE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1997
AVAILABLE INFORMATION
The Company is subject to the periodic reporting and other informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and, in accordance therewith, files reports and other information with
the Commission. Such reports and other information filed with the Commission may
be inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, or at
its regional offices located at 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and Seven World Trade Center, 13th Floor, New York, New York
10048. Copies of such material can be obtained from the public reference section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates and may also be accessed electronically by means of the
Commission's website at (http://www.sec.gov). Such materials can also be
inspected at the offices of the New York Stock Exchange (the "NYSE"), 20 Broad
Street, New York, New York 10005.
This Prospectus constitutes a part of a registration statement on Form S-4
(the "Registration Statement") filed by the Company and the Guarantors with the
Commission under the Securities Act. As permitted by the rules and regulations
of the Commission, this Prospectus does not contain all of the information
contained in the Registration Statement and the exhibits and schedules thereto,
and reference is hereby made to the Registration Statement and the exhibits and
schedules thereto for further information with respect to the Company, the
Guarantors and the Exchange Notes. Statements contained herein concerning the
provisions of any documents filed as an exhibit to the Registration Statement or
otherwise filed with the Commission are not necessarily complete, and in each
instance reference is made to the copy of such document so filed. Each such
statement is qualified in its entirety by such reference.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission are hereby
incorporated by reference into this Prospectus and shall be deemed to be a part
hereof:
(i) the Company's Annual Report on Form 10-K for the fiscal year
ended February 1, 1997, as amended;
(ii) the Company's Quarterly Report on Form 10-Q for the quarter ended
May 3, 1997; and
(iii) the Company's Current Reports on Form 8-K dated May 23, 1995, as
amended, and dated June 20, 1997.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the consummation of the Exchange Offer shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
Copies of all documents incorporated by reference into this Prospectus,
other than exhibits to such documents (unless such exhibits are specifically
incorporated by reference therein), will be provided without charge to each
person to whom this Prospectus is delivered, upon oral or written request by
such person to Investor Relations, Nine West Group Inc., 11933 Westline
Industrial Drive, St. Louis, Missouri 63146, telephone number (314) 579-8812.
----------------------
CAUTIONARY NOTICE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in this Prospectus which are not historical
facts contain forward-looking information with respect to the Company's plans,
projections or future performance, the occurrence of which involve certain risks
and uncertainties that could cause the Company's actual results or plans to
differ materially from those expected by the Company. Certain of such risks and
uncertainties relate to competition in the industry; changes in the prevailing
costs of leather and other raw materials, labor and advertising; local and
regional economic conditions in the areas served by the Company; the effects of
weather conditions on seasonal sales in the Company's market area; changes in
consumer demands and preferences; retail store construction delays; the
availability of desirable retail locations and the negotiation of acceptable
lease terms for such locations; the ability of the Company to place its products
in desirable sections of its department store customers; the level of savings to
be achieved from the Company's business restructuring initiatives and the
Company's success in integrating recent and potential future acquisitions; and
unexpected costs incurred in connection with the consolidation and relocation of
the Company's offices in Stamford, Connecticut and Cincinnati, Ohio to a new
facility in White Plains, New York.
All written or oral forward-looking statements attributable to the Company
are expressly qualified in their entirety by the foregoing cautionary
statements.
PROSPECTUS SUMMARY
The following summary does not purport to be complete and is qualified in
its entirety by the more detailed information and consolidated financial
statements and related notes appearing elsewhere or incorporated by reference in
this Prospectus. All information in this Prospectus reflects the Company's
acquisition of the footwear business of The United States Shoe Corporation
("U.S. Shoe") effected on May 23, 1995 (the "U.S. Shoe Acquisition"). Effective
June 27, 1995, the Company's fiscal year-end was changed from December 31 to the
Saturday closest to January 31 of the following year (e.g., "Fiscal 1996" is the
year ending February 1, 1997). Unless the context otherwise requires, references
to the "Company" herein refer to Nine West Group Inc. and its consolidated
subsidiaries.
The Company
The Company is a leading designer, developer and marketer of quality,
fashionable women's footwear and accessories. The Company markets a full
collection of casual, career and dress footwear and accessories under multiple
brand names, each of which is targeted to a distinct segment of the women's
footwear and accessories markets, from "fashion" to "comfort" styles and from
"moderate" to "bridge" price points. In addition to its flagship Nine West
label, the Company's nationally recognized brands of footwear and handbags
include Amalfi, Bandolino, Calico, cK/Calvin Klein (under license), Easy Spirit,
Enzo Angiolini, Evan Picone (under license), 9 & Co., Pappagallo, Selby and
Westies. The Company also markets its products under the Pied a Terre and The
Shoe Studio Group Limited brands in Europe. The Company's Jervin private label
division also arranges for the purchase of footwear by major retailers and other
wholesalers for sale under the customers' own labels. Approximately 55% of the
Company's net revenues in Fiscal 1996 was generated from sales by its wholesale
division to more than 7,000 department, specialty and independent retail stores
in more than 16,000 locations worldwide, and approximately 45% of net revenues
was generated by its retail operations, which comprised 1,104 locations as of
May 3, 1997.
For the 12-month period ended May 3, 1997, the Company had $1,653.3 million
of net revenues and $240.3 million of EBITDA (as defined). Since 1992, the
Company's net revenues have grown from $461.9 million to $1,603.1 million for
the 52-week period ended February 1, 1997, a compound annual growth rate of
approximately 36%. Over the same period, EBITDA increased from $64.7 million to
$233.3 million, a compound annual growth rate of approximately 37%.
The Company's principal executive offices are located at 9 West Broad
Street, Stamford, Connecticut 06902, and the Company's telephone number is (203)
324-7567.
Business Strengths
Widely-recognized brand names. The Company's leading brands are widely
recognized throughout the United States and Canada and certain international
markets. As a result of the recognition of its brands, the Company's major
wholesale customers devote significant floor space to the Company's brands. In
addition, the Company believes the strength of its brand names has enabled the
Company to introduce new product lines and enter new markets more effectively.
High quality, value and styling of its products. The Company's established
global sourcing relationships are important to its ability to offer high
quality, moderately priced shoes and respond quickly to changing sales and
fashion trends. The Company has sourcing relationships with Brazilian
manufacturers through its independent buying agent, its own domestic factories,
and its third-party manufacturers in Asia and Western Europe. Due to the
Company's long-standing relationships, it is able to produce high quality
products at competitive prices, and to respond quickly to changes in fashion and
consumer preferences. In developing new products, separate design teams develop
and differentiate the product lines by interpreting footwear and accessories
trends. The Company's designers work closely with merchandising, sales and
production teams to achieve the quality and style of the Company's products.
Broad distribution of its products through both wholesale and retail
channels. The Company has developed a well-balanced distribution network.
Approximately 55% of the Company's net revenues in Fiscal 1996 was generated
from sales by its wholesale division to more than 7,000 department, specialty
and independent retail stores in more than 16,000 locations worldwide, and
approximately 45% of net revenues was generated from sales by 1,104 of its own
retail locations. The Company markets its products to customers in over 40
countries, including Australia, Canada, Chile, China, France, Mexico and the
United Kingdom. This breadth of distribution reduces the Company's reliance on
any one department store customer.
Ability to provide timely and reliable delivery to its customers. The
Company utilizes fully integrated information systems to facilitate the receipt,
processing and distribution of its merchandise. The Company allows its wholesale
customers to participate in inventory management programs, enabling customers to
fill their smaller, single or multiple pair reorders in basic sizes and colors,
rather than requiring that they purchase larger case good quantities. The
Company believes its ability to offer this flexibility to its customers gives it
a significant competitive advantage and reduces the incidence of mark-down
allowances and returns.
Business Strategy
The Company's strategy is to leverage its strengths to enhance further its
position in both the domestic and international footwear, accessory and related
markets. The Company's objectives include: (i) increasing the global recognition
of its portfolio of brands; (ii) leveraging its brand recognition to expand its
product offerings; (iii) continuing its retail expansion across multiple store
concepts; (iv) continuing growth of its recently developed accessories business;
(v) expanding its presence in the "bridge" market through its recently acquired
cK/Calvin Klein license and (vi) continuing to pursue opportunities to expand
its business through the acquisition of new businesses and licensing
arrangements.
As part of the Company's pursuit of its goal to promote recognition of its
brands, the Company has developed and implemented an expanded marketing plan
which includes higher advertising and promotional expenditures than incurred
during prior years and global advertising campaigns shot by well-known
photographers and featuring internationally-recognized models. The Company also
believes that its expanding retail network promotes brand name recognition and
supports the merchandising of complete lines by its wholesale customers.
The Company opened its first international retail store in 1994 and today
operates 218 international locations. In the first quarter of 1997, the
Company's international revenues increased to 7% from 4% of revenues in Fiscal
1996. This growth was achieved through increased wholesale and retail expansion
internationally. In addition, the Company recently completed two acquisitions of
United Kingdom footwear and accessory retailers, Pied a Terre Group Limited
(December 1996) and The Shoe Studio Group Limited (May 1997). The Company
believes these acquisitions, which provided retail locations, management
expertise and systems, will serve as a platform for its future growth in western
Europe. Additionally, the Company purchased its Canadian licensee in 1996 and
has begun to open additional stores and expand its Canadian wholesale business.
The Company intends to pursue additional international business opportunities to
expand into new businesses and geographic areas, such as Europe, South America
and Asia.
In addition to geographic expansion, the Company is seeking to capitalize
on the strength of its brands by expanding product breadth. To this end, in
1996, the Company entered into licensing agreements with third parties to
license the Nine West brand name for legwear and jewelry and the Nine West and
Enzo Angiolini brand names for sunglasses. In 1995, the Company acquired a small
accessories business, which currently designs and manufactures handbags and
small leather goods under the Nine West, Enzo Angiolini and Easy Spirit brand
names, as the platform for its branded accessories business. Since its launch,
net revenues from the Company's accessories division have grown significantly
from Fiscal 1995 to Fiscal 1996 and the Company believes there is a significant
additional opportunity to leverage the Company's brand recognition, sourcing and
distribution to further expand the accessories business.
The Company continually evaluates potential acquisition candidates in
pursuit of its strategic initiatives and growth goals. These candidates include
international as well as product expansion opportunities, such as apparel,
accessories and other related products. The Company has not entered into any
commitments or agreements for any acquisition and there is no assurance that a
definitive acquisition agreement or letter of intent with any such parties will
be reached.
In 1996, the Company entered into a license agreement with Calvin Klein,
Inc. to produce and distribute cK/Calvin Klein footwear and accessories. Through
this agreement the Company expanded its presence in the "bridge" market, a
market in which the Company did not previously have a significant presence. The
Company plans to increase the wholesale distribution of these products to a
broader group of retailers who carry other cK/Calvin Klein products, will begin
shipping footwear and accessories to freestanding cK/Calvin Klein retail stores
and expects to open freestanding cK/Calvin Klein footwear and accessories retail
stores both domestically and internationally.
Financing Strategy
On July 9, 1997, the Company issued and sold $325,000,000 aggregate
principal amount of the Old Notes (the "Offering"). The Offering was intended
to: (i) extend debt maturities to support continued implementation of strategic
initiatives; (ii) preserve operating cash flow for investment in the Company's
business rather than for amortization requirements; (iii) more closely match
assets with liabilities; (iv) minimize floating rate exposure on bank
borrowings; and (v) provide access to new sources of capital. The Company used
the net proceeds of the Offering to repay certain indebtedness outstanding under
its previously existing credit agreement (the "Existing Credit Agreement"). On
August 1, 1997, the Existing Credit Agreement was amended and restated to permit
the Company to borrow up to $600 million under a revolving credit facility with
an effective interest rate lower than or equal to the effective rate under the
Existing Credit Agreement.
THE EXCHANGE OFFER
The Exchange Offer . . . The Company is offering to exchange pursuant to
the Exchange Offer (i) up to $200,000,000
aggregate principal amount of its 8-3/8% Series B
Senior Notes due 2005 for like aggregate principal
amount of its outstanding 8-3/8% Senior Notes due
2005 and (ii) to exchange up to $125,000,000
aggregate principal amount of its 9% Series B
Senior Subordinated Notes due 2007 for like
aggregate principal amount of its outstanding 9%
Senior Subordinated Notes due 2007. The terms of
the Exchange Notes are identical in all material
respects (including principal amount, interest
rate and maturity) to the terms of the Old Notes
for which they may be exchanged pursuant to the
Exchange Offer, except that the Exchange Notes are
freely transferable by holders thereof (other than
as provided herein), and are not subject to any
covenant regarding registration under the
Securities Act. See "The Exchange Offer."
Interest Payments . . . . . Interest on the Exchange Notes shall accrue from
the last Interest Payment Date (February 15 or
August 15) on which interest was paid on the Notes
so surrendered or, if no interest has been paid on
such Notes, from July 9, 1997.
Minimum Condition . . . . . The Exchange Offer is not conditioned upon any
minimum aggregate principal amount of Old Notes
being tendered for exchange.
Expiration Date; Withdrawal
of Tender. . . . . . . . . The Exchange Offer will expire at 5:00 p.m., New
York City time, on , 1997 (the "Expiration
Date"). The Company does not currently intend to
extend the Expiration Date. Tenders may be
withdrawn at any time prior to 5:00 p.m., New York
City time, on the Expiration Date. See "The
Exchange Offer--Withdrawal of Rights."
Exchange Date . . . . . . . The date of acceptance for the Old Notes will be
the fourth business day following the Expiration
Date.
Conditions to the
Exchange Offer . . . . . . The Exchange Offer is subject to certain customary
conditions, which may be waived by the Company.
The Company currently expects that each of these
conditions will be satisfied and that no waivers
will be necessary. See "The Exchange Offer--
Certain Conditions to the Exchange Offer." The
Company reserves the right to terminate or amend
the Exchange Offer at any time prior to the
Expiration Date upon the occurrence of any such
condition.
Procedures for Tendering
Old Notes. . . . . . . . . Each holder of Old Notes wishing to accept the
Exchange Offer must complete, sign and date the
Letter of Transmittal, or a facsimile thereof, in
accordance with the instructions contained herein
and therein, and mail or otherwise deliver such
Letter of Transmittal, together with the Old Notes
and any other required documentation, to the
Exchange Agent (as defined herein) at the address
set forth herein. See "The Exchange Offer--
Procedures for Tendering Old Notes" and "Plan of
Distribution."
Use of Proceeds . . . . . . There will be no proceeds to the Company from the
exchange of Notes pursuant to the Exchange Offer.
Special Procedures for
Beneficial Owners. . . . . Any beneficial owner whose Old Notes are
registered in the name of a broker, dealer,
commercial bank, trust company or other nominee
who wishes to tender should contact such
registered holder promptly and instruct such
registered holder to tender on such beneficial
owner's own behalf. If such beneficial owner
wishes to tender on such beneficial owner's own
behalf, such beneficial owner must, prior to
completing and executing the Letter of Transmittal
and delivering the Old Notes, either make
appropriate arrangements to register ownership of
the Old Notes in such beneficial owner's name or
obtain a properly completed bond power from the
registered holder. The transfer of registered
ownership may take considerable time. See "The
Exchange Offer--Procedure for Tendering Old
Notes."
Guaranteed Delivery
Procedures . . . . . . . Holders of Old Notes who wish to tender their Old
Notes and whose Old Notes are not entirely
available or who cannot deliver their Old Notes,
the Letter of Transmittal or any other documents
required by the Letter of Transmittal to the
Exchange Agent prior to the Expiration Date must
tender their Old Notes according to the guaranteed
delivery procedures set forth in "The Exchange
Offer--Procedures for Tendering Old Notes."
Acceptance of Old Notes
and Delivery of the
Exchange Notes . . . . . . The Company will accept for exchange any and all
Old Notes which are properly tendered in the
Exchange Offer prior to 5:00 p.m., New York City
time, on the Expiration Date. The Exchange Notes
issued pursuant to the Exchange Offer will be
delivered promptly following the Expiration Date.
See "The Exchange Offer--Procedures for Tendering
Old Notes."
Effect on the Holders
of Old Notes . . . . . . . As a result of the making of, and upon acceptance
for exchange of all validly tendered Old Notes
pursuant to the terms of, the Exchange Offer, the
Company and the Guarantors will have fulfilled the
covenant contained in the Registration Rights
Agreement (the "Registration Rights Agreement")
dated July 9, 1997 among the Company, the
Guarantors, Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Bear, Stearns
& Co. Inc., Citicorp Securities, Inc. and
NationsBanc Capital Markets, Inc. (the "Initial
Purchasers") and, accordingly, there will be no
increase in the interest rate on the Old Notes
pursuant to the terms of the Registration Rights
Agreement, and the holders of the Old Notes will
have no further registration or other rights under
the Registration Rights Agreement. Holders of the
Old Notes who do not tender their Old Notes in the
Exchange Offer will continue to hold such Old
Notes and will be entitled to all the rights and
subject to all the limitations applicable thereto
under the Indenture dated July 9, 1997 among the
Company, as issuer, the Guarantors, as guarantors,
and The Bank of New York, as Trustee, relating to
the Old Senior Notes and the Senior Exchange Notes
(the "Senior Note Indenture") or the Indenture
dated July 9, 1997 among the Company, as issuer,
the Guarantors, as guarantors, and The Bank of New
York, as trustee, relating to the Old Senior
Subordinated Notes and the Senior Subordinated
Exchange Notes (the "Senior Subordinated Note
Indenture" and, together with the Senior Note
Indenture, the "Indentures"), as applicable,
except for any such rights under the Registration
Rights Agreement that by their terms terminate or
cease to have further effectiveness as a result of
the making of, and the acceptance for exchange of
all validly tendered Old Notes pursuant to, the
Exchange Offer. All untendered Old Notes will
continue to be subject to the restrictions on
transfer provided for in the Old Notes and the
Indentures. To the extent that the Old Notes are
tendered and accepted in the Exchange Offer, the
trading market for untendered Old Notes could be
adversely affected.
Consequence of Failure to
Exchange . . . . . . . . . Holders of Old Notes who do not exchange their
Notes for Exchange Notes pursuant to the Exchange
Offer will continue to be subject to the
restrictions on transfer of such Old Notes as set
forth in the legend thereon as a consequence of
the offer or sale of the Old Notes pursuant to an
exemption from, or in a transaction not subject
to, the registration requirements of the
Securities Act and the applicable state securities
laws. The Company and the Guarantors do not
currently anticipate that they will register any
Old Notes and the related Guarantees which are not
exchanged pursuant to the Exchange Offer under the
Securities Act after the Expiration Date.
TERMS OF THE EXCHANGE NOTES
SECURITIES OFFERED
Senior Exchange Notes. . . $200,000,000 principal amount of 8-3/8% Series B
Senior Notes due 2005.
Senior Exchange
Subordinated Notes . . . $125,000,000 principal amount of 9% Series B
Senior Subordinated Notes due 2007.
SENIOR EXCHANGE NOTES
Maturity Date . . . . . . August 15, 2005.
Optional Redemption. . . . The Senior Exchange Notes will not be redeemable
at the option of the Company prior to their
maturity.
Ranking. . . . . . . . . . The Senior Exchange Notes will be unsecured senior
obligations of the Company, and the Indebtedness
(as defined herein) evidenced by the Senior
Exchange Notes will rank pari passu in right of
payment with all other existing and future
unsubordinated obligations of the Company and
senior in right of payment to all existing and
future obligations of the Company expressly
subordinated in right of payment to the Senior
Exchange Notes. The Senior Exchange Notes,
however, will be effectively subordinated to
secured obligations of the Company with respect to
the assets of the Company securing such
obligations, including Indebtedness under the
Credit Agreement, which is secured by
substantially all of the assets of the Company. As
of May 3, 1997, on a pro forma basis after giving
effect to the sale of the Old Notes and the use of
the net proceeds therefrom, consolidated
Indebtedness of the Company would have been
approximately $649.7 million, of which $143.2
million would have been secured Senior
Indebtedness and $200.0 million would have been
unsecured Senior Indebtedness. Subject to certain
limitations, the Company and its Restricted
Subsidiaries (as defined herein) may incur
additional Indebtedness in the future.
The Senior Exchange Notes will be guaranteed by
all existing material U.S. subsidiaries of the
Company. Each Senior Guarantee will be an
unsecured senior obligation of the Guarantor
issuing such Senior Guarantee, ranking pari passu
in right of payment with all other existing and
future unsubordinated obligations of such
Guarantor and senior in right of payment to all
existing and future obligations of such Guarantor
expressly subordinated in right of payment to
senior obligations of such Guarantor. The
Guarantors currently have no subordinated
obligations outstanding. Each Senior Guarantee,
however, will be effectively subordinated to
secured senior obligations of the applicable
Guarantor with respect to the assets of such
Guarantor securing such obligations, including any
guarantee by such Guarantor of the Company's
Indebtedness under the Credit Agreement. As of May
3, 1997, the aggregate liabilities of the
Company's subsidiaries, including the Guarantors,
was approximately $65.7 million, of which
liabilities of the Guarantors was $55.5 million.
See "Description of the Exchange Notes--Ranking."
SENIOR SUBORDINATED EXCHANGE NOTES
Maturity Date . . . . . . August 15, 2007.
Optional Redemption . . . The Senior Subordinated Exchange Notes will be
redeemable at the option of the Company, in whole
or in part, at any time or from time to time, on
or after August 15, 2002, at the redemption prices
set forth herein, together with accrued and unpaid
interest, if any, to the date of redemption. In
addition, at any time prior to August 15, 2000,
the Company may redeem up to 30% of the Old Senior
Subordinated Notes and the Senior Subordinated
Exchange Notes within 60 days of one or more
Public Equity Offerings with the net proceeds of
such offering at a redemption price equal to 109%
of the principal amount thereof, together with
accrued and unpaid interest, if any, to the date
of redemption; provided that immediately after
giving effect to any such redemption, at least
$87.5 million aggregate principal amount of the
Senior Subordinated Notes remains outstanding. See
"Description of the Exchange Notes--Terms of the
Senior Subordinated Exchange Notes--Optional
Redemption."
Ranking. . . . . . . . . . The Senior Subordinated Exchange Notes will be
unsecured senior subordinated Indebtedness of the
Company ranking pari passu with all other existing
and future senior subordinated Indebtedness of the
Company, if any. The payment of the principal of,
premium, if any, and interest on the Senior
Subordinated Exchange Notes will be subordinated,
as set forth in the Senior Subordinated Note
Indenture, in right of payment to the prior
payment in full of all Senior Indebtedness,
including, without limitation, the Company's
obligations under the Credit Agreement and the
Senior Notes. The Senior Subordinated Exchange
Notes will rank senior to the 5-1/2% Convertible
Subordinated Notes Due 2003 (the "Convertible
Notes") of the Company.
The Senior Subordinated Exchange Notes will be
guaranteed by all existing material U.S.
subsidiaries of the Company. Each Senior
Subordinated Guarantee will be an unsecured senior
subordinated obligation of the Guarantor issuing
such Senior Subordinated Guarantee, ranking pari
passu with all other existing and future senior
subordinated Indebtedness of such Guarantor, if
any. The Indebtedness evidenced by each Senior
Subordinated Guarantee will be subordinated on the
same basis to Guarantor Senior Indebtedness as the
Senior Subordinated Notes are subordinated to
Senior Indebtedness. See "Description of the
Exchange Notes--Ranking."
TERMS COMMON TO SENIOR
EXCHANGE NOTES AND SENIOR
SUBORDINATED EXCHANGE NOTES
Interest Payment
Dates. . . . . . . . . . February 15 and August 15 of each year, commencing
February 15, 1998.
Guarantees . . . . . . . . The Notes will be fully and unconditionally
guaranteed on a senior basis with respect to the
Senior Exchange Notes and on a senior subordinated
basis with respect to the Senior Subordinated
Exchange Notes by the Guarantors. Under certain
circumstances, future subsidiaries of the Company
may be required to guarantee the Notes. In
addition, the Guarantees are subject to release
under certain circumstances. See "Description of
the Exchange Notes--Guarantees" and "Description
of the Exchange Notes--Certain Covenants--
Limitation on Guarantees of Indebtedness by
Restricted Subsidiaries."
Certain Covenants. . . . . The Indentures under which the Senior Exchange
Notes and the Senior Subordinated Exchange Notes
will be issued contain covenants, including, but
not limited to, covenants with respect to the
following matters: (i) limitation on indebtedness;
(ii) limitation on restricted payments; (iii)
limitation on issuances and sales of capital stock
of Restricted Subsidiaries; (iv) limitation on
transactions with affiliates; (v) limitation on
liens; (vi) limitation on sale of assets; (vii)
limitation on consolidation, merger and sale of
substantially all assets; (viii) limitation on
guarantees of indebtedness by Restricted
Subsidiaries; (ix) limitation on dividend and
other payment restrictions affecting Restricted
Subsidiaries; (x) limitation on investment in
Unrestricted Subsidiaries; and (xi) with respect
to the Senior Subordinated Notes only, limitation
on other senior subordinated indebtedness. The
Senior Note Indenture provides that after the
Senior Notes achieve an investment grade rating
from both Standard & Poor's Ratings Service and
Moody's Investors Service, Inc., the Company's
obligation to comply with certain of the
restrictive covenants described herein will be
terminated. See "Description of the Exchange
Notes---Certain Covenants."
Absence of Public
Market. . . . . . . . . . The Old Notes are designated for trading in the
PORTAL market. There is no established trading
market for the Exchange Notes. The Company does
not currently intend to list the Exchange Notes on
any securities exchange or to seek approval for
quotation through any automated quotation system.
Accordingly, there can be no assurance as to the
development or liquidity of any market for the
Exchange Notes. The certificates representing the
Exchange Notes will be issued in fully registered
form.
Change of Control. . . . . Upon the occurrence of a Change of Control, each
holder of the Notes may require the Company to
purchase all or any portion of such holder's Notes
at a purchase price equal to 101% of the principal
amount thereof, together with accrued and unpaid
interest, if any, to the date of purchase. See
"Description of the Exchange Notes--Certain
Covenants--Purchase of Notes upon a Change of
Control."
Risk Factors
See "Risk Factors" for a discussion of certain factors which should be
considered by holders of the Old Notes prior to tendering Old Notes in the
Exchange Offer.
Summary Financial Data
The following table sets forth summary financial data derived from
financial statements of the Company. Financial data for the three years ended
December 31, 1994, the transition period from January 1, 1995 through January
28, 1995 and the periods ended February 3, 1996 and February 1, 1997 is derived
from audited financial statements of the Company. The financial data for the 13
weeks ended May 4, 1996 and May 3, 1997 is derived from unaudited financial
statements; however, in the opinion of management of the Company, such data
includes all adjustments, consisting of normal recurring adjustments, necessary
for a fair presentation of such information. The financial data should be read
in conjunction with the Consolidated Financial Statements of the Company and the
Notes thereto, incorporated by reference herein.
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Transition
Period
January 1 53 Weeks 52 Weeks 13 Weeks Ended
Year Ended December 31, to Ended Ended --------------------
---------------------------- January 28, February 3, February 1, May 4, May 3,
1992 1993 1994 1995 1996(a) 1997 1996 1997
-------- -------- -------- ----------- ----------- ----------- -------- --------
(dollars in thousands)
Income Statement Data:
Net revenues. . . . . . . . . . . . . $461,936 $552,194 $652,457 $42,539 $1,258,630 $1,603,115 $355,911 $406,083
Cost of goods sold. . . . . . . . . . 263,967 313,566 364,533 24,582 720,963 913,946 202,238 224,242
Purchase accounting adjustments
to cost of goods sold(b) . . . . . . - - - - 34,864 - - -
Business restructuring
and integration expenses(c). . . . . - - - - 51,900 18,970 - -
Operating income. . . . . . . . . . . 59,297 82,708 109,008 1,555 63,245 181,353 35,049 41,103
Interest expense. . . . . . . . . . . 6,882 3,255 2,199 - 29,611 41,947 9,967 12,311
Net income(d) . . . . . . . . . . . . 31,449 58,656 63,890 941 18,976 81,008 15,050 17,491
Other Financial Data:
EBITDAR(e). . . . . . . . . . . . . . 79,880 108,911 143,866 5,252 234,318 313,975 61,779 71,102
Rental expense. . . . . . . . . . . . 15,200 19,900 27,300 2,970 59,900 80,669 18,554 20,885
EBITDA(f). . . . . . . . . . . . . . 64,680 89,011 116,566 2,282 174,418 233,306 43,225 50,217
Capital expenditures. . . . . . . . . 10,237 15,931 23,096 360 39,944 42,806 8,199 7,498
Ratio of EBITDA
to interest expense. . . . . . . . . 9.40x 27.35x 53.01x - 5.89x 5.56x 4.34x 4.08x
Ratio of earnings
to fixed charges(g). . . . . . . . . 5.34x 8.98x 10.33x - 1.66x 3.00x 2.54x 2.49x
Balance Sheet Data (at end of period):
Working capital . . . . . . . . . . . $105,891 $171,482 $170,015 S 297,312 $ 491,674 $ 535,044
Total assets . . . . . . . . . . . . 199,068 292,808 302,791 1,160,092 1,261,063 1,255,372
Long-term debt and due
to stockholders. . . . . . . . . . . 88,322 50,951 2,400 471,000 600,407 610,574
Stockholders' equity. . . . . . . . . 54,636 165,499 234,627 328,326 360,540 379,549
Selected Store Data:
Stores at beginning of period . . . . 180 230 306 410 888 1,061
Stores opened or acquired . . . . . . 51 79 108 497 214 53
Stores closed . . . . . . . . . . . . 1 3 4 19 41 10
-------- -------- -------- ---------- ---------- ----------
Stores at end of period . . . . . . . 230 306 410 888 1,061 1,104
======== ======== ======== ========== ========== ==========
Sales per square foot . . . . . . . . $ 506 $ 483 $ 472 $ 318 $ 340 $ 339
</TABLE>
_____________
(a) Fiscal 1995 data is not comparable to the prior years, as such information:
(1) reflects the change in the Company's fiscal year-end from December 31
to the Saturday closest to January 31 which resulted in a 53-week period
(371 days) ended February 3, 1996, while prior years are 365-day periods;
and (2) includes the results of operations of the footwear business of U.S.
Shoe since the U.S. Shoe Acquisition.
(b) Reflects a $34.9 million non-recurring increase in cost of goods sold,
attributable to the fair value of inventory over FIFO cost, recorded as a
result of the U.S. Shoe Acquisition, as required by the purchase method of
accounting.
(c) Represents business restructuring and integration expenses and charges of
$51.9 million for Fiscal 1995 associated with the integration of the
footwear business of U.S. Shoe into the Company and $19.0 million for
Fiscal 1996 associated with the restructuring of North American
manufacturing facilities.
(d) Reflects federal and state income tax (assuming a 41% effective tax rate in
1993 and 40% in 1992) as if the Company had not been treated as an S
corporation during the periods prior to the Company's initial public
offering on February 9, 1993.
(e) EBITDAR represents EBITDA before rental expense.
(f) EBITDA represents earnings from continuing operations before interest
expense, income taxes, depreciation, amortization and unusual items. EBITDA
is included because management understands that such information is
considered by certain investors to be an additional basis on which to
evaluate the Company's ability to pay interest, repay debt and make capital
expenditures. Excluded from EBITDA are loss from discontinued operations,
interest, income taxes, depreciation and amortization, each of which can
significantly affect the Company's results of operations and liquidity and
should be considered in evaluating the Company's financial performance.
EBITDA in Fiscal 1995 and Fiscal 1996 excludes the charges referred to in
footnotes (b) and (c) above. EBITDA is not intended to represent and should
not be considered more meaningful than, or an alternative to, measures of
operating performance as determined in accordance with generally accepted
accounting principles.
(g) For the purpose of computing this ratio, earnings consists of earnings from
continuing operations before income taxes and fixed charges. Fixed charges
consists of interest expense plus the portion of rental expense under
operating leases that has been deemed by the Company to be representative
of the interest factor (approximately one-third of rental expense).
RISK FACTORS
Holders of Old Notes should consider carefully, in addition to the other
information contained in this Prospectus, the following factors before deciding
to tender Old Notes in the Exchange Offer. The risk factors set forth below are
generally applicable to the Old Notes as well as the Exchange Notes.
Effects of Leverage
After giving effect to the sale of the Old Notes and the application of the
net proceeds therefrom, the Company's outstanding consolidated Indebtedness on
May 3, 1997 would have been approximately $649.7 million and the Company's ratio
of total debt to total capitalization would have been 63.1%. In Fiscal 1994,
1995 and 1996, the Company's ratio of earnings to fixed charges was 10.33x,
1.66x and 3.00x, respectively. The Company's level of indebtedness will have
several important effects on its future operations, including (i) a substantial
portion of the Company's cash flow from operations must be dedicated to the
payment of interest on its indebtedness and will not be available for other
purposes, (ii) covenants contained in the Company's debt obligations will
require the Company to meet certain financial tests, and other restrictions will
limit its ability to borrow additional funds or to dispose of assets and may
affect the Company's flexibility in planning for, and reacting to, changes in
its businesses, including possible acquisition activities and (iii) the
Company's ability to obtain additional financing in the future for working
capital, capital expenditures, acquisitions, general corporate purposes or other
purposes may be impaired. The Company's ability to meet its debt service
obligations and to reduce its total indebtedness will be dependent upon the
Company's future performance, general economic conditions and financial,
business and other factors affecting the operations of the Company, many of
which are beyond its control. There can be no assurance that the Company's
future performance will not be adversely affected by some or all of these
factors.
Substantial Competition and Changing Fashion Trends
Competition is intense in the women's footwear business. The Company must
remain competitive in the areas of style, quality, price, comfort, brand loyalty
and customer service. The location and atmosphere of retail stores are an
additional competitive factor in the Company's retail division. The Company's
competitors include numerous manufacturers, importers and distributors, some of
which may have certain resources not available to the Company. The Company
competes with distributors that import footwear, domestic companies that have
foreign manufacturing relationships and companies that produce footwear
domestically. In its retail division, the Company's primary competition is
comprised of large national chains, department stores, specialty footwear stores
and other outlet stores. Any failure by the Company to identify and respond to
emerging fashion trends could adversely affect consumer acceptance of the
Company's brand names and product lines, which in turn could adversely affect
the Company's financial condition and results of operations. The Company
attempts to minimize the risk of changing fashion trends and product acceptance
by offering a wide assortment of dress, career and casual shoes during
particular selling seasons, approximately one-half of which are in classic
styles that the Company believes are less vulnerable to fashion trend changes.
Investigation by the Securities and Exchange Commission
On May 1, 1997, the Company learned that on April 10, 1997, the Commission
entered a formal order of investigation into, among other things, the Company's
revenue recognition policies and practices. Based on conversations with the
staff of the Commission dating back to the Fall of 1996, when an informal
investigation was commenced, the Company believes that this investigation is
focused on the revenue recognition policies and practices of certain of the
Company's divisions that were acquired from U.S. Shoe in 1995. The Company has
been cooperating fully with the staff of the Commission and intends to continue
its cooperation. Based on the limited information presently available to it, the
Company does not anticipate that the investigation will have a material adverse
financial effect on the Company. No assurance can be given, however, that the
scope of the investigation is not wider than this, or that the scope of such
investigation will not be broadened in the future, or that any such broader
investigation will not have a material adverse financial effect on the Company.
Acquisition Integration
The Company from time to time acquires other companies and businesses which
it believes will enhance or complement its existing business. The Company's
ability to successfully integrate the operations and assets so acquired could
require the deployment of significant management and other resources of the
Company and is subject to various factors, including (i) the Company's ability
to continue to implement such integration without unforeseen difficulty and (ii)
external events affecting business in general and the footwear industry in
particular over which the Company has no control. There can be no assurance as
to how much time will be required to complete any such integration, that the
Company will be able to successfully integrate the acquired operations and
assets with its own, that it will achieve the anticipated cost savings as a
result of such integration or that the costs of such integration will not exceed
anticipated amounts.
Expansion of Business
A significant part of the Company's strategy is to expand its retailing
concepts and to continue its international retail and wholesale expansion plans.
The Company intends to accomplish such expansion by opening new stores and may
include additional acquisitions. The Company has also recently added and may
continue to add new related lines of business. In addition, the Company has
begun and expects to continue to market its products in non-U.S. markets. The
types of stores opened by the Company and the results generated by such stores,
new lines of business and new markets will depend on various factors, including,
among others, general economic and business conditions affecting consumer
spending, the performance of the Company's wholesale and retail operations, the
acceptance by consumers of the Company's retail concepts, the Company's ability
to design, manufacture and market new product lines and to penetrate new
markets, the availability of desirable locations and the ability of the Company
to negotiate acceptable lease terms for new locations, hire and train personnel
and otherwise manage such expansion, and find acceptable partners for its
international stores.
Impact of Brazilian and Other Foreign Operations
Over 60% of the Company's footwear products are manufactured by more than
28 independently owned footwear manufacturers in Brazil. The Company is the
dominant and, in many cases, the exclusive customer for these manufacturers'
production. The Company believes that such Brazilian manufacturing relationships
provide a significant competitive advantage to the Company and are a major
contributor to the Company's success. Thus, the Company's future results of
operations will partly depend on maintaining its close working relationships
with its principal manufacturers, both directly and through the Company's buying
agent. Neither the buying agent nor any of its principals is affiliated with the
Company. The Company has entered into a five-year contract with the buying
agent, effective January 1, 1992, which has been extended for an additional five
years, which provides that the buying agent, its owners, employees, directors
and affiliates will not act as a buying agent for, or sell leather footwear
manufactured in Brazil to, other importers, distributors or retailers for resale
in the United States, Canada or the United Kingdom. The Company does not
maintain supply contracts with any of its manufacturers.
Historically, instability in Brazil's political and economic environment
has not had a material adverse effect on the Company's financial condition or
results of operations. The Company cannot predict, however, the effect that
future changes in economic or political conditions in Brazil could have on the
economics of doing business with its Brazilian manufacturers. Although the
Company believes that it could find alternative manufacturing sources for those
products which it currently sources in Brazil, the establishment of new
manufacturing relationships would involve various uncertainties, and the loss of
a substantial portion of its Brazilian manufacturing capacity before the
alternative sourcing relationships were fully developed could have a material
adverse effect on the Company's financial condition or results of operations.
However, as a result of the U.S. Shoe Acquisition, the Company now has
manufacturing operations in the United States and additional relationships in
other countries as potential alternative sources for its products.
The Company's footwear is also manufactured by third parties located in
China, Korea and other countries in the Far East, and in Italy, Spain, Mexico
and Uruguay. The Company's accessories are manufactured principally by
third-party manufacturers in the Far East.
The Company's business is subject to other risks of doing business abroad,
such as fluctuations in exchange rates, the imposition of additional regulations
relating to imports, including quotas, duties or taxes and other charges on
imports, and other risks relating to changes in local government administrations
and policies and resulting changes in business customs and practices. In order
to minimize the risk of exchange rate fluctuations, the Company purchases
products from Brazilian manufacturers in United States dollars and otherwise
engages in foreign currency hedging transactions. The Company cannot predict
whether additional United States or foreign customs quotas, duties, taxes or
other charges or restrictions will be imposed upon the importation of its
non-domestically produced products in the future or what effect such actions
could have on its financial condition or results of operations.
Subordination of Senior Subordinated Exchange Notes; Asset Encumbrances
The indebtedness evidenced by the Senior Subordinated Exchange Notes is
subordinate to the prior payment in full of all Senior Indebtedness (as defined
herein). As of May 3, 1997, on a pro forma basis, after giving effect to the
Offering and the use of the net proceeds therefrom, the Company would have had
approximately $343.2 million of Senior Indebtedness outstanding. In addition,
because a substantial portion of the Company's operations is conducted through
subsidiaries, claims of holders of indebtedness and of other creditors of such
subsidiaries will have priority with respect to the assets and earnings of such
subsidiaries over the claims of creditors of the Company, including holders of
the Senior Subordinated Exchange Notes. As of May 3, 1997, the aggregate
liabilities of such subsidiaries, including the Guarantors, was approximately
$65.7 million, of which liabilities of the Guarantors was $55.5 million. The
Indentures permit the incurrence of additional Indebtedness, including Senior
Indebtedness or pari passu Indebtedness, by the Company and its subsidiaries,
subject to certain restrictions. During the continuance of any default in the
payment of principal, premium, interest or any other payment due on the Senior
Indebtedness, no payment of principal or interest on the Senior Subordinated
Exchange Notes may be made by the Company. In addition, upon any distribution of
assets of the Company upon any dissolution, winding up, liquidation or
reorganization, the payment of the principal and interest on the Senior
Subordinated Exchange Notes is subordinated to the extent provided in the
applicable Indenture to the prior payment in full of all Senior Indebtedness and
is structurally subordinated to claims of creditors of each subsidiary of the
Company that is not a Guarantor. By reason of this subordination, in the event
of the Company's dissolution, holders of Senior Indebtedness may receive more,
ratably, and holders of the Senior Subordinated Exchange Notes may receive less,
ratably, than the other creditors of the Company. The Company's cash flow and
ability to service debt, including the Senior Subordinated Exchange Notes, are
substantially dependent upon the earnings of its subsidiaries and the
distribution of those earnings to, or upon payments by those subsidiaries to,
the Company. The ability of the Company's subsidiaries to make such
distributions or payments may be subject to contractual or statutory
restrictions. See "Description of the Exchange Notes---Ranking."
The Company's obligations under the Credit Agreement are secured by
security interests in substantially all of the current and future assets of the
Company (other than certain receivables) and its domestic subsidiaries
(including a pledge of all of the issued and outstanding shares of capital stock
of the Company's domestic subsidiaries). In the event of a default on secured
indebtedness (whether as a result of the failure to comply with a payment or
other covenant, a cross-default, or otherwise), the parties granted such
security interests will have a prior secured claim on the assets of the Company.
Moreover, if such parties should attempt to foreclose on their collateral, it is
possible that there would be insufficient assets remaining after satisfaction in
full of all such indebtedness to satisfy in full the claims of the holders of
the Exchange Notes and the Company's financial condition and the value of the
Exchange Notes could be materially adversely affected.
Fraudulent Conveyance Considerations Relating to Guarantees
The Company's obligations under the Notes are guaranteed on a senior basis
in the case of the Senior Exchange Notes and on a senior subordinated basis in
the case of the Senior Subordinated Exchange Notes by the Guarantors. Various
fraudulent conveyance laws have been enacted for the protection of creditors and
may be utilized by a court of competent jurisdiction to subordinate or avoid any
Guarantee issued by a Guarantor. It is also possible that under certain
circumstances a court could hold that the direct obligations of a Guarantor
could be superior to the obligations under the Guarantees.
To the extent that a court were to find that at the time a Guarantor
entered into a Guarantee either (x) the Guarantee was incurred by the Guarantor
with the intent to hinder, delay or defraud any present or future creditor or
that a Guarantor contemplated insolvency with a design to favor one or more
creditors to the exclusion in whole or in part of others or (y) the Guarantor
did not receive fair consideration or reasonably equivalent value for issuing
the Guarantee and, at the time it issued the Guarantee, the Guarantor (i) was
insolvent or rendered insolvent by reason of the issuance of the Guarantee, (ii)
was engaged or about to engage in a business or transaction for which the
remaining assets of the Guarantor constituted unreasonably small capital or
(iii) intended to incur, or believed that it would incur, debts beyond its
ability to pay such debts as they matured, the court could avoid or subordinate
the Guarantee in favor of the Guarantor's other debts or liabilities. Among
other things, a legal challenge to a Guarantee issued by a Guarantor on
fraudulent conveyance grounds may focus on the benefits, if any, realized by the
Guarantor as a result of the issuance by the Company of the Exchange Notes. To
the extent a Guarantee is avoided as a result of fraudulent conveyance or held
unenforceable for any other reason, the holders of the Exchange Notes would
cease to have any claim in respect of such Guarantor and would be creditors
solely of the Company.
Repurchase of Exchange Notes at the Option of Holders Upon a Change of Control;
Availability of Funds
In the event of a Change of Control, each holder of Exchange Notes will
have the right to require that the Company repurchase the Exchange Notes, in
whole or in part, at a redemption price of 101% of the principal amount thereof,
plus accrued interest to the date of purchase. If a Change of Control were to
occur, there can be no assurance that the Company would have sufficient funds to
pay such redemption price for all Exchange Notes tendered by the holders
thereof. See "--Subordination of Senior Subordinated Exchange Notes; Asset
Encumbrances" above. The Company's ability to pay such redemption price is, and
may in the future be, prohibited or limited by the terms of the Credit Agreement
or other agreements.
Consequences of a Failure to Exchange Old Notes
The Old Notes have not been registered under the Securities Act or any
state securities laws and therefore may not be offered, sold or otherwise
transferred except in compliance with the registration requirements of the
Securities Act and any other applicable securities laws, or pursuant to an
exemption therefrom or in a transaction not subject thereto, and in each case in
compliance with certain other conditions and restrictions. Old Notes that remain
outstanding after consummation of the Exchange Offer will continue to bear a
legend reflecting such restrictions on transfer. In addition, upon consummation
of the Exchange Offer, holders of Old Notes that remain outstanding will not be
entitled to any rights under the Registration Rights Agreement that by their
terms terminate or cease to have further effectiveness as a result of the making
of this Exchange Offer, including an increase in the interest rates on the Old
Notes. The Company does not currently anticipate that it will register the Old
Notes under the Securities Act.
The Old Notes were issued to, and the Company believes are currently owned
by, a small number of beneficial owners. Although the Old Notes have been
designated for trading in the PORTAL market, to the extent that Old Notes are
tendered and accepted in connection with the Exchange Offer, any trading market
for Old Notes that remain outstanding after the Exchange Offer could be
adversely affected.
Absence of Public Market for the Exchange Notes
The Exchange Notes are being offered to the holders of the Old Notes. The
Company does not intend to apply for a listing of the Exchange Notes on a
securities exchange. There is currently no established market for the Exchange
Notes and there can be no assurance as to the liquidity of markets that may
develop for the Exchange Notes, the ability of the holders of the Exchange Notes
to sell their Exchange Notes or the price at which such holders would be able to
sell their Exchange Notes. If such markets were to exist, the Exchange Notes
could trade at prices that may be lower than the initial market values thereof
depending on many factors, including prevailing interest rates and the markets
for similar securities. Although currently there is no market for the Exchange
Notes, the Initial Purchasers have advised the Company that they currently
intend to make a market in the Exchange Notes. However, the Initial Purchasers
are not obligated to do so, and any market making with respect to the Exchange
Notes may be discontinued at any time without notice.
The liquidity of, and trading market for, the Exchange Notes also may be
adversely affected by general declines in the market for similar securities.
USE OF PROCEEDS
There will be no proceeds to the Company from the exchange of Notes
pursuant to the Exchange Offer.
CAPITALIZATION
The following table sets forth the capitalization of the Company at May 3,
1997, (i) on an actual basis and (ii) as adjusted to reflect the sale of the Old
Notes by the Company and the application of the net proceeds therefrom. See "Use
of Proceeds."
As of May 3, 1997
------------------------
Actual As Adjusted
---------- -----------
(in thousands)
Cash and cash equivalents . . . . . . . . . . . . $ 29,281 $ 29,281
========== ==========
Current portion of long-term debt(1). . . . . . . $ 38,000 $ -
Long-term debt (excluding current portion):
Six and one-half year quarterly
amortizing term loan . . . . . . . . . . . . 279,000 -
Revolving credit facility . . . . . . . . . . 150,000 143,154
Old Senior Notes. . . . . . . . . . . . . . . - 200,000
Old Senior Subordinated Notes . . . . . . . . - 125,000
5-1/2% Convertible Subordinated Notes . . . . 181,574 181,574
---------- ----------
Total long-term debt. . . . . . . . . . . 610,574 649,728
---------- ----------
Total debt. . . . . . . . . . . . . . . . 648,574 649,728
---------- ----------
Stockholders' equity:
Common Stock, par value $.01 per share;
100,000,000 shares authorized, 35,825,279
shares issued and outstanding(2) . . . . . . 358 358
Additional paid in capital. . . . . . . . . . 141,913 141,913
Retained earnings . . . . . . . . . . . . . . 237,278 237,278
---------- ----------
Total stockholders' equity. . . . . . . . 379,549 379,549
---------- ----------
Total capitalization . . . . . . . . . . . . . . . $1,028,123 $1,029,277
========== ==========
_____________
(1) The $38.0 million current portion of long-term debt relates exclusively to
a scheduled repayment of principal of the six and one-half year quarterly
amortizing term loan.
(2) Does not include an aggregate of approximately 7,500,000 shares of Common
Stock consisting of (i) 4,400,000 shares of Common Stock subject to options
and (ii) 3,100,000 shares of Common Stock that may be issuable upon
conversion of the 5-1/2% Convertible Subordinated Notes Due 2003.
THE EXCHANGE OFFER
General
The Company hereby offers, upon the terms and subject to the conditions set
forth in this Prospectus and in the accompanying Letter of Transmittal (which
together constitute the Exchange Offer), to exchange up to $200,000,000
aggregate principal amount of Senior Exchange Notes for a like aggregate
principal amount of Old Senior Notes and to exchange up to $125,000,000
aggregate principal amount of Senior Subordinated Exchange Notes for a like
aggregate principal amount of Old Senior Subordinated Notes, in each case,
properly tendered on or prior to the Expiration Date and not withdrawn as
permitted pursuant to the procedures described below. The Exchange Offer is
being made with respect to all of the Old Notes.
As of the date of this Prospectus, the aggregate principal amount of the
Old Senior Notes outstanding is $200,000,000, and the aggregate principal amount
of the Old Senior Subordinated Notes outstanding is $125,000,0000. This
Prospectus, together with the Letter of Transmittal, is first being sent on or
about , 1997, to all holders of Old Notes known to the Company. The
Company's obligation to accept Old Notes for exchange pursuant to the Exchange
Offer is subject to certain conditions set forth under "--Certain Conditions to
the Exchange Offer" below. The Company currently expects that each of the
conditions will be satisfied and that no waivers will be necessary.
Purpose of the Exchange Offer
The Old Notes were issued on July 9, 1997 in a transaction exempt from the
registration requirements of the Securities Act. Accordingly, the Old Notes may
not be reoffered, resold, or otherwise transferred unless registered under the
Securities Act or any applicable securities law or unless an applicable
exemption from the registration and prospectus delivery requirements of the
Securities Act is available.
In connection with the issuance and sale of the Old Notes, the Company and
the Guarantors entered into the Registration Rights Agreement, which requires
the Company and the Guarantors to file with the Commission a registration
statement relating to the Exchange Offer not later than 60 days after the date
of issuance of the Old Notes, and to use their best efforts to cause the
registration relating to the Exchange Offer to become effective under the
Securities Act not later than 365 days after the date of issuance of the Old
Notes and the Exchange Offer to be consummated not later than 45 days after the
date of the effectiveness of the Registration Statement (or use their best
efforts to cause to become effective by the 365th day after the date of issuance
of the Old Notes a shelf registration statement with respect to resales of the
Old Notes). A copy of the Registration Rights Agreement has been filed as an
exhibit to the Registration Statement.
The Exchange Offer is being made by the Company to satisfy certain of its
and the Guarantors' obligations under the Registration Rights Agreement. The
term "holder," with respect to the Exchange Offer, means any person in whose
name Old Notes are registered on the books of the Company or any other person
who has obtained a properly completed bond power from the registered holder, or
any person whose Old Notes are held of record by The Depository Trust Company.
Other than pursuant to the Registration Rights Agreement, the Company is not
required to file any registration statement to register any outstanding Old
Notes. Holders of Old Notes who do not tender their Old Notes or whose Old Notes
are tendered but not accepted would have to rely on exemptions to registration
requirements under the securities laws, including the Securities Act, if they
wish to sell their Old Notes.
Terms of the Exchange
The Company hereby offers to exchange, subject to the conditions set forth
herein and in the Letter of Transmittal accompanying this Prospectus, $1,000 in
principal amount of Exchange Notes for each $1,000 in principal amount of the
Old Notes. The terms of the Exchange Notes are identical in all material
respects to the terms of the Old Notes for which they may be exchanged pursuant
to this Exchange Offer, except that the Exchange Notes will generally be freely
transferable by holders thereof and will not be subject to any covenant
regarding registration. The Exchange Notes will evidence the same indebtedness
as the Old Notes and will be entitled to the benefits of the Indentures. See
"Description of Exchange Notes."
The Exchange Offer is not conditioned upon any minimum aggregate principal
amount of Old Notes being tendered for exchange.
The Company is making the Exchange Offer in reliance on the position of the
Commission as set forth in certain interpretive letters addressed to third
parties in other transactions. However, the Company has not sought its own
interpretive letters, and there can be no assurance that the Commission would
make a similar determination with respect to the Exchange Notes. Based on these
interpretations by the staff of the Commission, the Company believes that
Exchange Notes issued pursuant to the Exchange Offer in exchange for Old Notes
may be offered for sale, resold and otherwise transferred by any holder of such
Exchange Notes (other than any such holder that is a broker-dealer or an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act) without compliance with the registration and prospectus delivery provisions
of the Securities Act, provided that such Exchange Notes are acquired in the
ordinary course of such holder's business and such holder has no arrangement or
understanding with any person to participate in the distribution of such
Exchange Notes and neither such holder nor any other such person is engaging in
or intends to engage in a distribution of such Exchange Notes. Since the
Commission has not considered the Exchange Offer in the context of a no-action
letter, there can be no assurance that the staff of the Commission would make a
similar determination with respect to the Exchange Offer. See "--Resale of
Exchange Notes" and "Plan of Distribution."
Interest on the Exchange Notes shall accrue from the last Interest Payment
Date on which interest was paid on the Old Notes so surrendered or, if no
interest has been paid on such Notes, from July 9, 1997.
Tendering holders of the Old Notes shall not be required to pay brokerage
commissions or fees or, subject to the instructions in the Letter of
Transmittal, transfer taxes with respect to the exchange of the Old Notes
pursuant to the Exchange Offer.
Expiration Date; Extension; Termination; Amendment
The Exchange Offer will expire at 5:00 p.m., New York City time, on
, 1997 (the "Expiration Date"). The Expiration Date will be at least 20
business days after the commencement of the Exchange Offer in accordance with
Rule 14e-1(a) under the Exchange Act. The Company expressly reserves the right,
at any time or from time to time, to extend the period of time during which the
Exchange Offer is open, and thereby delay acceptance for exchange of any Old
Notes, by giving oral or written notice to the Exchange Agent and by giving
written notice of such extension to the holders thereof or by timely public
announcement no later than 9:00 a.m., New York City time, on the next business
day after the previously scheduled Expiration Date. During any such extension,
all Old Notes previously tendered will remain subject to the Exchange Offer
unless properly withdrawn. The Company does not anticipate extending the
Expiration Date.
The Company expressly reserves the right to (i) terminate the Exchange
Offer and not to accept for exchange any Old Notes not theretofore accepted for
exchange upon the occurrence of any of the events specified below under
"--Certain Conditions to the Exchange Offer" which have not been waived by the
Company and (ii) amend the terms of the Exchange Offer in any manner which, in
its good faith judgment, is advantageous to the holders of the Old Notes,
whether before or after any tender of the Notes. If any such termination or
amendment occurs, the Company will notify the Exchange Agent and will either
issue a press release or give oral or written notice to the holders of the Old
Notes as promptly as practicable.
For purposes of the Exchange Offer, a "business day" means any day other
than Saturday, Sunday or a date on which banking institutions are required or
authorized by New York State law to be closed, and consists of the time period
from 12:01 a.m. through 12:00 midnight, New York City time. Unless the Company
terminates the Exchange Offer prior to 5:00 p.m., New York City time, on the
Expiration Date, the Company will exchange the Exchange Notes for the Old Notes
on the Exchange Date.
Procedures for Tendering Old Notes
The tender to the Company of Old Notes by a holder thereof as set forth
below and the acceptance thereof by the Company will constitute a binding
agreement between the tendering holder and the Company upon the terms and
subject to the conditions set forth in this Prospectus and in the accompanying
Letter of Transmittal.
A holder of Old Notes may tender the same by (i) properly completing and
signing the Letter of Transmittal or a facsimile thereof (all references in this
Prospectus to the Letter of Transmittal shall be deemed to include a facsimile
thereof) and delivering the same, together with the certificate or certificates
representing the Old Notes being tendered and any required signature guarantees
and any other documents required by the Letter of Transmittal, to the Exchange
Agent at its address set forth below on or prior to the Expiration Date (or
complying with the procedure for book-entry transfer described below) or (ii)
complying with the guaranteed delivery procedures described below.
The method of delivery of Old Notes, Letters of Transmittal and all other
required documents is at the election and risk of the holders. If such delivery
is by mail, it is recommended that registered mail, properly insured, with
return receipt requested, be used. In all cases, sufficient time should be
allowed to insure timely delivery. No Old Notes or Letters of Transmittal should
be sent to the Company.
If tendered Old Notes are registered in the name of the signer of the
Letter of Transmittal and the Exchange Notes to be issued in exchange therefor
are to be issued (and any untendered Old Notes are to be reissued) in the name
of the registered holder (which term, for the purposes described herein, shall
include any participant in The Depository Trust Company (also referred to as a
"book-entry transfer facility") whose name appears on a security listing as the
owner of Old Notes), the signature of such signer need not be guaranteed. In any
other case, the tendered Old Notes must be endorsed or accompanied by written
instruments of transfer in form satisfactory to the Company and duly executed by
the registered holder, and the signature on the endorsement or instrument of
transfer must be guaranteed by a bank, broker, dealer, credit union, savings
association, clearing agency or other institution (each an "Eligible
Institution") that is a member of a recognized signature guarantee medallion
program within the meaning of Rule 17Ad-15 under the Exchange Act. If the
Exchange Notes and/or Old Notes not exchanged are to be delivered to an address
other than that of the registered holder appearing on the note register for the
Old Notes, the signature in the Letter of Transmittal must be guaranteed by an
Eligible Institution.
The Exchange Agent will make a request within two business days after the
date of receipt of this Prospectus to establish accounts with respect to the Old
Notes at the book-entry transfer facility for the purpose of facilitating the
Exchange Offer, and subject to the establishment thereof, any financial
institution that is a participant in the book-entry transfer facility's system
may make book-entry delivery of Old Notes by causing such book-entry transfer
facility to transfer such Old Notes into the Exchange Agent's account with
respect to the Old Notes in accordance with the book-entry transfer facility's
procedures for such transfer. Although delivery of Old Notes may be effected
through book-entry transfer into the Exchange Agent's account at the book-entry
transfer facility, an appropriate Letter of Transmittal with any required
signature guarantee and all other required documents must in each case be
transmitted to and received or confirmed by the Exchange Agent at its address
set forth below on or prior to the Expiration Date, or, if the guaranteed
delivery procedures described below are complied with, within the time period
provided under such procedures.
If a holder desires to accept the Exchange Offer and time will not permit a
Letter of Transmittal or Old Notes to reach the Exchange Agent before the
Expiration Date or the procedure for book-entry transfer cannot be completed on
a timely basis, a tender may be effected if the Exchange Agent has received at
its address set forth below, on or prior to the Expiration Date, a letter by
hand or mail, or sent by facsimile transmission (receipt confirmed by telephone
and an original delivered by guaranteed overnight courier) from an Eligible
Institution setting forth the name and address of the tendering holder, the
names in which the Old Notes are registered and, if possible, the certificate
numbers of the Old Notes to be tendered, and stating that the tender is being
made thereby and guaranteeing that within three business days after the
Expiration Date, the Old Notes in proper form for transfer (or a confirmation of
book-entry transfer of such Old Notes into the Exchange Agent's account at the
book-entry transfer facility), will be delivered by such Eligible Institution
together with a properly completed and duly executed Letter of Transmittal (and
any other required documents). Unless Old Notes being tendered by the
above-described method are deposited with the Exchange Agent within the time
period set forth above (accompanied or preceded by a properly completed Letter
of Transmittal and any other required documents), the Company may, at its
option, reject the tender. Copies of the notice of guaranteed delivery ("Notice
of Guaranteed Delivery") which may be used by Eligible Institutions for the
purposes described in this paragraph are available from the Exchange Agent.
A tender will be deemed to have been received as of the date when (i) the
tendering holder's properly completed and duly executed Letter of Transmittal
accompanied by the Old Notes is received by the Exchange Agent, or (ii) a Notice
of Guaranteed Delivery or letter, telegram or facsimile transmission to similar
effect (as provided above) from an Eligible Institution is received by the
Exchange Agent. Issuances of Exchange Notes in exchange for Old Notes tendered
pursuant to a Notice of Guaranteed Delivery or letter, telegram or facsimile
transmission to similar effect (as provided above) by an Eligible Institution
will be made only against deposit of the Letter of Transmittal (and any other
required documents) and the tendered Old Notes (or a confirmation of book-entry
transfer of such Old Notes into the Exchange Agent's account at the book-entry
transfer facility).
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of Letters of Transmittal or Old Notes tendered for
exchange will be determined by the Company in its sole discretion, which
determination shall be final and binding. The Company reserves the absolute
right to reject any and all tenders of any particular Old Notes not properly
tendered and not to accept any particular Old Notes for exchange which
acceptance might, in the judgment of the Company or its counsel, be unlawful.
The Company also reserves the absolute right to waive any defects or
irregularities as to any particular Old Notes or conditions of the Exchange
Offer either before or after the Expiration Date (including the right to waive
the ineligibility of any holder who seeks to tender Old Notes in the Exchange
Offer). The interpretation of the terms and conditions of the Exchange Offer
(including the Letter of Transmittal and the instructions thereto) by the
Company shall be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Old Notes for exchange must be
cured within such reasonable period of time as the Company shall determine. None
of the Company, the Guarantors, the Exchange Agent nor any other person shall be
under any duty to give notification of any defect or irregularity with respect
to any tender of Old Notes for exchange, nor shall any of them incur any
liability for failure to give such notification.
If the Letter of Transmittal is signed by a person or persons other than
the registered holder or holders of Old Notes, such Old Notes must be endorsed
or accompanied by appropriate powers of attorney, in either case signed exactly
as the name or names of the registered holder or holders appear on the Old
Notes.
If the Letter of Transmittal or any Old Notes or powers of attorney are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and, unless waived by
the Company, proper evidence satisfactory to the Company of their authority to
so act must be submitted.
By tendering, each holder will represent to the Company that, among other
things, (a) Exchange Notes acquired pursuant to the Exchange Offer are being
acquired in the ordinary course of business of the person receiving such
Exchange Notes, whether or not such person is the holder, (b) neither the holder
nor any such other person has an arrangement or understanding with any person to
participate in the distribution of such Exchange Notes and (c) neither the
holder nor any such other person is an "affiliate" of the Company as defined
under Rule 405 of the Securities Act, or if it is an affiliate, it will comply
with the registration and prospectus delivery requirements of the Securities Act
to the extent applicable. Any holder of Old Notes using the Exchange Offer to
participate in a distribution of the Exchange Notes (i) cannot rely on the
position of the staff of the Commission enunciated in its interpretive letter
with respect to Exxon Capital Holdings Corporation (available April 13, 1989) or
similar letters and (ii) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a secondary
resale transaction.
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Old Notes where such Old Notes were acquired by such broker-dealer
as a result of market-making activities or other trading activities must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes. See "Plan of Distribution."
Terms and Conditions of the Letter of Transmittal
The Letter of Transmittal contains, among other things, the following terms
and conditions, which are part of the Exchange Offer.
The party tendering Notes for exchange (the "Transferor") exchanges,
assigns and transfers the Old Notes to the Company and irrevocably constitutes
and appoints the Exchange Agent as the Transferor's agent and attorney-in-fact
to cause the Old Notes to be assigned, transferred and exchanged. The Transferor
represents and warrants that it has full power and authority to tender,
exchange, assign and transfer the Old Notes and to acquire Exchange Notes
issuable upon the exchange of such tendered Notes, and that, when the same are
accepted for exchange, the Company will acquire good and unencumbered title to
the tendered Old Notes, free and clear of all liens, restrictions, charges and
encumbrances and not subject to any adverse claim. The Transferor also warrants
that it will, upon request, execute and deliver any additional documents deemed
by the Exchange Agent or the Company to be necessary or desirable to complete
the exchange, assignment and transfer of tendered Old Notes or transfer
ownership of such Old Notes on the account books maintained by a book-entry
transfer facility. The Transferor further agrees that acceptance of any tendered
Old Notes by the Company and the issuance of Exchange Notes in exchange therefor
shall constitute performance in full by the Company and the Guarantors of
certain of their respective obligations under the Registration Rights Agreement.
All authority conferred by the Transferor will survive the death or incapacity
of the Transferor, and every obligation of the Transferor shall be binding upon
the heirs, legal representatives, successors, assigns, executors and
administrators of such Transferor.
The Transferor certifies that neither it, nor the person receiving the
Exchange Notes, whether or not such person is the Transferor, (a) is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act, (b) is acquiring the Exchange Notes offered hereby in the ordinary course
of such Transferor's business and (c) has an arrangement with any person to
participate in the distribution of such Exchange Notes. Each holder, other than
a broker-dealer, must acknowledge that it is not engaged in, and does not intend
to engage in, a distribution of Exchange Notes. Each Transferor which is a
broker-dealer receiving Exchange Notes for its own account must represent that
the Old Notes to be exchanged for Exchange Notes were acquired by it as a result
of market-making activities or other trading activities and acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange Notes.
By so acknowledging and by delivering a prospectus meeting the requirements of
the Securities Act, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Notes received in exchange for Old Notes
where such Old Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company will, for a
period of 120 days after the Expiration Date, make copies of this Prospectus
available to any broker-dealer for use in connection with any such resale.
Withdrawal Rights
Tenders of Old Notes may be withdrawn at any time prior to the Expiration
Date.
For a withdrawal to be effective, a written notice of withdrawal sent by
telegram, facsimile transmission (receipt confirmed by telephone) or letter must
be received by the Exchange Agent at the address set forth herein prior to the
Expiration Date. Any such notice of withdrawal must (i) specify the name of the
person having tendered the Old Notes to be withdrawn (the "Depositor"), (ii)
identify the Old Notes to be withdrawn (including the certificate number or
numbers of such Old Notes and the principal amount of each such Old Note), (iii)
specify the principal amount of Old Notes to be withdrawn, (iv) include a
statement that such holder is withdrawing his election to have such Old Notes
exchanged, (v) be signed by the holder in the same manner as the original
signature on the Letter of Transmittal by which such Old Notes were tendered or
as otherwise described above (including any required signature guarantees) or be
accompanied by documents of transfer sufficient to have the Trustee under the
applicable Indenture register the transfer of such Old Notes into the name of
the person withdrawing the tender and (vi) specify the name in which any such
Old Notes are to be registered, if different from that of the Depositor. The
Exchange Agent will return the properly withdrawn Old Notes promptly following
receipt of notice of withdrawal. If Old Notes have been tendered pursuant to the
procedure for book-entry transfer, any notice of withdrawal must specify the
name and number of the account at the book-entry transfer facility to be
credited with the withdrawn Old Notes or otherwise comply with the book-entry
transfer facility procedure. All questions as to the validity of notices of
withdrawals, including time of receipt, will be determined by the Company and
such determination will be final and binding on all parties.
Any Old Notes so withdrawn will be deemed not to have been validly tendered
for exchange for purposes of the Exchange Offer. Any Old Notes which have been
tendered for exchange but which are not exchanged for any reason will be
returned to the holder thereof without cost to such holder (or, in the case of
Old Notes tendered by book-entry transfer into the Exchange Agent's account at
the book-entry transfer facility pursuant to the book-entry transfer procedures
described above, such Old Notes will be credited to an account with such
book-entry transfer facility specified by the holder) as soon as practicable
after withdrawal, rejection of tender or termination of the Exchange Offer.
Properly withdrawn Old Notes may be retendered by following one of the
procedures described under "--Procedures for Tendering Old Notes" above at any
time on or prior to the Expiration Date.
Acceptance of Old Notes for Exchange; Delivery of Exchange Notes
Upon satisfaction or waiver of all of the conditions to the Exchange Offer,
the Company will accept, on the Exchange Date, all Old Notes properly tendered
and will issue the Exchange Notes promptly after such acceptance. See "--Certain
Conditions to the Exchange Offer." For purposes of the Exchange Offer, the
Company shall be deemed to have accepted properly tendered Old Notes for
exchange when, as and if the Company has given oral or written notice thereof to
the Exchange Agent.
For each Old Note accepted for exchange, the holder of such Old Note will
receive an Exchange Note having a principal amount equal to that of the
surrendered Old Note.
In all cases, issuance of Exchange Notes for Old Notes that are accepted
for exchange pursuant to the Exchange Offer will be made only after timely
receipt by the Exchange Agent of certificates for such Old Notes or a timely
book-entry confirmation of such Old Notes into the Exchange Agent's account at
the book-entry transfer facility, a properly completed and duly executed Letter
of Transmittal and all other required documents. If any tendered Old Notes are
not accepted for any reason set forth in the terms and conditions of the
Exchange Offer or if Old Notes are submitted for a greater principal amount than
the holder desires to exchange, such unaccepted or non-exchanged Old Notes will
be returned without expense to the tendering holder thereof (or, in the case of
Old Notes tendered by book-entry transfer into the Exchange Agent's account at
the book-entry transfer facility pursuant to the book-entry transfer procedures
described above, such non-exchanged Old Notes will be credited to an account
maintained with such book-entry transfer facility) as promptly as practicable
after the expiration of the Exchange Offer.
Certain Conditions to the Exchange Offer
Notwithstanding any other provision of the Exchange Offer, or any extension
of the Exchange Offer, the Company shall not be required to accept for exchange,
or to issue Exchange Notes in exchange for, any Old Notes and may terminate or
amend the Exchange Offer (by oral or written notice to the Exchange Agent or by
a timely press release) if at any time before the acceptance of such Old Notes
for exchange or the exchange of the Exchange Notes for such Old Notes, any of
the following events occur:
(a) any action or proceeding is instituted or threatened in any court
or by or before any governmental agency or regulatory authority or any
injunction, order or decree is issued with respect to the Exchange Offer
which, in the sole judgment of the Company, might materially impair the
ability of the Company to proceed with the Exchange Offer or have a
material adverse effect on the contemplated benefits of the Exchange Offer
to the Company; or
(b) any change (or any development involving a prospective change)
shall have occurred or be threatened in the business, properties, assets,
liabilities, financial condition, operations, results of operations or
prospects of the Company that is or may be adverse to the Company, or the
Company shall have become aware of facts that have or may have adverse
significance with respect to the value of the Old Notes or the Exchange
Notes or that may materially impair the contemplated benefits of the
Exchange Offer to the Company; or
(c) any law, rule or regulation or applicable interpretations of the
staff of the Commission is issued or promulgated which, in the good faith
determination of the Company, do not permit the Company to effect the
Exchange Offer; or
(d) any governmental approval has not been obtained, which approval
the Company, in its sole discretion, deems necessary for the consummation
of the Exchange Offer; or
(e) there shall have been proposed, adopted or enacted any law,
statute, rule or regulation (or an amendment to any existing law, statute,
rule or regulation) which, in the sole judgment of the Company, might
materially impair the ability of the Company to proceed with the Exchange
Offer or have a material adverse effect on the contemplated benefits of the
Exchange Offer to the Company; or
(f) there shall occur a change in the current interpretation by the
staff of the Commission which permits the Exchange Notes issued pursuant to
the Exchange Offer in exchange for Old Notes to be offered for resale,
resold and otherwise transferred by holders thereof (other than any such
holder that is an "affiliate" of the Issuer within the meaning of Rule 405
under the Securities Act) without compliance with the registration and
prospectus delivery provisions of the Securities Act provided that such
Exchange Notes are acquired in the ordinary course of such holders'
business and such holders have no arrangement with any person to
participate in the distribution of such Exchange Notes; or
(g) there shall have occurred (i) any general suspension of,
shortening of hours for, or limitation on prices for, trading in securities
on any national securities exchange or in the over-the-counter market
(whether or not mandatory), (ii) any limitation by any governmental agency
or authority which may adversely affect the ability of the Company to
complete the transactions contemplated by the Exchange Offer, (iii) a
declaration of a banking moratorium or any suspension of payments in
respect of banks by Federal or state authorities in the United States
(whether or not mandatory), (iv) a commencement of a war, armed hostilities
or other international or national crisis directly or indirectly involving
the United States, (v) any limitation (whether or not mandatory) by any
governmental authority on, or other event having a reasonable likelihood of
affecting, the extension of credit by banks or other lending institutions
in the United States, or (vi) in the case of any of the foregoing existing
at the time of the commencement of the Exchange Offer, a material
acceleration or worsening thereof.
The Company expressly reserves the right to terminate the Exchange Offer
and not accept for exchange any Old Notes upon the occurrence of any of the
foregoing conditions (which represent all of the material conditions to the
acceptance by the Company of properly tendered Old Notes). In addition, the
Company may amend the Exchange Offer at any time prior to the Expiration Date if
any of the conditions set forth above occur. Moreover, regardless of whether any
of such conditions has occurred, the Company may amend the Exchange Offer in any
manner which, in its good faith judgment, is advantageous to holders of the Old
Notes.
The foregoing conditions are for the sole benefit of the Company and may be
asserted by the Company regardless of the circumstances giving rise to any such
condition or may be waived by the Company in whole or in part at any time and
from time to time in its sole discretion. The failure by the Company at any time
to exercise any of the foregoing rights shall not be deemed a waiver of any such
right, and each such right shall be deemed an ongoing right which may be
asserted at any time and from time to time. If the Company waives or amends the
foregoing conditions, it will, if required by law, extend the Exchange Offer for
a minimum of five business days from the date that the Company first gives
notice, by public announcement or otherwise, of such waiver or amendment, if the
Exchange Offer would otherwise expire within such five business-day period. Any
determination by the Company concerning the events described above will be final
and binding upon all parties.
In addition, the Company will not accept for exchange any Old Notes
tendered, and no Exchange Notes will be issued in exchange for any such Old
Notes, if at such time any stop order shall be threatened or in effect with
respect to the Registration Statement of which this Prospectus constitutes a
part or the qualification of the Indentures under the Trust Indenture Act of
1939, as amended. In any such event, the Company is required to use every
reasonable effort to obtain the withdrawal of any stop order at the earliest
possible time.
The Exchange Offer is not conditioned upon any minimum principal amount of
Old Notes being tendered for exchange.
Exchange Agent
The Bank of New York has been appointed as the Exchange Agent for the
Exchange Offer. All executed Letters of Transmittal should be directed to the
Exchange Agent at one of the addresses set forth below:
By Hand/Overnight Courier: By Mail:
The Bank of New York The Bank of New York
101 Barclay Street 101 Barclay Street, 7E
Corporate Trust Services Window New York, New York 10286
Ground Level Attn: Reorganization Section,
New York, New York 10286 Arwen Gibbons
Attn: Reorganization Section;
Arwen Gibbons
By Facsimile: (212) 571-3080
Attn: Reorganization Section
By Telephone: (212) 815-6333
Questions and requests for assistance, requests for additional copies of this
Prospectus or of the Letter of Transmittal and requests for Notices of
Guaranteed Delivery should be directed to the Exchange Agent at the address and
telephone number set forth in the Letter of Transmittal.
DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSIONS OF
INSTRUCTIONS VIA A FACSIMILE TO A NUMBER OTHER THAN THE ONES SET FORTH ABOVE,
WILL NOT CONSTITUTE A VALID DELIVERY.
Solicitation of Tenders; Fees and Expenses
The Company has not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers, dealers or others for
soliciting acceptances of the Exchange Offer. The Company will, however, pay the
Exchange Agent reasonable and customary fees for its services and will reimburse
it for its reasonable out-of-pocket expenses in connection therewith. The
Company will also pay brokerage houses and other custodians, nominees and
fiduciaries the reasonable out-of-pocket expenses incurred by them in forwarding
copies of this and other related documents to the beneficial owners of the Old
Notes and in handling or forwarding tenders for their customers.
The estimated cash expenses to be incurred in connection with the Exchange
Offer will be paid by the Company and the Guarantors and are estimated in the
aggregate to be approximately $170,000, which includes fees and expenses of
the Exchange Agent, Trustee, registration fees, accounting, legal, printing and
related fees and expenses.
No person has been authorized to give any information or to make any
representations in connection with the Exchange Offer other than those contained
in this Prospectus. If given or made, such information or representations should
not be relied upon as having been authorized by the Company. Neither the
delivery of this Prospectus nor any exchange made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the respective dates as of which information is
given herein. The Exchange Offer is not being made to (nor will tenders be
accepted from or on behalf of) holders of Old Notes in any jurisdiction in which
the making of the Exchange Offer or the acceptance thereof would not be in
compliance with the laws of such jurisdiction. However, the Company may, at its
discretion, take such action as it may deem necessary to make the Exchange Offer
in any such jurisdiction and extend the Exchange Offer to holders of Old Notes
in such jurisdiction. In any jurisdiction in which the securities laws or blue
sky laws of which require the Exchange Offer to be made by a licensed broker or
dealer, the Exchange Offer is being made on behalf of the Company by one or more
registered brokers or dealers which are licensed under the laws of such
jurisdiction.
Transfer Taxes
The Company will pay all transfer taxes, if any, applicable to the exchange
of Old Notes pursuant to the Exchange Offer. If, however, certificates
representing Exchange Notes or Old Notes for principal amounts not tendered or
accepted for exchange are to be delivered to, or are to be issued in the name
of, any person other than the registered holder of the Old Notes tendered, or if
tendered Old Notes are registered in the name of any person other than the
person signing the Letter of Transmittal, or if a transfer tax is imposed for
any reason other than the exchange of Old Notes pursuant to the Exchange Offer,
then the amount of any such transfer taxes (whether imposed on the registered
holder or any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Letter of Transmittal, the amount of such transfer taxes will
be billed directly to such tendering holder.
Accounting Treatment
The Exchange Notes will be recorded at the carrying value of the Old Notes
as reflected in the Company's accounting records on the date of the exchange.
Accordingly, no gain or loss for accounting purposes will be recognized by the
Company upon the exchange of Exchange Notes for Old Notes. Expenses incurred in
connection with the issuance of the Exchange Notes will be amortized over the
term of the Exchange Notes.
Consequences of Failure to Exchange
Holders of Old Notes who do not exchange their Old Notes for Exchange Notes
pursuant to the Exchange Offer will continue to be subject to the restrictions
on transfer of such Old Notes as set forth in the legend thereon. Old Notes not
exchanged pursuant to the Exchange Offer will continue to remain outstanding in
accordance with their terms. In general, the Old Notes may not be offered or
sold unless registered under the Securities Act, except pursuant to an exemption
from, or in a transaction not subject to, the Securities Act and applicable
state securities laws. The Company does not currently anticipate that it will
register the Old Notes under the Securities Act.
Participation in the Exchange Offer is voluntary, and holders of Old Notes
should carefully consider whether to participate. Holders of the Old Notes are
urged to consult their financial and tax advisors in making their own decision
on what action to take.
As a result of the making of, and upon acceptance for exchange of all
validly tendered Old Notes pursuant to the terms of, this Exchange Offer, the
Company and the Guarantors will have fulfilled a covenant contained in the
Registration Rights Agreement. Holders of Old Notes who do not tender their Old
Notes in the Exchange Offer will continue to hold such Old Notes and will be
entitled to all the rights and subject to all the limitations applicable thereto
under the Indentures, except for any such rights under the Registration Rights
Agreement that by their terms terminate or cease to have further effectiveness
as a result of the making of this Exchange Offer. All untendered Old Notes will
continue to be subject to the restrictions on transfer set forth in the
Indentures. To the extent that Old Notes are tendered and accepted in the
Exchange Offer, the trading market for untendered Old Notes could be adversely
affected.
The Company may in the future seek to acquire subject to the terms of the
Indentures untendered Old Notes in open market or privately negotiated
transactions, through subsequent exchange offers or otherwise. The Company has
no present plan to acquire any Old Notes which are not tendered in the Exchange
Offer.
Resale of Exchange Notes
The Company is making the Exchange Offer in reliance on the position of the
Commission as set forth in certain interpretive letters addressed to third
parties in other transactions. However, the Company has not sought its own
interpretive letter, and there can be no assurance that the Commission would
make a similar determination with respect to the Exchange Offer as it has in
such interpretive letters to third parties. Based on these interpretations by
the staff of the Commission, the Company believes that the Exchange Notes issued
pursuant to the Exchange Offer in exchange for Old Notes may be offered for
resale, resold and otherwise transferred by a holder (other than any Holder that
is a broker-dealer or an "affiliate" of the Company within the meaning of Rule
405 of the Securities Act) without further compliance with the registration and
prospectus delivery requirements of the Securities Act, provided that such
Exchange Notes are acquired in the ordinary course of such holder's business,
such holder has no arrangement or understanding with any person to participate
in the distribution of such Exchange Notes and neither such holder nor any such
other person is engaging in or intends to engage in a distribution of the
Exchange Notes. However, any holder who is an "affiliate" of the Company or who
has an arrangement or understanding with respect to the distribution of the
Exchange Notes to be acquired pursuant to the Exchange Offer, or any
broker-dealer who purchased Old Notes from the Company to resell pursuant to
Rule 144A or any other available exemption under the Securities Act (i) could
not rely on the applicable interpretations of the staff of the Commission and
(ii) must comply with the registration and prospectus delivery requirements of
the Securities Act. A broker-dealer who holds Old Notes that were acquired for
its own account as a result of market-making or other trading activities may be
deemed to be an "underwriter" within the meaning of the Securities Act and must,
therefore, deliver a prospectus meeting the requirements of the Securities Act
in connection with any resale of Exchange Notes. Each such broker-dealer that
receives Exchange Notes for its own account in exchange for Old Notes, where
such Old Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge in the Letter of
Transmittal that it will deliver a prospectus in connection with any resale of
such Exchange Notes. See "Plan of Distribution."
In addition, to comply with the securities laws of certain jurisdictions,
if applicable, the Exchange Notes may not be offered or sold unless they have
been registered or qualified for sale in such jurisdiction or an exemption from
registration or qualification is available and is complied with. The Company and
the Guarantors have agreed, pursuant to the Registration Rights Agreement and
subject to certain specified limitations therein, to register or qualify the
Exchange Notes for offer or sale under the securities or blue sky laws of such
jurisdictions as any holder of the Exchange Notes reasonably requests in
writing. Such registration or qualification may require the imposition of
restrictions or conditions (including suitability requirements for offerees or
purchasers) in connection with the offer or sale of any Exchange Notes.
DESCRIPTION OF THE EXCHANGE NOTES
The Old Senior Notes have been, and the Senior Exchange Notes offered
hereby will be, issued under the Senior Indenture among the Company, the
Guarantors and The Bank of New York, as trustee (in such capacity, the "Senior
Exchange Notes Trustee"). The Old Senior Subordinated Notes have been, and the
Senior Subordinated Exchange Notes offered hereby will be, issued under the
Senior Subordinated Indenture among the Company, the Guarantors and The Bank of
New York, as trustee (in such capacity, the "Senior Subordinated Exchange Notes
Trustee" and, together with the Senior Exchange Notes Trustee, the "Trustees").
Any reference herein to a "Trustee" means the Senior Exchange Notes Trustee or
the Senior Subordinated Exchange Notes Trustee, as the context may require. The
following summary of the material provisions of the Indentures does not purport
to be complete and is subject to, and qualified in its entirety by reference to,
the provisions of the Indentures, including the definitions of certain terms
contained therein and those terms made part of the Indentures by reference to
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). For
definitions of certain capitalized terms used in the following summary, see
"--Certain Definitions." As used in this "Description of the Exchange Notes,"
the "Company" refers to Nine West Group Inc. and does not, unless the context
otherwise indicates, include its subsidiaries. The Indentures are exhibits to
the Registration Statement of which this Prospectus is part.
General
Principal of, premium, if any, and interest on the Exchange Notes will be
payable, and the Exchange Notes will be exchangeable and transferable, at the
office or agency of the Company in the City of New York maintained for such
purposes (which initially will be the corporate trust office of the Trustee);
provided, however, that, at the option of the Company, interest may be paid by
check mailed to the address of the Person entitled thereto as such address shall
appear on the security register. The Exchange Notes will be issued only in
registered form without coupons and only in denominations of $1,000 and any
integral multiple thereof. No service charge will be made for any registration
of transfer or exchange or redemption of Exchange Notes, except in certain
circumstances for any tax or other governmental charge that may be imposed in
connection therewith.
Payment of the Senior Exchange Notes will be guaranteed by the Guarantors
on a senior unsecured basis and payment of the Senior Subordinated Exchange
Notes will be guaranteed by the Guarantors on a senior subordinated unsecured
basis. See "--Guarantees."
Terms of the Senior Exchange Notes
The Senior Exchange Notes will mature on August 15, 2005, will be limited
to $200 million aggregate principal amount and will be unsecured senior
obligations of the Company. Each Senior Exchange Note will bear interest at 8-
3/8% per annum from July 9, 1997 or from the most recent interest payment date
to which interest has been paid or duly provided for, payable on February 15,
1998 and semi-annually thereafter on February 15 and August 15 of each year
until the principal thereof is paid or duly provided for to the Person in whose
name such Senior Exchange Note (or any predecessor Senior Exchange Note) is
registered at the close of business on the February 1 or August 1 next preceding
such interest payment date. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
The Senior Exchange Notes will not be redeemable at the option of the
Company prior to their maturity.
Terms of the Senior Subordinated Exchange Notes
The Senior Subordinated Exchange Notes will mature on August 15, 2007, will
be limited to $125 million aggregate principal amount and will be unsecured
senior subordinated obligations of the Company. Each Senior Subordinated
Exchange Note will bear interest at 9% per annum from July 9, 1997 or from the
most recent interest payment date to which interest has been paid or duly
provided for, payable on February 15, 1998 and semi-annually thereafter on
February 15 and August 15 of each year until the principal thereof is paid or
duly provided for to the Person in whose name such Senior Subordinated Exchange
Note (or any predecessor Senior Subordinated Exchange Note) is registered at the
close of business on the February 1 or August 1 next preceding such interest
payment date. Interest will be computed on the basis of a 360-day year comprised
of twelve 30-day months.
Optional Redemption
The Senior Subordinated Exchange Notes will be redeemable at the option of
the Company, in whole or in part, at any time on or after August 15, 2002, on
not less than 30 nor more than 60 days' prior notice at the redemption prices
(expressed as percentages of principal amount) set forth below, together with
accrued interest, if any, to the redemption date, if redeemed during the
12-month period beginning on August 15 of the years indicated below (subject to
the right of holders of record on relevant record dates to receive interest due
on an interest payment date):
Year Redemption Price
2002. . . . . .. . . . . . 104.5%
2003. . . . . .. . . . . . 103.0%
2004. . . . . .. . . . . . 101.5%
2005 and thereafter. . . . . 100.0%
In addition, at any time prior to August 15, 2000, the Company may redeem
up to 30% of the aggregate principal amount of the Senior Subordinated Notes
within 60 days of one or more Public Equity Offerings with the net proceeds of
such offering at a redemption price equal to 109% of the principal amount
thereof, together with accrued and unpaid interest, if any, to the date of
redemption (subject to the right of holders of record on relevant record dates
to receive interest due on relevant interest payment dates); provided that
immediately after giving effect to any such redemption, at least $87.5 million
aggregate principal amount of the Senior Subordinated Notes remains outstanding.
If less than all the Senior Subordinated Notes are to be redeemed, the
particular Senior Subordinated Notes to be redeemed will be selected not more
than 60 days prior to the redemption date by the Senior Subordinated Exchange
Notes Trustee by such method as such Trustee will deem fair and appropriate;
provided, however, that no such partial redemption will reduce the principal
amount of a Senior Subordinated Note not redeemed to less than $1,000. Notice of
redemption will be mailed, first-class postage prepaid, at least 30 but not more
than 60 days before the redemption date to each holder of Senior Subordinated
Notes to be redeemed at its registered address. On and after the redemption
date, interest will cease to accrue on Senior Subordinated Notes or portions
thereof called for redemption and accepted for payment.
Ranking
The Senior Exchange Notes will be unsecured senior obligations of the
Company, and the Indebtedness evidenced by the Senior Exchange Notes will rank
pari passu in right of payment with all other existing and future unsubordinated
obligations of the Company and senior in right of payment to all existing and
future obligations of the Company expressly subordinated in right of payment to
the Senior Notes. The Senior Exchange Notes, however, will be effectively
subordinated to secured senior obligations of the Company with respect to the
assets of the Company securing such obligations, including Indebtedness under
the Credit Agreement, which is secured by substantially all the assets of the
Company. As of May 3, 1997, on a pro forma basis after giving effect to the
Offering and the use of the proceeds therefrom, consolidated Indebtedness of the
Company would have been approximately $649.7 million, of which $143.2 million
would have been secured Senior Indebtedness (as defined below) and $200.0
million would have been unsecured Senior Indebtedness. Subject to certain
limitations, the Company and its Restricted Subsidiaries may incur additional
Indebtedness in the future.
Each Senior Guarantee will be an unsecured senior obligation of the
respective Guarantor issuing such Senior Guarantee, ranking pari passu in right
of payment with all other existing and future unsubordinated obligations of such
Guarantor and senior in right of payment to all existing and future obligations
of such Guarantor expressly subordinated in right of payment to senior
obligations of such Guarantor. The Guarantors currently have no subordinated
obligations outstanding. Each Senior Guarantee, however, will be effectively
subordinated to secured senior obligations of the respective Guarantor with
respect to the assets of such Guarantor securing such obligations, including any
guarantee by such Guarantor of the Company's Indebtedness under the Credit
Agreement. As of May 3, 1997, the aggregate liabilities of the Company's
subsidiaries, including the Guarantors was approximately $65.7 million, of which
liabilities of the Guarantors was $55.5 million.
The Senior Subordinated Exchange Notes will be unsecured senior
subordinated obligations of the Company ranking pari passu with all other
existing and future senior subordinated obligations of the Company, if any. The
payment of the principal of, premium, if any, and interest on the Senior
Subordinated Exchange Notes will be subordinated, as set forth in the Senior
Subordinated Indenture, in right of payment to the prior payment in full in cash
or cash equivalents of all Senior Indebtedness, including, without limitation,
the Company's obligations under the Credit Agreement and the Senior Notes. The
Senior Subordinated Exchange Notes will rank senior to the Convertible Notes.
In the event of any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relating to the Company or to its assets, or any
liquidation, dissolution or other winding-up of the Company, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or any
assignment for the benefit of creditors or other marshalling of assets or
liabilities of the Company (except in connection with the consolidation or
merger of the Company or its liquidation or dissolution following the
conveyance, transfer or lease of its properties and assets substantially as an
entirety upon the terms and conditions described under "Consolidation, Merger
and Sale of Assets" below), the holders of Senior Indebtedness will first be
entitled to receive payment in full in cash or cash equivalents of all Senior
Indebtedness, or provision shall be made for such payment in full, before the
holders of Senior Subordinated Notes will be entitled to receive any payment or
distribution of any kind or character (other than any payment or distribution in
the form of equity securities or subordinated securities of the Company or any
successor obligor that, in the case of any such subordinated securities, are
subordinated in right of payment to all Senior Indebtedness that may at the time
be outstanding to at least the same extent as the Senior Subordinated Notes are
so subordinated as provided in the Senior Subordinated Indenture (such equity
securities or subordinated securities hereinafter being "Permitted Junior
Securities")) on account of principal of, or premium, if any, or interest on the
Senior Subordinated Notes or on account of the purchase or redemption or other
acquisition of Senior Subordinated Notes; and any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities (other than a payment or distribution in the form of Permitted Junior
Securities), by set-off or otherwise, to which the holders of Senior
Subordinated Notes or the Senior Subordinated Exchange Notes Trustee would be
entitled but for the provisions of the Senior Subordinated Indenture shall be
paid by the liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Senior Indebtedness or their
representative ratably according to the aggregate amounts remaining unpaid on
account of the Senior Indebtedness to the extent necessary to make payment in
full of all Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness.
No payment (other than any payments made pursuant to the provisions
described under "--Defeasance or Covenant Defeasance of the Indentures" from
monies or U.S. Government Obligations previously deposited with the Senior
Subordinated Exchange Notes Trustee) or distribution of any assets of the
Company of any kind or character, whether in cash, property or securities (other
than Permitted Junior Securities), may be made by the Company on account of
principal of, premium, if any, or interest on the Senior Subordinated Notes or
on account of the purchase, redemption or other acquisition of Senior
Subordinated Notes upon the occurrence of any default in payment (whether at
stated maturity, upon scheduled installment, by acceleration or otherwise) of
principal of, premium, if any, or interest on Designated Senior Indebtedness (as
defined below) (a "Payment Default") until such Payment Default shall have been
cured or waived or such Designated Senior Indebtedness shall have been
discharged or paid in full. No payment (other than payments made pursuant to the
provisions described under "--Defeasance or Covenant Defeasance of the
Indentures" from monies or U.S. Government Obligations previously deposited with
the Senior Subordinated Exchange Notes Trustee) or distribution of any assets of
the Company of any kind or character, whether in cash, property or securities
(other than Permitted Junior Securities), may be made by the Company on account
of any principal of, premium, if any, or interest on the Senior Subordinated
Notes or on account of the purchase, redemption or other acquisition of Senior
Subordinated Notes for the period specified below ("Payment Blockage Period")
upon the occurrence of any event of default with respect to any Designated
Senior Indebtedness not covered by the immediately preceding paragraph pursuant
to which the maturity thereof may be accelerated (a "Non-Payment Default") and
receipt by the Senior Subordinated Exchange Notes Trustee of written notice
thereof from the Agent Bank or any other representative of a holder of
Designated Senior Indebtedness (and delivery of notice to the Company).
The Payment Blockage Period will commence upon the date of receipt by the
Senior Subordinated Exchange Notes Trustee of written notice from the Agent Bank
or such other representative and shall end on the earliest of (i) 179 days
thereafter (provided that any Designated Senior Indebtedness as to which notice
was given shall not theretofore have been accelerated, in which case the
provisions of the second preceding paragraph shall apply), (ii) the date on
which such Non-Payment Default is cured, waived or ceases to exist or such
Designated Senior Indebtedness is discharged or paid in full or (iii) the date
on which such Payment Blockage Period shall have been terminated by written
notice to the Senior Subordinated Notes Trustee or the Company from the Agent
Bank or such other representative initiating such Payment Blockage Period, after
which the Company will resume making any and all required payments in respect of
the Senior Subordinated Notes, including any missed payments. In any event, not
more than one Payment Blockage Period may be commenced during any period of 360
consecutive days. No event of default that existed or was continuing on the date
of the commencement of any Payment Blockage Period will be, or can be, made the
basis for the commencement of a subsequent Payment Blockage Period, unless such
default has been cured or waived for a period of not less than 180 consecutive
days.
In the event that, notwithstanding the provisions of the preceding four
paragraphs, any payment shall be made to the Senior Subordinated Exchange Notes
Trustee (and not paid over to the holders of Senior Subordinated Notes) which is
prohibited by such provisions, then and in such event such payment shall be paid
over and delivered by such Trustee to the Agent Bank and any other
representative of holders of Designated Senior Indebtedness, as their interests
may appear, for application to Designated Senior Indebtedness. After all Senior
Indebtedness is paid in full and until the Senior Subordinated Notes are paid in
full, holders of Senior Subordinated Notes shall be subrogated (equally and
ratably with all other Indebtedness pari passu with the Senior Subordinated
Notes) to the rights of holders of Senior Indebtedness to receive distributions
applicable to Senior Indebtedness to the extent that distributions otherwise
payable to the holders of Senior Subordinated Notes have been applied to the
payment of Senior Indebtedness.
Failure by the Company to make any required payment in respect of the
Senior Subordinated Notes when due or within any applicable grace period,
whether or not occurring during a Payment Blockage Period, will result in an
Event of Default and, thereafter, holders will have the right to require
repayment of the Senior Subordinated Notes in full. See "--Events of Default."
By reason of such subordination, in the event of liquidation, receivership,
reorganization or insolvency of the Company, creditors of the Company who are
holders of Senior Indebtedness may recover more, ratably, than the holders of
Senior Subordinated Notes, and assets which would otherwise be available to pay
obligations in respect of the Senior Subordinated Notes will be available only
after all Senior Indebtedness has been paid in full, and there may not be
sufficient assets remaining to pay amounts due on any or all of the Senior
Subordinated Notes.
Each Senior Subordinated Guarantee will be an unsecured senior subordinated
obligation of the respective Guarantor issuing such Senior Subordinated
Guarantee, ranking pari passu with all other existing and future senior
subordinated indebtedness of such Guarantor, if any. The Indebtedness evidenced
by each such Senior Subordinated Guarantee will be subordinated on the same
basis to Guarantor Senior Indebtedness as the Senior Subordinated Notes are
subordinated to Senior Indebtedness.
"Senior Indebtedness" means (i) all obligations of the Company, now or
hereafter existing, under or in respect of the Credit Agreement, whether for
principal, premium, if any, interest (including interest accruing after the
filing of, or which would have accrued but for the filing of, a petition by or
against the Company under Bankruptcy Law, whether or not such interest is
allowed as a claim after such filing in any proceeding under such law), fees,
expenses, indemnities, gross-ups or other payments thereunder, (ii) the
principal of, premium, if any, and interest on the Senior Notes and (iii) the
principal of, premium, if any, and interest on all other Indebtedness of the
Company (other than the Senior Subordinated Notes and the Convertible Notes),
whether outstanding on the date of the Senior Subordinated Indenture or
thereafter created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Senior Subordinated Notes.
Notwithstanding the foregoing, "Senior Indebtedness" shall not include (i)
Indebtedness evidenced by the Senior Subordinated Notes or the Convertible
Notes, (ii) Indebtedness of the Company that is expressly subordinated in right
of payment to any Indebtedness of the Company, (iii) Indebtedness of the Company
to the extent incurred in violation of any covenant prohibiting the incurrence
of Indebtedness under the Senior Subordinated Indenture, (iv) any liability for
federal, state or local taxes or other taxes, owed or owing by the Company, (v)
trade account payables owed or owing by the Company, (vi) amounts owed by the
Company for compensation to employees or for services rendered to the Company,
(vii) Indebtedness of the Company to any Subsidiary or any other Affiliate of
the Company, (viii) Redeemable Capital Stock of the Company and (ix)
Indebtedness which when incurred and without respect to any election under
Section 1111(b) of Title 11 of the United States Code is without recourse to the
Company or any Subsidiary.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness under
the Credit Agreement, (ii) Indebtedness under the Senior Notes and (iii) any
Senior Indebtedness which, at the time of determination, has an aggregate
principal amount outstanding of at least $25 million and is specifically
designated in the instrument evidencing such Senior Indebtedness as "Designated
Senior Indebtedness" by the Company.
"Guarantor Senior Indebtedness" of a Guarantor means Indebtedness of such
Guarantor consisting of (i) a guarantee of any Senior Indebtedness under the
Credit Agreement or any other Senior Indebtedness (including the Senior
Guarantee of the Senior Notes) or (ii) the principal of, premium, if any, and
interest on all other Indebtedness of such Guarantor (other than the Senior
Subordinated Guarantee issued by such Guarantor), whether outstanding on the
date of the Senior Subordinated Indenture or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such indebtedness shall not be senior in right of
payment to such Senior Subordinated Guarantee. Notwithstanding the foregoing,
"Guarantor Senior Indebtedness" of a Guarantor shall not include (i)
Indebtedness evidenced by the Senior Subordinated Guarantee of such Guarantor,
(ii) Indebtedness of such Guarantor that is expressly subordinated in right of
payment to any Indebtedness of such Guarantor, (iii) Indebtedness of such
Guarantor that by operation of law is subordinate to any general unsecured
obligations of such Guarantor, (iv) Indebtedness of such Guarantor to the extent
incurred in violation of any covenant of the Senior Subordinated Indenture, (v)
any liability for federal, state or local taxes or other taxes, owed or owing by
such Guarantor, (vi) trade account payables owed or owing by such Guarantor,
(vii) amounts owed by such Guarantor for compensation to employees or for
services rendered to such Guarantor, (viii) Indebtedness of such Guarantor to
any Affiliate of the Company, (ix) Redeemable Capital Stock of such Guarantor
and (x) Indebtedness which when incurred and without respect to any election
under Section 1111(b) of Title 11 of the United States Code is without recourse
to such Guarantor or any Subsidiary.
Sinking Fund
The Exchange Notes will not be entitled to the benefit of any sinking fund.
Guarantees
Payment of the principal of, premium, if any, and interest on the Senior
Exchange Notes, when and as the same become due and payable (whether at Stated
Maturity or purchase upon a Change of Control and whether by declaration of
acceleration or otherwise), will be guaranteed, jointly and severally, on an
unsecured senior basis by the Guarantors.
Payment of the principal of, premium, if any, and interest on the Senior
Subordinated Exchange Notes, when and as the same become due and payable
(whether at Stated Maturity or purchase upon a Change of Control and whether by
declaration of acceleration, call for redemption or otherwise), will be
guaranteed, jointly and severally, on an unsecured senior subordinated basis by
the Guarantors.
The Guarantors are, as of the date hereof, Nine West Development
Corporation, Nine West Distribution Corporation, Nine West Footwear Corporation
and Nine West Manufacturing Corporation. The Indentures provide that the
obligations of each Guarantor under its Guarantee will be limited so as not to
constitute a fraudulent conveyance under applicable laws.
Each Indenture provides further that the Guarantee issued by any Guarantor
shall be automatically and unconditionally released and discharged (i) upon any
sale, exchange or transfer to any Person not an Affiliate of the Company or a
Restricted Subsidiary of all of the Company's Capital Stock in, or all or
substantially all the assets of, such Guarantor (which sale, exchange or
transfer is not prohibited by the respective Indenture) or (ii) at the request
of the Company, if such Guarantor is not a Leveraged Subsidiary, in the event
that (A) no other Indebtedness of the Company remains guaranteed by such
Guarantor or (B) the holders of all such other Indebtedness that is guaranteed
by such Guarantor also release their guarantee by such Guarantor (including any
deemed release upon payment in full of all obligations under such Indebtedness
except by or as a result of payment under such guarantee); provided, however,
that a release of a Guarantor that is a Leveraged Subsidiary may only be
obtained under the circumstances described in this clause (ii) if, after giving
effect to the release, either (x) such Guarantor would have been permitted to
incur all of its then outstanding Indebtedness under the "Limitation on
Indebtedness" covenant or (y) in the case of the Senior Indenture, the
"Limitation on Indebtedness" covenant no longer applies pursuant to the terms of
such Indenture.
Certain Covenants
The Senior Indenture provides that the covenants set forth herein will be
applicable to the Company; provided, however, that if no Default or Event of
Default has occurred and is continuing, after the ratings assigned to the Senior
Notes by S&P and Moody's are equal to or higher than BBB- and Baa3, or the
equivalents thereof, respectively (the "Investment Grade Ratings"), and
notwithstanding that the Senior Notes may later cease to have an Investment
Grade Rating, the Company and the Restricted Subsidiaries will not be subject to
the provisions of the Senior Indenture described under "Limitation on
Indebtedness," "Limitation on Restricted Payments," "Limitation on Issuances and
Sales of Capital Stock of Restricted Subsidiaries," "Limitation on Transactions
with Affiliates," "Limitation on Sale of Assets," "Limitation on Guarantees of
Indebtedness by Restricted Subsidiaries," "Limitation on Dividend and Other
Payment Restrictions Affecting Restricted Subsidiaries," and clause (iii) of the
first paragraph of "Consolidation, Merger and Sale of Assets."
The Indentures contain, among others, the following covenants:
Limitation on Indebtedness. The Company will not, and will not permit any
Restricted Subsidiary to, create, issue, assume, guarantee or in any manner
become directly or indirectly liable for the payment of, or otherwise incur
(collectively, "incur"), any Indebtedness (including any Acquired Indebtedness),
other than Permitted Indebtedness; provided, however, that (i) the Company and
any Guarantor may incur Indebtedness (including Acquired Indebtedness) and (ii)
any Restricted Subsidiary may incur Acquired Indebtedness (provided that such
Acquired Indebtedness was not incurred by the acquired Person or the Person from
whom the applicable assets were acquired, in connection with or in contemplation
of such acquisition by such Restricted Subsidiary) if, in either case, at the
time of such incurrence the Consolidated Fixed Charge Coverage Ratio for the
four full fiscal quarters immediately preceding the incurrence of such
Indebtedness, taken as one period (and after giving pro forma effect to (i) the
incurrence of such Indebtedness and (if applicable) the application of the net
proceeds therefrom, including to refinance other Indebtedness, as if such
Indebtedness was incurred, and the application of such proceeds occurred, on the
first day of such four-quarter period, (ii) the incurrence, repayment or
retirement of any other Indebtedness by the Company or its Restricted
Subsidiaries since the first day of such four-quarter period as if such
Indebtedness was incurred, repaid or retired on the first day of such
four-quarter period (except that, in making such computation, the amount of
Indebtedness under any revolving credit facility shall be computed based upon
the average daily balance of such Indebtedness during such four-quarter period)
and (iii) the acquisition (whether by purchase, merger or otherwise) or
disposition (whether by sale, merger or otherwise) of any company, entity or
business acquired or disposed of by the Company or its Restricted Subsidiaries,
as the case may be, since the first day of such four-quarter period, as if such
acquisition or disposition occurred on the first day of such four-quarter
period), would have been at least equal to 2.0 to 1.0.
Limitation on Restricted Payments. (a) The Company will not, and will not
permit any Restricted Subsidiary to, directly or indirectly,
(i) declare or pay any dividend, or make any distribution, on any
shares of the Capital Stock of the Company or any Restricted Subsidiary
(other than dividends or distributions payable solely in shares of its
Qualified Capital Stock or in options, warrants or other rights to acquire
such shares of Qualified Capital Stock or dividends and distributions made
by a Restricted Subsidiary on a pro rata basis to all shareholders of such
Restricted Subsidiary);
(ii) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any shares of Capital Stock of the Company or any
options, warrants or other rights to acquire such shares of Capital Stock
(other than such options, warrants or rights owned by the Company or a
wholly owned Restricted Subsidiary);
(iii) make any principal payment on, or repurchase, redeem, defease or
otherwise acquire or retire for value, prior to any scheduled principal
payment, sinking fund payment or maturity, any Indebtedness of the Company
that is expressly subordinated in right of payment to the Senior Notes or
the Senior Subordinated Notes, as the case may be, or Indebtedness of any
Guarantor that is expressly subordinated in right of payment to
Indebtedness under such Guarantor's Senior Guarantee or Senior Subordinated
Guarantee, as the case may be (in each case, other than any such
Indebtedness held by the Company or any Restricted Subsidiary); or
(iv) make any Investment (other than any Permitted Investment) in any
Person;
(such payments or other actions described in (but not excluded from) clauses (i)
through (iv) are collectively referred to as "Restricted Payments"), unless at
the time of, and immediately after giving effect to, the proposed Restricted
Payment (the amount of any such Restricted Payment, if other than cash, as
determined by the Board of Directors of the Company, whose determination shall
be conclusive and evidenced by a board resolution), (1) no Default or Event of
Default shall have occurred and be continuing, (2) the Company could incur at
least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to the "Limitation on Indebtedness" covenant and (3) the aggregate
amount of all Restricted Payments declared or made after the date of the
Indentures shall not exceed the sum of:
(A) 50% of the Consolidated Adjusted Net Income of the Company accrued
on a cumulative basis during the period beginning on the first day of the
Company's first fiscal quarter after the date of the Indentures and ending
on the last day of the Company's fiscal quarter ending immediately prior to
the date of such proposed Restricted Payment (or, if such aggregate
cumulative Consolidated Adjusted Net Income shall be a loss, minus 100% of
such amount), plus
(B) the aggregate net cash proceeds received by the Company after the
date of the Indentures from the issuance or sale (other than to any of its
Restricted Subsidiaries) of shares of Qualified Capital Stock of the
Company or warrants, options or rights to purchase shares of Qualified
Capital Stock of the Company, plus
(C) the aggregate net cash proceeds received after the date of the
Indentures by the Company from the issuance or sale (other than to any of
its Restricted Subsidiaries) of debt securities or Redeemable Capital Stock
that have been converted into or exchanged for Qualified Capital Stock of
the Company, to the extent such debt securities or Redeemable Capital Stock
were originally sold for cash, together with the aggregate net cash
proceeds received by the Company at the time of such conversion or
exchange, plus
(D) to the extent that any Investment constituting a Restricted
Payment that was made after the date of the Indentures is sold or is
otherwise liquidated or repaid, an amount (to the extent not included in
Consolidated Adjusted Net Income) equal to the lesser of (x) the cash
proceeds with respect to such Investment (less the cost of the disposition
of such Investment and net of taxes) and (y) the initial amount of such
Investment, plus
(E) $25.0 million.
(b) Notwithstanding paragraph (a) above, the Company and any Restricted
Subsidiary may take the following actions so long as (with respect to clauses
(ii) through (viii) below) no Default or Event of Default shall have occurred
and be continuing:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration the payment of such
dividend would have complied with the provisions of paragraph (a) above and
such payment will be deemed to have been paid on such date of declaration
for purposes of the calculation required by paragraph (a) of this covenant;
(ii) the repurchase, redemption or other acquisition or retirement for
value of any shares of Capital Stock of the Company in exchange for, or out
of the net cash proceeds of a substantially concurrent issuance and sale
(other than to a Restricted Subsidiary) of, shares of Qualified Capital
Stock of the Company;
(iii) the repurchase, redemption, defeasance or other acquisition or
retirement for value of any Indebtedness that is expressly subordinated in
right of payment to the Senior Notes or the Senior Subordinated Notes, as
the case may be, in exchange for, or out of the net cash proceeds of a
substantially concurrent issuance and sale (other than to a Restricted
Subsidiary) of, shares of Qualified Capital Stock of the Company;
(iv) the purchase of any Indebtedness that is expressly subordinated
in right of payment to the Senior Notes or the Senior Subordinated Notes,
as the case may be, at a purchase price not greater than 101% of the
principal amount thereof in the event of (A) a Change of Control in
accordance with provisions similar to the "Purchase of Notes upon a Change
of Control" covenant or (B) an Excess Proceeds Offer in accordance with
provisions similar to the "Limitation on Sale of Sale Assets" covenant;
provided that prior to such purchase the Company has made the Change of
Control Offer or Excess Proceeds Offer, as the case may be, as provided in
such covenant with respect to the Senior Notes or the Senior Subordinated
Notes, as the case may be, and has purchased all Senior Notes or Senior
Subordinated Notes, as the case may be, validly tendered for payment in
connection with such Change of Control Offer or Excess Proceeds Offer, as
the case may be;
(v) the purchase, redemption, defeasance or other acquisition or
retirement for value of Indebtedness (other than Redeemable Capital Stock)
that is expressly subordinated in right of payment to the Senior Notes or
the Senior Subordinated Notes, as the case may be, in exchange for, or out
of the net cash proceeds of a substantially concurrent incurrence (other
than to a Restricted Subsidiary) of, new Indebtedness of the Company that
is expressly subordinated in right of payment to the Senior Notes or the
Senior Subordinated Notes, as the case may be, so long as (A) the principal
amount of such new Indebtedness does not exceed the principal amount (or,
if such Indebtedness being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of determination)
of the Indebtedness being so purchased, redeemed, defeased, acquired or
retired, plus the lesser of (i) the amount of any premium required to be
paid in connection with such refinancing pursuant to the terms of the
Indebtedness being refinanced or (ii) the amount of any premium reasonably
determined by the Company as necessary to accomplish such refinancing, (B)
such new Indebtedness is subordinated to the Senior Notes or the Senior
Subordinated Notes, as the case may be, to the same extent as such
Indebtedness so purchased, redeemed, defeased, acquired or retired and (C)
such new Indebtedness has an Average Life longer than the Average Life of
the Senior Notes or the Senior Subordinated Notes, as the case may be, and
a final Stated Maturity of principal later than the final Stated Maturity
of principal of the Senior Notes or the Senior Subordinated Notes, as the
case may be;
(vi) the repurchase, redemption or other acquisition or retirement for
value of shares of Capital Stock of the Company issued pursuant to stock
option plans of the Company; provided that (1) the Company is required, by
the terms of such plans, to effect such purchase, redemption or other
acquisition or retirement for value of such shares and (2) the aggregate
consideration paid by the Company for such shares so purchased, redeemed or
otherwise acquired or retired for value does not exceed $5.0 million during
any fiscal year of the Company;
(vii) payments or distributions to dissenting stockholders pursuant to
applicable law, pursuant to or in connection with an Asset Sale or Asset
Acquisition that complies with the provisions of the applicable Indenture;
and
(viii) repurchases of Capital Stock (or warrants or options
convertible into or exchangeable for such Capital Stock) deemed to occur
upon exercise of stock options to the extent that shares of such Capital
Stock (or warrants or options convertible into or exchangeable for such
Capital Stock) represent a portion of the exercise price of such options.
The actions described in clauses (i), (ii), (iii), (iv), (vi), (vii) and
(viii) of this paragraph (b) shall be Restricted Payments that shall be
permitted to be taken in accordance with this paragraph (b) but shall reduce the
amount that would otherwise be available for Restricted Payments under clause
(3) of paragraph (a) above and the actions described in clause (v) of this
paragraph (b) shall be Restricted Payments that shall be permitted to be taken
in accordance with this paragraph (b) and shall not reduce the amount that would
otherwise be available for Restricted Payments under clause (3) of paragraph (a)
above.
(c) In computing Consolidated Adjusted Net Income of the Company under
paragraph (a) above, (1) the Company shall use audited financial statements for
the portions of the relevant period for which audited financial statements are
available on the date of determination and unaudited financial statements and
other current financial data based on the books and records of the Company for
the remaining portion of such period and (2) the Company shall be permitted to
rely in good faith on the financial statements and other financial data derived
from the books and records of the Company that are available on the date of
determination. If the Company makes a Restricted Payment which, at the time of
the making of such Restricted Payment would in the good faith determination of
the Company be permitted under the requirements of the respective Indenture,
such Restricted Payment shall be deemed to have been made in compliance with
such Indenture notwithstanding any subsequent adjustments made in good faith to
the Company's financial statements affecting Consolidated Adjusted Net Income of
the Company for any period.
Limitation on Issuances and Sales of Capital Stock of Restricted
Subsidiaries. The Company will not sell, and will not permit any Restricted
Subsidiary to issue, any Capital Stock of such Restricted Subsidiary (other than
to the Company or a Restricted Subsidiary); provided, however, that this
covenant shall not prohibit (i) the sale or other disposition of all, but not
less than all, of the issued and outstanding Capital Stock of any Restricted
Subsidiary owned by the Company or any Restricted Subsidiary in compliance with
the other provisions of the respective Indenture, (ii) issuances or sales of
Common Stock of a Restricted Subsidiary if such issuance or sale complies with
the "Limitation on Sale of Assets" covenant, provided that if, immediately after
giving effect to such issuance or sale, such Restricted Subsidiary would no
longer constitute a Restricted Subsidiary, any Investment in such Person
remaining after giving effect to such issuance or sale would have been permitted
to be made under the "Limitation on Restricted Payments" covenant, if made on
the date of such issuance or sale, or (iii) the ownership by directors of
director's qualifying shares or the ownership by foreign nationals of Capital
Stock of any Restricted Subsidiary, to the extent mandated by applicable law.
Limitation on Transactions with Affiliates. The Company will not, and will
not permit any Restricted Subsidiary to, directly or indirectly, enter into or
suffer to exist, any transaction or series of related transactions (including,
without limitation, the sale, purchase, exchange or lease of assets, property or
services) with, or for the benefit of, any Affiliate of the Company or any
Restricted Subsidiary (other than the Company or a Restricted Subsidiary so long
as no Affiliate of the Company (other than a Restricted Subsidiary) or
beneficial holder of 5% or more of any class or series of Capital Stock of the
Company shall beneficially own Capital Stock in such Restricted Subsidiary),
unless (i) such transaction or series of transactions are on terms that are no
less favorable to the Company or such Restricted Subsidiary, as the case may be,
than those that could have been obtained in an arm's-length transaction with
third parties that are not Affiliates of the Company, (ii) with respect to any
transaction or series of related transactions involving aggregate consideration
equal to or greater than $5.0 million, the Company has delivered an officers'
certificate to the Trustee certifying that such transaction or series of related
transactions complies with clause (i) above and (iii) with respect to any
transaction or series of related transactions involving aggregate consideration
equal to or greater than $10.0 million, such transaction or series of related
transactions has been approved by the Board of Directors of the Company
(including a majority of the Disinterested Directors) or the Company has
obtained a written opinion from a nationally recognized investment banking firm
to the effect that such transaction or series of related transactions is fair to
the Company or its Restricted Subsidiary, as the case may be, from a financial
point of view; provided, however, that this covenant will not restrict (1)
customary directors' fees, indemnification and similar arrangements, consulting
fees, employee salaries, bonuses or employment agreements, compensation or
employee benefit arrangements and incentive arrangements with any officer,
director or employee of the Company or any Restricted Subsidiary entered into in
the ordinary course of business (including customary benefits thereunder) and
payments under any indemnification arrangements permitted by applicable law, (2)
the issue and sale by the Company to its stockholders of Capital Stock (other
than Redeemable Capital Stock), (3) any dividends made in compliance with the
"Limitation on Restricted Payments" covenant, (4) loans and advances to
officers, directors, employees and consultants of the Company or any Restricted
Subsidiary for travel, entertainment, moving and other relocation expenses, in
each case made in the ordinary course of business, (5) the performance of any
written agreement as in effect on the date of the Indentures and as amended from
time to time, provided that any such amendment is not less favorable in any
material respect to the Company or any Restricted Subsidiary than the terms in
effect on the date of the Indentures, (6) tax sharing agreements between the
Company and any Restricted Subsidiary providing for the payment by such
Restricted Subsidiary of an amount equal to the hypothetical United States tax
liability of such Restricted Subsidiary as if such Restricted Subsidiary had
filed its own United States federal tax return for any given tax year and (7)
transactions with or by any Accounts Receivable Subsidiary made in the ordinary
course of business.
Limitation on Liens. (a) The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, create, incur, assume or
suffer to exist (i) with respect to the Senior Notes, any Lien of any kind
(other than Senior Note Permitted Liens) and (ii) with respect to the Senior
Subordinated Notes, any Lien of any kind (other than Senior Subordinated Note
Permitted Liens) securing Indebtedness that is pari passu with or subordinated
to the Senior Subordinated Notes, on or with respect to any of its property or
assets, including any shares of stock or indebtedness of any Restricted
Subsidiary, whether owned at the date of the applicable Indenture or thereafter
acquired, or any income, profits or proceeds therefrom, or assign or otherwise
convey any right to receive income thereon, unless (x) in the case of any Lien
securing Indebtedness that is expressly subordinated in right of payment to the
Senior Notes or the Senior Subordinated Notes, as the case may be, the Senior
Notes or the Senior Subordinated Notes, as the case may be, are secured by a
Lien on such property, assets or proceeds that is senior in priority to such
Lien and (y) in the case of any Lien securing Indebtedness that is pari passu in
right of payment to the Senior Notes or the Senior Subordinated Notes, as the
case may be, the Senior Notes or the Senior Subordinated Notes, as the case may
be, are secured by a Lien on such property, assets or proceeds that is senior in
priority to or pari passu with such Lien.
(b) The Company will not, and will not permit any Guarantor to, directly or
indirectly, create, incur, assume or suffer to exist (i) with respect to the
Senior Notes, any Lien of any kind (other than Senior Note Permitted Liens) and
(ii) with respect to the Senior Subordinated Notes, any Lien of any kind (other
than Senior Subordinated Note Permitted Liens) securing Indebtedness that is
pari passu with or subordinated to the Senior Subordinated Guarantee, on or with
respect to any of its property or assets, including any shares of stock or
indebtedness of any Restricted Subsidiary, whether owned at the date of the
applicable Indenture or thereafter acquired, or any income, profits or proceeds
therefrom, or assign or otherwise convey any right to receive income thereon,
unless (x) in the case of any Lien securing Indebtedness that is expressly
subordinated in right of payment to the Senior Guarantee or the Senior
Subordinated Guarantee, as the case may be, the Senior Guarantee or the Senior
Subordinated Guarantee, as the case may be, is secured by a Lien on such
property, assets or proceeds that is senior in priority to such Lien and (y) in
the case of any Lien securing Indebtedness that is pari passu in right of
payment to the Senior Guarantee or the Senior Subordinated Guarantee, as the
case may be, the Senior Guarantee or the Senior Subordinated Guarantee, as the
case may be, is secured by a Lien on such property, assets or proceeds that is
senior in priority to or pari passu with such Lien.
Purchase of Notes upon a Change of Control. If a Change of Control shall
occur at any time, then each holder of Notes will have the right to require that
the Company purchase such holder's Notes, in whole or in part in integral
multiples of $1,000, at a purchase price (the "Change of Control Purchase
Price") in cash in an amount equal to 101% of the principal amount thereof, plus
accrued interest, if any, to the date of purchase (the "Change of Control
Purchase Date"), pursuant to the offer described below (the "Change of Control
Offer") and the other procedures set forth in the respective Indenture.
Within 30 days following any Change of Control, the Company shall notify
the Trustees thereof and give written notice of the Change of Control Offer to
each holder of Notes by first-class mail, postage prepaid, at the address of
such holder appearing in the Exchange Note register, stating, among other
things, (i) the Change of Control Purchase Price and the Change of Control
Purchase Date, which shall be a Business Day no earlier than 30 days nor later
than 60 days from the date such notice is mailed, or such later date as is
necessary to comply with requirements under the Exchange Act or any applicable
securities laws or regulations; (ii) that any Note not tendered will continue to
accrue interest; (iii) that, unless the Company defaults in the payment of the
purchase price, any Notes accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of Control Purchase Date;
and (iv) certain other procedures that a holder of Notes must follow to accept a
Change of Control Offer or to withdraw such acceptance.
If a Change of Control Offer is made, there can be no assurance that the
Company will have available funds sufficient to pay the Change of Control
Purchase Price for all of the Notes that might be delivered by holders of the
Notes seeking to accept the Change of Control Offer. The Credit Agreement
prohibits the purchase of the Notes by the Company prior to full repayment of
indebtedness under the Credit Agreement, and, upon a Change of Control, all
amounts outstanding under the Credit Agreement become due and payable. There can
be no assurance that in the event of a Change in Control the Company will be
able to obtain the necessary consents from the lenders under the Credit
Agreement to consummate a Change of Control Offer. The failure of the Company to
make or consummate the Change of Control Offer or pay the Change of Control
Purchase Price when due would result in an Event of Default and would give the
Trustees and the holders of the Notes the rights described under "--Events of
Default."
One of the events that constitutes a Change of Control under each Indenture
is the disposition of "all or substantially all" of the Company's assets. This
term has not been interpreted under New York law (which is the governing law of
the Indentures) to represent a specific quantitative test. As a consequence, in
the event holders of the Notes elect to require the Company to purchase the
Exchange Notes and the Company elects to contest such election, there can be no
assurance as to how a court interpreting New York law would interpret the
phrase.
The existence of a holder's right to require the Company to purchase such
holder's Notes upon a Change of Control may deter a third party from acquiring
the Company in a transaction that constitutes a Change of Control. The
definition of "Change of Control" in the Indentures is limited in scope. The
provisions of the Indentures may not afford holders of Notes the right to
require the Company to purchase such Notes in the event of a highly leveraged
transaction or certain transactions with the Company's management or its
affiliates, including a reorganization, restructuring, merger or similar
transaction involving the Company (including, in certain circumstances, an
acquisition of the Company by management or its affiliates) that may adversely
affect holders of the Notes, if such transaction is not a transaction defined as
a Change of Control. See "--Certain Definitions" for the definition of "Change
of Control." A transaction involving the Company's management or its affiliates,
or a transaction involving a recapitalization of the Company, would result in a
Change of Control if it is the type of transaction specified by such definition.
The Company will comply to the extent applicable with the requirements of
the tender offer rules, including Rule l4e-1 under the Exchange Act, and any
other applicable securities laws and regulations in connection with a Change of
Control Offer.
The Company will not, and will not permit any Restricted Subsidiary to,
create or permit to exist or become effective any restriction (other than
restrictions existing or under Indebtedness as in effect on the date of the
Indentures or under any agreement that extends, renews, refinances or replaces
any agreement governing such restrictions or Indebtedness, provided that the
restrictions contained in such new agreement are no more restrictive than those
under or pursuant to the agreement so extended, renewed, refinanced or replaced)
that would materially impair the ability of the Company to make a Change of
Control Offer to purchase the Notes or, if such Change of Control Offer is made,
to pay for the Notes tendered for purchase.
Limitation on Sale of Assets. (a) The Company will not, and will not permit
any Restricted Subsidiary to, directly, or indirectly, consummate an Asset Sale
unless (i) the consideration received by the Company or such Restricted
Subsidiary for such Asset Sale is not less than the fair market value of the
assets sold (as determined by the Board of Directors of the Company, whose
determination shall be conclusive and evidenced by a Board Resolution) and (ii)
the consideration received by the Company or the relevant Restricted Subsidiary
in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents;
provided that any Designated Noncash Consideration received by the Company or
any Restricted Subsidiary in such Asset Sale having an aggregate fair market
value, taken together with all other Designated Noncash Consideration received
pursuant to this proviso that is at that time outstanding, not in excess of
$20.0 million (with the fair market value of each item of Designated Noncash
Consideration being measured at the time received and without giving effect to
subsequent changes in value), shall be deemed to be cash for the purposes of
this covenant.
(b) If the Company or any Restricted Subsidiary consummates an Asset Sale,
the Company may use the Net Cash Proceeds thereof, within 12 months after such
Asset Sale, to (i) permanently repay or prepay any then outstanding Senior
Indebtedness of the Company or any Guarantor or Indebtedness of any
non-Guarantor Restricted Subsidiary or (ii) invest (or enter into a legally
binding agreement to invest) in properties and assets to replace the properties
and assets that were the subject of the Asset Sale or in properties and assets
that will be used in businesses of the Company or its Restricted Subsidiaries,
as the case may be, existing on the date of the Indentures or reasonably related
thereto. If any such legally binding agreement to invest such Net Cash Proceeds
is terminated, then the Company may, within 90 days of such termination or
within 12 months of such Asset Sale, whichever is later, invest such Net Cash
Proceeds as provided in clause (i) or (ii) (without regard to the parenthetical
contained in such clause (ii)) above. The amount of such Net Cash Proceeds not
so used as set forth above in this paragraph (b) constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $20.0 million, the
Company shall, within 15 business days, make an offer to purchase (an "Excess
Proceeds Offer") from all holders of Notes, on a pro rata basis, in accordance
with the procedures set forth in the Indentures, the maximum principal amount
(expressed as a multiple of $1,000) of Notes that may be purchased with the
Excess Proceeds; provided, however, that no Excess Proceeds Offer shall be
required to be commenced with respect to the Senior Subordinated Notes until the
business day following the Offer Date (as defined below) with respect to the
Senior Notes and need not be commenced if the Excess Proceeds remaining after
application to the Senior Notes purchased in the Excess Proceeds Offer
applicable thereto are less than $10.0 million; and provided further, however,
that no Senior Subordinated Notes may be purchased under this "Limitation on
Sale of Assets" covenant unless the Company shall have purchased all Senior
Notes tendered pursuant to the Excess Proceeds Offer applicable thereto. The
offer price as to each Note shall be payable in cash in an amount equal to 100%
of the principal amount of such Note plus accrued interest, if any (the "Offered
Price"), to the date such Excess Proceeds Offer is consummated (the "Offer
Date"). To the extent that the aggregate principal amount of Notes tendered
pursuant to an Excess Proceeds Offer is less than the Excess Proceeds, the
Company may use such deficiency for general corporate purposes. If the aggregate
principal amount of Notes validly tendered and not withdrawn by holders thereof
exceeds the Excess Proceeds, Notes to be purchased will be selected on a pro
rata basis. Upon completion of such Exceeds Proceeds Offer, the amount of Excess
Proceeds shall be reset to zero.
The Credit Agreement prohibits the purchase of the Notes by the Company
prior to full repayment of indebtedness under the Credit Agreement, and, in the
event the Company is required to make an Excess Proceeds Offer, there can be no
assurance that the Company will be able to obtain the necessary consents from
the lenders under the Credit Agreement to make and consummate an Excess Proceeds
Offer. The failure of the Company to make or consummate the Excess Proceeds
Offer or pay the Offered Price when due would result in an Event of Default and
would give the Trustee and the holders of the Notes the rights described under
"--Events of Default."
(d) Whenever the Excess Proceeds received by the Company exceed $20.0
million, such Excess Proceeds shall be set aside by the Company in a separate
account pending (i) deposit with the Trustees or a paying agent of the amount
required to purchase the Notes tendered in an Excess Proceeds Offer, (ii)
delivery by the Company of the Offered Price to the holders of the Notes
tendered in an Excess Proceeds Offer and (iii) application, as set forth above,
of Excess Proceeds for general corporate purposes. Such Excess Proceeds may be
invested in Cash Equivalents, provided that the maturity date of any investment
shall not be later than the Offer Date. The Company shall be entitled to any
interest or dividends accrued, earned or paid on such Cash Equivalents.
(e) If the Company becomes obligated to make an Excess Proceeds Offer
pursuant to clause (c) above, the Notes shall be purchased by the Company, at
the option of the holders thereof, in whole or in part in integral multiples of
$1,000, on a date that is not earlier than 30 days and not later than 60 days
from the date the notice is given to holders, or such later date as may be
necessary for the Company to comply with the requirements under the Exchange
Act, subject to proration in the event the amount of Excess Proceeds is less
than the aggregate Offered Price of all Notes tendered.
(f) The Company will comply to the extent applicable with the requirements
of the tender offer rules, including Rule 14e-1 under the Exchange Act, and any
other applicable securities laws and regulations in connection with an Excess
Proceeds Offer.
Limitation on Guarantees of Indebtedness by Restricted Subsidiaries. (a)
The Company will not permit any Restricted Subsidiary, directly or indirectly,
to guarantee, assume or in any other manner become liable with respect to any
Indebtedness of the Company unless (i) (A) if such Restricted Subsidiary is not
a Guarantor, such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture, in form satisfactory to the applicable Trustee,
providing for a guarantee of the Notes by such Restricted Subsidiary and
delivers to such Trustee an opinion of counsel reasonably satisfactory to such
Trustee to the effect that such supplemental indenture has been duly executed
and delivered by such Restricted Subsidiary and is in compliance with the terms
of the respective Indenture and (B) with respect to any guarantee by a
Restricted Subsidiary of Indebtedness that is expressly subordinated in right of
payment to the Senior Notes or Senior Subordinated Notes, as the case may be,
any such guarantee shall be subordinated to such Restricted Subsidiary's Senior
Guarantee or Senior Subordinated Guarantee, as the case may be, at least to the
same extent as such guaranteed Indebtedness is subordinated to the Senior Notes
or the Senior Subordinated Notes, as the case may be and (ii) such Restricted
Subsidiary waives and will not in any manner whatsoever claim or take the
benefit or advantage of, any rights of reimbursement, indemnity or subrogation
or any other rights against the Company or any other Restricted Subsidiary as a
result of any payment by such Restricted Subsidiary under its Guarantees.
(b) Notwithstanding the foregoing, any guarantee of the Notes created
pursuant to the provisions described in the foregoing paragraph (a) will provide
by its terms that it will be automatically and unconditionally released and
discharged upon (i) any sale, exchange or transfer to any Person not an
Affiliate of the Company or a Restricted Subsidiary of all of the Company's
Capital Stock in, or all or substantially all the assets of, the applicable
Guarantor (which sale, exchange or transfer is not prohibited by the respective
Indenture) or (ii) at the request of the Company, if such Guarantor is not a
Leveraged Subsidiary, in the event that (A) no other Indebtedness of the Company
remains guaranteed by such Guarantor or (B) the holders of all such other
Indebtedness which is guaranteed by such Guarantor also release their guarantee
by such Guarantor (including any deemed release upon payment in full of all
obligations under such Indebtedness except by or as a result of payment under
such guarantee); provided, however, that a release of a Guarantor that is a
Leveraged Subsidiary may only be obtained under the circumstances described in
this clause (ii) if, after giving effect to the release, either (x) such
Guarantor would have been permitted to incur all of its then outstanding
Indebtedness under the "Limitation on Indebtedness" covenant or (y) in the case
of the Senior Indenture, the "Limitation on Indebtedness" covenant no longer
applies pursuant to the terms of such Indenture.
Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries. The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (a) pay dividends, in cash or otherwise,
or make any other distributions on or in respect of its Capital Stock, (b) pay
any Indebtedness owed to the Company or any other Restricted Subsidiary, (c)
make loans or advances to the Company or any other Restricted Subsidiary, (d)
transfer any of its properties or assets to the Company or any other Restricted
Subsidiary (other than customary restrictions on transfers of property subject
to a Lien permitted under the respective Indenture that would not materially
adversely affect the Company's ability to satisfy its obligations under the
respective Notes and Indenture) or (e) guarantee any Indebtedness of the Company
or any other Restricted Subsidiary, except for such encumbrances or restrictions
existing under or by reason of (i) any agreement in effect on the date of the
Indentures, (ii) applicable law, (iii) customary provisions restricting
subletting or assignment of any lease or assignment of any other contract to
which the Company or any Restricted Subsidiary is a party or to which any of
their respective properties or assets are subject, (iv) any agreement or other
instrument of a Person acquired by the Company or any Restricted Subsidiary 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) any encumbrance or restriction
contained in contracts for sales of assets permitted by the "Limitation on Sale
of Assets" covenant with respect to the assets to be sold pursuant to such
contract and (vi) any encumbrance or restriction existing under any agreement
that extends, renews, refinances or replaces the agreements containing the
encumbrances or restrictions in the foregoing clauses (i) and (iv); provided
that the terms and conditions of any such encumbrances or restrictions are no
less favorable to the holders of the Notes than those under or pursuant to the
agreement so extended, renewed, refinanced or replaced.
Limitation on Unrestricted Subsidiaries. The Company will not make, and
will not permit any of its Restricted Subsidiaries to make, any Investments in
Unrestricted Subsidiaries if, at the time thereof, the aggregate amount of such
Investments would exceed the amount of Restricted Payments then permitted to be
made pursuant to the "Limitation on Restricted Payments" covenant. Any
Investments in Unrestricted Subsidiaries permitted to be made pursuant to this
covenant (i) will be treated as the making of a Restricted Payment in
calculating the amount of Restricted Payments made by the Company or a
Restricted Subsidiary and (ii) may be made in cash or property.
Limitation on Other Senior Subordinated Indebtedness. Neither the Company
nor any Restricted Subsidiary will incur, create, assume, guarantee or in any
other manner become directly or indirectly liable with respect to or responsible
for, or permit to remain outstanding, any Indebtedness that is subordinate or
junior in right of payment to any Senior Indebtedness unless such Indebtedness
is also pari passu with, or subordinate in right of payment to, the Senior
Subordinated Notes pursuant to subordination provisions substantially similar to
those contained in the Senior Subordinated Indenture.
Reports. The Company will file on a timely basis with the Commission, to
the extent such filings are accepted by the Commission and whether or not the
Company has a class of securities registered under the Exchange Act, the annual
reports, quarterly reports and other documents that the Company would be
required to file if it were subject to Section 13 or 15 of the Exchange Act. The
Company will also be required (a) to file with the Trustees, and provide to each
holder of Exchange Notes (at their respective addresses set forth in the
registers of the Notes), without cost to such holder, copies of such reports and
documents within 15 days after the date on which the Company files such reports
and documents with the Commission or the date on which the Company would be
required to file such reports and documents if the Company were so required, and
(b) if filing such reports and documents with the Commission is not accepted by
the Commission or is prohibited under the Exchange Act, to supply at the
Company's cost copies of such reports and documents to any prospective holder of
Exchange Notes promptly upon written request.
Consolidation, Merger and Sale of Assets
The Company will not, in a single transaction or a series of transactions,
consolidate with or merge with or into any other Person or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets to any Person or Persons and the Company will not permit
any Restricted Subsidiary to enter into any such transaction or series of
transactions if such transaction or series of transactions, in the aggregate,
would result in the sale, assignment, conveyance, transfer, lease or other
disposition of all or substantially all of the properties and assets of the
Company and its Restricted Subsidiaries on a consolidated basis to any Person or
Persons, unless (i) either (a) the Company will be the continuing corporation or
(b) the Person (if other than the Company) formed by such consolidation or into
which the Company or such Restricted Subsidiary is merged or the Person that
acquires by sale, assignment, conveyance, transfer, lease or disposition all or
substantially all the properties and assets of the Company or such Restricted
Subsidiary (the "Surviving Entity") (1) will be a corporation duly organized and
validly existing under the laws of the United States of America, any state
thereof or the District of Columbia and (2) will expressly assume, by a
supplemental indenture in form satisfactory to the Trustee, the Company's
obligation for the due and punctual payment of the principal of, premium, if
any, and interest on all the Notes and the performance and observance of every
covenant of the Indentures on the part of the Company to be performed or
observed; (ii) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (and treating any
obligation of the Company or any Restricted Subsidiary incurred in connection
with or as a result of such transaction or series of transactions as having been
incurred at the time of such transaction), no Default or Event of Default will
have occurred and be continuing; (iii) immediately before and immediately after
giving effect to such transaction or series of transactions on a pro forma basis
(on the assumption that the transaction or series of transactions occurred on
the first day of the four-quarter period immediately prior to the consummation
of such transaction or series of transactions with the appropriate adjustments
with respect to the transaction or series of transactions being included in such
pro forma calculation), the Company (or the Surviving Entity if the Company is
not the continuing obligor under the Indentures) could incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) under the provisions
of the "Limitation on Indebtedness" covenant; (iv) each Guarantor, if any,
unless it is the other party to the transactions described above, shall have by
supplemental indenture confirmed that its Guarantee will apply to such Person's
obligations under the Indentures and the Notes; and (v) if any of the property
or assets of the Company or any of its Restricted Subsidiaries would thereupon
become subject to any Lien, the provisions of the "Limitation on Liens" covenant
are complied with.
In connection with any such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition, the Company or the Surviving
Entity shall have delivered to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an officers' certificate and an opinion of counsel,
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, such supplemental indenture,
comply with the requirements of the Indentures and that all conditions precedent
therein provided for relating to such transaction have been complied with.
Each Guarantor, if any (other than any Restricted Subsidiary whose
Guarantee is being released pursuant to the provisions under the "Limitation on
Guarantees of Indebtedness by Restricted Subsidiaries" covenant as a result of
such transaction) will not, and the Company will not permit a Guarantor to, in a
single transaction or through a series of transactions, consolidate with or
merge with or into any other Person (other than the Company or any Guarantor) or
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person or Persons (other
than the Company or any Guarantor) or 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 the sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of such Guarantor and its Restricted Subsidiaries on a
consolidated basis to any Person or Persons (other than the Company or any
Guarantor), unless at the time and after giving effect thereto (i) either (a)
such Guarantor will be the continuing corporation or (b) the Person (if other
than such Guarantor) formed by such consolidation or into which such Guarantor
or its Restricted Subsidiary is merged or the Person that acquires by sale,
assignment, conveyance, transfer, lease or disposition all or substantially all
of the properties and assets of such Guarantor and its Restricted Subsidiaries
on a consolidated basis (the "Surviving Guarantor Entity") will be a corporation
duly organized and validly existing under the laws of (A) the United States of
America, any state thereof or the District of Columbia or (B) the laws of the
jurisdiction in which such Guarantor was organized and will expressly assume by
a supplemental indenture in form satisfactory to the Trustee, all of the
obligations of such Guarantor under its Guarantee of the Notes and the
Indentures; (ii) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (and treating any
obligation of the Guarantor, the Company or any Restricted Subsidiary incurred
in connection with or as a result of such transaction or series of transactions
as having been incurred at the time of such transaction), no Default or Event of
Default will have occurred and be continuing; and (iii) such Guarantor or the
Surviving Guarantor Entity will have delivered to the Trustee an officers'
certificate and an opinion of counsel, each stating that such consolidation,
merger, sale, assignment, conveyance, transfer, lease or disposition and such
supplemental indenture comply with the requirements of the respective Indenture
and that all conditions precedent therein provided for relating to such
transaction have been complied with.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Company or any Guarantor in accordance with the immediately
preceding paragraphs in which the Company or the Guarantor, as the case may be,
is not the continuing obligor under the respective Indenture or the Guarantee,
as the case may be, the Surviving Entity shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under the respective
Indenture or the Guarantor under a Guarantee, as the case may be, with the same
effect as if such successor had been named as the Company or the Guarantor, as
the case may be, therein. When a successor assumes all the obligations of its
predecessor under the respective Indenture, the Notes or a Guarantee, as the
case may be, the predecessor shall be released from those obligations; provided
that in the case of a transfer by lease, the predecessor shall not be released
from the payment of principal of, premium, if any, and interest on the Notes or
a Guarantee, as the case may be.
Events of Default
The following are "Events of Default" under the Indentures:
(i) default in the payment of any interest on any Senior Note or
Senior Subordinated Note, as the case may be, when it becomes due and
payable and continuance of such default for a period of 30 days;
(ii) default in the payment of the principal of (or premium, if any,
on) any Senior Note or Senior Subordinated Note, as the case may be, at its
Maturity (upon acceleration, optional redemption, required purchase or
otherwise);
(iii) default in the performance, or breach, of the provisions
described in "Consolidation, Merger and Sale of Assets," the failure to
make or consummate a Change of Control Offer in accordance with the
provisions of the "Purchase of Notes upon a Change of Control" covenant or
the failure to make or consummate an Excess Proceeds Offer in accordance
with the provisions of the "Limitation on Sale of Assets" covenant;
(iv) default in the performance, or breach, of any covenant or
warranty of the Company or any Guarantor contained in the Senior Indenture
or the Senior Subordinated Indenture, as the case may be (other than a
default in the performance, or breach, of a covenant or warranty which is
specifically dealt with elsewhere in "Events of Default"), and continuance
of such default or breach for a period of 45 days after written notice
shall have been given to the Company by the Trustee or to the Company and
the Trustee by the holders of at least 25% in aggregate principal amount of
the Senior Notes or Senior Subordinated Notes, as the case may be, then
outstanding;
(v) (A) one or more defaults in the payment of principal of (or
premium, if any, on) Indebtedness of the Company or any Restricted
Subsidiary aggregating $25.0 million or more, when the same becomes due and
payable at the stated maturity thereof, and such default or defaults shall
have continued after any applicable grace period and shall not have been
cured or waived or (B) Indebtedness of the Company or any Restricted
Subsidiary aggregating $25.0 million or more shall have been accelerated or
otherwise declared due and payable, or required to be prepaid or
repurchased (other than by regularly scheduled required prepayment) prior
to the stated maturity thereof;
(vi) one or more final judgments or orders shall be rendered against
the Company or any Restricted Subsidiary for the payment of money, either
individually or in an aggregate amount, in excess of $25.0 million and
shall not be discharged and either (A) an enforcement proceeding shall have
been commenced by any creditor upon such judgment or order or (B) there
shall have been a period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, was not in effect;
(vii) any Senior Guarantee or Senior Subordinated Guarantee, as the
case may be, ceases to be in full force and effect or is declared null and
void or any Guarantor denies that it has any further liability under any
Senior Guarantee or Senior Subordinated Guarantee, as the case may be, or
gives notice to such effect (other than by reason of the termination of the
Senior Indenture or the Senior Subordinated Indenture, as the case may be,
or the release of any such Senior Guarantee or Senior Subordinated
Guarantee, as the case may be, in accordance with the respective
Indenture); or
(viii) the occurrence of certain events of bankruptcy, insolvency or
reorganization with respect to the Company or any Significant Subsidiary of
the Company.
If an Event of Default (other than as specified in clause (viii) above)
shall occur and be continuing, the Trustee or the holders of not less than 25%
in aggregate principal amount of the Senior Notes or Senior Subordinated Notes,
as the case may be, then outstanding, by written notice to the Company (and to
the Trustee if such notice is given by the holders), may, and the Trustee upon
the written request of such holders shall, declare the principal of, premium, if
any, and accrued interest on all of the outstanding Senior Notes or Senior
Subordinated Notes, as the case may be, immediately due and payable, and upon
any such declaration all such amounts payable in respect of the Senior Notes or
Senior Subordinated Notes, as the case may be, shall become immediately due and
payable. If an Event of Default specified in clause (viii) above occurs and is
continuing, then the principal of, premium, if any, and accrued interest on all
of the outstanding Senior Notes or Senior Subordinated Notes, as the case may
be, 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 Senior
Notes or Senior Subordinated Notes, as the case may be.
At any time after a declaration of acceleration under an 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 Senior Notes or Senior Subordinated Notes, as the case may be, by
written notice to the Company and the Trustee, may rescind such declaration and
its consequences if (a) the Company has paid or deposited with the Trustee a sum
sufficient to pay (i) all overdue interest on all Senior Notes or Senior
Subordinated Notes, as the case may be, (ii) all unpaid principal of and
premium, if any, on any outstanding Senior Notes or Senior Subordinated Notes,
as the case may be, that has become due otherwise than by such declaration of
acceleration together with interest thereon at the rate borne by the Senior
Notes or Senior Subordinated Notes, as the case may be, (iii) to the extent that
payment of such interest is lawful, interest upon overdue interest and overdue
principal at the rate borne by the Senior Notes or Senior Subordinated Notes, as
the case may be, and (iv) all sums paid or advanced by the Trustee under the
Senior Indenture or the Senior Subordinated Indenture, as the case may be, and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and (b) all Events of Default, other than the
non-payment of amounts of principal of, premium, if any, or interest on the
Senior Notes or Senior Subordinated Notes, as the case may be, that has become
due solely by such declaration of acceleration, have been cured or waived. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
The holders of not less than a majority in aggregate principal amount of
the outstanding Senior Notes or Senior Subordinated Notes, as the case may be,
may, on behalf of the holders of all the Senior Notes or Senior Subordinated
Notes, as the case may be, waive any past defaults under the respective
Indenture, except a default in the payment of the principal of, premium, if any,
or interest on any Senior Note or Senior Subordinated Note, as the case may be,
or in respect of a covenant or provision which under the respective Indenture
cannot be modified or amended without the consent of the holder of each Senior
Note or Senior Subordinated Note, as the case may be, outstanding.
If a Default or an Event of Default occurs and is continuing and is known
to the Trustee, the Trustee will mail to each holder of the Senior Notes or
Senior Subordinated Notes, as the case may be, notice of the Default or Event of
Default within five days after the earlier of receipt from the Company of notice
of the occurrence thereof or the date when such Default or Event of Default
becomes known to the Trustee. Except in the case of a Default or an Event of
Default in payment of principal of, premium, if any, or interest on any Senior
Notes or Senior Subordinated Notes, as the case may be, the Trustee may withhold
the notice to the holders of such Senior Notes or Senior Subordinated Notes, as
the case may be, if a committee of its trust officers in good faith determines
that withholding the notice is in the interests of the holders of the Senior
Notes or Senior Subordinated Notes, as the case may be.
The Company is required to furnish to the Trustees annual and quarterly
statements as to the performance by the Company and the Guarantors of their
respective obligations under the applicable Indenture and as to any default in
such performance. The Company is also required to notify the Trustees within
five days of the occurrence of any Default or Event of Default.
Defeasance or Covenant Defeasance of the Indentures
The Company may, at its option and at any time, terminate the obligations
of the Company and any Guarantors with respect to the outstanding Senior Notes
or Senior Subordinated Notes, as the case may be ("defeasance"). Such defeasance
means that the Company will be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Senior Notes or Senior Subordinated
Notes, as the case may be, except for (i) the rights of holders of outstanding
Senior Notes or Senior Subordinated Notes, as the case may be, to receive
payments in respect of the principal of, premium, if any, and interest on such
Notes when such payments are due, (ii) the Company's obligations to issue
temporary Senior Notes or Senior Subordinated Notes, as the case may be,
register the transfer or exchange of any Senior Notes or Senior Subordinated
Notes, as the case may be, replace mutilated, destroyed, lost or stolen Senior
Notes or Senior Subordinated Notes, as the case may be, maintain an office or
agency for payments in respect of the Senior Notes or Senior Subordinated Notes,
as the case may be, and segregate and hold such payments in trust, (iii) the
rights, powers, trusts, duties and immunities of the Trustee and (iv) the
defeasance provisions of the applicable Indenture. In addition, the Company may,
at its option and at any time, terminate the obligations of the Company and any
Guarantor with respect to certain covenants set forth in the Senior Indenture or
Senior Subordinated Indenture, as the case may be, and any omission to comply
with such obligations will not constitute a Default or an Event of Default with
respect to the Senior Notes or Senior Subordinated Notes, as the case may be
("covenant defeasance").
In order to exercise either defeasance or covenant defeasance, (i) the
Company must irrevocably deposit or cause to be deposited with the Trustee, in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the holders of the Senior Notes or Senior Subordinated Notes, as the
case may be, money in an amount, or U.S. Government Obligations which through
the scheduled payment of principal and interest thereon will provide money in an
amount, or a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay and discharge the
principal of, premium, if any, and interest on the outstanding Senior Notes or
Senior Subordinated Notes, as the case may be, on the respective Stated Maturity
(or upon redemption, if applicable) of such principal, premium, if any, or
installment of interest; (ii) no Default or Event of Default will have occurred
and be continuing on the date of such deposit or, insofar as an event of
bankruptcy under clause (viii) of "Events of Default" above is concerned, at any
time during the period ending on the 123rd day after the date of such deposit;
(iii) such defeasance or covenant defeasance will not result in a breach or
violation of, or constitute a default under, the Senior Indenture or the Senior
Subordinated Indenture, as the case may be, or any material agreement or
instrument to which the Company or any Guarantor is a party or by which it is
bound; (iv) in the case of defeasance, the Company shall have delivered to the
Trustee an opinion of counsel stating that the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or since
June 30, 1997, there has been a change in applicable federal income tax law or
the interpretation of federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the holders of the
outstanding Senior Notes or Senior Subordinated Notes, as the case may be, will
not recognize income, gain or loss for federal income tax purposes as a result
of such defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such defeasance had not occurred; (v) in the case of covenant defeasance, the
Company shall have delivered to the Trustee an opinion of counsel to the effect
that the holders of the Senior Notes or Senior Subordinated Notes, as the case
may be, outstanding 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; (vi)
in the case of defeasance or covenant defeasance, the Company shall have
delivered to the Trustee an opinion of counsel to the effect that (A) in the
case of the Senior Subordinated Notes, the trust funds will not be subject to
any rights of holders of Senior Indebtedness under the subordination provisions
of the Senior Subordinated Indenture and (B) after the 123rd day following the
deposit or after the date such opinion is delivered, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally; and (vii) the Company
shall have delivered to the Trustee an officers' certificate and an opinion of
counsel, each stating that all conditions precedent provided for relating to
either the defeasance or the covenant defeasance, as the case may be, have been
complied with.
Satisfaction and Discharge
Upon the request of the Company, the Senior Indenture or the Senior
Subordinated Indenture, as the case may be, will be discharged and will cease to
be of further effect (except as to surviving rights of registration of transfer
or exchange of the respective Notes, as expressly provided for in the respective
Indenture) and the Trustee, at the expense of the Company, will execute proper
instruments acknowledging satisfaction and discharge of such Indenture when (a)
either (i) all the respective Notes theretofore authenticated and delivered
(other than destroyed, lost or stolen Notes which have been replaced or paid and
Notes for whose payment money has been deposited in trust with the Trustee or
any paying agent or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust as provided for in the
Indenture) have been delivered to the Trustee for cancellation or (ii) all the
respective Notes not theretofore delivered to the Trustee for cancellation (x)
have become due and payable, (y) will become due and payable at Stated Maturity
within one year or (z) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company, and the Company
or any Guarantor has irrevocably deposited or caused to be deposited with the
Trustee, in trust for such purpose, an amount sufficient to pay and discharge
the entire Indebtedness on such Notes not theretofore delivered to the Trustee
for cancellation, for principal of, premium, if any, and interest on such Notes
to the date of such deposit (in the case of Notes which have become due and
payable) or to the Stated Maturity or redemption date, as the case may be; (b)
the Company has paid or caused to be paid all sums payable under the respective
Indenture by the Company; and (c) the Company has delivered to the Trustee an
officers' certificate and an opinion of counsel, each stating that all
conditions precedent provided in the respective Indenture relating to the
satisfaction and discharge of such Indenture have been complied with.
Amendments and Waivers
With certain exceptions, modifications and amendments of the Senior
Indenture or Senior Subordinated Indenture, as the case may be, may be made by
the Company, any Guarantor and the Trustee with the consent of the holders of a
majority in aggregate outstanding principal amount of the Senior Notes or Senior
Subordinated Notes, as the case may be; provided, however, that no such
modification or amendment may, without the consent of the holder of each
outstanding Note affected thereby, (i) change the Stated Maturity of the
principal of, or any installment of interest on, any Senior Note or Senior
Subordinated Note, as the case may be, or reduce the principal amount thereof
(or premium, if any) or the rate of interest thereon or change the coin or
currency in which the principal of any such Note or any premium or the interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment after the Stated Maturity thereof (or, in the case of
redemption, on or after the redemption date); (ii) amend, change or modify the
obligation of the Company to make and consummate an Excess Proceeds Offer with
respect to any Asset Sale in accordance with the "Limitation on Sale of Assets"
covenant or the obligation of the Company to make and consummate a Change of
Control Offer in the event of a Change of Control in accordance with the
"Purchase of Notes Upon a Change of Control" covenant, including, in each case,
amending, changing or modifying any definition relating thereto; (iii) reduce
the percentage in principal amount of outstanding Senior Notes or Senior
Subordinated Notes, as the case may be, the consent of whose holders is required
for any such supplemental indenture or the consent of whose holders is required
for any waiver of compliance with certain provisions of, or certain defaults and
their consequences provided for under, the respective Indenture; (iv) modify any
of the provisions relating to supplemental indentures requiring the consent of
holders or relating to the waiver of past defaults or relating to the waiver of
certain covenants, except to increase the percentage of outstanding Senior Notes
or Senior Subordinated Notes, as the case may be, required for such actions or
to provide that certain other provisions of the respective Indenture cannot be
modified or waived without the consent of the holder of each Note affected
thereby; (v) except as otherwise permitted under "--Consolidation, Merger and
Sale of Assets," consent to the assignment or transfer by the Company or any
Guarantor of any of their rights or obligations under the respective Indenture;
or (vi) amend or modify any of the provisions of the Senior Indenture or Senior
Subordinated Indenture, as the case may be, relating to any Guarantee of the
Senior Notes or Senior Subordinated Notes, as the case may be, in any manner
adverse to the holders of such Notes.
Notwithstanding the foregoing, without the consent of any holder of the
Senior Notes or Senior Subordinated Notes, as the case may be, the Company, any
Guarantor and the Trustee may modify or amend the respective Indenture: (a) to
evidence the succession of another Person to the Company, a Guarantor or any
other obligor on the respective Notes, and the assumption by any such successor
of the covenants of the Company or such obligor or Guarantor in the respective
Indenture and in the respective Notes and in any Guarantee in accordance with
"--Consolidation, Merger and Sale of Assets"; (b) to add to the covenants of the
Company, any Guarantor or any other obligor upon the Notes for the benefit of
the holders of such Notes or to surrender any right or power conferred upon the
Company or any Guarantor or any other obligor upon such Notes, as applicable, in
the respective Indenture, in such Notes or in any Guarantee; (c) to cure any
ambiguity, or to correct or supplement any provision in the respective
Indenture, the respective Notes or any Guarantee which may be defective or
inconsistent with any other provision in such Indenture, Notes or any Guarantee
or make any other provisions with respect to matters or questions arising under
such Indenture, Notes or any Guarantee; provided that, in each case, such
provisions shall not adversely affect the interest of the holders of such Notes;
(d) to comply with the requirements of the Commission in order to effect or
maintain the qualification of the respective Indenture under the Trust Indenture
Act; (e) to add a Guarantor of the Senior Notes or Senior Subordinated Notes, as
the case may be, under the respective Indenture; (f) to evidence and provide the
acceptance of the appointment of a successor Trustee under the respective
Indenture; or (g) to mortgage, pledge, hypothecate or grant a security interest
in favor of the Trustee for the benefit of the holders of the Senior Notes or
Senior Subordinated Notes, as the case may be, as additional security for the
payment and performance of the Company's and any Guarantor's obligations under
the respective Indenture, in any property or assets, including any of which are
required to be mortgaged, pledged or hypothecated, or in which a security
interest is required to be granted to the Trustee pursuant to the respective
Indenture or otherwise.
The holders of a majority in aggregate principal amount of the outstanding
Senior Notes or Senior Subordinated Notes, as the case may be, may waive
compliance with certain restrictive covenants and provisions of the respective
Indenture.
The Trustee
Each Indenture provides that, except during the continuance of an Event of
Default, the Trustee will perform only such duties as are specifically set forth
in such Indenture. If an Event of Default has occurred and is continuing, the
Trustee will exercise such rights and powers vested in it under the respective
Indenture and use the same degree of care and skill in its exercise as a prudent
Person would exercise under the circumstances in the conduct of such Person's
own affairs.
Each Indenture and the provisions of the Trust Indenture Act, incorporated
by reference therein, contains limitations on the rights of the Trustee
thereunder should it become a creditor of the Company or any Guarantor, to
obtain payment of claims in certain cases or to realize on certain property
received by it in respect of any such claims, as security or otherwise. The
Trustee is permitted to engage in other transactions; provided, however, that if
it acquires any conflicting interest (as defined), it must eliminate such
conflict or resign.
Governing Law
The Indentures and the Guarantees are, and the Exchange Notes will be,
governed by and construed in accordance with, the laws of the State of New York.
Certain Definitions
"Accounts Receivable Subsidiary" means Nine West Funding Corporation and
any other present or future Subsidiary (including any credit card bank) of the
Company that is, directly or indirectly, wholly owned by the Company (other than
directors' qualifying shares) and organized for the purpose of and engaged in
(i) purchasing, financing, and collecting accounts receivable obligations of
customers of the Company or its Subsidiaries, (ii) issuing credit cards and
financing accounts receivable obligations of customers of the Company and its
Subsidiaries, (iii) the sale or financing of such accounts receivable or
interests therein and (iv) other activities incident thereto.
"Acquired Indebtedness" means Indebtedness of a Person (a) existing at the
time such Person becomes a Subsidiary or (b) assumed in connection with the
acquisition of assets from such Person; provided that, for purposes of the
"Limitation on Indebtedness" covenant, such Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Restricted Subsidiary.
"Affiliate" means, with respect to any specified Person, (a) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person or (b) any other Person that
owns, directly or indirectly, 10% or more of such specified Person's Voting
Stock or (c) any executive officer or director of any such specified Person or
other Person or (d) with respect to any natural Person, any Person having a
relationship with such Person by blood, marriage or adoption not more remote
than first cousin. For the purposes of this definition, "control," when used
with respect to any specified Person, means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent Bank" means Citibank, N.A. as agent under the Credit Agreement and
any future or successor or replacement agent under the Credit Agreement.
"Asset Acquisition" means (i) an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person will
become a Restricted Subsidiary or will be merged or consolidated with or into
the Company or any Restricted Subsidiary or (ii) the acquisition by the Company
or any Restricted Subsidiary of the assets of any Person which constitute
substantially all of the assets of such Person, or any division or line of
business of such Person, or which is otherwise outside of the ordinary course of
business.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or other
disposition (including, without limitation, by way of merger, consolidation or
sale and leaseback transaction) (collectively, a "transfer"), directly or
indirectly, in one or a series of related transactions, of (a) any Capital Stock
of any Restricted Subsidiary; (b) all or substantially all of the properties and
assets of any division or line of business of the Company or its Restricted
Subsidiaries; or (c) any other properties or assets of the Company or any
Restricted Subsidiary, other than in the ordinary course of business. For the
purposes of this definition, the term "Asset Sale" shall not include any
transfer of properties or assets (i) that is governed by the provisions of the
Indentures described under "--Consolidation, Merger and Sale of Assets," (ii) of
the Company to any Restricted Subsidiary, or of any Restricted Subsidiary to the
Company or any Restricted Subsidiary in accordance with the terms of the
Indentures, (iii) to an Unrestricted Subsidiary, if permitted under the
"Limitation on Restricted Payments" covenant or (iv) any disposition, or series
of related dispositions, having a Fair Market Value of less than $1.0 million.
For purposes of the "Limitation on Sale of Assets" covenant, the term "Asset
Sale" shall not include any sale, conveyance, transfer, lease or other
disposition of accounts receivable to an Accounts Receivable Subsidiary or to
third parties that are not Affiliates of the Company or any Subsidiary of the
Company in the ordinary course of business.
"Attributable Debt" means, with respect to an operating lease included in
any Sale and Leaseback Transaction at the time of determination, the present
value (discounted at the interest rate implicit in the lease or, if not known,
at the Company's incremental borrowing rate) of the obligations of the lessee of
the property subject to such lease for rental payments during the remaining term
of the lease included in such transaction, including any period for which such
lease has been extended or may, at the option of the lessor, be extended, or
until the earliest date on which the lessee may terminate such lease without
penalty or upon payment of penalty (in which case the rental payments shall
include such penalty), after excluding from such rental payments all amounts
required to be paid on account of maintenance and repairs, insurance, taxes,
assessments, water, utilities and similar charges.
"Average Life" means, as of the date of determination with respect to any
Indebtedness, the quotient obtained by dividing (a) the sum of the products of
(i) the number of years from the date of determination 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 of the United States Code, as amended, or
any similar United States federal or state law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization or relief of
debtors or any amendment to, succession to or change in any such law.
"Banks" means the banks and other financial institutions from time to time
that are lenders under the Credit Agreement.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, partnership 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, whether now outstanding
or issued after the date of the Indentures.
"Capitalized Lease Obligation" means, with respect to any Person, any
obligation of such Person 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,
for the purpose of the Indentures, the amount of such obligation at any date
shall be the capitalized amount thereof at such date, determined in accordance
with GAAP.
"Cash Equivalents" means (a) 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); (b) certificates of deposit or acceptances 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 million; (c) commercial paper with a maturity of 180 days or less
issued by a corporation that is not an Affiliate of the Company and is organized
under the laws of any state of the United States or the District of Columbia and
rated at least A-1 by S&P or at least P-1 by Moody's; and (d) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (a) and (b) above.
"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), directly or indirectly, of more than 35% of the total outstanding
Voting Stock of the Company; (b) the Company consolidates with, or merges with
or into, another Person or 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 (i) where the outstanding Voting Stock of the Company is not
converted or exchanged at all (except to the extent necessary to reflect a
change in the jurisdiction of incorporation of the Company) or is converted into
or exchanged for (A) Voting Stock (other than Redeemable Capital Stock) of the
surviving or transferee corporation or (B) Voting Stock (other than Redeemable
Capital Stock) of the surviving or transferee corporation and cash, securities
and other property (other than Capital Stock of the surviving or transferee
corporation) in an amount that could be paid by the Company as a Restricted
Payment as described under the "Limitation on Restricted Payments" covenant 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), directly or indirectly, of more
than 35% of the total outstanding Voting Stock of the surviving or transferee
corporation; (c) 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 to such Board of Directors, or
whose nomination for election by the stockholders of the Company, was approved
by a vote of 66 % 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 or
dissolution other than in a transaction which complies with the provisions
described under "--Consolidation, Merger and Sale of Assets."
"Consolidated Adjusted Net Income" means, for any period, the consolidated
net income (or loss) of the Company and all Restricted Subsidiaries for such
period as determined in accordance with GAAP, adjusted by excluding, without
duplication, (a) any net after-tax extraordinary gains or losses (less all fees
and expenses relating thereto), (b) any net after-tax gains (or losses) (less
all fees and expenses relating thereto) attributable to asset dispositions other
than in the ordinary course of business, (c) the portion of net income (or loss)
of any Person (other than the Company or a Restricted Subsidiary), including
Unrestricted Subsidiaries, in which the Company or any Restricted Subsidiary has
an ownership interest, except to the extent of the amount of dividends or other
distributions actually paid to the Company or any Restricted Subsidiary in cash
dividends or distributions during such period, (d) the net income (or loss) of
any Person combined with the Company or any Restricted Subsidiary on a "pooling
of interests" basis attributable to any period prior to the date of combination,
(e) the net income of any Restricted Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such Restricted
Subsidiary is not at the date of determination permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary or its stockholders and (f) for
purposes of calculating Consolidated Adjusted Net Income under the "Limitation
on Restricted Payments" covenant, any net income (or loss) from any Restricted
Subsidiary that was an Unrestricted Subsidiary at any time during such period
other than any amounts actually received in cash from such Restricted
Subsidiary.
"Consolidated Fixed Charge Coverage Ratio" of the Company means, for any
period, the ratio of (a) Consolidated Adjusted Net Income for such period, plus
the sum of Consolidated Interest Expense, Consolidated Income Tax Expense and
Consolidated Non-Cash Charges, in each case, to the extent deducted in computing
Consolidated Adjusted Net Income, for such period to (b) Consolidated Interest
Expense for such period.
"Consolidated Income Tax Expense" means, for any period, the provision for
federal, state, local and foreign income taxes of the Company and all Restricted
Subsidiaries for such period as determined on a consolidated basis in accordance
with GAAP.
"Consolidated Interest Expense" means, for any period, without duplication,
the sum of (a) the interest expense of the Company and its Restricted
Subsidiaries for such period, including, without limitation, (i) amortization of
debt discount, (ii) the net cost of Interest Rate Agreements (including
amortization of discounts), (iii) the interest portion of any deferred payment
obligation, (iv) accrued interest and (v) amortization of debt issuance costs,
plus (b) the interest component of Capitalized Lease Obligations of the Company
and its Restricted Subsidiaries paid, accrued and/or scheduled to be paid or
accrued during such period, plus (c) cash and non-cash dividends due (whether or
not declared) on Redeemable Capital Stock or on Preferred Stock of any
Restricted Subsidiary (to any Person other than the Company and any wholly owned
Restricted Subsidiary), plus (d) one-third of lease rental payments in
connection with operating leases related to Sale and Leaseback Transactions
paid, accrued and/or scheduled to be paid or accrued during such period, in each
case as determined on a consolidated basis in accordance with GAAP; provided
that (x) the Consolidated Interest Expense attributable to interest on any
Indebtedness computed on a pro forma basis and (A) bearing a floating interest
rate shall be computed as if the rate in effect on the date of computation had
been the applicable rate for the entire period and (B) which was not outstanding
during the period for which the computation is being made but which bears, at
the option of the Company, a fixed or floating rate of interest, shall be
computed by applying at the option of the Company, either the fixed or floating
rate, and (y) in making such computation, the Consolidated Interest Expense
attributable to interest on any Indebtedness under a revolving credit facility
computed on a pro forma basis shall be computed based upon the average daily
balance of such Indebtedness during the applicable period; provided further
that, notwithstanding the foregoing, the interest rate with respect to any
Indebtedness covered by any Interest Rate Agreement shall be deemed to be the
effective interest rate with respect to such Indebtedness after taking into
account such Interest Rate Agreement. For purposes of clause (c) of the
preceding sentence, dividends shall be deemed to be an amount equal to the
dividends due (whether or not declared) divided by one minus the applicable
actual combined federal, state, local and foreign income tax rate of the Company
and its Subsidiaries (expressed as a decimal).
"Consolidated Non-Cash Charges" means, for any period, the aggregate
depreciation, amortization and other non-cash expenses of the Company and any
Restricted Subsidiary reducing Consolidated Adjusted Net Income for such period,
determined on a consolidated basis in accordance with GAAP (excluding any such
non-cash charge that requires an accrual of or reserve for cash charges for any
future period).
"Credit Agreement" means the Amended and Restated Credit Agreement dated as
of August 2, 1996, among the Company, the Banks and Citibank, N.A., as agent,
including the Credit Agreement dated as of May 23, 1997, between the Company and
NationsBank of Texas, N.A., as such agreements may be amended, renewed,
extended, substituted, restated, refinanced, restructured, supplemented or
otherwise modified from time to time (including, without limitation, any
successive amendments, renewals, extensions, substitutions, restatements,
refinancings, restructurings, supplements or other modifications of the
foregoing); provided that with respect to any agreement providing for the
refinancing of Indebtedness under the Credit Agreement, such agreement shall be
the Credit Agreement under the Indentures only if a notice to that effect is
delivered by the Company to the Trustees and there shall be at any time only one
that is the Credit Agreement under the Indentures.
"Currency Agreements" means any spot or forward foreign exchange agreements
and currency swap, currency option or other similar financial agreements or
arrangements entered into by the Company or any of its Restricted Subsidiaries
designed to protect against or manage exposure to fluctuations in currency
exchange rates.
"Default" means any event that after notice or passage of time or both
would be an Event of Default.
"Designated Noncash Consideration" means the fair market value of non-cash
consideration received by the Company or a Restricted Subsidiary in connection
with an Asset Sale that is so designated as Designated Noncash Consideration
pursuant to an officers' certificate, setting forth the basis of such valuation,
executed by the principal executive officer and the principal financial officer
of the Company, less the amount of cash or Cash Equivalents received in
connection with a sale of such Designated Noncash Consideration.
"Disinterested Director" means, with respect to any transaction or series
of transactions in respect of which the Board of Directors is required to
deliver a resolution of the Board of Directors under the respective Indenture, a
member of the Board of Directors who does not have any material direct or
indirect financial interest in or with respect to such transaction or series of
transactions.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, with respect to any asset or property, the sale
value that would be obtained in an arm's-length transaction between an informed
and willing seller under no compulsion to sell and an informed and willing buyer
under no compulsion to buy.
"Foreign Subsidiary" means a Restricted Subsidiary not organized or
existing under the laws of the United States, any state thereof, the District of
Columbia or any territory thereof that has no material operations or assets in
the United States.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, that
are in effect on the date of the Indentures.
"guarantee" means, as applied to any obligation, (a) 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 (b) 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. "Guarantee" means a Senior
Guarantee or a Senior Subordinated Guarantee, as the case may be. When used as a
verb, "Guarantee" shall have a corresponding meaning.
"Guarantor" means Nine West Development Corporation, Nine West Distribution
Corporation, Nine West Footwear Corporation, Nine West Manufacturing Corporation
and any Restricted Subsidiary that incurs a Guarantee; provided that, upon the
release and discharge of any Guarantor from its Guarantee in accordance with the
respective Indenture, such Guarantor shall cease to be a Guarantor.
"Indebtedness" means, with respect to any Person, without duplication, (a)
all liabilities of such Person for borrowed money (including overdrafts) or for
the deferred purchase price of property or services, excluding any trade
payables and other accrued current liabilities incurred in the ordinary course
of business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit and
acceptances issued under letter of credit facilities, acceptance facilities or
other similar facilities, (b) all obligations of such Person evidenced by bonds,
notes, debentures or other similar instruments, (c) all indebtedness of such
Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even if the rights
and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), but excluding
trade payables arising in the ordinary course of business, (d) all Capitalized
Lease Obligations of such Person, (e) all obligations of such Person under or in
respect of Interest Rate Agreements or Currency Agreements, (f) all Indebtedness
referred to in (but not excluded from) 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 or with respect to property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness (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), (g) all guarantees by such Person of Indebtedness referred to in this
definition of any other Person, (h) all Redeemable Capital Stock of such Person
valued at the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued and unpaid dividends and (i) all Attributable Debt of such
Person. 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 the respective 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.
"Interest Rate Agreements" means any interest rate protection agreements
and other types of interest rate hedging agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar agreements).
"Investment" means, with respect to any Person, any direct or indirect
advance, loan, guarantee or other extension of credit or capital contribution to
(by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase,
acquisition or ownership by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued or owned by,
any other Person and all other items that would be classified as investments on
a balance sheet prepared in accordance with GAAP. In addition, the fair market
value of the net assets of any Restricted Subsidiary at the time that such
Restricted Subsidiary is designated 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 on
commercially reasonable terms in accordance with normal trade practices.
"Leveraged Subsidiary" means any Restricted Subsidiary that has incurred
Indebtedness (other than Acquired Indebtedness pursuant to the "Limitation on
Indebtedness" covenant and Indebtedness described in clauses (e), (g), (h), (k),
(l), (m), (n) and (o) of the definition of "Permitted Indebtedness") pursuant to
the "Limitation on Indebtedness" covenant for so long as such Indebtedness, or
any refinancing thereof, is outstanding.
"Lien" means any mortgage, charge, pledge, lien (statutory or otherwise),
privilege, security interest, hypothecation, assignment for security, claim, or
preference or priority or other encumbrance upon or with respect to any property
of any kind, real or personal, movable or immovable, now owned or hereafter
acquired. 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" means, with respect to any Note, the date on which any principal
of such Note 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, or stock or other
assets when disposed for, cash or Cash Equivalents (except to the extent that
such obligations are financed or sold with recourse to the Company or any
Restricted Subsidiary), net of (i) brokerage commissions and other fees and
expenses (including fees and expenses of legal counsel and investment banks)
related to such Asset Sale, (ii) provisions for all taxes payable as a result of
such Asset Sale, (iii) payments made to retire Indebtedness where payment of
such Indebtedness is secured by the assets or properties the subject of such
Asset Sale, (iv) amounts required to be paid to any Person (other than the
Company or any Restricted Subsidiary) owning a beneficial interest in the assets
subject to the Asset Sale and (v) appropriate amounts to be provided by the
Company or any Restricted Subsidiary, 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 Restricted Subsidiary, as the case may be,
after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as reflected in an officers' certificate delivered to the
Trustee.
"Permitted Indebtedness" means any of the following:
(a) (i) Indebtedness of the Company, any Guarantor or any Foreign
Subsidiary (provided that Indebtedness of any Foreign Subsidiary is
incurred to fund operations outside the United States), under the Credit
Agreement in an aggregate principal amount at any one time outstanding not
to exceed $600 million less (x) the amount of any principal payments made
by the Company in respect of any term loans under the Credit Agreement
other than principal payments made with proceeds of the Offering and (y)
the amount by which the aggregate commitment under any revolving credit
facility under the Credit Agreement at any time has been permanently
reduced and (ii) any guarantee by the Company or any Guarantor of
Indebtedness incurred under clause (i);
(b) Indebtedness of the Company pursuant to the Notes or of any
Restricted Subsidiary pursuant to a Guarantee of the Notes;
(c) Indebtedness of the Company or any Restricted Subsidiary not
otherwise referred to in this definition, whether contingent or otherwise,
that is outstanding on the date of the Indentures;
(d) Indebtedness of the Company owing to any Restricted Subsidiary;
provided that any Indebtedness of the Company owing to any such Restricted
Subsidiary is made pursuant to an intercompany note in the form attached to
the Indentures and is subordinated in right of payment from and after such
time as the Senior Notes or the Senior Subordinated Notes, as the case may
be, shall become due and payable (whether at Stated Maturity, acceleration
or otherwise) to the payment and performance of the Company's obligations
under such Notes; and provided further, that any disposition, pledge or
transfer of any such Indebtedness to a Person (other than a disposition,
pledge or transfer to the Company or another Restricted Subsidiary) shall
be deemed to be an incurrence of such Indebtedness by the Company not
permitted by this clause (d);
(e) Indebtedness of any Restricted Subsidiary owing to the Company or
to another Restricted Subsidiary; provided that any such Indebtedness is
made pursuant to an intercompany note in the form attached to the
Indentures and such Indebtedness of any Guarantor is subordinated in right
of payment to the Guarantee of such Guarantor; provided further, that any
disposition, pledge or transfer of any such Indebtedness to a Person (other
than a disposition, pledge or transfer to (i) the Company or a Restricted
Subsidiary or (ii) the Banks as security for obligations under the Credit
Agreement by the Company or a Restricted Subsidiary) shall be deemed to be
an incurrence of such Indebtedness by such Restricted Subsidiary not
permitted by this clause (e);
(f) guarantees of any Restricted Subsidiary of Indebtedness of the
Company entered into in accordance with the provisions of the "Limitation
on Guarantees of Indebtedness by Restricted Subsidiaries" covenant;
(g) obligations of the Company or any Guarantor entered into in the
ordinary course of business (i) pursuant to Interest Rate Agreements
designed to protect the Company or any Restricted Subsidiary against
fluctuations in interest rates in respect of Indebtedness of the Company or
any Restricted Subsidiary, which obligations do not exceed the aggregate
principal amount of such Indebtedness and (ii) pursuant to Currency
Agreements entered into by the Company or any of its Restricted
Subsidiaries in respect of its (x) assets or (y) obligations, as the case
may be, denominated in a foreign currency;
(h) Capitalized Lease Obligations and Purchase Money Obligations of
the Company or any Guarantor in an aggregate amount which does not exceed
(i) $25.0 million incurred in any one year and (ii) $50.0 million at any
one time outstanding;
(i) Indebtedness of the Company or any Guarantor consisting of
guarantees, indemnities or obligations in respect of purchase price
adjustments in connection with the acquisition or disposition of assets,
including, without limitation, shares of Capital Stock of Restricted
Subsidiaries;
(j) any renewals, extensions, substitutions, refinancings or
replacements (each, for purposes of this clause, a "refinancing") of any
Indebtedness referred to in clause (b) or (c) of this definition, including
any successive refinancings, so long as (i) any such new Indebtedness shall
be in a principal amount that does not exceed the principal amount (or, if
such Indebtedness being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of determination)
so refinanced, plus the lesser of the amount of any premium required to be
paid in connection with such refinancing pursuant to the terms of the
Indebtedness refinanced or the amount of any premium reasonably determined
as necessary to accomplish such refinancing, (ii) in the case of any
refinancing of Indebtedness that is expressly subordinated to the
Indebtedness under the Senior Notes or the Senior Subordinated Notes, as
the case may be, such new Indebtedness is made subordinate to such Notes at
least to the same extent as the Indebtedness being refinanced, (iii) such
new Indebtedness has an Average Life longer than the Average Life of the
respective Notes and a final Stated Maturity later than the final Stated
Maturity of the respective Notes and (iv) Indebtedness of the Company or a
Guarantor may only be refinanced with Indebtedness of the Company or a
Guarantor;
(k) Indebtedness of the Company or any Restricted Subsidiary 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 or such Restricted Subsidiary, as the
case may be, obtaining knowledge of the incurrence thereof;
(l) Indebtedness of the Company or any Restricted Subsidiary
represented by (x) letters of credit for the account of the Company or any
Restricted Subsidiary or (y) other obligations to reimburse third parties
pursuant to any surety bond or other similar arrangements, 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;
(m) Indebtedness, if any, of the Company or any Restricted Subsidiary
arising by reason of the recharacterization of the sale of accounts
receivable to an Accounts Receivable Subsidiary;
(n) Indebtedness of any Foreign Subsidiary incurred to fund operations
outside the United States, provided that at the time of, and immediately
after giving effect to, such incurrence the Company could incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to the "Limitation on Indebtedness" covenant; and
(o) Indebtedness of the Company or any Restricted Subsidiary not
otherwise permitted by the foregoing clauses (a) through (n) in an
aggregate principal amount not in excess of $50.0 million at any one time
outstanding.
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents;
(b) Investments in the Company or any Restricted Subsidiary;
(c) intercompany Indebtedness to the extent permitted under clauses
(d) and (e) of the definition of "Permitted Indebtedness";
(d) Investments not otherwise permitted by the foregoing clauses (a)
through (c) or in the following clauses (e) through (m) in an amount not to
exceed $37.5 million at any one time outstanding;
(e) Investments by the Company or any Restricted Subsidiary in another
Person, if as a result of such Investment (i) such other Person becomes a
Restricted Subsidiary or (ii) such other Person is merged or consolidated
with or into, or transfers or conveys all or substantially all of its
assets to, the Company or a Restricted Subsidiary;
(f) bonds, notes, debentures and other securities received as
considerations for Asset Sales to the extent permitted under the
"Limitation on Sale of Assets" covenant;
(g) lease, utility and other similar deposits in the ordinary course
of business;
(h) prepaid expenses incurred in the ordinary course of business
consistent with past practices;
(i) negotiable instruments held for collection;
(j) Investments in the form of the sale (on a "true-sale" non-recourse
basis) or the servicing of receivables transferred from the Company or any
Restricted Subsidiary, or transfers of cash, to an Accounts Receivable
Subsidiary as a capital contribution or in exchange for Indebtedness of
such Accounts Receivable Subsidiary or cash in the ordinary course of
business;
(k) Investments in joint ventures, partnerships or other Persons made
at any time reasonably related or complementary to the businesses of the
Company on the date of the Indentures so long as at the time of making such
Investment and after giving effect to such Investment on a pro forma basis,
the Consolidated Fixed Charge Coverage Ratio calculated as set forth in the
"Limitation on Indebtedness" covenant would have been at least equal to 4.0
to 1.0, provided that such Investment is in furtherance of the Company's
business and no Affiliate of the Company (other than a Restricted
Subsidiary) or beneficial holder of 5% or more of any class of Capital
Stock of the Company shall beneficially own Capital Stock in the Person in
which such Investment is made;
(l) personal loans or advances to employees of the Company or any
Restricted Subsidiary which loans and advances do not in the aggregate
exceed $10.0 million outstanding at any one time; and
(m) loans or advances to customers or suppliers of the Company or any
Restricted Subsidiary in the ordinary course of business, which loans and
advances do not in the aggregate exceed $10.0 million outstanding at any
one time.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"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 the Indentures, including, without limitation, all classes and
series of preferred or preference stock of such Person.
"Public Equity Offering" means an underwritten offer and sale of Common
Stock of the Company to the public pursuant to a registration statement that has
been declared effective by the Commission pursuant to the Securities Act (other
than a registration statement on Form S-8 or otherwise relating to equity
securities issuable under any employee benefit plan of the Company).
"Purchase Money Obligations" means, with respect to any Person,
obligations, other than Capitalized Lease Obligations, incurred or assumed in
the ordinary course of business in connection with the purchase of property to
be used in the business of such Person within 90 days of such purchase, provided
that the amount of any Purchase Money Obligation shall not exceed the purchase
price of the property purchased.
"Qualified Capital Stock" of any Person means any and all Capital Stock of
such Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any class or series of Capital Stock that,
either by its terms, 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 final
Stated Maturity of the Senior Notes or the Senior Subordinated Notes, as the
case may be, or is redeemable at the option of the holder thereof at any time
prior to such final Stated Maturity, or is convertible into or exchangeable for
debt securities at any time prior to such final Stated Maturity.
"Restricted Subsidiary" means any Subsidiary other than an Unrestricted
Subsidiary.
"S&P" means Standard and Poor's Ratings Service, a division of McGraw-Hill,
Inc., and its successors.
"Sale and Leaseback Transaction" means any transaction or series of related
transactions pursuant to which the Company or a Restricted Subsidiary sells or
transfers any property or asset in connection with the leasing, or the resale
against installment payments, of such property or asset to the seller or
transferor.
"Senior Guarantee" means a guarantee of the obligations of the Company
under the Senior Indenture and the Senior Notes in accordance with the
provisions of the Senior Indenture.
"Senior Note Permitted Liens" means the following types of Liens:
(a) Liens (other than Liens securing Indebtedness under the Credit
Agreement) existing on the date of the Indentures;
(b) Liens on property or assets of the Company or any Restricted
Subsidiary securing Indebtedness under the Credit Agreement in a principal
amount not to exceed the principal amount of the outstanding Indebtedness
permitted by clause (a) (i) of the definition of "Permitted Indebtedness";
(c) Liens on any property or assets of a Restricted Subsidiary granted
in favor of the Company or any wholly owned Restricted Subsidiary;
(d) Liens on any property or assets of the Company or any Restricted
Subsidiary securing the Senior Notes;
(e) any interest or title of a lessor under any Capitalized Lease
Obligation or Sale and Leaseback Transaction so long as the Attributable
Debt secured by such Lien is not incurred in violation of the "Limitation
on Indebtedness" covenant;
(f) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like Liens arising in
the ordinary course of business of the Company or any Restricted Subsidiary
and with respect to amounts not yet delinquent or being contested in good
faith by appropriate proceeding, if a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have
been made therefor;
(g) Liens for taxes, assessments, government charges or claims that
are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and if a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have
been made therefor;
(h) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds,
government contracts, performance bonds and other obligations of a like
nature incurred in the ordinary course of business (other than contracts
for the payment of money);
(i) easements, rights-of-way, restrictions and other similar charges
or encumbrances not interfering in any material respect with the business
of the Company or any Restricted Subsidiary;
(j) Liens arising by reason of any judgment, decree or order of any
court so long as such Lien is adequately bonded and any appropriate legal
proceedings that may have been duly initiated for the review of such
judgment, decree or order shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have
expired;
(k) Liens securing Acquired Indebtedness created prior to (and not in
connection with or in contemplation of) the incurrence of such Indebtedness
by the Company or any Restricted Subsidiary, provided that such Lien does
not extend to any property or assets of the Company or any Restricted
Subsidiary other than the assets acquired in connection with the incurrence
of such Acquired Indebtedness;
(l) Liens securing obligations of the Company or any Guarantor under
Interest Rate Agreements or Currency Agreements or any collateral for the
Indebtedness to which such Interest Rate Agreements or Currency Agreements
relate;
(m) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other
types of social security;
(n) Liens securing reimbursement obligations of the Company or any
Guarantor with respect to letters of credit that encumber documents and
other property relating to such letters of credit and the products and
proceeds thereof;
(o) Liens arising from purchase money mortgages and purchase money
security interests incurred in the normal and ordinary course of the
business of the Company or any Guarantor; provided that (i) the related
Indebtedness shall not be secured by any property or assets of the Company
or any Restricted Subsidiary other than the property and assets so acquired
and (ii) the Lien securing such Indebtedness shall be created within 60
days of such acquisition;
(p) Liens upon specific items of inventory or other goods and proceeds
of the Company or any Guarantor securing their obligations in respect of
bankers' acceptances issued or created for the account of any such Person
to facilitate the purchase, shipment or storage of such inventory of other
goods;
(q) 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;
(r) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Company and the
Restricted Subsidiaries, taken as a whole;
(s) any interest or title of a lessor in any property that is (i)
subject to any lease or (ii) located on the real property subject to any
lease;
(t) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
the Company or any Restricted Subsidiary in the ordinary course of
business;
(u) Liens on the property or assets or Capital Stock of Accounts
Receivable Subsidiaries and Liens arising out of any sale of accounts
receivable in the ordinary course to or by an Accounts Receivable
Subsidiary;
(v) Liens securing Indebtedness incurred to finance the construction,
purchase or lease of, or repairs, improvements or additions to, property of
the Company or a Restricted Subsidiary; provided, however, that the Lien
may not extend to any property or assets of the Company or any Restricted
Subsidiary other than the property acquired, constructed, repaired,
improved or added to, and the Indebtedness secured by such Lien may not be
incurred more than 180 days after the later of the acquisition, completion
of construction, repair, improvement, addition or commencement of full
operation of the property subject to the Lien; provided further, however,
that all such Indebtedness does not exceed 10% of the Company's
consolidated tangible assets at the time of incurrence;
(w) Liens not otherwise permitted by the foregoing clauses (a) through
(v) securing obligations or other liabilities (other than Indebtedness) of
the Company or any Restricted Subsidiary; provided, however, that the
aggregate amount of such obligations and liabilities secured by such Liens
shall not exceed $10.0 million outstanding at any one time; and
(x) any extension, renewal or replacement, in whole or in part, of any
Lien described in the foregoing clauses (a) through (v), provided that any
such extension, renewal or replacement shall be no more restrictive in any
material respect than the Lien so extended, renewed or replaced and shall
not extend to any additional property or assets.
"Senior Subordinated Guarantee" means a guarantee of the obligations of the
Company under the Senior Subordinated Indenture and the Senior Subordinated
Notes in accordance with the provisions of the Senior Subordinated Indenture.
"Senior Subordinated Note Permitted Liens" means the following types of
Liens:
(a) Liens on any property or assets of a Restricted Subsidiary granted
in favor of the Company or any wholly owned Restricted Subsidiary;
(b) Liens securing the Senior Subordinated Notes;
(c) Liens securing the Senior Subordinated Guarantees;
(d) Liens securing Acquired Indebtedness created prior to (and not in
connection with or in contemplation of) the incurrence of such Indebtedness
by the Company or any Restricted Subsidiary, provided that such Lien does
not extend to any property or assets of the Company or any Restricted
Subsidiary other than the assets acquired in connection with the incurrence
of such Acquired Indebtedness; and
(e) any extension, renewal or replacement, in whole or in part, of any
Lien described in the foregoing clauses (a) through (d), provided that any
such extension, renewal or replacement shall be no more restrictive in any
material respect than the Lien so extended, renewed or replaced and shall
not extend to any additional property or assets.
"Significant Subsidiary" means any Restricted Subsidiary that, together
with its Subsidiaries, (i) for the most recent fiscal year of the Company,
accounted for more than 5% of the consolidated revenues of the Company and its
Restricted Subsidiaries or (ii) as of the end of such fiscal year, was the owner
of more than 5% of the consolidated assets of the Company and its Restricted
Subsidiaries, all as set forth on the most recently available consolidated
financial statements of the Company for such fiscal year.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable, 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.
"Subsidiary" means any Person, a majority of the equity ownership or Voting
Stock of which is at the time owned, directly or indirectly, by the Company or
by one or more other Subsidiaries or by the Company and one or more other
Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Unrestricted Subsidiary" means (a) any Subsidiary that at the time of
determination shall be an Unrestricted Subsidiary (as designated by the Board of
Directors of the Company, as provided below) and (b) any Subsidiary of an
Unrestricted Subsidiary; provided, however, that in no event shall any Guarantor
be an Unrestricted Subsidiary. The Board of Directors of the Company may
designate any Subsidiary (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary so long as (i) neither the Company
nor any Restricted Subsidiary is directly or indirectly liable for any
Indebtedness of such Subsidiary, (ii) no default with respect to any
Indebtedness of such Subsidiary would permit (upon notice, lapse of time or
otherwise) any holder of any other Indebtedness of the Company or any Restricted
Subsidiary to declare a default on such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated maturity, (iii) any
Investment in such Subsidiary made as a result of designating such Subsidiary an
Unrestricted Subsidiary will not violate the provisions of the Limitation on
Unrestricted Subsidiaries" covenant, (iv) neither the Company nor any Restricted
Subsidiary has a contract, agreement, arrangement, understanding or obligation
of any kind, whether written or oral, with such Subsidiary other than those that
might be obtained at the time from persons who are not Affiliates of the Company
and (v) neither the Company nor any Restricted Subsidiary has any obligation (1)
to subscribe for additional shares of Capital Stock or other equity interest in
such Subsidiary or (2) to maintain or preserve such Subsidiary's financial
condition or to cause such Subsidiary to achieve certain levels of operating
results. Any such designation by the Board of Directors of the Company shall be
evidenced to the Trustee by filing a board resolution with the Trustee giving
effect to such designation. The Board of Directors of the Company may designate
any Unrestricted Subsidiary as a Restricted Subsidiary if, immediately after
giving effect to such designation, there would be no Default or Event of Default
under the respective Indenture and the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to the "Limitation on
Indebtedness" covenant.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
"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, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
Book-Entry; Delivery and Form
The certificates representing the Exchange Notes will be issued in fully
registered form. Except as described in the next paragraph, the Exchange Notes
initially will be represented by a single, permanent global Exchange Note, in
definitive, fully registered form without interest coupons (the "Global Exchange
Note") and will be deposited with the Trustee as custodian for The Depositary
Trust Company, New York, New York ("DTC") and registered in the name of a
nominee of DTC.
Holders of Exchange Notes who elect to take physical delivery of their
certificates instead of holding their interest through the Global Exchange Note
(collectively referred to herein as the "Non-Global Holders") will be issued a
certificated Exchange Note in registered form (a "Certificated Exchange Note").
Upon the transfer of any Certificated Exchange Note initially issued to a
Non-Global Holder, such Certificated Exchange Note will, unless the transferee
requests otherwise or a Global Exchange Note has previously been exchanged in
whole for a Certificated Exchange Note, be exchanged for an interest in such
Global Exchange Note.
DTC has advised the Company as follows: DTC is a limited purpose trust
company organized under the laws of the State of New York, a "banking
organization" within the meaning of the New York Banking law, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the
Uniform Commercial Code and a "Clearing Agency" registered pursuant to the
provision of Section 17A of the Exchange Act. DTC was created to hold securities
for its participants and facilitate the clearance and settlement of securities
transactions between participants through electronic book-entry changes in
accounts of its participants, thereby eliminating the need for physical movement
of certificates. Participants include securities brokers and dealers, banks,
trust companies and clearing corporations and certain other organizations.
Indirect access to the DTC system is available to others such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly ("indirect
participants").
Upon the issuance of the Global Exchange Notes, DTC or its custodian will
credit, on its internal system, the respective principal amount of the
individual beneficial interests represented by such Global Exchange Notes to the
accounts of persons who have accounts with such depositary. Ownership of
beneficial interests in the Global Exchange Notes will be limited to persons who
have accounts with DTC ("participants") or persons who hold interests through
participants. Ownership of beneficial interests in the Global Exchange Notes
will be shown on, and the transfer of that ownership will be effected only
through, records maintained by DTC or its nominee (with respect to interests of
participants) and the records of participants (with respect to interests of
persons other than participants).
So long as DTC or its nominee is the registered owner or holder of the
Global Exchange Notes, DTC or such nominee, as the case may be, will be
considered the sole record owner or holder of the Exchange Notes represented by
such Global Exchange Notes for all purposes under the applicable Indenture and
the Exchange Notes. No beneficial owners of an interest in the Global Exchange
Notes will be able to transfer that interest except in accordance with DTC's
applicable procedures.
The Company understands that, under existing industry practices, in the
event that the Company requests any action of holders, or an owner of a
beneficial interest in such permanent Global Exchange Note desires to give or
take any action (including a suit for repayment of principal, premium or
interest) that a holder is entitled to give or take under the Notes, DTC would
authorize the participants holding the relevant beneficial interests to give or
take such action or would otherwise act upon the instruction of beneficial
owners owning through them.
Payments of the principal of, premium, if any, and interest on the Global
Exchange Notes will be made to DTC or its nominee, as the case may be, as the
registered owner thereof. Neither the Company, the Trustee, nor any paying agent
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in the Global
Exchange Notes or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
The Company expects that DTC or its nominee, upon receipt of any payment of
principal, premium, if any, or interest in respect of the Global Exchange Notes,
will credit participants' accounts with payments in amounts proportionate to
their respective beneficial ownership interests in the principal amount of such
Global Exchange Notes, as shown on the records of DTC or its nominee. The
Company also expects that payments by participants to owners of beneficial
interests in such Global Exchange Notes held through such participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers registered in the names of
nominees for such customers. Such payments will be the responsibility of such
participants.
Transfers between participants in DTC will be effected in the ordinary way
in accordance with DTC rules and will be settled in immediately available funds.
If a holder requires physical delivery of Certificated Exchange Notes for any
reason, including to sell Exchange Notes to persons in states which require such
delivery of such Exchange Notes or to pledge such Exchange Notes, such holder
must transfer its interest in the Global Exchange Notes in accordance with the
normal procedures of DTC and the procedures set forth in the applicable
Indenture.
Neither the Company nor the Trustee will have any responsibility for the
performance by DTC or its participants or indirect participants of their
respective obligations under the rules and procedures governing their
operations.
Subject to certain conditions, any person having a beneficial interest in
the Global Exchange Notes may, upon request to the Trustee, exchange such
beneficial interest for Exchange Notes in the form of Certificated Exchange
Notes. Upon any such issuance, the Trustee is required to register such
Certificated Exchange Notes in the name of, and cause the same to be delivered
to, such person or persons (or the nominee of any thereof). In addition, if DTC
is at any time unwilling or unable to continue as a depositary for the Global
Exchange Note and a successor depositary is not appointed by the Company within
90 days, the Company will issue Certificated Exchange Notes in exchange for the
Global Exchange Notes.
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Old Notes where such Old Notes were acquired as a result of
market-making activities or other trading activities. To the extent any such
broker-dealer participates in the Exchange Offer, the Company and the Guarantors
have agreed that for a period of 120 days after the consummation of the Exchange
Offer, they will make this Prospectus, as amended or supplemented, available to
such broker-dealer for use in connection with any such resale, and will promptly
send additional copies of this Prospectus and any amendment or supplement to
this Prospectus to any broker-dealer that requests such documents.
The Company will not receive any proceeds from any sale of Exchange Notes
by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at prevailing market prices at the time of resale, at prices
related to such prevailing market prices or at negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
such broker-dealer or the purchasers or any such Exchange Notes. Any
broker-dealer that resells Exchange Notes that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of Exchange Notes and any commissions or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that, by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act.
The Company and the Guarantors have agreed to pay certain expenses incident
to the Exchange Offer and will indemnify the holders of the Old Notes against
certain liabilities, including certain liabilities that may arise under the
Securities Act.
LEGAL MATTERS
The validity of the Exchange Notes being offered hereby and certain other
legal matters in connection with the Exchange Offer are being passed upon for
the Company by Simpson Thacher & Bartlett (a partnership which includes
professional corporations) New York, New York. Certain additional matters will
be passed upon for the Company by Joel K. Bedol, Senior Vice President and
General Counsel of the Company.
INDEPENDENT AUDITORS
The consolidated financial statements as of February 1, 1997 and February
3, 1996 and for the years ended February 1, 1997, February 3, 1996 and December
31, 1994, incorporated by reference in this Prospectus from the Company's Annual
Report on Form 10-K for the fiscal year ended February 1, 1997, as amended, have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, and have been incorporated by reference herein in reliance upon the
reports of such firm given upon their authority as experts in auditing and
accounting.
The consolidated financial statements of the Footwear Group of U.S. Shoe as
of and for the year ended January 28, 1995 incorporated by reference in the
Registration Statement have been audited by Arthur Anderson LLP, independent
public accountants, as indicated in their report with respect thereto, and have
been incorporated by reference herein in reliance upon the authority of said
firm as experts in accounting and auditing in giving said report.
=================================== =======================================
No dealer, salesperson or other
individual has been authorized to
give any information or to make any
representations other than those
contained in this Prospectus. If
given or made, such information or
representations must not be relied
upon as having been authorized by
the Company. This Prospectus does
not constitute an offer to sell,or
a solicitation of an offer to buy
any securities other than those to
which it relates or an offer to
sell, or the solicitation of an
offer to buy such securities in any $325,000,000
jurisdiction where, or to any
person to whom, it is unlawful to
make such offer or solicitation.
Neither the delivery of this NINE WEST GROUP INC.
Prospectus nor any sale made
hereunder shall, under any circum-
stances, create an implication that ----------
there has not been any change in PROSPECTUS
the facts set forth in the Pro- ----------
spectus or in the affairs of the
Company since the date hereof.
---------------
Offer to Exchange up to
$200,000,000 of its
8-3/8% Series B Senior Notes due 2005,
for any and all of its outstanding
TABLE OF CONTENTS $200,000,000 8-3/8% Senior Subordinated
Notes due 2005 and up to
Page $125,000,000 of its
Available Information....... 1 9% Series B Senior Subordinated Notes
Documents Incorporated by due 2007, for any and all of its
Reference.................. 1 outstanding $125,000,000
Cautionary Notice Regarding 9% Senior Subordinated Notes
Forward-Looking Statements. 2 due 2007.
Prospectus Summary.......... 3
Risk Factors................ 12
Use of Proceeds............. 16
Capitalization.............. 16
The Exchange Offer.......... 17
Description of the Exchange , 1997
Notes...................... 26
Plan of Distribution........ 54
Legal Matters............... 54
Independent Auditors........ 54
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
The Company's Restated Certificate of Incorporation provides that the
Company shall indemnify and advance expenses to its currently acting and its
former directors, officers, employees or agents to the fullest extent permitted
by the Delaware General Corporation Law (the "Delaware Law"), as amended from
time to time.
Section 145 of the Delaware Law provides that a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. A similar standard of
care is applicable in the case of derivative actions, except that Delaware law
restricts indemnification to expenses (including attorneys' fees) actually and
reasonably incurred in connection with the defense or settlement of such an
action or suit and then, where such person is adjudged to be liable to the
corporation, only if and to the extent that the Court of Chancery of the State
of Delaware or the court in which such action was brought determines that he is
fairly and reasonably entitled to such indemnity, and then only for such
expenses as the court shall deem proper.
The Delaware Law also permits a Delaware corporation to limit each
director's liability to the Company or its stockholders for monetary damages
except (i) for any breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware Law providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemption, or (iv)
for any transaction from which a director derived an improper personal benefit.
The Restated Certificate of Incorporation provides for the limitation of the
personal liability of the directors of the Company for monetary damages to the
fullest extent permitted by the Delaware Law, as amended from time to time. The
effect of this provision is to eliminate the personal liability of directors for
monetary damages for actions involving a breach of their fiduciary duty of care,
including any such actions involving gross negligence.
For information concerning the Company's undertaking to submit to
adjudication the issue of indemnification for violation of the securities laws,
see Item 22 hereof.
The Company maintains insurance, at its expense, to protect any director or
officer of the Company against certain expenses, liabilities or losses.
Item 21. Exhibits and Financial Statement Schedules.
(a) See the Exhibit Index included immediately preceding the exhibits to
this Registration Statement.
(b) See the Schedule Index included immediately preceding the Exhibit
Index to this Registration Statement.
Item 22. Undertakings.
Each of the undersigned Registrants hereby undertakes:
(1) To file, during any period in which offers or sales are made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof), which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
Each of the undersigned Registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended (the
"Securities Act"), each filing of the Registrants' annual reports pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1993 may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the foregoing provisions, or otherwise, each of the
Registrants has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by a Registrant
of expenses incurred or paid by a director, officer or controlling person of
such Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person of a Registrant in
connection with the securities being registered, such Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
Each of the undersigned Registrants hereby undertakes to respond to
requests for information that is incorporated by reference into the prospectus
pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of
receipt of such request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information contained in
documents filed subsequent to the effective date of the registration statement
through the date of responding to the request.
Each of the undersigned Registrants hereby undertakes to supply by means of
a post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Nine West Group Inc. has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in The City of
Stamford, State of Connecticut, on August 19, 1997.
NINE WEST GROUP INC.
BY: /s/ Robert C. Galvin
------------------------------
Robert C. Galvin
Executive Vice President,
Chief Financial Officer and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Robert C. Galvin, Jeffrey K. Howald and Joel K.
Bedol and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments to the
within registration statement on Form S-4 and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and grants unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might and could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/Jerome Fisher Chairman of the Board and
- -------------------------- Director (Principal
Jerome Fisher Executive Officer) August 19, 1997
/s/Vincent Camuto Chief Executive Officer and
- -------------------------- Director (Principal
Vincent Camuto Executive Officer) August 19, 1997
/s/Robert C. Galvin Executive Vice President,
- -------------------------- Chief Financial Officer and
Robert C. Galvin Treasurer (Principal Financial
Officer and Principal
Accounting Officer) August 19, 1997
/s/ C. Gerald Goldsmith Director
- --------------------------
C. Gerald Goldsmith August 19, 1997
/s/ Salvatore M. Salibello Director
- --------------------------
Salvatore M. Salibello August 19, 1997
/s/ Henry W. Pascarella Director
- --------------------------
Henry W. Pascarella August 19, 1997
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Nine West Development Corporation has duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in The
City of Stamford, State of Connecticut, on August 19, 1997.
NINE WEST DEVELOPMENT CORPORATION
BY: /s/ Robert C. Galvin
------------------------------
Robert C. Galvin
Executive Vice President,
Chief Financial Officer and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Robert C. Galvin, Jeffrey K. Howald and Joel K.
Bedol and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments to the
within registration statement on Form S-4 and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and grants unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might and could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/Jerome Fisher Chairman of the Board and
- -------------------------- Director (Principal
Jerome Fisher Executive Officer) August 19, 1997
/s/Vincent Camuto Chief Executive Officer and
- -------------------------- Director (Principal
Vincent Camuto Executive Officer) August 19, 1997
/s/Robert C. Galvin Executive Vice President,
- -------------------------- Chief Financial Officer and
Robert C. Galvin Treasurer (Principal Financial
Officer and Principal
Accounting Officer) August 19, 1997
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Nine West Distribution Corporation has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in The
City of Stamford, State of Connecticut, on August 19, 1997.
NINE WEST DISTRIBUTION CORPORATION
BY: /s/ Robert C. Galvin
------------------------------
Robert C. Galvin
Executive Vice President,
Chief Financial Officer and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Robert C. Galvin, Jeffrey K. Howald and Joel K.
Bedol and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments to the
within registration statement on Form S-4 and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and grants unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might and could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/Jerome Fisher Chairman of the Board and
- -------------------------- Director (Principal
Jerome Fisher Executive Officer) August 19, 1997
/s/Vincent Camuto Chief Executive Officer and
- -------------------------- Director (Principal
Vincent Camuto Executive Officer) August 19, 1997
/s/Robert C. Galvin Executive Vice President,
- -------------------------- Chief Financial Officer and
Robert C. Galvin Treasurer (Principal Financial
Officer and Principal
Accounting Officer) August 19, 1997
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Nine West Footwear Corporation has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in The City
of Stamford, State of Connecticut, on August 19, 1997.
NINE WEST FOOTWEAR CORPORATION
BY: /s/ Robert C. Galvin
------------------------------
Robert C. Galvin
Executive Vice President,
Chief Financial Officer and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Robert C. Galvin, Jeffrey K. Howald and Joel K.
Bedol and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments to the
within registration statement on Form S-4 and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and grants unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might and could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/Jerome Fisher Chairman of the Board and
- -------------------------- Director (Principal
Jerome Fisher Executive Officer) August 19, 1997
/s/Vincent Camuto Chief Executive Officer and
- -------------------------- Director (Principal
Vincent Camuto Executive Officer) August 19, 1997
/s/Robert C. Galvin Executive Vice President,
- -------------------------- Chief Financial Officer and
Robert C. Galvin Treasurer (Principal Financial
Officer and Principal
Accounting Officer) August 19, 1997
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Nine West Manufacturing Corporation has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in The
City of Stamford, State of Connecticut, on August 19, 1997.
NINE WEST MANUFACTURING CORPORATION
BY: /s/ Robert C. Galvin
------------------------------
Robert C. Galvin
Executive Vice President,
Chief Financial Officer and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Robert C. Galvin, Jeffrey K. Howald and Joel K.
Bedol and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments to the
within registration statement on Form S-4 and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and grants unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might and could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/Jerome Fisher Chairman of the Board and
- -------------------------- Director (Principal
Jerome Fisher Executive Officer) August 19, 1997
/s/Vincent Camuto Chief Executive Officer and
- -------------------------- Director (Principal
Vincent Camuto Executive Officer) August 19, 1997
/s/Robert C. Galvin Executive Vice President,
- -------------------------- Chief Financial Officer and
Robert C. Galvin Treasurer (Principal Financial
Officer and Principal
Accounting Officer) August 19, 1997
FINANCIAL STATEMENT SCHEDULE INDEX
Schedule II Valuation and qualifying accounts for the fifty-two weeks ended
February 1, 1997, fifty-three weeks ended February 3, 1996,
transition period beginning January 1, 1995 and ending January
28, 1995, and the year ended December 31, 1994 (incorporated by
reference to the Annual Report on Form 10-K for the fiscal year
ended February 1, 1997, as amended).
EXHIBIT INDEX
Exhibit
No. Description of Exhibit
- ------- ----------------------
4.1 Senior Note Indenture dated as of July 9, 1997 (the "Senior Note
Indenture") among Nine West Group Inc. and Nine West Development
Corporation, Nine West Distribution Corporation, Nine West Footwear
Corporation and Nine West Manufacturing Corporation, as Guarantors,
and The Bank of New York, as Trustee
4.2 Senior Subordinated Note Indenture dated as of July 9, 1997 (the
"Senior Subordinated Note Indenture") among Nine West Group Inc. and
Nine West Development Corporation, Nine West Distribution Corporation,
Nine West Footwear Corporation and Nine West Manufacturing
Corporation, as Guarantors, and The Bank of New York, as Trustee
4.3 Registration Rights Agreement dated July 9, 1997 among Nine West Group
Inc. and Nine West Development Corporation, Nine West Distribution
Corporation, Nine West Footwear Corporation and Nine West
Manufacturing Corporation, as Guarantors, and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Bear, Stearns & Co. Inc., Citicorp
Securities, Inc. and NationsBanc Capital Markets, Inc.
4.4 Form of Global 8-3/8 Senior Notes due 2005 (the "Old Global Senior
Notes")
4.5 Form of Definitive 83/8% Senior Notes due 2005 (together with the Old
Global Senior Note, the "Old Senior Notes")
4.6 Form of 83/8% Series B Senior Notes due 2005 (the "Senior Exchange
Notes")
4.7 Form of 9% Senior Subordinated Notes due 2007 (the "Old Senior
Subordinated Notes")
4.8 Form of 9% Series B Senior Subordinated Notes due 2007 (the "Senior
Subordinated Exchange Notes")
5 Opinion of Simpson Thacher & Bartlett
12 Calculation of Ratio of Earnings to Fixed Charges
23.1 Consent of Simpson Thacher & Bartlett (included as part of its opinion
filed as Exhibit 5 hereto)
23.2 Consent of Deloitte & Touche LLP, independent certified public
accountants
23.3 Consent of Arthur Andersen LLP, independent certified public
accountants
24 Powers of Attorney (included on pages II-3, II-4, II-5, II-6 and II-7)
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York as Trustee for the Senior Note Indenture
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York as Trustee for the Senior Subordinated
Note Indenture
99.1 Form of Letter of Transmittal for the Old Senior Notes
99.2 Form of Letter of Transmittal for the Old Senior Subordinated Notes
99.3 Form of Notice of Guaranteed Delivery for the Old Senior Notes
99.4 Form of Notice of Guaranteed Delivery for the Old Senior Subordinated
Notes
============================================================================
NINE WEST GROUP INC.
Issuer
and
NINE WEST DEVELOPMENT CORPORATION,
NINE WEST DISTRIBUTION CORPORATION,
NINE WEST FOOTWEAR CORPORATION and
NINE WEST MANUFACTURING CORPORATION
Guarantors
TO
THE BANK OF NEW YORK
Trustee
Indenture
Dated as of July 9, 1997
8-3/8% Senior Notes due 2005
8-3/8% Series B Senior Notes due 2005
============================================================================
NINE WEST GROUP INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of July 9, 1997
-----------------------------------------------
Trust Indenture Indenture
Act Section Section
--------------- ----------
(Section) 310(a)(1)................................ 607
(a)(2)................................ 607
(b)................................... 608
(Section) 312(c)................................... 701
(Section) 314(a)................................... 703
(a)(4)................................ 1004
(c)(1)................................ 102
(c)(2)................................ 102
(e)................................... 102
(Section) 315(b)................................... 601
(Section) 316(a)(last sentence).................... 101 ("Outstanding")
(a)(1)(A)............................. 502, 512
(a)(1)(B)............................. 513
(b)................................... 508
(c)................................... 104(d)
(Section) 317(a)(1)................................ 503
(a)(2)................................ 504
(b)................................... 1003
(Section) 318(a)................................... 111
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Table of Contents
Page
PARTIES................................................................ 1
RECITALS OF THE COMPANY................................................ 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.............................................. 2
Accounts Receivable Subsidiary..................... 2
Acquired Indebtedness.............................. 2
Act................................................ 3
Affiliate.......................................... 3
Agent Bank......................................... 3
Agent Members...................................... 3
Asset Acquisition.................................. 3
Asset Sale......................................... 3
Attributable Debt.................................. 4
Authenticating Agent............................... 4
Average Life....................................... 4
Bankruptcy Law..................................... 4
Banks.............................................. 4
Board of Directors................................. 4
Board Resolution................................... 4
Business Day....................................... 5
Capital Stock...................................... 5
Capitalized Lease Obligation....................... 5
Cash Equivalents................................... 5
Change of Control.................................. 5
Commission......................................... 6
Company............................................ 6
Company Request or Company Order................... 6
Consolidated Adjusted Net Income................... 7
Consolidated Fixed Charge Coverage Ratio........... 7
Consolidated Income Tax Expense.................... 7
Consolidated Interest Expense...................... 7
Consolidated Non-Cash Charges...................... 8
Convertible Notes.................................. 8
Corporate Trust Office............................. 8
corporation........................................ 8
Credit Agreement................................... 8
Currency Agreements................................ 9
Default............................................ 9
Defaulted Interest................................. 9
Depositary......................................... 9
Designated Noncash Consideration................... 9
Disinterested Director............................. 9
Dollar or $........................................ 9
Event of Default................................... 9
Exchange Act....................................... 9
Exchange Notes..................................... 10
Exchange Offer..................................... 10
Exchange Offer Registration Statement.............. 10
Fair Market Value.................................. 10
Foreign Subsidiary................................. 10
Generally Accepted Accounting Principles or GAAP... 10
Global Notes....................................... 10
guarantee.......................................... 10
Guarantee.......................................... 10
Guarantor.......................................... 11
Holder............................................. 11
Indebtedness....................................... 11
Indenture.......................................... 12
Initial Notes...................................... 12
Institutional Accredited Investor.................. 12
Interest Payment Date.............................. 12
Interest Rate Agreements........................... 12
Investment......................................... 12
Leveraged Subsidiary............................... 12
Lien............................................... 12
Maturity........................................... 13
Moody's............................................ 13
Net Cash Proceeds.................................. 13
Non-U.S. Person.................................... 13
Note Register and Note Registrar................... 13
Notes.............................................. 13
Officers' Certificate.............................. 13
Offshore Global Note............................... 14
Offshore Note Exchange Date........................ 14
Offshore Physical Note............................. 14
Opinion of Counsel................................. 14
Outstanding........................................ 14
Paying Agent....................................... 15
Permitted Indebtedness............................. 15
Permitted Investments.............................. 17
Permitted Liens.................................... 19
Person............................................. 22
Physical Notes..................................... 22
Place of Payment................................... 22
Predecessor Note................................... 22
Preferred Stock.................................... 22
Private Placement Legend........................... 22
Purchase Money Obligations......................... 22
QIB................................................ 22
Qualified Capital Stock............................ 22
Redeemable Capital Stock........................... 22
Registration Rights Agreement...................... 23
Registration Statement............................. 23
Regular Record Date................................ 23
Responsible Officer................................ 23
Restricted Subsidiary.............................. 23
S&P................................................ 23
Sale and Leaseback Transaction..................... 23
Senior Indebtedness................................ 23
Senior Subordinated Notes.......................... 24
Significant Subsidiary............................. 24
Special Record Date................................ 24
Stated Maturity.................................... 24
Subsidiary......................................... 24
Trust Indenture Act or TIA......................... 25
Trustee............................................ 25
United States...................................... 25
Unrestricted Subsidiary............................ 25
U.S. Government Obligations........................ 25
U.S. Global Note................................... 26
U.S. Physical Note................................. 26
Vice President..................................... 26
Voting Stock....................................... 26
SECTION 102. Compliance Certificates and Opinions................ 26
SECTION 103. Form of Documents Delivered to Trustee.............. 27
SECTION 104. Acts of Holders..................................... 28
SECTION 105. Notices, etc., to Trustee, Company and Agent Bank... 29
SECTION 106. Notice to Holders; Waiver........................... 29
SECTION 107. Effect of Headings and Table of Contents............ 30
SECTION 108. Successors and Assigns.............................. 30
SECTION 109. Separability Clause................................. 30
SECTION 110. Benefits of Indenture............................... 30
SECTION 111. Governing Law....................................... 30
SECTION 112. Legal Holidays...................................... 31
SECTION 113. Trust Indenture Act Controls........................ 31
SECTION 114. No Recourse Against Others.......................... 31
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally..................................... 31
SECTION 202. Form of Trustee's Certificate of Authentication..... 33
SECTION 203. Restrictive Legends................................. 33
SECTION 204. Form of Certificate to Be Delivered upon Termination
of Restricted Period.............................. 36
ARTICLE THREE
THE NOTES
SECTION 301. Amount.............................................. 37
SECTION 302. Denominations....................................... 37
SECTION 303. Execution, Authentication, Delivery and Dating...... 38
SECTION 304. Temporary Notes..................................... 39
SECTION 305. Registration, Registration of Transfer and Exchange. 39
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes......... 41
SECTION 307. Payment of Interest; Interest Rights Preserved...... 41
SECTION 308. Persons Deemed Owners............................... 43
SECTION 309. Cancellation........................................ 43
SECTION 310. Computation of Interest............................. 43
SECTION 311. Book-Entry Provisions for Global Notes.............. 44
SECTION 312. Transfer Provisions................................. 45
SECTION 313. Form of Accredited Investor Certificate............. 53
SECTION 314. Form of Regulation S Certificate.................... 55
SECTION 315. Form of Rule 144A Certificate....................... 57
SECTION 316. CUSIP Numbers....................................... 58
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture............. 58
SECTION 402. Application of Trust Money.......................... 60
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default................................... 60
SECTION 502. Acceleration of Maturity; Rescission and Annulment.. 62
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee......................................... 63
SECTION 504. Trustee May File Proofs of Claim.................... 64
SECTION 505. Trustee May Enforce Claims Without Possession
of Notes........................................... 65
SECTION 506. Application of Money Collected...................... 65
SECTION 507. Limitation on Suits................................. 66
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................... 66
SECTION 509. Restoration of Rights and Remedies.................. 67
SECTION 510. Rights and Remedies Cumulative...................... 67
SECTION 511. Delay or Omission Not Waiver........................ 67
SECTION 512. Control by Holders.................................. 67
SECTION 513. Waiver of Past Defaults............................. 68
SECTION 514. Waiver of Stay or Extension Laws.................... 68
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.................................. 69
SECTION 602. Certain Rights of Trustee........................... 69
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Notes.............................................. 71
SECTION 604. May Hold Notes...................................... 71
SECTION 605. Money Held in Trust................................. 71
SECTION 606. Compensation and Reimbursement...................... 71
SECTION 607. Corporate Trustee Required; Eligibility............. 72
SECTION 608. Resignation and Removal; Appointment of Successor... 72
SECTION 609. Acceptance of Appointment by Successor.............. 74
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business........................................... 74
SECTION 611. Appointment of Authenticating Agent................. 75
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders........ 77
SECTION 702. Reports by Trustee.................................. 77
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms.............................................. 77
SECTION 802. Guarantors May Consolidate, etc., Only on Certain
Terms.............................................. 79
SECTION 803. Successor Substituted............................... 80
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.. 80
SECTION 902. Supplemental Indentures with Consent of Holders..... 81
SECTION 903. Execution of Supplemental Indentures................ 82
SECTION 904. Effect of Supplemental Indentures................... 82
SECTION 905. Conformity with Trust Indenture Act................. 83
SECTION 906. Reference in Notes to Supplemental Indentures....... 83
SECTION 907. Notice of Supplemental Indentures................... 83
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and
Interest.......................................... 83
SECTION 1002. Maintenance of Office or Agency.................... 83
SECTION 1003. Money for Notes Payments to Be Held in Trust....... 84
SECTION 1004. Corporate Existence................................ 85
SECTION 1005. Payment of Taxes and Other Claims.................. 86
SECTION 1006. Maintenance of Properties.......................... 86
SECTION 1007. Statement by Officers As to Default................ 86
SECTION 1008. Limitation on Indebtedness......................... 87
SECTION 1009. Limitation on Restricted Payments.................. 87
SECTION 1010. Limitation on Issuances and Sales of Capital Stock
of Restricted Subsidiaries........................ 91
SECTION 1011. Limitation on Transactions with Affiliates......... 92
SECTION 1012. Limitation on Liens................................ 93
SECTION 1013. Limitations on Guarantees of Indebtedness by
Restricted Subsidiaries........................... 93
SECTION 1014. Purchase of Notes upon Change of Control........... 94
SECTION 1015. Limitation on Sale of Assets....................... 95
SECTION 1016. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries................. 97
SECTION 1017. Limitation on Unrestricted Subsidiaries............ 98
SECTION 1018. Provision of Financial Statements and Reports...... 98
SECTION 1019. Waiver of Certain Covenants........................ 99
SECTION 1020. Limitation on Applicability of Certain Covenants... 99
ARTICLE ELEVEN
SECTION 1101. [Reserved.]........................................ 99
ARTICLE TWELVE
SECTION 1201. [Reserved.]........................................ 99
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Guarantees......................................... 100
SECTION 1302. Severability....................................... 101
SECTION 1303. [Reserved.]........................................ 101
SECTION 1304. Limitation of Guarantors' Liability................ 101
SECTION 1305. Contribution....................................... 102
SECTION 1306. Subrogation........................................ 102
SECTION 1307. Reinstatement...................................... 102
SECTION 1308. Release of a Guarantor............................. 103
SECTION 1309. Benefits Acknowledged.............................. 103
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance........................................ 103
SECTION 1402. Defeasance and Discharge........................... 104
SECTION 1403. Covenant Defeasance................................ 104
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.... 105
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions..... 106
SECTION 1406. Reinstatement...................................... 107
TESTIMONIUM....................................................... 117
SIGNATURES AND SEALS.............................................. 117
EXHIBIT A - Form of Note
EXHIBIT B- Form of Subordinated Intercompany Note
INDENTURE, dated as of July 9, 1997, among NINE WEST GROUP INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 9 West Broad
Street, Stamford, Connecticut 06902, and NINE WEST DEVELOPMENT CORPORATION, a
Delaware corporation, NINE WEST DISTRIBUTION CORPORATION, a Delaware
corporation, NINE WEST FOOTWEAR CORPORATION, a Delaware corporation, and NINE
WEST MANUFACTURING CORPORATION, a Delaware corporation (collectively, the
"Guarantors"), and THE BANK OF NEW YORK, a New York banking corporation, Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issuance of its
8-3/8% Senior Notes due 2005 (the "Initial Notes"), and its 8-3/8% Series B
Senior Notes due 2005 (the "Exchange Notes" and, together with the Initial
Notes, the "Notes"), of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
Each Guarantor has duly authorized the guarantee of up to $200,000,000
aggregate principal amount of the Initial Notes, and upon the issuance of the
Exchange Notes, if any, up to $200,000,000 aggregate principal amount of the
Exchange Notes (the "Guarantees").
Upon the issuance of the Exchange Notes, if any, or the effectiveness
of the Shelf Registration Statement (as defined herein), this Indenture will be
subject to, and shall be governed by the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of or deemed to be part of and
to govern the indentures qualified thereunder.
All things necessary have been done to make the Notes, when duly
executed and duly issued by the Company and authenticated and delivered
hereunder by the Trustee or the Authenticating Agent, the valid obligations of
the Company and to make this Indenture a valid agreement of the Company, in
accordance with their and its terms
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
It is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date hereof; and
(4) 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.
"Accounts Receivable Subsidiary" means Nine West Funding Corporation
and any other present or future Subsidiary (including any credit card bank) of
the Company that is, directly or indirectly, wholly owned by the Company (other
than directors' qualifying shares) and organized for the purpose of and engaged
in (i) purchasing, financing, and collecting accounts receivable obligations of
customers of the Company or its Subsidiaries, (ii) issuing credit cards and
financing accounts receivable obligations of customers of the Company and its
Subsidiaries, (iii) the sale or financing of such accounts receivable or
interests therein and (iv) other activities incident thereto.
"Acquired Indebtedness" means Indebtedness of a Person (a) existing at
the time such Person becomes a Subsidiary or (b) assumed in connection with the
acquisition of assets from such Person; provided that, for purposes of Section
1008, such Indebtedness shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Restricted Subsidiary.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" means, with respect to any specified Person, (a) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person or (b) any other Person that
owns, directly or indirectly, 10% or more of such specified Person's Voting
Stock or (c) any executive officer or director of any such specified Person or
other Person or (d) with respect to any natural Person, any Person having a
relationship with such Person by blood, marriage or adoption not more remote
than first cousin. For the purposes of this definition, "control," when used
with respect to any specified Person, means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent Bank" means Citibank, N.A. as agent under the Credit Agreement
and any future or successor or replacement agent under the Credit Agreement.
"Agent Members" has the meaning specified in Section 311.
"Asset Acquisition" means (i) an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person will
become a Restricted Subsidiary or will be merged or consolidated with or into
the Company or any Restricted Subsidiary or (ii) the acquisition by the Company
or any Restricted Subsidiary of the assets of any Person which constitute
substantially all of the assets of such Person, or any division or line of
business of such Person, or which is otherwise outside of the ordinary course of
business.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of (a) any
Capital Stock of any Restricted Subsidiary; (b) all or substantially all of the
properties and assets of any division or line of business of the Company or its
Restricted Subsidiaries; or (c) any other properties or assets of the Company or
any Restricted Subsidiary, other than in the ordinary course of business. For
the purposes of this definition, the term "Asset Sale" shall not include any
transfer of properties or assets (i) that is governed by the provisions of
Article Eight, (ii) of the Company to any Restricted Subsidiary, or of any
Restricted Subsidiary to the Company or any Restricted Subsidiary in accordance
with the terms of this Indenture, (iii) to an Unrestricted Subsidiary, if
permitted under Section 1009 or (iv) any disposition, or series of related
dispositions, having a Fair Market Value of less than $1,000,000. For purposes
of Section 1015, the term "Asset Sale" shall not include any sale, conveyance,
transfer, lease or other disposition of accounts receivable to an Accounts
Receivable Subsidiary or to third parties that are not Affiliates of the Company
or any Subsidiary of the Company in the ordinary course of business.
"Attributable Debt" means, with respect to an operating lease included
in any Sale and Leaseback Transaction at the time of determination, the present
value (discounted at the interest rate implicit in the lease or, if not known,
at the Company's incremental borrowing rate) of the obligations of the lessee of
the property subject to such lease for rental payments during the remaining term
of the lease included in such transaction, including any period for which such
lease has been extended or may, at the option of the lessor, be extended, or
until the earliest date on which the lessee may terminate such lease without
penalty or upon payment of penalty (in which case the rental payments shall
include such penalty), after excluding from such rental payments all amounts
required to be paid on account of maintenance and repairs, insurance, taxes,
assessments, water, utilities and similar charges.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Notes.
"Average Life" means, as of the date of determination with respect to
any Indebtedness, the quotient obtained by dividing (a) the sum of the products
of (i) the number of years from the date of determination 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 of the United States Code, as amended,
or any similar United States federal or state law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization or relief of
debtors or any amendment to, succession to or change in any such law.
"Banks" means the banks and other financial institutions from time to
time that are lenders under the Credit Agreement.
"Board of Directors" means either the board of directors of the
Company or a Guarantor, as applicable, or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or a Guarantor, as
applicable, to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Notes, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or other location 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, partnership 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, whether now outstanding
or issued after the date of this Indenture.
"Capitalized Lease Obligation" means, with respect to any Person, any
obligation of such Person 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,
for the purpose of this Indenture, the amount of such obligation at any date
shall be the capitalized amount thereof at such date, determined in accordance
with GAAP.
"Cash Equivalents" means (a) 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); (b) certificates of deposit or acceptances 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; (c) commercial paper with a maturity of
180 days or less issued by a corporation that is not an Affiliate of the Company
and is organized under the laws of any state of the United States or the
District of Columbia and rated at least A-1 by S&P or at least P-1 by Moody's;
and (d) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (a) and (b) above.
"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), directly or indirectly, of more than 35% of the total
outstanding Voting Stock of the Company; (b) the Company consolidates with, or
merges with or into, another Person or 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 (i) where the outstanding Voting Stock of the Company
is not converted or exchanged at all (except to the extent necessary to reflect
a change in the jurisdiction of incorporation of the Company) or is converted
into or exchanged for (A) Voting Stock (other than Redeemable Capital Stock) of
the surviving or transferee corporation or (B) Voting Stock (other than
Redeemable Capital Stock) of the surviving or transferee corporation and cash,
securities and other property (other than Capital Stock of the surviving or
transferee corporation) in an amount that could be paid by the Company as a
Restricted Payment as described under Section 1009 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), directly or indirectly, of more than 35% of the total
outstanding Voting Stock of the surviving or transferee corporation; (c) 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 to such Board of Directors, or whose nomination for
election by the stockholders of the Company, was approved by a vote of 66 % 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 or dissolution other than in a
transaction which complies with Article Eight.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Operating Officer, its Chief
Financial Officer, any Vice President, its Treasurer or an Assistant Treasurer,
and delivered to the Trustee.
"Consolidated Adjusted Net Income" means, for any period, the
consolidated net income (or loss) of the Company and all Restricted Subsidiaries
for such period as determined in accordance with GAAP, adjusted by excluding,
without duplication, (a) any net after-tax extraordinary gains or losses (less
all fees and expenses relating thereto), (b) any net after-tax gains (or losses)
(less all fees and expenses relating thereto) attributable to asset dispositions
other than in the ordinary course of business, (c) the portion of net income (or
loss) of any Person (other than the Company or a Restricted Subsidiary),
including Unrestricted Subsidiaries, in which the Company or any Restricted
Subsidiary has an ownership interest, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any Restricted
Subsidiary in cash dividends or distributions during such period, (d) the net
income (or loss) of any Person combined with the Company or any Restricted
Subsidiary on a "pooling of interests" basis attributable to any period prior to
the date of combination, (e) the net income of any Restricted Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by
such Restricted Subsidiary is not at the date of determination permitted,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Restricted Subsidiary or its stockholders and (f)
for purposes of calculating Consolidated Adjusted Net Income under Section 1009,
any net income (or loss) from any Restricted Subsidiary that was an Unrestricted
Subsidiary at any time during such period other than any amounts actually
received in cash from such Restricted Subsidiary.
"Consolidated Fixed Charge Coverage Ratio" of the Company means, for
any period, the ratio of (a) Consolidated Adjusted Net Income for such period,
plus the sum of Consolidated Interest Expense, Consolidated Income Tax Expense
and Consolidated Non-Cash Charges, in each case, to the extent deducted in
computing Consolidated Adjusted Net Income, for such period to (b) Consolidated
Interest Expense for such period.
"Consolidated Income Tax Expense" means, for any period, the provision
for federal, state, local and foreign income taxes of the Company and all
Restricted Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense" means, for any period, without
duplication, the sum of (a) the interest expense of the Company and its
Restricted Subsidiaries for such period, including, without limitation, (i)
amortization of debt discount, (ii) the net cost of Interest Rate Agreements
(including amortization of discounts), (iii) the interest portion of any
deferred payment obligation, (iv) accrued interest and (v) amortization of debt
issuance costs, plus (b) the interest component of Capitalized Lease Obligations
of the Company and its Restricted Subsidiaries paid, accrued and/or scheduled to
be paid or accrued during such period, plus (c) cash and non-cash dividends due
(whether or not declared) on Redeemable Capital Stock or on Preferred Stock of
any Restricted Subsidiary (to any Person other than the Company and any wholly
owned Restricted Subsidiary), plus (d) one-third of lease rental payments in
connection with operating leases related to Sale and Leaseback Transactions
paid, accrued and/or scheduled to be paid or accrued during such period, in each
case as determined on a consolidated basis in accordance with GAAP; provided
that (x) the Consolidated Interest Expense attributable to interest on any
Indebtedness computed on a pro forma basis and (A) bearing a floating interest
rate shall be computed as if the rate in effect on the date of computation had
been the applicable rate for the entire period and (B) which was not outstanding
during the period for which the computation is being made but which bears, at
the option of the Company, a fixed or floating rate of interest, shall be
computed by applying at the option of the Company, either the fixed or floating
rate, and (y) in making such computation, the Consolidated Interest Expense
attributable to interest on any Indebtedness under a revolving credit facility
computed on a pro forma basis shall be computed based upon the average daily
balance of such Indebtedness during the applicable period; provided further
that, notwithstanding the foregoing, the interest rate with respect to any
Indebtedness covered by any Interest Rate Agreement shall be deemed to be the
effective interest rate with respect to such Indebtedness after taking into
account such Interest Rate Agreement. For purposes of clause (c) of the
preceding sentence, dividends shall be deemed to be an amount equal to the
dividends due (whether or not declared) divided by one minus the applicable
actual combined federal, state, local and foreign income tax rate of the Company
and its Subsidiaries (expressed as a decimal).
"Consolidated Non-Cash Charges" means, for any period, the aggregate
depreciation, amortization and other non-cash expenses of the Company and any
Restricted Subsidiary reducing Consolidated Adjusted Net Income for such period,
determined on a consolidated basis in accordance with GAAP (excluding any such
non-cash charge that requires an accrual of or reserve for cash charges for any
future period).
"Convertible Notes" means the 5-1/2% Convertible Subordinated Notes
Due 2003 of the Company.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business shall
be administered, which office on the date of execution of this Indenture is
located at 101 Barclay Street, New York, New York 10286.
"corporation" includes corporations, associations, companies and
business trusts.
"Credit Agreement" means the Amended and Restated Credit Agreement
dated as of August 2, 1996, among the Company, the Banks and Citibank, N.A., as
agent, including the Credit Agreement dated as of May 23, 1997, between the
Company and NationsBank of Texas, N.A., as such agreements may be amended,
renewed, extended, substituted, restated, refinanced, restructured, supplemented
or otherwise modified from time to time (including, without limitation, any
successive amendments, renewals, extensions, substitutions, restatements,
refinancings, restructuring, supplements or other modifications of the
foregoing); provided that with respect to any agreement providing for the
refinancing of Indebtedness under the Credit Agreement, such agreement shall be
the Credit Agreement under this Indenture only if a notice to that effect is
delivered by the Company to the Trustee and there shall be at any time only one
such agreement that is the Credit Agreement under this Indenture.
"Currency Agreements" means any spot or forward foreign exchange
agreements and currency swap, currency option or other similar financial
agreements or arrangements entered into by the Company or any of its Restricted
Subsidiaries designed to protect against or manage exposure to fluctuations in
currency exchange rates.
"Default" means any event that after notice or passage of time or both
would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Designated Noncash Consideration" means the fair market value of non-
cash consideration received by the Company or a Restricted Subsidiary in
connection with an Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an Officers' Certificate, setting forth the basis of
such valuation, executed by the principal executive officer and the principal
financial officer of the Company, less the amount of cash or Cash Equivalents
received in connection with a sale of such Designated Noncash Consideration.
"Disinterested Director" means, with respect to any transaction or
series of transactions in respect of which the Board of Directors is required to
deliver a resolution of the Board of Directors under this Indenture, a member of
the Board of Directors who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of
transactions.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" has the meaning stated in the first recital of this
Indenture and refers to any Exchange Notes containing terms substantially
identical to the Initial Notes (except that (i) such Exchange Notes shall not
contain terms with respect to transfer restrictions and shall be registered
under the Securities Act, and (ii) certain provisions relating to an increase in
the stated rate of interest thereon shall be eliminated) that are issued and
exchanged for the Initial Notes in accordance with the Exchange Offer, as
provided for in the Registration Rights Agreement and this Indenture.
"Exchange Offer" means the offer by the Company to the Holders of the
Initial Notes to exchange all of the Initial Notes for Exchange Notes, as
provided for in the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
"Foreign Subsidiary" means a Restricted Subsidiary not organized or
existing under the laws of the United States, any state thereof, the District of
Columbia or any territory thereof that has no material operations or assets in
the United States.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, that
are in effect on the date of this Indenture.
"Global Notes" has the meaning set forth in Section 201.
"guarantee" means, as applied to any obligation, (a) 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 (b) 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.
"Guarantee" means a guarantee of the obligations of the Company under
this Indenture in accordance with the provisions hereof. When used as a verb,
"Guarantee" shall have a corresponding meaning.
"Guarantor" means Nine West Development Corporation, Nine West
Distribution Corporation, Nine West Footwear Corporation, Nine West
Manufacturing Corporation and any Restricted Subsidiary that incurs a Guarantee;
provided that, upon the release and discharge of any Guarantor from its
Guarantee in accordance with this Indenture, such Guarantor shall cease to be a
Guarantor.
"Holder" means the Person in whose name a Note is registered in the
Note Register.
"Indebtedness" means, with respect to any Person, without duplication,
(a) all liabilities of such Person for borrowed money (including overdrafts) or
for the deferred purchase price of property or services, excluding any trade
payables and other accrued current liabilities incurred in the ordinary course
of business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit and
acceptances issued under letter of credit facilities, acceptance facilities or
other similar facilities, (b) all obligations of such Person evidenced by bonds,
notes, debentures or other similar instruments, (c) all indebtedness of such
Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even if the rights
and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), but excluding
trade payables arising in the ordinary course of business, (d) all Capitalized
Lease Obligations of such Person, (e) all obligations of such Person under or in
respect of Interest Rate Agreements or Currency Agreements, (f) all Indebtedness
referred to in (but not excluded from) 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 or with respect to property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness (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), (g) all guarantees by such Person of Indebtedness referred to in this
definition of any other Person, (h) all Redeemable Capital Stock of such Person
valued at the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued and unpaid dividends and (i) all Attributable Debt of such
Person. 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 instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Notes" has the meaning specified in the recitals to this
Indenture.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act.
"Interest Payment Date", when used with respect to any Note, means the
Stated Maturity of an installment of interest on such Note.
"Interest Rate Agreements" means any interest rate protection
agreements and other types of interest rate hedging agreements (including,
without limitation, interest rate swaps, caps, floors, collars and similar
agreements).
"Investment" means, with respect to any Person, any direct or indirect
advance, loan, guarantee or other extension of credit or capital contribution to
(by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase,
acquisition or ownership by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued or owned by,
any other Person and all other items that would be classified as investments on
a balance sheet prepared in accordance with GAAP. In addition, the fair market
value of the net assets of any Restricted Subsidiary at the time that such
Restricted Subsidiary is designated 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 on
commercially reasonable terms in accordance with normal trade practices.
"Leveraged Subsidiary" means any Restricted Subsidiary that has
incurred Indebtedness (other than Acquired Indebtedness pursuant to Section 1008
and Indebtedness described in clauses (e), (g), (h), (k), (1), (m), (n) and (o)
of the definition of "Permitted Indebtedness") pursuant to Section 1008 for so
long as such Indebtedness, or any refinancing thereof, is outstanding.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation, assignment for
security, claim, or preference or priority or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired. 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" means, with respect to any Note, the date on which any
principal of such Note becomes due and payable as therein or herein provided,
whether at the Stated Maturity with respect to such principal or by declaration
of acceleration, 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, or stock
or other assets when disposed for, cash or Cash Equivalents (except to the
extent that such obligations are financed or sold with recourse to the Company
or any Restricted Subsidiary), net of (i) brokerage commissions and other fees
and expenses (including fees and expenses of legal counsel and investment banks)
related to such Asset Sale, (ii) provisions for all taxes payable as a result of
such Asset Sale, (iii) payments made to retire Indebtedness where payment of
such Indebtedness is secured by the assets or properties the subject of such
Asset Sale, (iv) amounts required to be paid to any Person (other than the
Company or any Restricted Subsidiary) owning a beneficial interest in the assets
subject to the Asset Sale and (v) appropriate amounts to be provided by the
Company or any Restricted Subsidiary, 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 Restricted Subsidiary, as the case may be,
after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as reflected in an Officers' Certificate delivered to the
Trustee.
"Non-U.S. Person" means a person who is not a U.S. person as defined
in Regulation S.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 305.
"Notes" has the meaning stated in the first recital of this Indenture.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Offshore Global Note" has the meaning set forth in Section 201.
"Offshore Note Exchange Date" has the meaning set forth in Section
203.
"Offshore Physical Note" has the meaning set forth in Section 201.
"Opinion of Counsel" means a written opinion of legal counsel, who may
be counsel for the Company, including an employee of the Company, and who shall
be reasonably acceptable to the Trustee.
"Outstanding", when used with respect to Notes, means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes, or portions thereof, for whose payment or repayment at
the option of the Holder money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Notes;
(iii) Notes, except to the extent provided in Sections 1402 and 1403,
with respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article Fourteen; and
(iv) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a bona fide purchaser in whose hands such
Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in making
such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which a Responsible Officer of
the Trustee actually knows to be so owned shall be so disregarded. Notes so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
to act with respect to such Notes and that the pledgee is not the Company or any
other obligor upon the Notes or any Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (or premium, if
any, on) or interest on any Notes on behalf of the Company.
"Permitted Indebtedness" means any of the following:
(a) (i) Indebtedness of the Company, any Guarantor or any Foreign
Subsidiary (provided that Indebtedness of any Foreign Subsidiary is
incurred to fund operations outside the United States), under the Credit
Agreement in an aggregate principal amount at any one time outstanding not
to exceed $600,000,000 less (x) the amount of any principal payments made
by the Company in respect of any term loans under the Credit Agreement
other than principal payments made with proceeds of the offering of the
Notes and the Senior Notes and (y) the amount by which the aggregate
commitment under any revolving credit facility under the Credit Agreement
at any time has been permanently reduced and (ii) any guarantee by the
Company or any Guarantor of Indebtedness incurred under clause (i);
(b) Indebtedness of the Company pursuant to the Notes or the Senior
Subordinated Notes or of any Restricted Subsidiary pursuant to a Guarantee
of the Notes or a guarantee of the Senior Subordinated Notes;
(c) Indebtedness of the Company or any Restricted Subsidiary not
otherwise referred to in this definition, whether contingent or otherwise,
that is outstanding on the date of this Indenture;
(d) Indebtedness of the Company owing to any Restricted Subsidiary;
provided that any Indebtedness of the Company owing to any such Restricted
Subsidiary is made pursuant to an intercompany note in the form attached
hereto as Exhibit B and is subordinated in right of payment from and after
such time as the Notes shall become due and payable (whether at Stated
Maturity, acceleration or otherwise) to the payment and performance of the
Company's obligations under such Notes; provided further that any
disposition, pledge or transfer of any such Indebtedness to a Person (other
than a disposition, pledge or transfer to the Company or another Restricted
Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the
Company not permitted by this clause (d);
(e) Indebtedness of any Restricted Subsidiary owing to the Company or
to another Restricted Subsidiary; provided that any such Indebtedness is
made pursuant to an intercompany note in the form attached to this
Indenture and such Indebtedness of any Guarantor is subordinated in right
of payment to the Guarantee of such Guarantor; provided further that any
disposition, pledge or transfer of any such Indebtedness to a Person (other
than a disposition, pledge or transfer to (i) the Company or a Restricted
Subsidiary or (ii) the Banks as security for obligations under the Credit
Agreement by the Company or a Restricted Subsidiary) shall be deemed to be
an incurrence of such Indebtedness by such Restricted Subsidiary not
permitted by this clause (e);
(f) guarantees of any Restricted Subsidiary of Indebtedness of the
Company entered into in accordance with the provisions of Section 1013;
(g) obligations of the Company or any Guarantor entered into in the
ordinary course of business (i) pursuant to Interest Rate Agreements
designed to protect the Company or any Restricted Subsidiary against
fluctuations in interest rates in respect of Indebtedness of the Company or
any Restricted Subsidiary, which obligations do not exceed the aggregate
principal amount of such Indebtedness and (ii) pursuant to Currency
Agreements entered into by the Company or any of its Restricted
Subsidiaries in respect of its (x) assets or (y) obligations, as the case
may be, denominated in a foreign currency;
(h) Capitalized Lease Obligations and Purchase Money Obligations of
the Company or any Guarantor in an aggregate amount which does not exceed
(i) $25,000,000 incurred in any one year and (ii) $50,000,000 at any one
time outstanding;
(i) Indebtedness of the Company or any Guarantor consisting of
guarantees, indemnities or obligations in respect of purchase price
adjustments in connection with the acquisition or disposition of assets,
including, without limitation, shares of Capital Stock of Restricted
Subsidiaries;
(j) any renewals, extensions, substitutions, refinancings or
replacements (each, for purposes of this clause, a "refinancing") of any
Indebtedness referred to in clause (b) or (c) of this definition, including
any successive refinancings, so long as (i) any such new Indebtedness shall
be in a principal amount that does not exceed the principal amount (or, if
such Indebtedness being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of determination)
so refinanced, plus the lesser of the amount of any premium required to be
paid in connection with such refinancing pursuant to the terms of the
Indebtedness refinanced or the amount of any premium reasonably determined
as necessary to accomplish such refinancing, (ii) in the case of any
refinancing of Indebtedness that is expressly subordinated to the
Indebtedness under the Notes such new Indebtedness is made subordinate to
the Notes at least to the same extent as the Indebtedness being refinanced,
(iii) such new Indebtedness has an Average Life longer than the Average
Life of the Notes and a final Stated Maturity later than the final Stated
Maturity of the Notes and (iv) Indebtedness of the Company or a Guarantor
may only be refinanced with Indebtedness of the Company or a Guarantor;
(k) Indebtedness of the Company or any Restricted Subsidiary 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 or such Restricted Subsidiary, as the
case may be, obtaining knowledge of the incurrence thereof;
(l) Indebtedness of the Company or any Restricted Subsidiary
represented by (x) letters of credit for the account of the Company or any
Restricted Subsidiary or (y) other obligations to reimburse third parties
pursuant to any surety bond or other similar arrangements, 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;
(m) Indebtedness, if any, of the Company or any Restricted Subsidiary
arising by reason of the recharacterization of the sale of accounts
receivable to an Accounts Receivable Subsidiary;
(n) Indebtedness of any Foreign Subsidiary incurred to fund
operations outside the United States, provided that at the time of, and
immediately after giving effect to, such incurrence the Company could incur
at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 1008; and
(o) Indebtedness of the Company or any Restricted Subsidiary not
otherwise permitted by the foregoing clauses (a) through (n) in an
aggregate principal amount not in excess of $50,000,000 at any one time
outstanding.
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents;
(b) Investments in the Company or any Restricted Subsidiary;
(c) intercompany Indebtedness to the extent permitted under clauses
(d) and (e) of the definition of "Permitted Indebtedness";
(d) Investments not otherwise permitted by the foregoing clauses (a)
through (c) or in the following clauses (e) through (m) in an amount not to
exceed $37,500,000 at any one time outstanding;
(e) Investments by the Company or any Restricted Subsidiary in
another Person, if as a result of such Investment (i) such other Person
becomes a Restricted Subsidiary or (ii) such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all
of its assets to, the Company or a Restricted Subsidiary;
(f) bonds, notes, debentures and other securities received as
consideration for Asset Sales to the extent permitted under Section 1015;
(g) lease, utility and other similar deposits in the ordinary course
of business;
(h) prepaid expenses incurred in the ordinary course of business
consistent with past practices;
(i) negotiable instruments held for collection;
(j) Investments in the form of the sale (on a "true-sale" non-
recourse basis) or the servicing of receivables transferred from the
Company or any Restricted Subsidiary, or transfers of cash, to an Accounts
Receivable Subsidiary as a capital contribution or in exchange for
Indebtedness of such Accounts Receivable Subsidiary or cash in the ordinary
course of business;
(k) Investments in joint ventures, partnerships or other Persons made
at any time reasonably related or complementary to the businesses of the
Company on the date of this Indenture so long as at the time of making such
Investment and after giving effect to such Investment on a pro forma basis,
the Consolidated Fixed Charge Coverage Ratio calculated as set forth in
Section 1008 would have been at least equal to 4.0 to 1.0, provided that
such Investment is in furtherance of the Company's business and no
Affiliate of the Company (other than a Restricted Subsidiary) or beneficial
holder of 5% or more of any class of Capital Stock of the Company shall
beneficially own Capital Stock in the Person in which such Investment is
made;
(l) personal loans or advances to employees of the Company or any
Restricted Subsidiary which loans and advances do not in the aggregate
exceed $10,000,000 outstanding at any one time; and
(m) loans or advances to customers or suppliers of the Company or any
Restricted Subsidiary in the ordinary course of business, which loans and
advances do not in the aggregate exceed $10,000,000 outstanding at any one
time.
"Permitted Liens" means the following types of Liens:
(a) Liens (other than Liens securing Indebtedness under the Credit
Agreement) existing on the date of this Indenture;
(b) Liens on property or assets of the Company or any Restricted
Subsidiary securing Indebtedness under the Credit Agreement in a principal
amount not to exceed the principal amount of the outstanding Indebtedness
permitted by clause (a)(i) of the definition of "Permitted Indebtedness";
(c) Liens on any property or assets of a Restricted Subsidiary
granted in favor of the Company or any wholly owned Restricted Subsidiary;
(d) Liens on any property or assets of the Company or any Restricted
Subsidiary securing the Notes;
(e) any interest or title of a lessor under any Capitalized Lease
Obligation or Sale and Leaseback Transaction so long as the Attributable
Debt secured by such Lien is not incurred in violation of Section 1008;
(f) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like Liens arising in
the ordinary course of business of the Company or any Restricted Subsidiary
and with respect to amounts not yet delinquent or being contested in good
faith by appropriate proceeding, if a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have
been made therefor;
(g) Liens for taxes, assessments, government charges or claims that
are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and if a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have
been made therefor;
(h) Liens incurred or deposit made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds,
government contracts, performance bonds and other obligations of a like
nature incurred in the ordinary course of business (other than contracts
for the payment of money);
(i) easements, rights-of-way, restrictions and other similar charges
or encumbrances not interfering in any material respect with the business
of the Company or any Restricted Subsidiary;
(j) Liens arising by reason of any judgment, decree or order of any
court so long as such Lien is adequately bonded and any appropriate legal
proceedings that may have been duly initiated for the review of such
judgment, decree or order shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have
expired;
(k) Liens securing Acquired Indebtedness created prior to (and not in
connection with or in contemplation of) the incurrence of such Indebtedness
by the Company or any Restricted Subsidiary, provided that such Lien does
not extend to any property or assets of the Company or any Restricted
Subsidiary other than the assets acquired in connection with the incurrence
of such Acquired Indebtedness;
(l) Liens securing obligations of the Company or any Guarantor under
Interest Rate Agreements or Currency Agreements or any collateral for the
Indebtedness to which such Interest Rate Agreements or Currency Agreements
relate;
(m) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security;
(n) Liens securing reimbursement obligations of the Company or any
Guarantor with respect to letters of credit that encumber documents and
other property relating to such letters of credit and the products and
proceeds thereof;
(o) Liens arising from purchase money mortgages and purchase money
security interests incurred in the normal and ordinary course of the
business of the Company or any Guarantor; provided that (i) the related
Indebtedness shall not be secured by any property or assets of the Company
or any Restricted Subsidiary other than the property and assets so acquired
and (ii) the Lien securing such Indebtedness shall be created within 60
days of such acquisition;
(p) Liens upon specific items of inventory or other goods and
proceeds of the Company or any Guarantor securing their obligations in
respect of bankers' acceptances issued or created for the account of any
such Person to facilitate the purchase, shipment or storage of such
inventory of other goods;
(q) 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;
(r) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Company and the
Restricted Subsidiaries, taken as a whole;
(s) any interest or title of a lessor in any property that is (i)
subject to any lease or (ii) located on the real property subject to any
lease;
(t) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
the Company or any Restricted Subsidiary in the ordinary course of
business;
(u) Liens on the property or assets or Capital Stock of Accounts
Receivable Subsidiaries and Liens arising out of any sale of accounts
receivable in the ordinary course to or by an Accounts Receivable
Subsidiary;
(v) Liens securing Indebtedness incurred to finance the construction,
purchase or lease of, or repairs, improvements or additions to, property of
the Company or a Restricted Subsidiary; provided, however, that the Lien
may not extend to any property or assets of the Company or any Restricted
Subsidiary other than the property acquired, constructed, repaired,
improved or added to, and the Indebtedness secured by such Lien may not be
incurred more than 180 days after the later of the acquisition, completion
of construction, repair, improvement, addition or commencement of full
operation of the property subject to the Lien; provided, further, however,
that all such Indebtedness does not exceed 10% of the Company's
consolidated tangible assets at the time of incurrence;
(w) Liens not otherwise permitted by the foregoing clauses (a)
through (v) securing obligations or other liabilities (other than
Indebtedness) of the Company or any Restricted Subsidiary; provided,
however, that the aggregate amount of such obligations and liabilities
secured by such Liens shall not exceed $10,000,000 outstanding at any one
time; and
(x) any extension, renewal or replacement, in whole or in part, of
any Lien described in the foregoing clauses (a) through (v), provided that
any such extension, renewal or replacement shall be no more restrictive in
any material respect than the Lien so extended, renewed or replaced and
shall not extend to any additional property or assets.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Physical Notes" has the meaning set forth in Section 201.
"Place of Payment" means the office or agency maintained by the
Company where the principal of (and premium, if any, on) and interest on the
Notes are payable as specified in Section 1002.
"Predecessor Note" of any particular Note, means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"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, including, without limitation, all classes and
series of preferred or preference stock of such Person.
"Private Placement Legend" has the meaning set forth in Section 203.
"Purchase Money Obligations" means, with respect to any Person,
obligations, other than Capitalized Lease Obligations, incurred or assumed in
the ordinary course of business in connection with the purchase of property to
be used in the business of such Person within 90 days of such purchase, provided
that the amount of any Purchase Money Obligation shall not exceed the purchase
price of the property purchased.
"QIB" means a "Qualified Institutional Buyer" within the meaning of
Rule 144A under the Securities Act.
"Qualified Capital Stock" of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any class or series of Capital Stock
that, either by its terms, 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 final Stated Maturity of the Notes or is redeemable at the option of the
holder thereof at any time prior to such final Stated Maturity, or is
convertible into or exchangeable for debt securities at any time prior to such
final Stated Maturity.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of July 9, 1997, among the Company, the Guarantors and the
Holders of Initial Notes.
"Registration Statement" means the Registration Statement as defined
in the Registration Rights Agreement.
"Regular Record Date" has the meaning specified in Section 301.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, 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 or her knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary.
"S&P" means Standard and Poor's Ratings Group, A Division of McGraw-
Hill, Inc., and its successors.
"Sale and Leaseback Transaction" means any transaction or series of
related transactions pursuant to which the Company or a Restricted Subsidiary
sells or transfers any property or asset in connection with the leasing, or the
resale against installment payments, of such property or asset to the seller or
transferor.
"Senior Indebtedness" means (i) all obligations of the Company, now or
hereafter existing, under or in respect of the Credit Agreement, whether for
principal, premium, if any, interest (including interest accruing after the
filing of, or which would have accrued but for the filing of, a petition by or
against the Company under Bankruptcy Law, whether or not such interest is
allowed as a claim after such filing in any proceeding under such law), fees,
expenses, indemnities, gross-ups or other payments thereunder, (ii) the
principal of, premium, if any, and interest on the Notes and (iii) the principal
of, premium, if any, and interest on all other Indebtedness of the Company
(other than the Senior Subordinated Notes and the Convertible Notes), whether
outstanding on the date of this Indenture or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Notes. Notwithstanding the foregoing, "Senior Indebtedness"
shall not include (i) Indebtedness evidenced by the Senior Subordinated Notes or
the Convertible Notes, (ii) Indebtedness of the Company that is expressly
subordinated in right of payment to any Indebtedness of the Company, (iii)
Indebtedness of the Company to the extent incurred in violation of any covenant
prohibiting the incurrence of Indebtedness under this Indenture, (iv) any
liability for federal, state or local taxes or other taxes, owed or owing by the
Company, (v) trade account payables owed or owing by the Company, (vi) amounts
owed by the Company for compensation to employees or for services rendered to
the Company, (vii) Indebtedness of the Company to any Subsidiary or any other
Affiliate of the Company, (viii) Redeemable Capital Stock of the Company and
(ix) Indebtedness which when incurred and without respect to any election under
Section 1111 (b) of Title 11 of the United States Code is without recourse to
the Company or any Subsidiary.
"Senior Subordinated Notes" means the 9% Senior Subordinated Notes due
2007 of the Company, issued pursuant to an Indenture dated the date hereof among
the Company, the Guarantors and The Bank of New York, as trustee.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that,
together with its Subsidiaries, (i) for the most recent fiscal year of the
Company, accounted for more than 5% of the consolidated revenues of the Company
and its Restricted Subsidiaries or (ii) as of the end of such fiscal year, was
the owner of more than 5% of the consolidated assets of the Company and its
Restricted Subsidiaries, all as set forth on the most recently available
consolidated financial statements of the Company for such fiscal year.
"Special Record Date" for the payment of any Defaulted Interest on the
Notes means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable, 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.
"Subsidiary" means any Person, a majority of the equity ownership or
Voting Stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries or by the Company and one or more
other Subsidiaries.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
"United States" means the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"Unrestricted Subsidiary" means (a) any Subsidiary that at the time of
determination shall be an Unrestricted Subsidiary (as designated by the Board of
Directors of the Company, as provided below) and (b) any Subsidiary of an
Unrestricted Subsidiary; provided, however, that in no event shall any Guarantor
be an Unrestricted Subsidiary. The Board of Directors of the Company may
designate any Subsidiary (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary so long as (i) neither the Company
nor any Restricted Subsidiary is directly or indirectly liable for any
Indebtedness of such Subsidiary, (ii) no default with respect to any
Indebtedness of such Subsidiary would permit (upon notice, lapse of time or
otherwise) any holder of any other Indebtedness of the Company or any Restricted
Subsidiary to declare a default on such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated maturity, (iii) any
Investment in such Subsidiary made as a result of designating such Subsidiary an
Unrestricted Subsidiary will not violate the provisions of Section 1017, (iv)
neither the Company nor any Restricted Subsidiary has a contract, agreement,
arrangement, understanding or obligation of any kind, whether written or oral,
with such Subsidiary other than those that might be obtained at the time from
persons who are not Affiliates of the Company and (v) neither the Company nor
any Restricted Subsidiary has any obligation (1) to subscribe for additional
shares of Capital Stock or other equity interest in such Subsidiary or (2) to
maintain or preserve such Subsidiary's financial condition or to cause such
Subsidiary to achieve certain levels of operating results. Any such designation
by the Board of Directors of the Company shall be evidenced to the Trustee by
filing a board resolution with the Trustee giving effect to such designation.
The Board of Directors of the Company may designate any Unrestricted Subsidiary
as a Restricted Subsidiary if, immediately after giving effect to such
designation, there would be no Default or Event of Default under this Indenture
and the Company could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 1008.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
"U.S. Global Note" has the meaning set forth in Section 201.
"U.S. Physical Note" has the meaning set forth in Section 201.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" 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, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel to the effect that in the opinion
of such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of any such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant to
Section 1007) shall include:
(1) a statement to the effect that each individual or firm signing
such certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement to the effect that, in the opinion of each such
individual or such firm, he or she has or they have made such examination
or investigation as is necessary to enable him, her or them to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual
or such firm, such covenant or condition has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or of a
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his or her
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or such Guarantor stating that the information with respect to such
factual matters is in the possession of the Company or such Guarantor, unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Notes may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held by any
Person, and the date of holding the same, shall be proved by the Note Register.
(d) If the Company shall solicit from the Holders of Notes any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date
is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Notes have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the Outstanding Notes shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company or
any Guarantor in reliance thereon, whether or not notation of such action is
made upon such Note.
SECTION 105. Notices, etc., to Trustee, Company and Agent Bank.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any Guarantor
shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or
(2) the Company or any Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to the Company or such Guarantor addressed to it at the address of its
principal office, for the attention of the Chief Financial Officer,
specified in the first paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Notes by the Company or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at its
address as it appears in the Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Any notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be sufficient giving of
such notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Note shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto, any Authenticating Agent, any
Paying Agent, any Notes Registrar and their successors hereunder and the Holders
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. Governing Law.
This Indenture and the Notes shall be governed by and construed in
accordance with the law of the State of New York. Upon the effectiveness of the
Shelf Registration Statement or the consummation of the Exchange Offer, this
Indenture will be subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date or Stated Maturity or
Maturity of any Note shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Note) payment
of interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or at the Stated Maturity or Maturity; provided that no interest
shall accrue for the period from and after such Interest Payment Date, Stated
Maturity or Maturity, as the case may be.
SECTION 113. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the provision required by the TIA shall control.
SECTION 114. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
or any Guarantor shall not have any liability for any obligations of the Company
or such Guarantor under the Notes, any Guarantee or this Indenture, as
applicable, or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note and the related Guarantee,
each Holder shall waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the Notes and the
Guarantees.
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.
The Initial Notes shall be known as the "8-3/8% Senior Notes due 2005"
and the Exchange Notes shall be known as the "8-3/8% Series B Senior Notes due
2005", in each case, of the Company. The Notes and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers of the Company
executing such Notes, as evidenced by their execution of the Notes. Any portion
of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The definitive Notes shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers of the Company executing such Notes, as evidenced by their
execution of such Notes.
Initial Notes offered and sold in reliance on Rule 144A under the
Securities Act may be issued in the form of one or more permanent global Notes
in substantially the form set forth in Exhibit A and contain each of the legends
set forth in Section 203 (the "U.S. Global Note"), deposited with the Trustee,
as custodian for the Depositary or its nominee, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the U.S. Global Note may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depositary or its nominee, as hereinafter provided.
Initial Notes offered and sold in offshore transactions in reliance on
Regulation S under the Securities Act shall be issued in the form of a single
permanent global Note in substantially the form set forth in Exhibit A (the
"Offshore Global Note") deposited with the Trustee, as custodian for the
Depositary or its nominee, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the Offshore
Global Note may from time to time be increased or decreased by adjustments made
in the records of the Trustee, as custodian for the Depositary or its nominee,
as herein provided. Initial Notes issued pursuant to Section 305 in exchange
for or upon transfer of beneficial interests in the U.S. Global Note or the
Offshore Global Note shall be in the form of U.S. Physical Notes or in the form
of permanent certificated Notes substantially in the form set forth in Exhibit A
(the "Offshore Physical Notes"), respectively, as hereinafter provided.
Initial Notes which are offered and sold to Institutional Accredited
Investors which are not QIBs (excluding Non-U.S. Persons) shall be issued in the
form of permanent certificated Notes in substantially the form set forth in
Exhibit A and contain the Private Placement Legend as set forth in Section 203
(the "U.S. Physical Notes").
The Offshore Physical Notes and U.S. Physical Notes are sometimes
collectively herein referred to as the "Physical Notes". The U.S. Global Note
and the Offshore Global Note are sometimes collectively referred to as the
"Global Notes".
Exchange Notes shall be issued substantially in the form set forth in
Exhibit A.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: By:
---------------- --------------------
Authorized Signatory
SECTION 203. Restrictive Legends.
Unless and until (i) an Initial Note is sold pursuant to an effective
Shelf Registration Statement or (ii) an Initial Note is exchanged for an
Exchange Note in an Exchange Offer pursuant to an effective Exchange Offer
Registration Statement, in each case pursuant to the Registration Rights
Agreement, (A) each U.S. Global Note and U.S. Physical Note shall bear the
following legend set forth below (the "Private Placement Legend") on the face
thereof and (B) the Offshore Physical Notes and Offshore Global Note shall bear
the Private Placement Legend on the face thereof until at least 41 days after
the date hereof (the "Offshore Note Exchange Date") and receipt by the Company
and the Trustee of a certificate substantially in the form provided in Section
204:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A")) OR (B) IT IS 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" PURSUANT TO
RULE 903 OR 904 OF REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X)
THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OR
THIS SECURITY) AND THE LAST DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF
THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE
LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, (E) TO AN ACCREDITED
INVESTOR THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT (AND IF ACQUIRING THE SECURITIES FROM
SUCH AN ACCREDITED INVESTOR, IS ACQUIRING SECURITIES HAVING AN AGGREGATE
PRINCIPAL AMOUNT OF NOT LESS THAN $100,000), OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF 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;
PROVIDED THAT THE COMPANY, THE TRUSTEE, THE TRANSFER AGENT AND THE
REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
(I) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. 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.
Each Global Note, whether or not an Initial Note, shall also bear the
following legend on the face thereof:
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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTIONS 311 AND 312 OF THE INDENTURE.
SECTION 204. Form of Certificate to Be Delivered upon Termination of
Restricted Period.
On or after August 18, 1997
THE BANK OF NEW YORK
101 Barclay Street
New York, NY 10286
Attention: Corporate Trust Trustee Administration
Re: NINE WEST GROUP INC. (the "Company")
8-3/8% Senior Notes due 2005 (the "Notes")
Ladies and Gentlemen:
This letter relates to $__________ principal amount of Notes
represented by the offshore global note certificate (the "Offshore Global
Note"). Pursuant to Section 203 of the Indenture dated as of July 9, 1997
relating to the Notes (the "Indenture"), we hereby certify that (1) we are the
beneficial owner of such principal amount of Notes represented by the Offshore
Global Note and (2) we are a Non-U.S. Person to whom the Notes could be
transferred in accordance with Rule 904 of Regulation S promulgated under the
Securities Act of 1933, as amended ("Regulation S"). Accordingly, you are
hereby requested to issue an Offshore Physical Note representing the
undersigned's interest in the principal amount of Notes represented by the
Offshore Global Note, all in the manner provided by the Indenture.
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 proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
------------------------
Authorized Signature
ARTICLE THREE
THE NOTES
SECTION 301. Amount.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to $200,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 304, 305, 306, 311, 312,
906, 1014 or 1015 or pursuant to an Exchange Offer.
The Stated Maturity of the Notes shall be August 15, 2005, and they
shall bear interest at the rate of 8-3/8% per annum from July 9, 1997, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, payable on February 15, 1998 and semi-annually thereafter on
February 15th and August 15th in each year, until the principal thereof is paid
in full and to the Person in whose name the Note (or any predecessor Note) is
registered at the close of business on the February 1st or August 1st
immediately preceding such Interest Payment Date (each, a "Regular Record
Date"). Interest will be computed on the Notes as specified in Section 310
hereof.
The principal of (and premium, if any) and interest on the Notes shall
be payable at the office or agency of the Company maintained for such purpose in
The City of New York, or at such other office or agency of the Company as may be
maintained for such purpose; provided, however, that, at the option of the
Company, interest may be paid (a) by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Note Register or (b) by
wire transfer to an account maintained by the payee in the United States.
Holders shall have the right to require the Company to purchase their
Notes, in whole or in part, in the event of a Change of Control pursuant to
Section 1014 and in the event of certain Asset Sales pursuant to Section 1015.
The Notes shall not be redeemable at the option of the Company prior
to their Stated Maturity.
SECTION 302. Denominations.
The Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its Chairman
of the Board, its Chief Executive Officer, its President, its Chief Operating
Officer, its Chief Financial Officer or a Vice President. The signature of any
of these officers on the Notes may be the manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or otherwise
reproduced on the Notes.
Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
On Company Order, the Trustee shall authenticate for original issue
Initial Notes in an aggregate principal amount not to exceed $200,000,000. On
Company Order, the Trustee shall authenticate for original issue Exchange Notes
in an aggregate principal amount not to exceed $200,000,000; provided that such
Exchange Notes shall be issuable only upon the valid surrender for cancellation
of Initial Notes of a like aggregate principal amount in accordance with an
Exchange Offer pursuant to the Registration Rights Agreement. In each case, the
Trustee shall be entitled to receive an Officers' Certificate and an Opinion of
Counsel of the Company that it may reasonably request in connection with such
authentication of Notes. Such order shall specify the amount of Notes to be
authenticated and the date on which the original issue of Notes is to be
authenticated.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
In case the Company or any Guarantor, pursuant to Article Eight, shall
be consolidated or merged with or into any other Person or shall convey,
transfer, lease or otherwise dispose of its properties and assets substantially
as an entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company or such
Guarantor shall have been merged, or the Person which shall have received a
conveyance, transfer, lease or other disposition as aforesaid, shall have
executed an indenture supplemental hereto with the Trustee pursuant to Article
Eight, any of the Notes authenticated or delivered prior to such consolidation,
merger, conveyance, transfer, lease or other disposition may, from time to time,
at the request of the successor Person, be exchanged for other Notes executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Notes
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, shall authenticate and deliver
Notes as specified in such request for the purpose of such exchange. If Notes
shall at any time be authenticated and delivered in any new name of a successor
Person pursuant to this Section 303 in exchange or substitution for or upon
registration of transfer of any Notes, such successor Person, at the option of
the Holders but without expense to them, shall provide for the exchange of all
Notes at the time Outstanding for Notes authenticated and delivered in such new
name.
SECTION 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Notes which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as conclusively evidenced by their execution
of such Notes.
If temporary Notes are issued, the Company will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes, upon
surrender of the temporary Notes at the office or agency of the Company in a
Place of Payment, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Notes, the Company shall execute and, upon Company
Order, the Trustee shall authenticate and make available for delivery in
exchange therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for the Notes (the register maintained in the Corporate
Trust Office of the Trustee and in any other office or agency of the Company in
a Place of Payment being herein sometimes collectively referred to as the "Note
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Notes and of transfers of
Notes. The Note Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, the Note Register shall be open to inspection by the Trustee. The
Trustee is hereby initially appointed as note registrar (the Trustee in such
capacity, together with any successor Trustee in such capacity, the "Note
Registrar") for the purpose of registering Notes and transfers of Notes as
herein provided.
Upon surrender for registration of transfer of any Note at the office
or agency in a Place of Payment, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, in the name of the
designated transferee, one or more new Notes, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Notes may be exchanged for other Notes,
of any authorized denomination and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Notes which the
Holder making the exchange is entitled to receive; provided that no exchange of
Initial Notes for Exchange Notes shall occur until an Exchange Offer
Registration Statement shall have been declared effective by the Commission, the
Trustee shall have received an Officers' Certificate confirming that the
Exchange Offer Registration Statement has been declared effective by the
Commission and the Initial Notes to be exchanged for the Exchange Notes shall be
cancelled by the Trustee.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Note Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Note Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 304, 906, 1014, 1015 or 1108 not involving any transfer.
The Company shall not be required to issue, register the transfer of
or exchange any Note which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Note not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and make available for delivery in
exchange therefor a new Note of like tenor and principal amount and bearing a
number not contemporaneously outstanding, or, in case any such mutilated Note
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Note, pay such Note.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and upon Company Order the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Note, a new Note of like tenor and principal amount and bearing a
number not contemporaneously outstanding, or, in case any such destroyed, lost
or stolen Note has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note, shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest at the Place of Payment;
provided, however, that each installment of interest on any Note may at the
Company's option be paid (i) by mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 308,
to the address of such Person as it appears on the Note Register or (ii) by wire
transfer to an account located in the United States maintained by the payee.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such defaulted interest and, if applicable, interest on
such defaulted interest (to the extent lawful) at the rate specified in the
Notes (such defaulted interest and, if applicable, interest thereon herein
collectively called "Defaulted Interest") may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Note and the date
of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given in the manner provided in
Section 106, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so given, such Defaulted Interest shall be
paid to the Persons in whose name the Registered Notes (or their respective
Predecessor Notes) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted Interest on the
Notes in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer, the
Company, any Guarantor, the Trustee and any agent of the Company, any Guarantor
or the Trustee may treat the Person in whose name such Note is registered as the
owner of such Note for the purpose of receiving payment of principal of (and
premium, if any, on) and (subject to Sections 305 and 307) interest on such Note
and for all other purposes whatsoever, whether or not such Note be overdue, and
none of the Company, any Guarantor, the Trustee or any agent of the Company, any
Guarantor or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Notes surrendered for payment, repayment at the option of the
Holder, registration of transfer or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Notes so delivered to
the Trustee shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Notes previously authenticated hereunder
which the Company has not issued and sold, and all Notes so delivered shall be
promptly cancelled by the Trustee. If the Company shall so acquire any of the
Notes, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled
Notes held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures unless by Company Order the Company shall direct that
cancelled Notes be returned to it.
SECTION 310. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
SECTION 311. Book-Entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in the name of
the Depositary for such Global Notes or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) bear legends
as set forth in Section 203.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note, and the
Depositary may be treated by the Company, the Guarantors, the Trustee and any
agent of the Company, the Guarantors or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Guarantors, the Trustee or any
agent of the Company, the Guarantors or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a beneficial owner
of any Note. The registered holder of a Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
(b) Interests of beneficial owners in a Global Note may be transferred
in accordance with the applicable rules and procedures of the Depositary and the
provisions of Section 312. Transfers of a Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees, except (i) as otherwise set forth in
Section 312 and (ii) U.S. Physical Notes or Offshore Physical Notes shall be
transferred to all beneficial owners in exchange for their beneficial interests
in the U.S. Global Note or the Offshore Global Note, respectively, in the event
that the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the applicable Global Note or the Depositary ceases
to be a "Clearing Agency" registered under the Exchange Act and a successor
depositary is not appointed by the Company within 90 days. In connection with a
transfer of an entire Global Note to beneficial owners pursuant to clause (ii)
of this paragraph (b), the applicable Global Note shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and
the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in the applicable
Global Note, an equal aggregate principal amount at maturity of U.S. Physical
Notes (in the case of the U.S. Global Note) or Offshore Physical Notes (in the
case of the Offshore Global Note), as the case may be, of authorized
denominations.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(d) Any U.S. Physical Note delivered in exchange for an interest in
the U.S. Global Note pursuant to paragraph (b) of this Section shall, unless
such exchange is made on or after the Resale Restriction Termination Date and
except as otherwise provided in Section 312, bear the Private Placement Legend.
SECTION 312. Transfer Provisions.
Unless and until (i) an Initial Note is sold pursuant to an effective
Registration Statement, or (ii) an Initial Note is exchanged for an Exchange
Note in the Exchange Offer pursuant to an effective Registration Statement, in
each case, pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) General. The provisions of this Section 312 shall apply to all
transfers involving any Physical Note and any beneficial interest in any Global
Note.
(b) Certain Definitions. As used in this Section 312 only, "delivery"
of a certificate by a transferee or transferor means the delivery to the Note
Registrar by such transferee or transferor of the applicable certificate duly
completed; "holding" includes both possession of a Physical Note and ownership
of a beneficial interest in a Global Note, as the context requires;
"transferring" a Global Note means transferring that portion of the principal
amount of the transferor's beneficial interest therein that the transferor has
notified the Note Registrar that it has agreed to transfer; and "transferring" a
Physical Note means transferring that portion of the principal amount thereof
that the transferor has notified the Note Registrar that it has agreed to
transfer.
As used in this Indenture, "Accredited Investor Certificate" means a
certificate substantially in the form set forth in Section 313; "Regulation S
Certificate" means a certificate substantially in the form set forth in Section
314; "Rule 144A Certificate" means a certificate substantially in the form set
forth in Section 315; and "Non-Registration Opinion and Supporting Evidence"
means a written opinion of counsel reasonably acceptable to the Company to the
effect that, and such other certification or information as the Company may
reasonably require to confirm that, the proposed transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
(c) [Intentionally Omitted]
(d) Deemed Delivery of a Rule 144A Certificate in Certain
Circumstances. A Rule 144A Certificate, if not actually delivered, will be
deemed delivered if (A) (i) the transferor advises the Company and the Trustee
in writing that the relevant offer and sale were made in accordance with the
provisions of Rule 144A (or, in the case of a transfer of a Physical Note, the
transferor checks the box provided on the Physical Note to that effect) and (ii)
the transferee advises the Company and the Trustee in writing that (x) it and,
if applicable, each account for which it is acting in connection with the
relevant transfer, is a qualified institutional buyer within the meaning of Rule
144A, (y) it is aware that the transfer of Notes to it is being made in reliance
on the exemption from the provisions of Section 5 of the Securities Act provided
by Rule 144A, and (z) prior to the proposed date of transfer it has been given
the opportunity to obtain from the Company the information referred to in Rule
144A(d)(4), and has either declined such opportunity or has received such
information (or, in the case of a transfer of a Physical Note, the transferee
signs the certification provided on the Physical Note to that effect); or (B)
the transferor holds the U.S. Global Note and is transferring to a transferee
that will take delivery in the form of the U.S. Global Note.
(e) Procedures and Requirements.
1. If the proposed transfer occurs prior to the Offshore Note Exchange
Date, and the proposed transferor holds:
(A) a U.S. Physical Note which is surrendered to the Note Registrar,
and the proposed transferee or transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if required
by the Company, a Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to clause (d) above)
a Rule 144A Certificate and the proposed transferee requests delivery
in the form of a U.S. Physical Note, then the Note Registrar shall (x)
register such transfer in the name of such transferee and record the
date thereof in its books and records, (y) cancel such surrendered
U.S. Physical Note and (z) deliver a new U.S. Physical Note to such
transferee duly registered in the name of such transferee in principal
amount equal to the principal amount being transferred of such
surrendered U.S. Physical Note;
(ii) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests that the proposed
transferee receive a beneficial interest in the U.S. Global Note, then
the Note Registrar shall (x) cancel such surrendered U.S. Physical
Note, (y) record an increase in the principal amount of the U.S.
Global Note equal to the principal amount being transferred of such
surrendered U.S. Physical Note and (z) notify the Depositary in
accordance with the procedures of the Depositary that it approves of
such transfer; or
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the Offshore
Global Note, then the Note Registrar shall (x) cancel such surrendered
U.S. Physical Note, (y) record an increase in the principal amount of
the Offshore Global Note equal to the principal amount being
transferred of such surrendered U.S. Physical Note and (z) notify the
Depositary in accordance with the procedures of the Depositary that it
approves of such transfer.
In any of the cases described in this Section 312(e)(1)(A), the Note
Registrar shall deliver to the transferor a new U.S. Physical Note in
principal amount equal to the principal amount not being transferred of
such surrendered U.S. Physical Note, as applicable.
(B) the U.S. Global Note, and the proposed transferee or transferor,
as applicable:
(i) delivers an Accredited Investor Certificate and, if required
by the Company, a Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to clause (d) above)
a Rule 144A Certificate and the proposed transferee requests delivery
in the form of a U.S. Physical Note, then the Note Registrar shall (w)
register such transfer in the name of such transferee and record the
date thereof in its books and records, (x) record a decrease in the
principal amount of the U.S. Global Note in an amount equal to the
beneficial interest therein being transferred, (y) deliver a new U.S.
Physical Note to such transferee duly registered in the name of such
transferee in principal amount equal to the amount of such decrease
and (z) notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer;
(ii) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests that the proposed
transferee receive a beneficial interest in the U.S. Global Note, then
the transfer shall be effected in accordance with the procedures of
the Depositary therefor; or
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the Offshore
Global Note, then the Note Registrar shall (w) register such transfer
in the name of such transferee and record the date thereof in its
books and records, (x) record a decrease in the principal amount of
the U.S. Global Note in an amount equal to the beneficial interest
therein being transferred, (y) record an increase in the principal
amount of the Offshore Global Note equal to the amount of such
decrease and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer.
(C) the Offshore Global Note, and the proposed transferee or
transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if required
by the Company, a Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to clause (d) above)
a Rule 144A Certificate and the proposed transferee requests delivery
in the form of a U.S. Physical Note, then the Note Registrar shall (w)
register such transfer in the name of such transferee and record the
date thereof in its books and records, (x) record a decrease in the
principal amount of the Offshore Global Note in an amount equal to the
beneficial interest therein being transferred, (y) deliver a new U.S.
Physical Note to such transferee duly registered in the name of such
transferee in principal amount equal to the amount of such decrease
and (z) notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer;
(ii) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests that the proposed
transferee receive a beneficial interest in the U.S. Global Note, then
the Note Registrar shall (x) record a decrease in the principal amount
of the Offshore Global Note in an amount equal to the beneficial
interest therein being transferred, (y) record an increase in the
principal amount of the U.S. Global Note equal to the amount of such
decrease and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer; or
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the Offshore
Global Note, then the transfer shall be effected in accordance with
the procedures of the Depositary therefor; provided, however, that
until the Offshore Note Exchange Date occurs, beneficial interests in
the Offshore Global Note may be held only in or through accounts
maintained at the Depositary by Euroclear or Cedel (or by Agent
Members acting for the account thereof), and no person shall be
entitled to effect any transfer or exchange that would result in any
such interest being held otherwise than in or through such an account.
2. If the proposed transfer occurs on or after the Offshore Notes
Exchange Date and the proposed transferor holds:
(A) a U.S. Physical Note which is surrendered to the Note Registrar,
and the proposed transferee or transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if required
by the Company, a Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to clause (d) above)
a Rule 144A Certificate and the proposed transferee requests delivery
in the form of a U.S. Physical Note, then the procedures set forth in
Section 312(e)(1)(A)(i) shall apply;
(ii) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests that the proposed
transferee receive a beneficial interest in the Offshore Global Note,
then the procedures set forth in Section 312(e)(1)(A)(ii) shall apply;
or
(iii) delivers a Regulation S Certificate, then the Note
Registrar shall cancel such surrendered U.S. Physical Note and at the
direction of the transferee, either:
(x) register such transfer in the name of such transferee,
record the date thereof in its books and records and deliver a
new Offshore Physical Note to such transferee in principal amount
equal to the principal amount being transferred of such
surrendered U.S. Physical Note, or
(y) if the proposed transferee is or is acting through an
Agent Member, record an increase in the principal amount of the
Offshore Global Note equal to the principal amount being
transferred of such surrendered U.S. Physical Note and notify the
Depositary in accordance with the procedures of the Depositary
that it approves of such transfer.
In any of the cases described in this Section 312(e)(2)(A)(i), (ii) or
(iii)(x), the Note Registrar shall deliver to the transferor a new U.S.
Physical Note in principal amount equal to the principal amount not being
transferred of such surrendered U.S. Physical Note, as applicable.
(B) the U.S. Global Note, and the proposed transferee or transferor,
as applicable:
(i) delivers an Accredited Investor Certificate and, if required
by the Company, a Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to clause (d) above)
a Rule 144A Certificate and the proposed transferee requests delivery
in the form of a U.S. Physical Note, then the procedures set forth in
Section 312(e)(1)(B)(i) shall apply; or
(ii) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests that the proposed
transferee receive a beneficial interest in the U.S. Global Note, then
the procedures set forth in Section 312(e)(1)(B)(ii) shall apply; or
(iii) delivers a Regulation S Certificate, then the Note
Registrar shall (x) record a decrease in the principal amount of the
U.S. Global Note in an amount equal to the beneficial interest therein
being transferred, (y) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer and (z)
at the direction of the transferee, either:
(x) register such transfer in the name of such transferee,
record the date thereof in its books and records and deliver a
new Offshore Physical Note to such transferee in principal amount
equal to the amount of such decrease, or
(y) if the proposed transferee is or is acting through an
Agent Member, record an increase in the principal amount of the
Offshore Global Note equal to the amount of such decrease.
(C) an Offshore Physical Note which is surrendered to the Note
Registrar, and the proposed transferee or transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests delivery in the form of
the U.S. Global Note, then the Note Registrar shall (x) cancel such
surrendered Offshore Physical Note, (y) record an increase in the
principal amount of the U.S. Global Note equal to the principal amount
being transferred of such surrendered Offshore Physical Note and (z)
notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer;
(ii) where the proposed transferee is or is acting through an
Agent Member, requests that the proposed transferee receive a
beneficial interest in the Offshore Global Note, then the Note
Registrar shall (x) cancel such surrendered Offshore Physical Note,
(y) record an increase in the principal amount of the Offshore Global
Note equal to the principal amount being transferred of such
surrendered Offshore Physical Note and (z) notify the Depositary in
accordance with the procedures of the Depositary that it approves of
such transfer; or
(iii) does not make a request covered by Section 312(e)(2)(C)(i)
or Section 312(e)(2)(C)(ii), then the Note Registrar shall (x)
register such transfer in the name of such transferee and record the
date thereof in its books and records, (y) cancel such surrendered
Offshore Physical Note and (z) deliver a new Offshore Physical Note to
such transferee duly registered in the name of such transferee in
principal amount equal to the principal amount being transferred of
such surrendered Offshore Physical Note.
In any of the cases described in this Section 312(e)(2)(C), the Note
Registrar shall deliver to the transferor a new U.S. Physical Note in principal
amount equal to the principal amount not being transferred of such surrendered
U.S. Physical Note, as applicable.
(D) the Offshore Global Note, and the proposed transferee or
transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is
or is acting through an Agent Member and requests delivery in the
form of the U.S. Global Note, then the Note Registrar shall (x)
record a decrease in the principal amount of the Offshore Global
Note in an amount equal to the beneficial interest therein being
transferred, (y) record an increase in the principal amount of
the U.S. Global Note equal to the amount of such decrease and (z)
notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer;
(ii) where the proposed transferee is or is acting through an
Agent Member, requests that the proposed transferee receive a
beneficial interest in the Offshore Global Note, then the
transfer shall be effected in accordance with the procedures of
the Depositary therefor; or
(iii) does not make a request covered by Section 312(e)(2)(D)(i)
or Section 312(e)(2)(D)(ii), then the Note Registrar shall (w)
register such transfer in the name of such transferee and record
the date thereof in its books and records, (x) record a decrease
in the principal amount of the Offshore Global Note in an amount
equal to the beneficial interest therein being transferred, (y)
deliver a new Offshore Physical Note to such transferee duly
registered in the name of such transferee in principal amount
equal to the amount of such decrease and (z) notify the
Depositary in accordance with the procedures of the Depositary
that it approves of such transfer.
(f) Execution, Authentication and Delivery of Physical Notes. In any
case in which the Note Registrar is required to deliver a Physical Note to a
transferee or transferor, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, such Physical Note.
(g) Certain Additional Terms Applicable to Physical Notes. Any
transferee entitled to receive a Physical Note may request that the principal
amount thereof be evidenced by one or more Physical Notes in any authorized
denomination or denominations and the Note Registrar shall comply with such
request if all other transfer restrictions are satisfied.
(h) Transfers Not Covered by Section 312(e). The Note Registrar shall
effect and record, upon receipt of a written request from the Company so to do,
a transfer not otherwise permitted by Section 312(e), such recording to be done
in accordance with the otherwise applicable provisions of Section 312(e), upon
the furnishing by the proposed transferor or transferee of a Non-Registration
Opinion and Supporting Evidence.
(i) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in the
Indenture. The Note Registrar shall not register a transfer of any Note unless
such transfer complies with the restrictions with respect thereto set forth in
this Indenture. The Note Registrar shall not be required to determine (but may
rely upon a determination made by the Company) the sufficiency of any such
certifications, legal opinions or other information.
(j) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Note
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Note Registrar shall deliver only Notes that bear the
Private Placement Legend unless (i) the circumstances exist contemplated by the
fourth paragraph of Section 201 (with respect to an Offshore Physical Note) or
the requested transfer is at least two years after the original issue date of
the Initial Note (with respect to any Physical Note), (ii) there is delivered to
the Note Registrar 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 (iii) such Notes are exchanged for Exchange
Notes pursuant to an Exchange Offer.
SECTION 313. Form of Accredited Investor Certificate.
Transferee Letter of Representation
The Bank of New York,
as Trustee
101 Barclay Street, 21W
New York, New York 10286
Ladies and Gentlemen:
In connection with our proposed purchase of $_______ aggregate
principal amount of the 8-3/8% Senior Notes due 2005 (the "Notes") of Nine West
Group Inc. (the "Company"), we confirm that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of
1933, as amended (the "Securities Act")) purchasing for our own account or
for the account of such an institutional "accredited investor," and we are
acquiring the Notes for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of the
Securities Act or other applicable securities law and we have such
knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we
and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
2. We understand and acknowledge that the Notes have not been
registered under the Securities Act, or any other applicable securities law
and may not be offered, sold or otherwise transferred except in compliance
with the registration requirements of the Securities Act or any other
applicable securities law, or pursuant to an exemption therefrom, and in
each case in compliance with the conditions for transfer set forth below.
We agree on our own behalf and on behalf of any investor account for which
we are purchasing Notes to offer, sell or otherwise transfer such Notes
prior to the date which is two years after the later of the date of
original issue and the last date on which the Company or any affiliate of
the Company was the owner of such Notes (or any predecessor thereto) (the
"Resale Restriction Termination Date") only (a) to the Company or any
affiliate of the Company, (b) pursuant to a registration statement which
has been declared effective under the Securities Act, (c) for so long as
the Notes are eligible for resale pursuant to Rule 144A under the
Securities Act ("Rule 144A"), to a person we reasonably believe is a
"Qualified Institutional Buyer" within the meaning of Rule 144A (a "QIB")
that purchases for its own account or for the account of a QIB and to whom
notice is given that the transfer is being made in reliance on Rule 144A,
(d) pursuant to offers and sales to non-U.S. persons that occur outside the
United States within the meaning of Regulation S under the Securities Act,
(e) to an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501 under the
Securities Act that is acquiring the Notes for its own account or for the
account of such an institutional "accredited investor" for investment
purposes and not with a view to, or for offer or sale in connection with,
any distribution in violation of the Securities Act or (f) pursuant to any
other available exemption from the registration requirements of the
Securities Act, subject in each of the foregoing cases to any requirement
of law that the disposition of our property or the property of such
investor account or accounts be at all times within our or their control
and to compliance with any applicable state securities laws. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Notes is proposed
to be made pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver to the trustee (the
"Trustee") under the Indenture pursuant to which the Notes are issued a
letter from the transferee substantially in the form of this letter, which
shall provide, among other things, that the transferee is a person or
entity as defined in paragraph 1 of this letter and that it is acquiring
such Notes for investment purposes and not for distribution in violation of
the Securities Act. We acknowledge that the Company and the Trustee
reserve the right prior to any offer, sale or other transfer of the Notes
pursuant to clauses (d), (e) and (f) above prior to the Resale Restriction
Termination Date to require the delivery of an opinion of counsel,
certifications and/or other information satisfactory to the Company and the
Trustee.
3. We are acquiring the Notes purchased by us for our own account or
for one or more accounts as to each of which we exercise sole investment
discretion.
4. 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.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
(Name of Purchaser)
By:
-----------------------------
Date:
---------------------------
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
By:
--------------------
Date:
------------------
SECTION 314. Form of Regulation S Certificate.
Regulation S Certificate
To: The Bank of New York,
as Trustee (the "Trustee")
101 Barclay Street, 21W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: Nine West Group Inc. (the "Company")
8-3/8% Senior Notes due 2005 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $____ aggregate principal
amount of Notes, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S ("Regulation S") under the Securities Act of 1933,
as amended (the "Securities Act"), and accordingly, we hereby certify as
follows:
1. The offer of the Notes was not made to a person in the United
States (unless such person or the account held by it for which it is acting
is excluded from the definition of "U.S. person" pursuant to Rule 902(o) of
Regulation S under the circumstances described in Rule 902(i)(3) of
Regulation S) or specifically targeted at an identifiable group of U.S.
citizens abroad.
2. Either (a) at the time the buy order was originated, the buyer was
outside the United States or we and any person acting on our behalf
reasonably believed that the buyer was outside the United States or (b) the
transaction was executed in, on or through the facilities of a designated
offshore securities market, and neither we nor any person acting on our
behalf knows that the transaction was pre-arranged with a buyer in the
United States.
3. Neither we, any of our affiliates, nor any person acting on our or
their behalf has made any directed selling efforts in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable.
4. The proposed transfer of Notes is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling concession or
other fee or remuneration in respect of the Notes, and the proposed
transfer takes place before the Offshore Note Exchange Date referred to in
the Indentures, each dated as of July 9, 1997, among the Company, the
guarantors thereunder and the Trustee, or we are an officer or director of
the Company or a distributor, we certify that the proposed transfer is
being made in accordance with the provisions of Rules 903 and 904(c) of
Regulation S.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[NAME OF SELLER]
By:
-----------------------
Name:
Title:
Address:
Date of this Certificate: __________ __, 199_
SECTION 315. Form of Rule 144A Certificate.
Rule 144A Certificate
To: The Bank of New York,
as Trustee (the "Trustee")
101 Barclay Street, 21W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: Nine West Group Inc. (the "Company")
8-3/8% Senior Notes due 2005 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $____ aggregate principal
amount of Notes, we confirm that such sale has been effected pursuant to and in
accordance with Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act"). We are aware that the transfer of Notes to us
is being made in reliance on the exemption from the provisions of Section 5 of
the Securities Act provided by Rule 144A. Prior to the date of this Certificate
we have been given the opportunity to obtain from the Company the information
referred to in Rule 144A(d)(4), and have either declined such opportunity or
have received such information.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate 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 PURCHASER]
By:
----------------------
Name:
Title:
Address:
Date of this Certificate: __________ __, 199_
SECTION 316. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
to Holders as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice and that reliance may be
placed only on the other identification numbers printed on the Notes. The
Company will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further
effect with respect to Notes (except as to any surviving rights of registration
of transfer or exchange of Notes expressly provided for) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture when
(1) either
(A) all Notes theretofore authenticated and delivered (other than
(i) Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306, and (ii) Notes for
whose payment money has theretofore been deposited in trust with the
Trustee or any Paying Agent or segregated and held in trust by the
Company and thereafter repaid to the Company, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) all Notes and, in the case of (i) or (ii) below, not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year,
and the Company or any Guarantor, in the case of (i) or (ii) above,
has irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose an amount sufficient to pay
and discharge the entire indebtedness on such Notes not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest to the date of such deposit (in the case of Notes
which have become due and payable) or to the Stated Maturity, as the
case may be;
(2) the Company or any Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company or any Guarantor; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations of
the Company to any Authenticating Agent under Section 611 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest on any Note when such
interest becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Note at its Maturity (upon acceleration, required purchase or
otherwise); or
(3) default in the performance, or breach, of the provisions of
Article Eight, the failure to make or consummate a Change of Control Offer
in accordance with Section 1014 or the failure to make or consummate an
Excess Proceeds Offer in accordance with Section 1015; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company or any Guarantor contained in this Indenture (other than a
default in the performance, or breach of a covenant or warranty which is
specifically dealt with elsewhere in this Section), and continuance of such
default or breach for a period of 45 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of all Outstanding Notes a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) (a) one or more defaults in the payment of principal of (or
premium, if any, on) Indebtedness of the Company or any Restricted
Subsidiary aggregating $25,000,000 or more, when the same becomes due and
payable at the stated maturity thereof, and such default or defaults shall
have continued after any applicable grace period and shall not have been
cured or waived or (b) Indebtedness of the Company or any Restricted
Subsidiary aggregating $25,000,000 or more shall have been accelerated or
otherwise declared due and payable, or required to be prepaid or
repurchased (other than by regularly scheduled required prepayment) prior
to the stated maturity thereof; or
(6) one or more final judgments or orders rendered against the Company
or any Restricted Subsidiary which require the payment in money, either
individually or in an aggregate amount, in excess of $25,000,000 and shall
not be discharged and either (a) an enforcement proceeding shall have been
commenced by any creditor upon such judgment or order or (b) there shall
have been a period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, was not in effect; or
(7) any Guarantee ceases to be in full force and effect or is declared
null and void or any Guarantor denies that it has any further liability
under any Guarantee or gives notice to such effect (other than by reason of
the termination of this Indenture or the release of any such Guarantee in
accordance with this Indenture); or
(8) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company or any Significant Subsidiary a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any Significant Subsidiary under a Bankruptcy Law or any
other applicable federal or state law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Company or any Significant Subsidiary or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(9) the institution by the Company or any Significant Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by it
to the institution of bankruptcy or insolvency proceedings against it, or
the filing by it of a petition or answer or consent seeking reorganization
or relief under a Bankruptcy Law or any other applicable federal or state
law, or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or any Significant Subsidiary or of
any substantial part of its property, or the making by it of a general
assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
clause (8) or (9) of Section 501) occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Notes by written notice to the Company (and to the
Trustee if such notice is given by the Holders), may, and the Trustee upon the
written request of such Holders shall, declare the principal of, premium, if
any, and accrued interest on all of the Outstanding Notes to be due and payable
immediately, and upon any such declaration all such amounts payable shall become
immediately due and payable. If an Event of Default described in clause (8) or
(9) of Section 501 occurs and is continuing, then the principal of, premium, if
any, and accrued interest on all the Outstanding Notes 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.
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Outstanding Notes, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Outstanding Notes,
(B) all unpaid principal of (and premium, if any, on) any
Outstanding Notes that has become due otherwise than by such
declaration of acceleration together with interest on such unpaid
principal at the rate borne by such Notes,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest and overdue principal at the rate or
rates borne by such Notes, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of amounts of
principal of (or premium, if any, on) or interest on Notes which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Notes because of an Event of Default specified
in Section 501(5) shall have occurred and be continuing, such Event of Default
and all consequences thereof (including, without limitation, any acceleration or
resulting payment default) shall be automatically annulled, waived and rescinded
if the Indebtedness that is the subject of such Event of Default has been
discharged or the holders thereof have rescinded their declaration of
acceleration in respect of such Indebtedness or the default that is the basis
for such Event of Default has been cured, and written notice of such discharge
or rescission or cure, as the case may be, shall have been given to the Trustee
by the Company and countersigned by the holders of such Indebtedness or a
trustee, fiduciary or agent for such holders, within 30 days after such
declaration of acceleration in respect of the Notes, and no other Event of
Default has occurred during such 30-day period which has not been cured or
waived during such period.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Note when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Note at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Notes, the whole amount then due and payable on
such Notes for principal (and premium, if any) and interest, and interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of
interest, at the rate borne by such Notes, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any Guarantor (in accordance with the applicable
Guarantee) or any other obligor upon such Notes and collect the moneys adjudged
or decreed to be payable in the manner provided by law out of the property of
the Company, any Guarantor or any other obligor upon such Notes, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor, including any
Guarantor, upon the Notes or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal, premium, if any,
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
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 Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture, the Notes or the
Guarantees may be prosecuted and enforced by the Trustee without the possession
of any of the Notes or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Notes and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
606;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest on the Notes in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Notes for principal (and premium, if any)
and interest, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto, including the Company or any other obligor on the Notes, as their
interests may appear or as a court of competent jurisdiction may direct.
SECTION 507. Limitation on Suits.
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Notes shall have made a written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture, any Note or any Guarantee to affect, disturb or prejudice the
rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, any Note or any Guarantee, except in the manner herein provided and
for the equal and ratable benefit of all Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article Eleven) of the
principal of (and premium, if any, on) and (subject to Section 307) interest on,
such Note on the respective Stated Maturities expressed in such Note and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders of
Notes shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders of Notes is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Notes shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) subject to Section 315 of the Trust Indenture Act, the Trustee may
take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of Notes not
consenting.
SECTION 513. Waiver of Past Defaults.
Subject to Section 902 and the last paragraph of Section 502, the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Notes may on behalf of the Holders of all the Notes waive any past
default hereunder and its consequences under this Indenture or any Guarantee,
except a default
(1) in respect of the payment of the principal of (or premium, if any,
on) or interest on any Note, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Note affected.
Upon any such waiver, any such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture and the Guarantees; but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
Each of the Company, the Guarantors and any other obligor on the Notes
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and each of the Company, the Guarantors and any other obligor
on the Notes (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within five days after the earlier of receipt from the Company of
notice of the occurrence of any Default or Event of Default hereunder or the
date when such Default or Event of Default becomes known to the Trustee, the
Trustee shall transmit, in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee, unless such
Default shall have been cured or waived; provided, however, that, except in the
case of a Default in the payment of the principal of (or premium, if any, on) or
interest on any Note, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the Holders;
and provided further that in the case of any Default of the character specified
in Section 501(4) with respect to Notes, no such notice to Holders shall be
given until at least 45 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d)
(determined as if the TIA were applicable to this Indenture at all times):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Notes pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture; and
(9) the Trustee shall not be deemed to have notice of any Event of
Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture.
The Trustee shall not be required 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.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Notes.
The recitals contained herein and in the Notes, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Notes, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Notes and perform its obligations hereunder and that
the statements made by it in its Statement of Eligibility on Form T-1 supplied
to the Company are true and accurate, subject to the qualifications set forth
therein. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Notes or the proceeds thereof.
SECTION 604. May Hold Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any Note
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Notes and, subject to
TIA Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Note Registrar or such other agent.
SECTION 605. Money Held in Trust.
All money received by the Trustee shall, until used or applied as
herein provided, be held in trust hereunder for the purposes for which they were
received. Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee and
its agents for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts 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 obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the Notes
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any, on) or
interest on particular Notes.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(8) or Section 501(9), the
expenses (including the reasonable charges and expenses of its counsel) of and
the compensation of the Trustee for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and 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, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Notes by
giving written notice thereof to the Company. If the instrument of acceptance
by a successor Trustee required by Section 609 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Notes.
(c) The Trustee may be removed at any time with respect to the Notes
by Act of the Holders of not less than a majority in principal amount of the
Outstanding Notes, delivered to the Trustee and to the Company. If the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the Trustee being removed may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Notes.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Note for at least six months,
or
(2) the Trustee shall cease to be eligible under Section 607 and shall
fail to resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Note for at least six months,
or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Notes, or (ii) subject to TIA Section 315(e), any
Holder who has been a bona fide Holder of a Note for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all Notes
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Notes, the Company, by a Board Resolution, shall promptly appoint
a successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Notes shall be appointed by Act of the Holders of a majority in
aggregate principal amount of the Outstanding Notes delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Trustee with respect to
the Notes and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Notes shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Note for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Notes.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Notes and each appointment of a successor
Trustee with respect to the Notes to the Holders of Notes in the manner provided
for in Section 106. Each notice shall include the name of the successor Trustee
with respect to the Notes and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) Each successor Trustee shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless at the
time of such acceptance, such successor Trustee shall be qualified and eligible
under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes. In case at that
time any of the Notes shall not have been authenticated, any successor Trustee
may authenticate such Notes either in the name of any predecessor hereunder or
in the name of the successor Trustee. In all such cases such certificates shall
have the full force which it is anywhere in the Notes or in this Indenture,
provided that the certificate of authentication the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Notes remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents with respect to the Notes which shall
be authorized to act on behalf of the Trustee to authenticate Notes and the
Trustee shall give written notice of such appointment to all Holders of Notes
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Notes so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Notes by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such 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 an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of Notes, in the manner provided for in Section
106. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time such compensation for its services under this Section as shall be agreed in
writing between the Company and such Authenticating Agent.
If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Notes designated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
-----------------------
as Authenticating Agent
By
-----------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Notes, by receiving and holding the same, agrees with
the Company and the Trustee that none of the Company or the Trustee or any agent
of either of them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders in accordance with
TIA Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Notes pursuant to this Indenture, the Trustee
shall transmit to the Holders of Notes (with a copy to the Company at the Place
of Payment), in the manner and to the extent provided in TIA Section 313(c), a
brief report dated as of such May 15 if required by TIA Section 313(a).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not, in a single transaction or a series of
transactions, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease or otherwise dispose of its properties and
assets to any Person or Persons, and the Company will not permit any Restricted
Subsidiary 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 and its Restricted
Subsidiaries, to any Person or Persons, unless:
(a) either (1) the Company shall be the continuing corporation or (2)
the Person (if other than the Company) formed by such consolidation or into
which the Company or such Restricted Subsidiary is merged or the Person
which acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of the
Company or such Restricted Subsidiary, as the case may be, (i) shall be a
corporation duly organized and validly existing under the laws of the
United States or any state thereof or the District of Columbia and (ii)
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on
all the Notes and the performance and observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(b) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (and treating
any obligation of the Company or any Restricted Subsidiary incurred in
connection with or as a result of such transaction or series of
transactions as having been incurred at the time of such transaction), no
Default or Event of Default shall have occurred and be continuing;
(c) subject to Section 1020, immediately before and immediately after
giving effect to any such transaction or series of transactions on a pro
forma basis (on the assumption that the transaction or series of
transactions occurred on the first day of the four-quarter period
immediately prior to the consummation of such transaction or series of
transactions with the appropriate adjustments with respect to the
transaction or series of transactions being included in such pro forma
calculations), the Company (in the case of clause (1) of Subsection (a)
above) or such Person (in the case of clause (2) of Subsection (a) above),
could incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 1008;
(d) each Guarantor, if any, unless it is the other party to the
transactions described above, shall have by supplemental indenture
confirmed that its Guarantee will apply to such Person's obligations
hereunder and under the Notes;
(e) if any of the property or assets of the Company or any of its
Restricted Subsidiaries would thereupon become subject to any Lien, the
provisions of Section 1012 are complied with; and
(f) the Company or such Person shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Section 801 and
that all conditions precedent herein provided for relating to such
transaction have been satisfied.
SECTION 802. Guarantors May Consolidate, etc., Only on Certain Terms.
Each Guarantor, if any (other than any Restricted Subsidiary whose
Guarantee is being released pursuant to the provisions of Section 1308 as a
result of such transaction), shall not, and the Company shall not permit a
Guarantor to, in a single transaction or a series of transactions, consolidate
with or merge with or into any other Person or sell, assign, convey, transfer,
lease or otherwise dispose of its properties and assets to any Person or Persons
(other than the Company or any Guarantor) 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 such Guarantor and its Restricted Subsidiaries on a
consolidated basis, to any Person or Persons (other than the Company or any
Guarantor), unless at the time and after giving effect thereto:
(a) either (1) such Guarantor shall be the continuing corporation or
(2) the Person (if other than such Guarantor) formed by such consolidation
or into which such Guarantor or such Restricted Subsidiary is merged or the
Person which acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of such
Guarantor and its Restricted Subsidiaries on a consolidated basis, (i)
shall be a corporation duly organized and validly existing under the laws
of the United States or any state thereof or the District of Columbia or
the laws of the jurisdiction in which such Guarantor was organized and (ii)
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on
all the Notes and the performance and observance of every covenant of this
Indenture on the part of such Guarantor to be performed or observed;
(b) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (and treating
any obligation of the Company, such Guarantor or any Restricted Subsidiary
incurred in connection with or as a result of such transaction or series of
transactions as having been incurred at the time of such transaction), no
Default or Event of Default shall have occurred and be continuing; and
(c) such Guarantor or such Person shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Section 802 and
that all conditions precedent herein provided for relating to such
transaction have been satisfied.
SECTION 803. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
properties and assets of the Company or any Guarantor in accordance with
Sections 801 and 802, the successor Person formed by such consolidation or into
which the Company or such Guarantor, as the case may be, is merged or the
successor Person to which such sale, assignment, conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company or such Guarantor, as the case may be, under this
Indenture or the Guarantee, as the case may be, with the same effect as if such
successor had been named as the Company or the Guarantor, as the case may be,
herein or the Guarantee, as the case may be; and thereafter, except in the case
of a lease, the Company shall be discharged from all obligations and covenants
under the Indenture, the Note or the Guarantee, as the case may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company or any Guarantor, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, a
Guarantor or any other obligor on the Notes, and the assumption by any such
successor of the covenants of the Company or such Guarantor or obligor
contained herein and in the Notes and Guarantees in accordance with Article
Eight; or
(2) to add to the covenants of the Company, any Guarantor or any
other obligor on the Notes for the benefit of the Holders or to surrender
any right or power conferred upon the Company, or any Guarantor or any
other obligor on the Notes, herein and in the Notes or in any Guarantee; or
(3) to cure any ambiguity, to correct or supplement any provision
herein or in the Notes or in any Guarantee which may be defective or
inconsistent with any other provision herein or in the Notes or in any
Guarantee, or to make any other provisions with respect to matters or
questions arising under this Indenture, the Notes or any Guarantee;
provided that, in each case, such provisions shall not adversely affect the
interests of the Holders; or
(4) to comply with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the Trust
Indenture Act; or
(5) to add a Guarantor of the Notes under this Indenture; or
(6) to evidence and provide the acceptance of the appointment of a
successor Trustee under this Indenture; or
(7) to mortgage, pledge, hypothecate or grant a security interest in
favor of the Trustee for the benefit of the Holders as additional security
for the payment and performance of the Company's and any guarantor's
obligations under this Indenture, in any property, or assets, including any
of which are required to be mortgaged, pledged or hypothecated, or in which
a security interest is required to be granted, to the Trustee pursuant to
this Indenture or otherwise.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Notes that are affected thereby, by Act of
said Holders delivered to the Company, the Guarantors and the Trustee, the
Company and the Guarantors, when authorized by or pursuant to their respective
Board Resolutions, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Notes under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
purchase thereof, or change the coin or currency in which any Note or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment after the Stated
Maturity thereof, or
(2) amend, change or modify any of the provisions of Section 1014 or
Section 1015 including any definitions relating thereto, or
(3) reduce the percentage in principal amount of the Outstanding
Notes, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture, or
(4) modify any provisions of this Section, Section 1019 or Section
513, except to increase the percentage in principal amount of the
Outstanding Notes required to take any of the actions described therein or
to provide that certain additional provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Note affected thereby, or
(5) except as otherwise permitted under Article Eight, consent to the
assignment or transfer by the Company or any Guarantor of their rights or
obligations under this Indenture, or
(6) amend or modify any of the provisions of Article Thirteen in any
manner adverse to the Holders.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Note affected, in
the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest.
The Company covenants and agrees for the benefit of the Holders of
Notes that it will duly and punctually pay the principal of (and premium, if
any, on) and interest on the Notes in accordance with the terms of the Notes and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the City of New York an office or agency
where Notes may be presented or surrendered for payment (the "Place of
Payment"), where Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company hereby designates the
Corporate Trust Office as the Place of Payment.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of the Place of Payment. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind any such designation;
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
accordance with the requirements set forth above for Notes for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Notes Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to the Notes, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Notes, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Notes, it will, prior to or on each due date of the principal of (and premium,
if any, on) or interest on any Notes, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) and interest on the Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Notes) in the making of any payment of principal of
(or premium, if any) or interest on the Notes; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Note and remaining unclaimed for one year after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, the City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of the Company and each
Restricted Subsidiary; provided, however, that, subject to the other provisions
of this Indenture, the Company shall not be required to preserve any such right
or franchise, or the existence of any Restricted Subsidiary, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries as a whole
and that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 1005. 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 Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and (b)
all lawful claims for labor, materials and supplies, which, if unpaid, would by
law become a lien (other than a Permitted Lien) upon the property of the Company
or any Subsidiary; provided, however, that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 1006. Maintenance of Properties.
The Company will cause all material properties owned by the Company or
any Restricted Subsidiary or used or held for use in the conduct of its business
or the business of any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order (except ordinary wear and tear) and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company or any
of its Restricted Subsidiaries from discontinuing the maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Restricted Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 1007. Statement by Officers As to Default.
(a) The Company and each Guarantor will deliver to the Trustee,
within 50 days after the end of each fiscal quarter and within 120 days after
the end of each fiscal year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer of the
Company and each Guarantor as to his or her knowledge of the Company's or such
Guarantor's, as the case may be, compliance with all conditions and covenants
under this Indenture since the beginning of such quarter or such year, as the
case may be. For purposes of this Section 1007(a), such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
(b) When any Default has occurred and is continuing under this
Indenture, or if the trustee for or the holder of any other evidence of
Indebtedness of the Company or any Subsidiary gives any notice or takes any
other action with respect to a claimed default (other than with respect to
Indebtedness in the principal amount of less than US$10,000,000), the Company
shall deliver to the Trustee by registered or certified mail or by telegram,
telex or facsimile transmission an Officers' Certificate specifying such event,
notice or other action within five Business Days of its occurrence.
SECTION 1008. Limitation on Indebtedness.
The Company shall not, and shall not permit any Restricted Subsidiary
to, create, issue, assume, guarantee or in any manner become directly or
indirectly liable for the payment of, or otherwise incur (collectively,
"incur"), any Indebtedness (including any Acquired Indebtedness), other than
Permitted Indebtedness; provided, however, that (i) the Company and any
Guarantor may incur Indebtedness (including Acquired Indebtedness) and (ii) any
Restricted Subsidiary may incur Acquired Indebtedness (provided that such
Acquired Indebtedness was not incurred by the acquired Person or the Person from
whom the applicable assets were acquired, in connection with or in contemplation
of such acquisition by such Restricted Subsidiary) if, in either case, at the
time of such incurrence the Consolidated Fixed Charge Coverage Ratio for the
four full fiscal quarters immediately preceding the incurrence of such
Indebtedness, taken as one period (and after giving pro forma effect to (i) the
incurrence of such Indebtedness and (if applicable) the application of the net
proceeds therefrom, including to refinance other Indebtedness, as if such
Indebtedness was incurred, and the application of such proceeds occurred, on the
first day of such four-quarter period, (ii) the incurrence, repayment or
retirement of any other Indebtedness by the Company or its Restricted
Subsidiaries since the first day of such four-quarter period as if such
Indebtedness was incurred, repaid or retired on the first day of such four-
quarter period (except that, in making such computation, the amount of
Indebtedness under any revolving credit facility shall be computed based upon
the average daily balance of such Indebtedness during such four-quarter period)
and (iii) the acquisition (whether by purchase, merger or otherwise) or
disposition (whether by sale, merger or otherwise) of any company, entity or
business acquired or disposed of by the Company or its Restricted Subsidiaries,
as the case may be, since the first day of such four-quarter period, as if such
acquisition or disposition occurred on the first day of such four-quarter
period), would have been at least equal to 2.0 to 1.0.
SECTION 1009. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly,
(i) declare or pay any dividend, or make any distribution, on any
shares of the Capital Stock of the Company or any Restricted Subsidiary
(other than dividends or distributions payable solely in shares of its
Qualified Capital Stock or in options, warrants or other rights to acquire
such shares of Qualified Capital Stock or dividends and distributions made
by a Restricted Subsidiary on a pro rata basis to all shareholders of such
Restricted Subsidiary);
(ii) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any shares of Capital Stock of the Company or any
options, warrants or other rights to acquire such shares of Capital Stock
(other than such options, warrants or rights owned by the Company or a
wholly owned Restricted Subsidiary);
(iii) make any principal payment on, or repurchase, redeem, defease
or otherwise acquire or retire for value, prior to any scheduled principal
payment, sinking fund payment or maturity, any Indebtedness of the Company
that is expressly subordinated in right of payment to the Notes or
Indebtedness of any Guarantor that is expressly subordinated in right of
payment to Indebtedness under such Guarantor's Guarantee (in each case,
other than any such Indebtedness held by the Company or any Restricted
Subsidiary); or
(iv) make any Investment (other than any Permitted Investment) in any
Person;
(such payments or other actions described in (but not excluded from) clauses (i)
through (iv) are collectively referred to as "Restricted Payments"), unless at
the time of, and immediately after giving effect to, the proposed Restricted
Payment (the amount of any such Restricted Payment, if other than cash, as
determined by the Board of Directors of the Company, whose determination shall
be conclusive and evidenced by a Board Resolution), (1) no Default or Event of
Default shall have occurred and be continuing, (2) the Company could incur at
least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 1008 and (3) the aggregate amount of all Restricted Payments
declared or made after the date of this Indenture shall not exceed the sum of:
(A) 50% of the Consolidated Adjusted Net Income of the Company
accrued on a cumulative basis during the period beginning on the first day
of the Company's first fiscal quarter after the date of this Indenture and
ending on the last day of the Company's fiscal quarter ending immediately
prior to the date of such proposed Restricted Payment (or, if such
aggregate cumulative Consolidated Adjusted Net Income shall be a loss,
minus 100% of such amount), plus
(B) the aggregate net cash proceeds received by the Company after the
date of this Indenture from the issuance or sale (other than to any of its
Restricted Subsidiaries) of shares of Qualified Capital Stock of the
Company or warrants, options or rights to purchase shares of Qualified
Capital Stock of the Company, plus
(C) the aggregate net cash proceeds received after the date of this
Indenture by the Company from the issuance or sale (other than to any of
its Restricted Subsidiaries) of debt securities or Redeemable Capital Stock
that have been converted into or exchanged for Qualified Capital Stock of
the Company, to the extent such debt securities or Redeemable Capital Stock
were originally sold for cash, together with the aggregate net cash
proceeds received by the Company at the time of such conversion or
exchange, plus
(D) to the extent that any Investment constituting a Restricted
Payment that was made after the date of this Indenture is sold or is
otherwise liquidated or repaid, an amount (to the extent not included in
Consolidated Adjusted Net Income) equal to the lesser of (x) the cash
proceeds with respect to such Investment (less the cost of the disposition
of such Investment and net of taxes) and (y) the initial amount of such
Investment, plus
(E) $25,000,000.
(b) Notwithstanding paragraph (a) above, the Company and any
Restricted Subsidiary may take the following actions so long as (with respect to
clauses (ii) through (viii) below) no Default or Event of Default shall have
occurred and be continuing:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration the payment of such
dividend would have complied with the provisions of paragraph (a) above and
such payment shall be deemed to have been paid on such date of declaration
for purposes of the calculation required by paragraph (a) above;
(ii) the repurchase, redemption or other acquisition or retirement
for value of any shares of Capital Stock of the Company in exchange for, or
out of the net cash proceeds of a substantially concurrent issuance and
sale (other than to a Restricted Subsidiary) of, shares of Qualified
Capital Stock of the Company;
(iii) the repurchase, redemption, defeasance or other acquisition or
retirement for value of any Indebtedness that is expressly subordinated in
right of payment to the Notes in exchange for, or out of the net cash
proceeds of a substantially concurrent issuance and sale (other than to a
Restricted Subsidiary) of, shares of Qualified Capital Stock of the
Company;
(iv) the purchase of any Indebtedness that is expressly subordinated
in right of payment to the Notes at a purchase price not greater than 101%
of the principal amount thereof in the event of (A) a Change of Control in
accordance with provisions similar to those of Section 1014 or (B) an
Excess Proceeds Offer in accordance with provisions similar to those of
Section 1015; provided that prior to such purchase the Company has made the
Change of Control Offer or Excess Proceeds Offer, as the case may be, as
provided in such relevant Section with respect to the Notes and has
purchased all Notes validly tendered for payment in connection with such
Change of Control Offer or Excess Proceeds Offer, as the case may be;
(v) the purchase, redemption, defeasance or other acquisition or
retirement for value of Indebtedness (other than Redeemable Capital Stock)
that is expressly subordinated in right of payment to the Notes in exchange
for, or out of the net cash proceeds of a substantially concurrent
incurrence (other than to a Restricted Subsidiary) of, new Indebtedness of
the Company that is expressly subordinated in right of payment to the Notes
so long as (A) the principal amount of such new Indebtedness does not
exceed the principal amount (or, if such Indebtedness being refinanced
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof, such lesser amount as
of the date of determination) of the Indebtedness being so purchased,
redeemed, defeased, acquired or retired, plus the lesser of (i) the amount
of any premium required to be paid in connection with such refinancing
pursuant to the terms of the Indebtedness being refinanced or (ii) the
amount of any premium reasonably determined by the Company as necessary to
accomplish such refinancing, (B) such new Indebtedness is subordinated to
the Notes to the same extent as such Indebtedness so purchased, redeemed,
defeased, acquired or retired and (C) such new Indebtedness has an Average
Life longer than the Average Life of the Notes and a final Stated Maturity
of principal later than the final Stated Maturity of principal of the
Notes;
(vi) the repurchase, redemption or other acquisition or retirement
for value of shares of Capital Stock of the Company issued pursuant to
stock option plans of the Company; provided that (1) the Company is
required, by the terms of such plans, to effect such purchase, redemption
or other acquisition or retirement for value of such shares and (2) the
aggregate consideration paid by the Company for such shares so purchased,
redeemed or otherwise acquired or retired for value does not exceed
$5,000,000 during any fiscal year of the Company;
(vii) payments or distributions to dissenting stockholders pursuant
to applicable law, pursuant to or in connection with an Asset Sale or Asset
Acquisition that complies with the provisions of this Indenture; and
(viii) repurchases of Capital Stock (or warrants or options
convertible into or exchangeable for such Capital Stock) deemed to occur
upon exercise of stock options to the extent that shares of such Capital
Stock (or warrants or options convertible into or exchangeable for such
Capital Stock) represent a portion of the exercise price of such options.
The actions described in clauses (i), (ii), (iii), (iv), (vi), (vii) and (viii)
of this paragraph (b) shall be Restricted Payments that shall be permitted to be
taken in accordance with this paragraph (b) but shall reduce the amount that
would otherwise be available for Restricted Payments under clause (3) of
paragraph (a) above and the actions described in clause (v) of this paragraph
(b) shall be Restricted Payments that shall be permitted to be taken in
accordance with this paragraph (b) and shall not reduce the amount that would
otherwise be available for Restricted Payments under clause (3) of paragraph (a)
above.
(c) In computing Consolidated Adjusted Net Income of the Company
under paragraph (a) above, (1) the Company shall use audited financial
statements for the portions of the relevant period for which audited financial
statements are available on the date of determination and unaudited financial
statements and other current financial data based on the books and records of
the Company for the remaining portion of such period and (2) the Company shall
be permitted to rely in good faith on the financial statements and other
financial data derived from the books and records of the Company that are
available on the date of determination. If the Company makes a Restricted
Payment which, at the time of the making of such Restricted Payment would in the
good faith determination of the Company be permitted under the requirements of
the Indenture, such Restricted Payment shall be deemed to have been made in
compliance with this Indenture notwithstanding any subsequent adjustments made
in good faith to the Company's financial statements affecting Consolidated
Adjusted Net Income of the Company for any period.
SECTION 1010. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries.
The Company shall not sell, and shall not permit any Restricted
Subsidiary to issue, any Capital Stock of such Restricted Subsidiary (other than
to the Company or a Restricted Subsidiary); provided, however, that this Section
1010 shall not prohibit (i) the sale or other disposition of all, but not less
than all, of the issued and outstanding Capital Stock of any Restricted
Subsidiary owned by the Company or any Restricted Subsidiary in compliance with
the other provisions of this Indenture, (ii) issuances or sales of Common Stock
of a Restricted Subsidiary if such issuance or sale complies with Section 1015,
provided that if, immediately after giving effect to such issuance or sale, such
Restricted Subsidiary would no longer constitute a Restricted Subsidiary, any
Investment in such Person remaining after giving effect to such issuance or sale
would have been permitted to be made under Section 1009, if made on the date of
such issuance or sale, or (iii) the ownership by directors of director's
qualifying shares or the ownership by foreign nationals of Capital Stock of any
Restricted Subsidiary, to the extent mandated by applicable law.
SECTION 1011. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, enter into or suffer to exist, any transaction or
series of related transactions (including, without limitation, the sale,
purchase, exchange or lease of assets, property or services) with, or for the
benefit of, any Affiliate of the Company or any Restricted Subsidiary (other
than the Company or a Restricted Subsidiary so long as no Affiliate of the
Company (other than a Restricted Subsidiary) or beneficial holder of 5% or more
of any class or series of Capital Stock of the Company shall beneficially own
Capital Stock in such Restricted Subsidiary), unless (i) such transaction or
series of transactions are on terms that are no less favorable to the Company or
such Restricted Subsidiary, as the case may be, than those that could have been
obtained in an arm's-length transaction with third parties that are not
Affiliates of the Company, (ii) with respect to any transaction or series of
related transactions involving aggregate consideration equal to or greater than
$5,000,000, the Company has delivered an Officers' Certificate to the Trustee
certifying that such transaction or series of related transactions complies with
clause (i) above and (iii) with respect to any transaction or series of related
transactions involving aggregate consideration equal to or greater than
$10,000,000, such transaction or series of related transactions has been
approved by the Board of Directors of the Company (including a majority of the
Disinterested Directors) or the Company has obtained a written opinion from a
nationally recognized investment banking firm to the effect that such
transaction or series of related transactions is fair to the Company or its
Restricted Subsidiary, as the case may be, from a financial point of view;
provided, however, that this Section 1011 shall not restrict (1) customary
directors' fees, indemnification and similar arrangements, consulting fees,
employee salaries, bonuses or employment agreements, compensation or employee
benefit arrangements and incentive arrangements with any officer, director or
employee of the Company or any Restricted Subsidiary entered into in the
ordinary course of business (including customary benefits thereunder) and
payments under any indemnification arrangements permitted by applicable law, (2)
the issue and sale by the Company to its stockholders of Capital Stock (other
than Redeemable Capital Stock), (3) any dividends made in compliance with
Section 1009, (4) loans and advances to officers, directors, employees and
consultants of the Company or any Restricted Subsidiary for travel,
entertainment, moving and other relocation expenses, in each case made in the
ordinary course of business, (5) the performance of any written agreement as in
effect on the date of this Indenture and as amended from time to time, provided
that any such amendment is not less favorable in any material respect to the
Company or any Restricted Subsidiary than the terms in effect on the date of
this Indenture, (6) tax sharing agreements between the Company and any
Restricted Subsidiary providing for the payment by such Restricted Subsidiary of
an amount equal to the hypothetical United States tax liability of such
Restricted Subsidiary as if such Restricted Subsidiary had filed its own United
States federal tax return for any given tax year and (7) transactions with or by
any Accounts Receivable Subsidiary made in the ordinary course of business.
SECTION 1012. Limitation on Liens.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien of any kind (other than Permitted Liens) on or with respect to any of
its property or assets, including any shares of stock or indebtedness of any
Restricted Subsidiary, whether owned at the date of this Indenture or hereafter
acquired, or any income, profits or proceeds therefrom, or assign or otherwise
convey any right to receive income thereon, unless (x) in the case of any Lien
securing Indebtedness that is expressly subordinated in right of payment to the
Notes, the Notes are secured by a Lien on such property, assets or proceeds that
is senior in priority to such Lien and (y) in the case of any Lien securing
Indebtedness that is pari passu in right of payment to the Notes, the Notes are
secured by a Lien on such property, assets or proceeds that is senior in
priority to or pari passu with such Lien.
(b) The Company shall not, and shall not permit any Guarantor to,
directly or indirectly, create, incur, assume or suffer to exist any Lien of any
kind (other than Permitted Liens) on or with respect to any of its property or
assets, including any shares of stock or indebtedness of any Restricted
Subsidiary, whether owned at the date of this Indenture or hereafter acquired,
or any income, profits or proceeds therefrom, or assign or otherwise convey any
right to receive income thereon, unless (x) in the case of any Lien securing
Indebtedness that is expressly subordinated in right of payment to such
Guarantee, such Guarantee is secured by a Lien on such property, assets or
proceeds that is senior in priority to such Lien and (y) in the case of any Lien
securing Indebtedness that is pari passu in right of payment to such Guarantee,
such Guarantee is secured by a Lien on such property, assets or proceeds that is
senior in priority to or pari passu with such Lien.
SECTION 1013. Limitations on Guarantees of Indebtedness by Restricted
Subsidiaries.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to guarantee, assume or in any other manner become liable with
respect to any Indebtedness of the Company unless (a) (i) if such Restricted
Subsidiary is not a Guarantor, such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture, in form satisfactory to the
Trustee, providing for a Guarantee of the Notes by such Restricted Subsidiary
and delivers to the Trustee an Opinion of Counsel reasonably satisfactory to the
Trustee to the effect that such supplemental indenture has been duly executed
and delivered by such Restricted Subsidiary and is in compliance with the terms
of this Indenture and (ii) with respect to any guarantee by a Restricted
Subsidiary of Indebtedness that is expressly subordinated in right of payment to
the Notes, any such guarantee shall be subordinated to such Restricted
Subsidiary's Guarantee at least to the same extent as such guaranteed
Indebtedness is subordinated to the Notes, and (b) such Restricted Subsidiary
waives and shall not in any manner whatsoever claim or take the benefit or
advantage of, any rights of reimbursement, indemnity or subrogation or any other
rights against the Company or any other Restricted Subsidiary as a result of any
payment by such Restricted Subsidiary under its Guarantee.
SECTION 1014. Purchase of Notes upon Change of Control.
(a) If a Change of Control shall occur at any time, then each Holder
of Notes shall have the right to require that the Company purchase such Holder's
Notes, in whole or in part in integral multiples of $1,000, at a purchase price
(the "Change of Control Purchase Price") in cash in an amount equal to 101% of
the principal amount thereof, plus accrued interest, if any, to the date of
purchase (the "Change of Control Purchase Date"), pursuant to the offer
described below (the "Change of Control Offer") and the other procedures set
forth in this Indenture.
(b) Within 30 days following any Change of Control, the Company shall
notify the Trustee thereof and give written notice of such Change of Control
Offer to each Holder of Notes by first-class mail, postage prepaid, at the
address of such Holder appearing in the Note Register, stating (i) the Change of
Control Purchase Price and the Change of Control Purchase Date, which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date such
notice is mailed, or such later date as is necessary to comply with requirements
under the Exchange Act or any applicable securities laws or regulations; (ii)
that any Note not tendered will continue to accrue interest; (iii) that, unless
the Company defaults in the payment of the Change of Control Purchase Price, any
Notes accepted for payment pursuant to the Change of Control Offer shall cease
to accrue interest after the Change of Control Purchase Date; (iv) that Holders
electing to have any Notes purchased pursuant to a Change of Control Offer shall
be required to surrender the Notes, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Notes completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Purchase Date; (v) that Holders
shall be entitled to withdraw their election if the Paying Agent receives, not
later than the close of business on the second Business Day preceding the Change
of Control Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes delivered
for purchase, and a statement that such Holder is withdrawing its election to
have such Notes purchased; (vi) that Holders whose Notes are being purchased
only in part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple thereof; (vii) the
instructions that the Holders of Notes must follow in order to tender their
Notes; and (viii) the circumstances and relevant facts regarding such Change of
Control.
(c) The Company shall comply to the extent applicable with the
requirements of the tender offer rules, including Rule 14e-1 under the Exchange
Act, and any other applicable securities laws and regulations in connection with
a Change of Control Offer.
(d) The Company shall not, and shall not permit any Restricted
Subsidiary to, create or permit to exist or become effective any restriction
(other than restrictions existing or under Indebtedness as in effect on the date
of this Indenture or under any agreement that extends, renews, refinances or
replaces any agreement governing such restrictions or Indebtedness, provided
that the restrictions contained in such new agreement are no more restrictive
than those under or pursuant to the agreement so extended, renewed, refinanced
or replaced) that would materially impair the ability of the Company to make a
Change of Control Offer to purchase the Notes or, if such Change of Control
Offer is made, to pay for the Notes tendered for purchase.
SECTION 1015. Limitation on Sale of Assets.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly, or indirectly, consummate an Asset Sale unless (i) the
consideration received by the Company or such Restricted Subsidiary for such
Asset Sale is not less than the fair market value of the assets sold (as
determined by the Board of Directors of the Company, whose determination shall
be conclusive and evidenced by a Board Resolution) and (ii) the consideration
received by the Company or the relevant Restricted Subsidiary in respect of such
Asset Sale consists of at least 75% cash or Cash Equivalents; provided that any
Designated Noncash Consideration received by the Company or any Restricted
Subsidiary in such Asset Sale having an aggregate fair market value, taken
together with all other Designated Noncash Consideration received pursuant to
this proviso that is at that time outstanding, not in excess of $20,000,000
(with the fair market value of each item of Designated Noncash Consideration
being measured at the time received and without giving effect to subsequent
changes in value), shall be deemed to be cash for the purposes of this Section
1015.
(b) If the Company or any Restricted Subsidiary consummates an Asset
Sale, the Company may use the Net Cash Proceeds thereof, within 12 months after
such Asset Sale, to (i) permanently repay or prepay any then outstanding Senior
Indebtedness of the Company or any Guarantor or Indebtedness of any
non-Guarantor Restricted Subsidiary or (ii) invest (or enter into a legally
binding agreement to invest) in properties and assets to replace the properties
and assets that were the subject of the Asset Sale or in properties and assets
that will be used in businesses of the Company or its Restricted Subsidiaries,
as the case may be, existing on the date of this Indenture or reasonably related
thereto. If any such legally binding agreement to invest such Net Cash Proceeds
is terminated, then the Company may, within 90 days of such termination or
within 12 months of such Asset Sale, whichever is later, invest such Net Cash
Proceeds as provided in clause (i) or (ii) (without regard to the parenthetical
contained in such clause (ii)) above. The amount of such Net Cash Proceeds not
so used as set forth above in this paragraph (b) shall constitute "Excess
Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $20,000,000,
the Company shall, within 15 Business Days, make an offer to purchase (an
"Excess Proceeds Offer") from all holders of Notes, on a pro rata basis, in
accordance with the procedures set forth below, the maximum principal amount
(expressed as a multiple of $1,000) of Notes that may be purchased with the
Excess Proceeds. The offer price as to each Note shall be payable in cash in an
amount equal to 100% of the principal amount of such Note plus accrued interest,
if any (the "Offered Price"), to the date such Excess Proceeds Offer is
consummated (the "Offer Date"). To the extent that the aggregate principal
amount of Notes tendered pursuant to an Excess Proceeds Offer is less than the
Excess Proceeds, the Company may use such deficiency for general corporate
purposes. If the aggregate principal amount of Notes validly tendered and not
withdrawn by holders thereof exceeds the Excess Proceeds, Notes to be purchased
shall be selected on a pro rata basis. Upon completion of such Exceeds Proceeds
Offer (or, in the event that an Excess Proceeds Offer is not required to be made
to the Holders of the Notes as a result of the proviso in the first sentence of
this Section 1015(c)), the amount of Excess Proceeds shall be reset to zero.
(d) Whenever the Excess Proceeds received by the Company exceed
$20,000,000, such Excess Proceeds shall be set aside by the Company in a
separate account pending (i) deposit with the Trustee or a paying agent of the
amount required to purchase the Notes tendered in an Excess Proceeds Offer, (ii)
delivery by the Company of the Offered Price to the holders of the Notes
tendered in an Excess Proceeds Offer and (iii) application, as set forth above,
of Excess Proceeds for general corporate purposes. Such Excess Proceeds may be
invested in Cash Equivalents, provided that the maturity date of any investment
shall not be later than the Offer Date. The Company shall be entitled to any
interest or dividends accrued, earned or paid on such Cash Equivalents.
(e) If the Company becomes obligated to make an Excess Proceeds Offer
pursuant to clause (c) above, the Notes shall be purchased by the Company, at
the option of the Holders thereof, in whole or in part in integral multiples of
$1,000, on a date that is not earlier than 30 days and not later than 60 days
from the date the notice is given to holders, or such later date as may be
necessary for the Company to comply with the requirements under the Exchange
Act, subject to proration in the event the amount of Excess Proceeds is less
than the aggregate Offered Price of all Notes tendered.
(f) Within 15 days after the obligation of the Company to make an
Excess Proceeds Offer arises, the Company shall notify the Trustee thereof and
give written notice of such Excess Proceeds Offer to each Holder of Notes by
first-class mail, postage prepaid, at the address of such Holder appearing in
the Note Register, stating, (i) the Offered Price and the Offer Date, which
shall be a Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed, or such later date as is necessary to comply with
requirements under the Exchange Act or any applicable securities laws or
regulations; (ii) that any Note not tendered will continue to accrue interest;
(iii) that, unless the Company defaults in the payment of the Offered Price, any
Notes accepted for payment pursuant to the Excess Proceeds Offer shall cease to
accrue interest after the date of purchase; (iv) that Holders electing to have
any Notes purchased pursuant to a Excess Proceeds Offer shall be required to
surrender the Notes, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third Business Day
preceding the Offer Date; (v) that Holders shall be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Offer Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing its election to have such Notes purchased; (vi) that Holders whose
Notes are being purchased only in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $1,000 in principal amount or an integral
multiple thereof; (vii) the instructions that the Holders of Notes must follow
in order to tender their Notes; and (viii) the circumstances and relevant facts
regarding such Excess Proceeds Offer.
(g) The Company shall comply to the extent applicable with the
requirements of the tender offer rules, including Rule 14e-1 under the Exchange
Act, and any other applicable securities laws and regulations in connection with
an Excess Proceeds Offer.
SECTION 1016. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction of any kind on the ability of
any Restricted Subsidiary to (a) pay dividends, in cash or otherwise, or make
any other distributions on or in respect of its Capital Stock, (b) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary, (c) make
loans or advances to the Company or any other Restricted Subsidiary, (d)
transfer any of its properties or assets to the Company or any other Restricted
Subsidiary (other than customary restrictions on transfers of property subject
to a Lien permitted under this Indenture that would not materially adversely
affect the Company's ability to satisfy its obligations under the Notes and this
Indenture) or (e) guarantee any Indebtedness of the Company or any other
Restricted Subsidiary, except for such encumbrances or restrictions existing
under or by reason of (i) any agreement in effect on the date of this Indenture,
(ii) applicable law, (iii) customary provisions restricting subletting or
assignment of any lease or assignment of any other contract to which the Company
or any Restricted Subsidiary is a party or to which any of their respective
properties or assets are subject, (iv) any agreement or other instrument of a
Person acquired by the Company or any Restricted Subsidiary 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) any encumbrance or restriction contained in contracts
for sales of assets permitted by Section 1015 with respect to the assets to be
sold pursuant to such contract and (vi) any encumbrance or restriction existing
under any agreement that extends, renews, refinances or replaces the agreements
containing the encumbrances or restrictions in the foregoing clauses (i) and
(iv); provided that the terms and conditions of any such encumbrances or
restrictions are no less favorable to the holders of the Notes than those under
or pursuant to the agreement so extended, renewed, refinanced or replaced.
SECTION 1017. Limitation on Unrestricted Subsidiaries.
The Company shall not make, and shall not permit any of its Restricted
Subsidiaries to make, any Investments in Unrestricted Subsidiaries if, at the
time thereof, the aggregate amount of such Investments would exceed the amount
of Restricted Payments then permitted to be made pursuant to Section 1009. Any
Investments in Unrestricted Subsidiaries permitted to be made pursuant to this
Section 1017 (i) shall be treated as the making of a Restricted Payment in
calculating the amount of Restricted Payments made by the Company or a
Restricted Subsidiary and (ii) may be made in cash or property.
SECTION 1018. Provision of Financial Statements and Reports.
The Company shall file on a timely basis with the Commission, to the
extent such filings are accepted by the Commission and whether or not the
Company has a class of securities registered under the Exchange Act, the annual
reports, quarterly reports and other documents that the Company would be
required to file if it were subject to Section 13 or 15 of the Exchange Act.
The Company shall also (a) file with the Trustee, and provide to each Holder of
Notes (at their respective addresses set forth in the Note Register), without
cost to such Holder, copies of such reports and documents within 15 days after
the date on which the Company files such reports and documents with the
Commission or the date on which the Company would be required to file such
reports and documents if the Company were so required, and (b) if filing such
reports and documents with the Commission is not accepted by the Commission or
is prohibited under the Exchange Act, supply at the Company's cost copies of
such reports and documents to any prospective Holder of Notes promptly upon
written request.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 1019. Waiver of Certain Covenants.
The Company and the Restricted Subsidiaries may omit in any particular
instance to comply with any term, provision or condition set forth in Sections
1005 to 1018, inclusive, if before or after the time for such compliance the
Holders of at least a majority in aggregate principal amount of all Outstanding
Notes affected by such term, provision or covenant, by Act of such Holders,
waive such compliance in such instance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company, the Restricted Subsidiaries and the
duties of the Trustee, as applicable, in respect of any such term, provision or
condition shall remain in full force and effect.
SECTION 1020. Limitation on Applicability of Certain Covenants.
If no Default or Event of Default has occurred and is continuing,
after the ratings assigned to the Notes by S&P and Moody's are equal to or
higher than BBB- and Baa3, or the equivalents thereof, respectively (the
"Investment Grade Ratings"), and notwithstanding that the Notes may later cease
to have an Investment Grade Rating, the Company and the Restricted Subsidiaries
shall not be subject to the provisions of Sections 1008, 1009, 1010, 1011, 1013,
1015, 1016 and 801(c).
ARTICLE ELEVEN
SECTION 1101. [Reserved.]
ARTICLE TWELVE
SECTION 1201. [Reserved.]
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Guarantees.
Each Guarantor hereby jointly and severally, absolutely,
unconditionally and irrevocably guarantees the Notes and obligations of the
Company hereunder and thereunder, and guarantees to each Holder of a Note
authenticated and delivered by the Trustee, and to the Trustee on behalf of such
Holder, that: (a) the principal of (and premium, if any) and interest on the
Notes will be paid in full when due, whether at Stated Maturity, by acceleration
or otherwise (including, without limitation, the amount that would become due
but for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Law), together with interest on the overdue principal, if any, and
interest on any overdue interest, to the extent lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be paid in full or performed, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or renewal of any
Notes or of any such other obligations, the same will be paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at Stated Maturity, by acceleration or otherwise, subject, however, in the case
of clauses (a) and (b) above, to the limitations set forth in Section 1304
hereof.
Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor.
Each Guarantor hereby waives (to the extent permitted by law) the
benefits of diligence, presentment, demand for payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company or any other Person, protest,
notice and all demands whatsoever and covenants that the Guarantee of such
Guarantor will not be discharged as to any Note except by complete performance
of the obligations contained in such Note and such Guarantee. Each of the
Guarantors hereby agrees that, in the event of a default in payment of principal
(or premium, if any) or interest on such Note, whether at its Stated Maturity,
by acceleration, purchase or otherwise, legal proceedings may be instituted by
the Trustee on behalf of, or by, the Holder of such Note, subject to the terms
and conditions set forth in this Indenture, directly against each of the
Guarantors to enforce such Guarantor's Guarantee without first proceeding
against the Company or any other Guarantor. Each Guarantor agrees that if,
after the occurrence and during the continuance of an Event of Default, the
Trustee or any of the Holders are prevented by applicable law from exercising
their respective rights to accelerate the maturity of the Notes, to collect
interest on the Notes, or to enforce or exercise any other right or remedy with
respect to the Notes, such Guarantor will pay to the Trustee for the account of
the Holders, upon demand therefor, the amount that would otherwise have been due
and payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company or any Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or any
Guarantor, any amount paid by any of them to the Trustee or such Holder, the
Guarantee of each of the Guarantors, to the extent theretofore discharged, shall
be reinstated in full force and effect. Each Guarantor further agrees that, as
between each Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Five hereof for the purposes of the Guarantee
of such Guarantor, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any acceleration of such obligations as provided in
Article Five hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of the
Guarantee of such Guarantor.
SECTION 1302. Severability.
In case any provision of any Guarantee shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1303. [Reserved.]
SECTION 1304. Limitation of Guarantors' Liability.
Each Guarantor and by its acceptance hereof each Holder confirms that
it is the intention of all such parties that the guarantee by each such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law or
the provisions of its local law relating to fraudulent transfer or conveyance.
To effectuate the foregoing intention, the Holders and each such Guarantor
hereby irrevocably agree that the obligations of such Guarantor under its
Guarantee shall be limited to the maximum amount that will not, after giving
effect to all other contingent and fixed liabilities of such Guarantor and after
giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under its
Guarantee or pursuant to Section 1305 hereof, result in the obligations of such
Guarantor under its Guarantee constituting such fraudulent transfer or
conveyance.
SECTION 1305. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a Funding Guarantor") under a Guarantee,
such Funding Guarantor shall be entitled to a contribution from all other
Guarantors in a pro rata amount based on the Adjusted Net Assets (as defined
below) of each Guarantor (including the Funding Guarantor) for all payments,
damages and expenses incurred by that Funding Guarantor in discharging the
Company's obligations with respect to the Notes or any other Guarantor's
obligations with respect to the Guarantee of such Guarantor. "Adjusted Net
Assets" of such Guarantor at any date shall mean the lesser of (x) the amount by
which the fair value of the property of such Guarantor exceeds the total amount
of liabilities, including, without limitation, contingent liabilities (after
giving effect to all other fixed and contingent liabilities incurred or assumed
on such date), but excluding liabilities under the Guarantee of such Guarantor
at such date and (y) the amount by which the present fair salable value of the
assets of such Guarantor at such date exceeds the amount that will be required
to pay the probable liability of such Guarantor on its debts (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date), excluding debt in respect of the Guarantee of such Guarantor, as they
become absolute and matured.
SECTION 1306. Subrogation.
Each Guarantor shall be subrogated to all rights of Holders against
the Company in respect of any amounts paid by any Guarantor pursuant to the
provisions of Section 1301; provided, however, that, if an Event of Default has
occurred and is continuing, no Guarantor shall be entitled to enforce or receive
any payments arising out of, or based upon, such right of subrogation until all
amounts then due and payable by the Company under this Indenture or the Notes
shall have been paid in full.
SECTION 1307. Reinstatement.
Each Guarantor hereby agrees (and each Person who becomes a Guarantor
shall agree) that the Guarantee provided for in Section 1301 shall continue to
be effective or be reinstated, as the case may be, if at any time, payment, or
any part thereof, of any obligations or interest thereon is rescinded or must
otherwise be restored by a Holder to the Company upon the bankruptcy or
insolvency of the Company or any Guarantor.
SECTION 1308. Release of a Guarantor.
(a) The Guarantee issued by any Guarantor under this Indenture shall
be automatically and unconditionally released and discharged (i) upon any sale,
exchange or transfer to any Person not an Affiliate of the Company or a
Restricted Subsidiary of all of the Company's Capital Stock in, or all or
substantially all the assets of, such Guarantor (which sale, exchange or
transfer is not prohibited by this Indenture) or (ii) at the request of the
Company, if such Guarantor is not a Leveraged Subsidiary, in the event that (A)
no other Indebtedness of the Company remains guaranteed by such Guarantor or (B)
the holders of all such other Indebtedness that is guaranteed by such Guarantor
also release their guarantee by such Guarantor (including any deemed release
upon payment in full of all obligations under such Indebtedness except by or as
a result of payment under such guarantee); provided, however, that a release of
a Guarantor that is a Leveraged Subsidiary may only be obtained under the
circumstances described in this clause (ii) if, after giving effect to the
release, either (x) such Guarantor would have been permitted to incur all of its
then outstanding Indebtedness under the provisions of Section 1008 or (y)
Section 1008 would no longer be applicable pursuant to the terms of Section 1020
regarding Investment Grade Ratings.
(b) Concurrently with the discharge of the Notes under Section 401,
the defeasance of the Notes under Section 1402 hereof, or the covenant
defeasance of the Notes under Section 1403 hereof, the Guarantors shall be
released from all their obligations under their Guarantees under this Article
Thirteen.
SECTION 1309. Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
its guarantee and waivers pursuant to its Guarantee are knowingly made in
contemplation of such benefits.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option and at any time, effect defeasance of
the Notes under Section 1402, or covenant defeasance of the Notes under Section
1403, in accordance with the terms of the Notes and in accordance with this
Article.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise under Section 1401 of the option
applicable to this Section 1402, the Company and the Guarantors shall be deemed
to have been discharged from their obligations with respect to the Outstanding
Notes and the Guarantees, respectively, on the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company and the Guarantors shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Notes, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 1405 and the other Sections of this Indenture referred to in
(A) and (B) below, and to have satisfied all its other obligations under the
Notes and this Indenture insofar as the Notes are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Outstanding Notes to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest on such Notes when such payments are due, (B) the Company's
obligations with respect to such Notes under Sections 305, 306, 1002 and 1003,
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (D) this Article Fourteen. Subject to compliance with this Article
Fourteen, the Company may exercise its option under this Section 1402
notwithstanding the prior exercise of its option under Section 1403 with respect
to such Notes.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise under Section 1401 of the option
applicable to this Section 1403, the Company and the Guarantors shall be
released from their obligations under Section 803 and Sections 1005 through 1018
with respect to the Outstanding Notes on and after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "covenant defeasance"), and
such Notes shall thereafter be deemed not to be "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Notes, the Company and any Guarantor, as applicable, 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 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 501(3) or 501(4) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1402 or Section 1403 to the Outstanding Notes:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Notes, (A) an
amount in cash, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment of principal (including any premium) and interest,
if any, on such Notes, money in an amount, or (C) a combination thereof, in
each case in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of (and premium, if any, on)
and interest on such Outstanding Notes on the Stated Maturity of such
principal (and premium, if any) or installment of interest; provided that
the Trustee (or such qualifying trustee) shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to said payments with respect to such Notes.
(2) No Default or Event of Default with respect to such Notes shall
have occurred and be continuing on the date of such deposit or, insofar as
paragraphs (8) and (9) of Section 501 are concerned, at any time during the
period ending on the 123rd day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any material agreement to which the Company or any Guarantor is a party or
is bound.
(4) In the case of an election under Section 1402, 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 June 30, 1997, there has been a
change in the applicable federal income tax law or interpretation of such
federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Notes will not
recognize income, gain or loss for federal income tax purposes as a result
of such defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(5) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Notes 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.
(6) In the case of defeasance or covenant defeasance, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that after the 123rd day following the deposit or after the date such
Opinion of Counsel is delivered, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1402
or the covenant defeasance under Section 1403 (as the case may be) have
been complied with.
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1405, the "Trustee") pursuant to Sections 1404 and 1406 in respect of
such Outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such Notes of
all sums due and to become due thereon in respect of principal (and premium, if
any) and interest, but such money need not be segregated from other funds except
to the extent required by law. Money and U.S. Government Obligations so held in
trust are not subject to Article Fifteen.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Notes.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations (or other property and any
proceeds therefrom) held by it as provided in Section 1404 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1402 or 1403, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1405; provided, however, that if the Company makes any payment of principal of
(or premium, if any) or interest on any such Note following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
NINE WEST GROUP INC.
By: /s/ Robert C. Galvin
----------------------
Name: Robert C. Galvin
Title: Executive Vice President,
Chief Financial Officer and Treasurer
NINE WEST DEVELOPMENT CORPORATION
By: /s/ Robert C. Galvin
----------------------
Name: Robert C. Galvin
Title: Executive Vice President,
Financial Officer and Treasurer
NINE WEST DISTRIBUTION CORPORATION
By: /s/ Robert C. Galvin
----------------------
Name: Robert C. Galvin
Title: Executive Vice President,
Financial Officer and Treasurer
NINE WEST FOOTWEAR CORPORATION
By: /s/ Robert C. Galvin
----------------------
Name: Robert C. Galvin
Title: Executive Vice President,
Financial Officer and Treasurer
NINE WEST MANUFACTURING
CORPORATION
By: /s/ Robert C. Galvin
-----------------------
Name: Robert C. Galvin
Title: Executive Vice President,
Financial Officer and Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Denise Leonard
---------------------
Name: Denise Leonard
Title: Assistant Treasurer
Exhibit A
[FACE OF NOTE]
NINE WEST GROUP INC.
8-3/8% [Series B]** Senior Note due 2005
CUSIP _________
No. _______ $_________________
NINE WEST GROUP INC., a Delaware corporation (the "Company", which
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to ___________, or its registered assigns, the
principal sum of ____________________________________ Dollars ($___________), on
August 15, 2005.
[Initial Interest Rate: 8-3/8% per annum.]*
[Interest Rate: 8-3/8% per annum.]**
Interest Payment Dates: February 15 and August 15 of each year
commencing February 15, 1998.
Regular Record Dates: February 1 and August 1 of each year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Date: NINE WEST GROUP INC.
By:_______________________
Title:
* Include only for Initial Notes.
** Include only for Exchange Notes.
(Form of Trustee's Certificate of Authentication)
This is one of the 8-3/8% [Series B]** Senior Notes due 2005 referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: __________ By:_______________________
Authorized Signatory
** Include only for Exchange Note.
[REVERSE SIDE OF NOTE]
NINE WEST GROUP INC.
8-3/8% [Series B]** Senior Note due 2005
1. Principal and Interest.
The Company will pay the principal of this Note on August 15, 2005.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate of 8-3/8%
per annum [(subject to adjustment as provided below)]* [except that interest
accrued on this Note pursuant to the fourth paragraph of this Section 1 for
periods prior to the applicable Exchange Date (as such term is defined in the
Registration Rights Agreement referred to below) will accrue at the rate or
rates borne by the Notes from time to time during such periods].*
Interest will be payable semi-annually (to the Holders of record of
the Notes (or any Predecessor Notes) at the close of business on the February 1
or August 1 immediately preceding the Interest Payment Date) on each Interest
Payment Date, commencing February 15, 1998.
[The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement, dated July 9, 1997, among the Company, the
Guarantors and the Purchasers named therein (the "Registration Rights
Agreement"). In the event that either (a) the Exchange Offer Registration
Statement (as such term is defined in the Registration Rights Agreement) is not
filed with the Securities and Exchange Commission on or prior to the 60th
calendar day following the date of original issue of the Notes, (b) the Exchange
Offer Registration Statement or a Shelf Registration Statement (as such terms
are defined in the Registration Rights Agreement) has not been declared
effective on or prior to the 365th calendar day following the date of original
issue of the Notes or (c) the Exchange Offer (as such term is defined in the
Registration Rights Agreement) is not consummated on or prior to the 45th
calendar day following the effectiveness of the Exchange Offer Registration
Statement, the interest rate borne by this Note shall be increased by one-
quarter of one percent per annum following such 60-day period in the case of (a)
above, following such 365-day period in the case of (b) above or following such
45-day period in the case of (c) above, which rate will be increased by an
additional one-quarter of one percent per annum for each 90-day period that any
additional interest continues to accrue; provided that the aggregate increase in
such annual interest rate shall in no event exceed one percent. Upon (x) the
filing of the Exchange Offer Registration Statement after the 60-day period
described in clause (a) above, (y) the effectiveness of the Exchange Offer
Registration Statement or a Shelf Registration Statement, as the case may be,
after the 365-day period described in clause (b) above or (z) the day before the
consummation of the Exchange Offer after the 45-day period described in clause
(c) above, the interest rate borne by this Note from the date of such filing,
effectiveness or day before the consummation, as the case may be, will be
reduced to the interest rate set forth above; provided, however, that, if after
any such reduction in interest rate, a different event specified in clause (a),
(b) or (c) above occurs, the interest rate may again be increased pursuant to
the foregoing provisions.]*
Interest on this Note will accrue from the most recent date to which
interest has been paid [on this Note or the Note surrendered in exchange
herefor]** or, if no interest has been paid, from July 9, 1997; provided that,
if there is no existing default in the payment of interest and if this Note is
authenticated between a Regular Record Date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such
Interest Payment Date. 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 and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
a rate per annum equal to the rate of interest applicable to the Notes.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on the
principal amount of the Notes on each February 15 and August 15 to the Persons
who are Holders (as reflected in the Note Register at the close of business on
the February 1 and August 1 immediately preceding the Interest Payment Date), in
each case, even if the Note is cancelled on registration of transfer or
registration of exchange after such Regular Record Date; provided that, with
respect to the payment of principal, the Company will make payment to the Holder
that surrenders this Note to any Paying Agent on or after August 15, 2005.
The Company will pay principal (premium, if any) and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may pay principal (premium, if
any) and interest by its check payable in such money. The Company may pay
interest on the Notes either (a) by mailing a check for such interest to a
Holder's registered address (as reflected in the Note Register) or (b) by wire
transfer to an account located in the United States maintained by the payee. If
a payment date is a date other than a Business Day at a place of payment,
payment may be made at that place on the next succeeding day that is a Business
Day and no interest shall accrue for the intervening period.
- ----------
* Include only for Initial Note.
** Include only for Exchange Note
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar upon written notice thereto.
The Company, any Subsidiary or any Affiliate of any of them may act as Paying
Agent, Registrar or co-registrar.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of July 9,
1997 (the "Indenture"), among the Company, the Guarantors and The Bank of New
York, as trustee (the "Trustee"). Capitalized terms herein are used as defined
in the Indenture unless otherwise indicated. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act. The Notes are subject to all such terms, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control.
The Notes are unsecured senior obligations of the Company. The
Indenture limits the aggregate principal amount of the Notes to $200,000,000.
5. Redemption.
The Notes will not be redeemable at the option of the Company prior to
their Stated Maturity.
6. Repurchase upon a Change in Control and Asset Sales.
Upon the occurrence of (a) a Change of Control, the Company is
obligated to make an offer to purchase all outstanding Notes at a redemption
price of 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the date of purchase and (b) Asset Sales, the Company may be
obligated to make offers to purchase Notes with a portion of the Net Cash
Proceeds of such Asset Sales at a redemption price of 100% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons, in denominations of
$1,000 and multiples of $1,000 in excess thereof. A Holder may register the
transfer or exchange of Notes in accordance with the Indenture. The Note
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
8. Persons Deemed Owners.
A Holder may be treated as the owner of a Note for all purposes.
9. Unclaimed Money.
If money for the payment of principal (premium, if any) or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. Discharge Prior to Maturity.
If the Company irrevocably deposits, or causes to be deposited, with
the Trustee money or U.S. Government Obligations sufficient to pay the then
outstanding principal of (premium, if any) and accrued interest on the Notes (a)
to maturity, the Company will be discharged from the Indenture and the Notes,
except in certain circumstances for certain sections thereof, and (b) to the
Stated Maturity, the Company will be discharged from certain covenants set forth
in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and any existing
default or compliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Indebtedness;
(ii) Restricted Payments; (iii) issuances and sales of Capital Stock of
Restricted Subsidiaries; (iv) transactions with Affiliates; (v) Liens; (vi)
guarantees of Indebtedness by Restricted Subsidiaries; (vii) disposition of
proceeds of Asset Sales; (viii) dividend and other payment restrictions
affecting Restricted Subsidiaries; (ix) merger and certain transfers of assets;
and (x) limitation on Unrestricted Subsidiaries. Within 120 days after the end
of each fiscal year and within 50 days after each fiscal quarter, the Company
must report to the Trustee on compliance with such limitations. If no Default
or Event of Default has occurred and is continuing, from and after the time the
Notes are assigned Investment Grade Ratings, the Company will not be subject to
certain covenants.
13. Successor Persons.
When a successor person or other entity assumes all the obligations of
its predecessor under the Notes and the Indenture, the predecessor person will
be released from those obligations.
14. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding may declare all the Notes to be
immediately due and payable. If a bankruptcy or insolvency default with respect
to the Company or any of its Significant Subsidiaries occurs and is continuing,
the Notes automatically become immediately due and payable. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of at least a
majority in aggregate principal amount of the Notes then outstanding may direct
the Trustee in its exercise of any trust or power.
15. Guarantees.
The Company's obligations under the Notes are fully and irrevocably
guaranteed by the Guarantors.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may make loans to, accept
deposits from, perform services for, and otherwise deal with, the Company and
its Affiliates as if it were not the Trustee.
17. Authentication.
This Note shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Note.
18. Abbreviations.
Customary abbreviations may be used in the name of a Holder 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).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Nine West Group
Inc., 9 West Broad Street, Stamford, Connecticut 06902, Attention: Chief
Financial Officer.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
- -------------------------------------------------------------------------
- -------------------------------------------------------------------------
(Please print or typewrite name and address including zip code of assignee)
- -------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
- -------------------------------------------------------------------------
attorney to transfer such Note on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT PERMANENT OFFSHORE PHYSICAL
CERTIFICATES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
July 9, 1999, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
( ) (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided by Rule 144A
thereunder.
or
( )(b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of transfer
set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 312 of the Indenture shall have
been satisfied.
Date:_____________________
______________________
NOTICE: The signature
to this assignment must
correspond with the name
as written upon the face
of the within-mentioned
instrument in every
particular, without
alteration or any change
whatsoever.
Signature Guarantee:_______________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:__________________ _________________________________
NOTICE: To be executed by an
executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 1014 or Section 1015 of the Indenture, check the Box: ( ).
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 1014 or Section 1015 of the Indenture, state the amount (in
original principal amount) below:
$_____________________.
Date:______________________
Your Signature:__________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:_____________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
Exhibit B
SUBORDINATED PROMISSORY NOTE
Dated:_____________
FOR VALUE RECEIVED, the undersigned, _________________________, a
_______________ corporation ("Borrower"), HEREBY PROMISES TO PAY to
_______________ (the "Holder") and its successors and assigns on
________________, the aggregate unpaid principal amount of all advances made by
the Holder to Borrower and outstanding on such date; together with interest
(computed on the basis of a year of 360 days for the actual number of days
elapsed) on any and all principal amounts hereunder from time to time
outstanding from and including the date hereof until said principal amounts are
paid in full, on demand, at a rate per annum equal to _______; interest may be
paid in cash, or if not paid in cash on any date specified for the payment
thereof, shall be added to, and deemed for all purposes of this Subordinated
Promissory Note to constitute a portion of, the principal amount outstanding
hereunder; provided that any and all cash advanced by Borrower to the Holder at
a time when there shall be amounts outstanding hereunder shall be applied to the
prepayment of amounts outstanding hereunder, such payments to be applied in each
case, first, to the prepayment of accrued and unpaid interest to the date of
such prepayment and, second, to the payment of principal.
THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATED IN RIGHT
OF PAYMENT FROM AND AFTER SUCH TIME AS THE BORROWER'S 8-3/8% SENIOR NOTES DUE
2005 (THE "SENIOR NOTES") AND 9% SENIOR SUBORDINATED NOTES DUE 2007 (THE "SENIOR
SUBORDINATED NOTES", AND TOGETHER WITH THE SENIOR NOTES, THE "SECURITIES")
BECOME DUE AND PAYABLE (WHETHER AT STATED MATURITY, ACCELERATION OR OTHERWISE)
TO THE PAYMENT AND PERFORMANCE OF THE BORROWER'S OBLIGATIONS UNDER THE
SECURITIES.
By its acceptance hereof in the space provided below, the Holder
agrees that the accounts of Borrower shall be prima facie evidence of the
amounts advanced by the Holder to Borrower and the amounts repaid or prepaid by
Borrower to the Holder.
The Holder also agrees to pay on demand all reasonable costs and
expenses (including reasonable fees and expenses of counsel) incurred by the
Holder in enforcing this Intercompany Note.
Both principal and interest are payable in lawful money of the United
States of America to the Holder at the offices of the Holder or at such other
locations as the Holder shall from time to time specify by notice to Borrower at
its address at _________________.
This Subordinated Promissory Note shall not be assigned by the Holder
except by operation of law.
THIS SUBORDINATED PROMISSORY NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
BY ITS ACCEPTANCE HEREOF IN THE SPACE PROVIDED BELOW, THE HOLDER
HEREBY (1) ACKNOWLEDGES AND AGREES THAT THIS SUBORDINATED PROMISSORY NOTE AMENDS
AND RESTATES IN ITS ENTIRETY EACH AND EVERY OTHER PROMISSORY NOTE HERETOFORE
EXECUTED BY BORROWER IN FAVOR OF THE HOLDER AND (2) UNCONDITIONALLY AND
IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
SUBORDINATED PROMISSORY NOTE, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
[NAME OF BORROWER]
By: ----------------
Title:
ACCEPTED:
(NAME OF HOLDER)
By: -----------------------
Title:
===========================================================================
NINE WEST GROUP INC.
Issuer
and
NINE WEST DEVELOPMENT CORPORATION,
NINE WEST DISTRIBUTION CORPORATION,
NINE WEST FOOTWEAR CORPORATION and
NINE WEST MANUFACTURING CORPORATION
Guarantors
TO
THE BANK OF NEW YORK
Trustee
Indenture
Dated as of July 9, 1997
9% Senior Subordinated Notes due 2007
9% Series B Senior Subordinated Notes due 2007
===========================================================================
NINE WEST GROUP INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of July 9, 1997
-----------------------------------------------
Trust Indenture Indenture
Act Section Section
--------------- ---------
(Section) 310(a)(1)................................ 607
(a)(2)................................ 607
(b)................................... 608
(Section) 312(c)................................... 701
(Section) 314(a)................................... 703
(a)(4)................................ 1004
(c)(1)................................ 102
(c)(2)................................ 102
(e)................................... 102
(Section) 315(b)................................... 601
(Section) 316(a)(last sentence).................... 101 ("Outstanding")
(a)(1)(A)............................. 502, 512
(a)(1)(B)............................. 513
(b)................................... 508
(c)................................... 104(d)
(Section) 317(a)(1)................................ 503
(a)(2)................................ 504
(b)................................... 1003
(Section) 318(a)................................... 111
_________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Table of Contents
Page
PARTIES............................................................. 1
RECITALS OF THE COMPANY............................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions...................................... 2
Accounts Receivable Subsidiary............................ 2
Acquired Indebtedness..................................... 2
Act....................................................... 3
Affiliate................................................. 3
Agent Bank................................................ 3
Agent Members............................................. 3
Asset Acquisition......................................... 3
Asset Sale................................................ 3
Attributable Debt......................................... 4
Authenticating Agent...................................... 4
Average Life.............................................. 4
Bankruptcy Law............................................ 4
Banks..................................................... 4
Board of Directors........................................ 4
Board Resolution.......................................... 4
Business Day.............................................. 5
Capital Stock............................................. 5
Capitalized Lease Obligation.............................. 5
Cash Equivalents.......................................... 5
Change of Control......................................... 5
Commission................................................ 6
Company................................................... 6
Company Request" or "Company Order........................ 6
Consolidated Adjusted Net Income.......................... 7
Consolidated Fixed Charge Coverage Ratio.................. 7
Consolidated Income Tax Expense........................... 7
Consolidated Interest Expense............................. 7
Consolidated Non-Cash Charges............................. 8
Convertible Notes......................................... 8
Corporate Trust Office.................................... 8
corporation............................................... 8
Credit Agreement.......................................... 8
Currency Agreements....................................... 9
Default................................................... 9
Defaulted Interest........................................ 9
Depositary................................................ 9
Designated Noncash Consideration.......................... 9
Designated Senior Indebtedness............................ 9
Disinterested Director.................................... 9
Dollar" or "$............................................. 10
Event of Default.......................................... 10
Exchange Act.............................................. 10
Exchange Notes............................................ 10
Exchange Offer............................................ 10
Exchange Offer Registration Statement..................... 10
Fair Market Value......................................... 10
Foreign Subsidiary........................................ 10
Generally Accepted Accounting Principles" or "GAAP........ 10
Global Notes.............................................. 10
guarantee................................................. 10
Guarantee................................................. 11
Guarantor................................................. 11
Guarantor Senior Indebtedness............................. 11
Holder.................................................... 11
Indebtedness.............................................. 11
Indenture................................................. 12
Initial Notes............................................. 12
Institutional Accredited Investor......................... 12
Interest Payment Date..................................... 12
Interest Rate Agreements.................................. 13
Investment................................................ 13
Leveraged Subsidiary...................................... 13
Lien...................................................... 13
Maturity.................................................. 13
Moody's................................................... 13
Net Cash Proceeds......................................... 13
Non-Payment Default....................................... 14
Non-U.S. Person........................................... 14
Note Register" and "Note Registrar........................ 14
Notes..................................................... 14
Officers' Certificate..................................... 14
Offshore Global Note...................................... 14
Offshore Note Exchange Date............................... 14
Offshore Physical Note.................................... 14
Opinion of Counsel........................................ 14
Outstanding............................................... 15
Paying Agent.............................................. 15
Payment Blockage Period................................... 16
Payment Default........................................... 16
Permitted Indebtedness.................................... 16
Permitted Investments..................................... 18
Permitted Junior Securities............................... 20
Permitted Liens........................................... 20
Person.................................................... 20
Physical Notes............................................ 20
Place of Payment.......................................... 20
Predecessor Note.......................................... 20
Preferred Stock........................................... 21
Private Placement Legend.................................. 21
Public Equity Offering.................................... 21
Purchase Money Obligations................................ 21
QIB....................................................... 21
Qualified Capital Stock................................... 21
Redeemable Capital Stock.................................. 21
Redemption Date........................................... 21
Redemption Price.......................................... 21
Registration Rights Agreement............................. 22
Registration Statement.................................... 22
Regular Record Date....................................... 22
Responsible Officer....................................... 22
Restricted Subsidiary..................................... 22
S&P....................................................... 22
Sale and Leaseback Transaction............................ 22
Senior Indebtedness....................................... 22
Senior Notes.............................................. 23
Significant Subsidiary.................................... 23
Special Record Date....................................... 23
Stated Maturity........................................... 23
Subsidiary................................................ 23
Trust Indenture Act" or "TIA.............................. 23
Trustee................................................... 24
United States............................................. 24
Unrestricted Subsidiary................................... 24
U.S. Government Obligations............................... 24
U.S. Global Note.......................................... 25
U.S. Physical Note........................................ 25
Vice President............................................ 25
Voting Stock.............................................. 25
SECTION 102. Compliance Certificates and Opinions............. 25
SECTION 103. Form of Documents Delivered to Trustee........... 26
SECTION 104. Acts of Holders.................................. 27
SECTION 105. Notices, etc., to Trustee, Company and Agent
Bank............................................ 28
SECTION 106. Notice to Holders; Waiver........................ 29
SECTION 107. Effect of Headings and Table of Contents......... 29
SECTION 108. Successors and Assigns........................... 29
SECTION 109. Separability Clause.............................. 29
SECTION 110. Benefits of Indenture............................ 30
SECTION 111. Governing Law.................................... 30
SECTION 112. Legal Holidays................................... 30
SECTION 113. Trust Indenture Act Controls..................... 30
SECTION 114. No Recourse Against Others....................... 30
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.................................. 31
SECTION 202. Form of Trustee's Certificate of Authentication.. 32
SECTION 203. Restrictive Legends.............................. 32
SECTION 204. Form of Certificate to Be Delivered upon
Termination of Restricted Period................ 35
ARTICLE THREE
THE NOTES
SECTION 301. Amount........................................... 36
SECTION 302. Denominations.................................... 37
SECTION 303. Execution, Authentication, Delivery and Dating... 37
SECTION 304. Temporary Notes.................................. 38
SECTION 305. Registration, Registration of Transfer and
Exchange........................................ 38
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes...... 40
SECTION 307. Payment of Interest; Interest Rights Preserved... 41
SECTION 308. Persons Deemed Owners............................ 42
SECTION 309. Cancellation..................................... 42
SECTION 310. Computation of Interest.......................... 43
SECTION 311. Book-Entry Provisions for Global Notes........... 43
SECTION 312. Transfer Provisions.............................. 44
SECTION 313. Form of Accredited Investor Certificate.......... 53
SECTION 314. Form of Regulation S Certificate................. 55
SECTION 315. Form of Rule 144A Certificate.................... 57
SECTION 316. CUSIP Numbers.................................... 58
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.......... 58
SECTION 402. Application of Trust Money....................... 60
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default................................ 60
SECTION 502. Acceleration of Maturity; Rescission and
Annulment....................................... 62
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.......................... 63
SECTION 504. Trustee May File Proofs of Claim................. 64
SECTION 505. Trustee May Enforce Claims Without Possession
of Notes........................................ 65
SECTION 506. Application of Money Collected................... 65
SECTION 507. Limitation on Suits.............................. 66
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest................. 66
SECTION 509. Restoration of Rights and Remedies............... 67
SECTION 510. Rights and Remedies Cumulative................... 67
SECTION 511. Delay or Omission Not Waiver..................... 67
SECTION 512. Control by Holders............................... 67
SECTION 513. Waiver of Past Defaults.......................... 68
SECTION 514. Waiver of Stay or Extension Laws................. 68
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults............................... 69
SECTION 602. Certain Rights of Trustee........................ 69
SECTION 603. Trustee Not Responsible for Recitals or Issuance
of Notes........................................ 71
SECTION 604. May Hold Notes................................... 71
SECTION 605. Money Held in Trust.............................. 71
SECTION 606. Compensation and Reimbursement................... 71
SECTION 607. Corporate Trustee Required; Eligibility.......... 72
SECTION 608. Resignation and Removal; Appointment of
Successor....................................... 72
SECTION 609. Acceptance of Appointment by Successor........... 74
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business..................................... 74
SECTION 611. Appointment of Authenticating Agent.............. 75
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders..... 77
SECTION 702. Reports by Trustee............................... 77
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms........................................... 77
SECTION 802. Guarantors May Consolidate, etc., Only on Certain
Terms........................................... 79
SECTION 803. Successor Substituted............................ 80
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders......................................... 80
SECTION 902. Supplemental Indentures with Consent of Holders.. 81
SECTION 903. Execution of Supplemental Indentures............. 82
SECTION 904. Effect of Supplemental Indentures................ 82
SECTION 905. Conformity with Trust Indenture Act.............. 83
SECTION 906. Reference in Notes to Supplemental Indentures.... 83
SECTION 907. Notice of Supplemental Indentures................ 83
SECTION 908. Effect on Senior Indebtedness.................... 83
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and
Interest....................................... 83
SECTION 1002. Maintenance of Office or Agency................. 84
SECTION 1003. Money for Notes Payments to Be Held in Trust.... 84
SECTION 1004. Corporate Existence............................. 86
SECTION 1005. Payment of Taxes and Other Claims............... 86
SECTION 1006. Maintenance of Properties....................... 86
SECTION 1007. Statement by Officers As to Default............. 87
SECTION 1008. Limitation on Indebtedness...................... 87
SECTION 1009. Limitation on Restricted Payments............... 88
SECTION 1010. Limitation on Issuances and Sales of Capital
Stock of Restricted Subsidiaries............... 91
SECTION 1011. Limitation on Transactions with Affiliates...... 92
SECTION 1012. Limitation on Liens............................. 93
SECTION 1013. Limitations on Guarantees of Indebtedness by
Restricted Subsidiaries........................ 94
SECTION 1014. Purchase of Notes upon Change of Control........ 94
SECTION 1015. Limitation on Sale of Assets.................... 95
SECTION 1016. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries. 98
SECTION 1017. Limitation on Unrestricted Subsidiaries......... 98
SECTION 1018. Limitation on Issuance of Other Senior
Subordinated Indebtedness...................... 99
SECTION 1019. Provision of Financial Statements and Reports... 99
SECTION 1020. Waiver of Certain Covenants..................... 99
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Redemption......................................100
SECTION 1102. Applicability of Article........................100
SECTION 1103. Election to Redeem; Notice to Trustee...........100
SECTION 1104. Selection by Trustee of Notes to Be Redeemed....100
SECTION 1105. Notice of Redemption............................101
SECTION 1106. Deposit of Redemption Price.....................102
SECTION 1107. Notes Payable on Redemption Date................102
SECTION 1108. Notes Redeemed in Part..........................102
ARTICLE TWELVE
SECTION 1201. [Reserved.].....................................103
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Guarantees......................................103
SECTION 1302. Severability....................................104
SECTION 1303. Subordination of Guarantees.....................104
SECTION 1304. Limitation of Guarantors' Liability.............105
SECTION 1305. Contribution....................................105
SECTION 1306. Subrogation.....................................105
SECTION 1307. Reinstatement...................................106
SECTION 1308. Release of a Guarantor..........................106
SECTION 1309. Benefits Acknowledged...........................106
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or
Covenant Defeasance............................107
SECTION 1402. Defeasance and Discharge........................107
SECTION 1403. Covenant Defeasance.............................107
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.108
SECTION 1405. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous
Provisions.....................................110
SECTION 1406. Reinstatement...................................110
ARTICLE FIFTEEN
SUBORDINATION OF NOTES
SECTION 1501. Notes Subordinate to Senior Indebtedness........111
SECTION 1502. Payment over of Proceeds upon Dissolution, etc..111
SECTION 1503. Suspension of Payment When Designated Senior
Indebtedness in Default........................112
SECTION 1504. Payment Permitted If No Default.................114
SECTION 1505. Subrogation to Rights of Holders of Senior
Indebtedness...................................114
SECTION 1506. Provisions Solely to Define Relative Rights.....114
SECTION 1507. Trustee to Effectuate Subordination.............115
SECTION 1508. No Waiver of Subordination Provisions...........115
SECTION 1509. Notice to Trustee...............................115
SECTION 1510. Reliance on Judicial Order or Certificate of
Liquidating Agent..............................116
SECTION 1511. Rights of Trustee As a Holder of Senior
Indebtedness; Preservation of Trustee's Rights..117
SECTION 1512. Article Applicable to Paying Agents.............117
SECTION 1513. No Suspension of Remedies.......................117
SECTION 1514. Trust Moneys Not Subordinated...................117
SECTION 1515. Trustee Not Fiduciary for Holders of Senior
Indebtedness...................................118
TESTIMONIUM....................................................117
SIGNATURES AND SEALS...........................................117
EXHIBIT A Form of Note
EXHIBIT B Form of Subordinated Intercompany Note
INDENTURE, dated as of July 9, 1997, among NINE WEST GROUP INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 9 West Broad
Street, Stamford, Connecticut 06902, and NINE WEST DEVELOPMENT CORPORATION, a
Delaware corporation, NINE WEST DISTRIBUTION CORPORATION, a Delaware
corporation, NINE WEST FOOTWEAR CORPORATION, a Delaware corporation, and NINE
WEST MANUFACTURING CORPORATION, a Delaware corporation (collectively, the
"Guarantors"), and THE BANK OF NEW YORK, a New York banking corporation, Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issuance of its 9%
Senior Subordinated Notes due 2007 (the "Initial Notes"), and its 9% Series B
Senior Subordinated Notes due 2007 (the "Exchange Notes" and, together with the
Initial Notes, the "Notes"), of substantially the tenor and amount hereinafter
set forth, and to provide therefor the Company has duly authorized the execution
and delivery of this Indenture.
Each Guarantor has duly authorized the guarantee of up to $125,000,000
aggregate principal amount of the Initial Notes, and upon the issuance of the
Exchange Notes, if any, up to $125,000,000 aggregate principal amount of the
Exchange Notes (the "Guarantees").
Upon the issuance of the Exchange Notes, if any, or the effectiveness
of the Shelf Registration Statement (as defined herein), this Indenture will be
subject to, and shall be governed by the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of or deemed to be part of and
to govern the indentures qualified thereunder.
All things necessary have been done to make the Notes, when duly
executed and duly issued by the Company and authenticated and delivered
hereunder by the Trustee or the Authenticating Agent, the valid obligations of
the Company and to make this Indenture a valid agreement of the Company, in
accordance with their and its terms
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
It is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date hereof; and
(4) 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.
"Accounts Receivable Subsidiary" means Nine West Funding Corporation
and any other present or future Subsidiary (including any credit card bank) of
the Company that is, directly or indirectly, wholly owned by the Company (other
than directors' qualifying shares) and organized for the purpose of and engaged
in (i) purchasing, financing, and collecting accounts receivable obligations of
customers of the Company or its Subsidiaries, (ii) issuing credit cards and
financing accounts receivable obligations of customers of the Company and its
Subsidiaries, (iii) the sale or financing of such accounts receivable or
interests therein and (iv) other activities incident thereto.
"Acquired Indebtedness" means Indebtedness of a Person (a) existing at
the time such Person becomes a Subsidiary or (b) assumed in connection with the
acquisition of assets from such Person; provided that, for purposes of Section
1008, such Indebtedness shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Restricted Subsidiary.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" means, with respect to any specified Person, (a) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person or (b) any other Person that
owns, directly or indirectly, 10% or more of such specified Person's Voting
Stock or (c) any executive officer or director of any such specified Person or
other Person or (d) with respect to any natural Person, any Person having a
relationship with such Person by blood, marriage or adoption not more remote
than first cousin. For the purposes of this definition, "control," when used
with respect to any specified Person, means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent Bank" means Citibank, N.A. as agent under the Credit Agreement
and any future or successor or replacement agent under the Credit Agreement.
"Agent Members" has the meaning specified in Section 311.
"Asset Acquisition" means (i) an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person will
become a Restricted Subsidiary or will be merged or consolidated with or into
the Company or any Restricted Subsidiary or (ii) the acquisition by the Company
or any Restricted Subsidiary of the assets of any Person which constitute
substantially all of the assets of such Person, or any division or line of
business of such Person, or which is otherwise outside of the ordinary course of
business.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of (a) any
Capital Stock of any Restricted Subsidiary; (b) all or substantially all of the
properties and assets of any division or line of business of the Company or its
Restricted Subsidiaries; or (c) any other properties or assets of the Company or
any Restricted Subsidiary, other than in the ordinary course of business. For
the purposes of this definition, the term "Asset Sale" shall not include any
transfer of properties or assets (i) that is governed by the provisions of
Article Eight, (ii) of the Company to any Restricted Subsidiary, or of any
Restricted Subsidiary to the Company or any Restricted Subsidiary in accordance
with the terms of this Indenture, (iii) to an Unrestricted Subsidiary, if
permitted under Section 1009 or (iv) any disposition, or series of related
dispositions, having a Fair Market Value of less than $1,000,000. For purposes
of Section 1015, the term "Asset Sale" shall not include any sale, conveyance,
transfer, lease or other disposition of accounts receivable to an Accounts
Receivable Subsidiary or to third parties that are not Affiliates of the Company
or any Subsidiary of the Company in the ordinary course of business.
"Attributable Debt" means, with respect to an operating lease included
in any Sale and Leaseback Transaction at the time of determination, the present
value (discounted at the interest rate implicit in the lease or, if not known,
at the Company's incremental borrowing rate) of the obligations of the lessee of
the property subject to such lease for rental payments during the remaining term
of the lease included in such transaction, including any period for which such
lease has been extended or may, at the option of the lessor, be extended, or
until the earliest date on which the lessee may terminate such lease without
penalty or upon payment of penalty (in which case the rental payments shall
include such penalty), after excluding from such rental payments all amounts
required to be paid on account of maintenance and repairs, insurance, taxes,
assessments, water, utilities and similar charges.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Notes.
"Average Life" means, as of the date of determination with respect to
any Indebtedness, the quotient obtained by dividing (a) the sum of the products
of (i) the number of years from the date of determination 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 of the United States Code, as amended,
or any similar United States federal or state law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization or relief of
debtors or any amendment to, succession to or change in any such law.
"Banks" means the banks and other financial institutions from time to
time that are lenders under the Credit Agreement.
"Board of Directors" means either the board of directors of the
Company or a Guarantor, as applicable, or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or a Guarantor, as
applicable, to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Notes, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or other location 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, partnership 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, whether now outstanding
or issued after the date of this Indenture.
"Capitalized Lease Obligation" means, with respect to any Person, any
obligation of such Person 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,
for the purpose of this Indenture, the amount of such obligation at any date
shall be the capitalized amount thereof at such date, determined in accordance
with GAAP.
"Cash Equivalents" means (a) 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); (b) certificates of deposit or acceptances 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; (c) commercial paper with a maturity of
180 days or less issued by a corporation that is not an Affiliate of the Company
and is organized under the laws of any state of the United States or the
District of Columbia and rated at least A-1 by S&P or at least P-1 by Moody's;
and (d) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (a) and (b) above.
"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), directly or indirectly, of more than 35% of the total
outstanding Voting Stock of the Company; (b) the Company consolidates with, or
merges with or into, another Person or 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 (i) where the outstanding Voting Stock of the Company
is not converted or exchanged at all (except to the extent necessary to reflect
a change in the jurisdiction of incorporation of the Company) or is converted
into or exchanged for (A) Voting Stock (other than Redeemable Capital Stock) of
the surviving or transferee corporation or (B) Voting Stock (other than
Redeemable Capital Stock) of the surviving or transferee corporation and cash,
securities and other property (other than Capital Stock of the surviving or
transferee corporation) in an amount that could be paid by the Company as a
Restricted Payment as described under Section 1009 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), directly or indirectly, of more than 35% of the total
outstanding Voting Stock of the surviving or transferee corporation; (c) 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 to 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 or dissolution other than in a
transaction which complies with Article Eight.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Operating Officer, its Chief
Financial Officer, any Vice President, its Treasurer or an Assistant Treasurer,
and delivered to the Trustee.
"Consolidated Adjusted Net Income" means, for any period, the
consolidated net income (or loss) of the Company and all Restricted Subsidiaries
for such period as determined in accordance with GAAP, adjusted by excluding,
without duplication, (a) any net after-tax extraordinary gains or losses (less
all fees and expenses relating thereto), (b) any net after-tax gains (or losses)
(less all fees and expenses relating thereto) attributable to asset dispositions
other than in the ordinary course of business, (c) the portion of net income (or
loss) of any Person (other than the Company or a Restricted Subsidiary),
including Unrestricted Subsidiaries, in which the Company or any Restricted
Subsidiary has an ownership interest, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any Restricted
Subsidiary in cash dividends or distributions during such period, (d) the net
income (or loss) of any Person combined with the Company or any Restricted
Subsidiary on a "pooling of interests" basis attributable to any period prior to
the date of combination, (e) the net income of any Restricted Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by
such Restricted Subsidiary is not at the date of determination permitted,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Restricted Subsidiary or its stockholders and (f)
for purposes of calculating Consolidated Adjusted Net Income under Section 1009,
any net income (or loss) from any Restricted Subsidiary that was an Unrestricted
Subsidiary at any time during such period other than any amounts actually
received in cash from such Restricted Subsidiary.
"Consolidated Fixed Charge Coverage Ratio" of the Company means, for
any period, the ratio of (a) Consolidated Adjusted Net Income for such period,
plus the sum of Consolidated Interest Expense, Consolidated Income Tax Expense
and Consolidated Non-Cash Charges, in each case, to the extent deducted in
computing Consolidated Adjusted Net Income, for such period to (b) Consolidated
Interest Expense for such period.
"Consolidated Income Tax Expense" means, for any period, the provision
for federal, state, local and foreign income taxes of the Company and all
Restricted Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense" means, for any period, without
duplication, the sum of (a) the interest expense of the Company and its
Restricted Subsidiaries for such period, including, without limitation,
(i)amortization of debt discount, (ii) the net cost of Interest Rate Agreements
(including amortization of discounts), (iii) the interest portion of any
deferred payment obligation, (iv) accrued interest and (v) amortization of debt
issuance costs, plus (b) the interest component of Capitalized Lease Obligations
of the Company and its Restricted Subsidiaries paid, accrued and/or scheduled to
be paid or accrued during such period, plus (c) cash and non-cash dividends due
(whether or not declared) on Redeemable Capital Stock or on Preferred Stock of
any Restricted Subsidiary (to any Person other than the Company and any wholly
owned Restricted Subsidiary), plus (d) one-third of lease rental payments in
connection with operating leases related to Sale and Leaseback Transactions
paid, accrued and/or scheduled to be paid or accrued during such period, in each
case as determined on a consolidated basis in accordance with GAAP; provided
that (x) the Consolidated Interest Expense attributable to interest on any
Indebtedness computed on a pro forma basis and (A) bearing a floating interest
rate shall be computed as if the rate in effect on the date of computation had
been the applicable rate for the entire period and (B) which was not outstanding
during the period for which the computation is being made but which bears, at
the option of the Company, a fixed or floating rate of interest, shall be
computed by applying at the option of the Company, either the fixed or floating
rate, and (y) in making such computation, the Consolidated Interest Expense
attributable to interest on any Indebtedness under a revolving credit facility
computed on a pro forma basis shall be computed based upon the average daily
balance of such Indebtedness during the applicable period; provided further
that, notwithstanding the foregoing, the interest rate with respect to any
Indebtedness covered by any Interest Rate Agreement shall be deemed to be the
effective interest rate with respect to such Indebtedness after taking into
account such Interest Rate Agreement. For purposes of clause (c) of the
preceding sentence, dividends shall be deemed to be an amount equal to the
dividends due (whether or not declared) divided by one minus the applicable
actual combined federal, state, local and foreign income tax rate of the Company
and its Subsidiaries (expressed as a decimal).
"Consolidated Non-Cash Charges" means, for any period, the aggregate
depreciation, amortization and other non-cash expenses of the Company and any
Restricted Subsidiary reducing Consolidated Adjusted Net Income for such period,
determined on a consolidated basis in accordance with GAAP (excluding any such
non-cash charge that requires an accrual of or reserve for cash charges for any
future period).
"Convertible Notes" means the 5-1/2% Convertible Subordinated Notes
Due 2003 of the Company.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business shall
be administered, which office on the date of execution of this Indenture is
located at 101 Barclay Street, 21W, New York, New York 10286.
"corporation" includes corporations, associations, companies and
business trusts.
"Credit Agreement" means the Amended and Restated Credit Agreement
dated as of August 2, 1996, among the Company, the Banks and Citibank, N.A., as
agent, including the Credit Agreement dated as of May 23, 1997, between the
Company and NationsBank of Texas, N.A., as such agreements may be amended,
renewed, extended, substituted, restated, refinanced, restructured, supplemented
or otherwise modified from time to time (including, without limitation, any
successive amendments, renewals, extensions, substitutions, restatements,
refinancings, restructuring, supplements or other modifications of the
foregoing); provided that with respect to any agreement providing for the
refinancing of Indebtedness under the Credit Agreement, such agreement shall be
the Credit Agreement under this Indenture only if a notice to that effect is
delivered by the Company to the Trustee and there shall be at any time only one
such agreement that is the Credit Agreement under this Indenture.
"Currency Agreements" means any spot or forward foreign exchange
agreements and currency swap, currency option or other similar financial
agreements or arrangements entered into by the Company or any of its Restricted
Subsidiaries designed to protect against or manage exposure to fluctuations in
currency exchange rates.
"Default" means any event that after notice or passage of time or both
would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Designated Noncash Consideration" means the fair market value of non-
cash consideration received by the Company or a Restricted Subsidiary in
connection with an Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an Officers' Certificate, setting forth the basis of
such valuation, executed by the principal executive officer and the principal
financial officer of the Company, less the amount of cash or Cash Equivalents
received in connection with a sale of such Designated Noncash Consideration.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness
under the Credit Agreement, (ii) Indebtedness under the Senior Notes and (iii)
any Senior Indebtedness which, at the time of determination, has an aggregate
principal amount outstanding of at least $25,000,000 and is specifically
designated in the instrument evidencing such Senior Indebtedness as "Designated
Senior Indebtedness" by the Company.
"Disinterested Director" means, with respect to any transaction or
series of transactions in respect of which the Board of Directors is required to
deliver a resolution of the Board of Directors under this Indenture, a member of
the Board of Directors who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of
transactions.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" has the meaning stated in the first recital of this
Indenture and refers to any Exchange Notes containing terms substantially
identical to the Initial Notes (except that (i) such Exchange Notes shall not
contain terms with respect to transfer restrictions and shall be registered
under the Securities Act, and (ii) certain provisions relating to an increase in
the stated rate of interest thereon shall be eliminated) that are issued and
exchanged for the Initial Notes in accordance with the Exchange Offer, as
provided for in the Registration Rights Agreement and this Indenture.
"Exchange Offer" means the offer by the Company to the Holders of the
Initial Notes to exchange all of the Initial Notes for Exchange Notes, as
provided for in the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
"Foreign Subsidiary" means a Restricted Subsidiary not organized or
existing under the laws of the United States, any state thereof, the District of
Columbia or any territory thereof that has no material operations or assets in
the United States.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, that
are in effect on the date of this Indenture.
"Global Notes" has the meaning set forth in Section 201.
"guarantee" means, as applied to any obligation, (a) 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 (b) 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.
"Guarantee" means a guarantee of the obligations of the Company under
this Indenture in accordance with the provisions hereof. When used as a verb,
"Guarantee" shall have a corresponding meaning.
"Guarantor" means Nine West Development Corporation, Nine West
Distribution Corporation, Nine West Footwear Corporation, Nine West
Manufacturing Corporation and any Restricted Subsidiary that incurs a Guarantee;
provided that, upon the release and discharge of any Guarantor from its
Guarantee in accordance with this Indenture, such Guarantor shall cease to be a
Guarantor.
"Guarantor Senior Indebtedness" of a Guarantor means Indebtedness of
such Guarantor consisting of (i) a guarantee of any Senior Indebtedness under
the Credit Agreement or any other Senior Indebtedness (including the guarantee
of the Senior Notes) or (ii) the principal of, premium, if any, and interest on
all other Indebtedness of such Guarantor (other than such Guarantor's Guarantee
of the Notes), whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such indebtedness shall
not be senior in right of payment to such Guarantor's Guarantee of the Notes.
Notwithstanding the foregoing, "Guarantor Senior Indebtedness" of a Guarantor
shall not include (i) Indebtedness evidenced by such Guarantor's Guarantee of
the Notes, (ii) Indebtedness of such Guarantor that is expressly subordinated in
right of payment to any Indebtedness of such Guarantor, (iii) Indebtedness of
such Guarantor that by operation of law is subordinate to any general unsecured
obligations of such Guarantor, (iv) Indebtedness of such Guarantor to the extent
incurred in violation of any covenant of this Indenture, (v) any liability for
federal, state or local taxes or other taxes, owed or owing by such Guarantor,
(vi) trade account payables owed or owing by such Guarantor, (vii) amounts owed
by such Guarantor for compensation to employees or for services rendered to such
Guarantor, (viii) Indebtedness of such Guarantor to any Affiliate of the
Company, (ix) Redeemable Capital Stock of such Guarantor and (x) Indebtedness
which when incurred and without respect to any election under Section 1111 (b)
of Title 11 of the United States Code is without recourse to such Guarantor or
any Subsidiary.
"Holder" means the Person in whose name a Note is registered in the
Note Register.
"Indebtedness" means, with respect to any Person, without duplication,
(a) all liabilities of such Person for borrowed money (including overdrafts) or
for the deferred purchase price of property or services, excluding any trade
payables and other accrued current liabilities incurred in the ordinary course
of business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit and
acceptances issued under letter of credit facilities, acceptance facilities or
other similar facilities, (b) all obligations of such Person evidenced by bonds,
notes, debentures or other similar instruments, (c) all indebtedness of such
Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even if the rights
and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), but excluding
trade payables arising in the ordinary course of business, (d) all Capitalized
Lease Obligations of such Person, (e) all obligations of such Person under or in
respect of Interest Rate Agreements or Currency Agreements, (f) all Indebtedness
referred to in (but not excluded from) 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 or with respect to property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness (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), (g) all guarantees by such Person of Indebtedness referred to in this
definition of any other Person, (h) all Redeemable Capital Stock of such Person
valued at the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued and unpaid dividends and (i) all Attributable Debt of such
Person. 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 instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Notes" has the meaning specified in the recitals to this
Indenture.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act.
"Interest Payment Date", when used with respect to any Note, means the
Stated Maturity of an installment of interest on such Note.
"Interest Rate Agreements" means any interest rate protection
agreements and other types of interest rate hedging agreements (including,
without limitation, interest rate swaps, caps, floors, collars and similar
agreements).
"Investment" means, with respect to any Person, any direct or indirect
advance, loan, guarantee or other extension of credit or capital contribution to
(by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase,
acquisition or ownership by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued or owned by,
any other Person and all other items that would be classified as investments on
a balance sheet prepared in accordance with GAAP. In addition, the fair market
value of the net assets of any Restricted Subsidiary at the time that such
Restricted Subsidiary is designated 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 on
commercially reasonable terms in accordance with normal trade practices.
"Leveraged Subsidiary" means any Restricted Subsidiary that has
incurred Indebtedness (other than Acquired Indebtedness pursuant to Section 1008
and Indebtedness described in clauses (e), (g), (h), (k), (1), (m), (n) and (o)
of the definition of "Permitted Indebtedness") pursuant to Section 1008 for so
long as such Indebtedness, or any refinancing thereof, is outstanding.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation, assignment for
security, claim, or preference or priority or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired. 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" means, with respect to any Note, the date on which any
principal of such Note 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, or stock
or other assets when disposed for, cash or Cash Equivalents (except to the
extent that such obligations are financed or sold with recourse to the Company
or any Restricted Subsidiary), net of (i) brokerage commissions and other fees
and expenses (including fees and expenses of legal counsel and investment banks)
related to such Asset Sale, (ii) provisions for all taxes payable as a result of
such Asset Sale, (iii) payments made to retire Indebtedness where payment of
such Indebtedness is secured by the assets or properties the subject of such
Asset Sale, (iv) amounts required to be paid to any Person (other than the
Company or any Restricted Subsidiary) owning a beneficial interest in the assets
subject to the Asset Sale and (v) appropriate amounts to be provided by the
Company or any Restricted Subsidiary, 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 Restricted Subsidiary, as the case may be,
after such Asset Sale, including, without limitation, pension and other post-
employment benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset
Sale, all as reflected in an Officers' Certificate delivered to the Trustee.
"Non-Payment Default" means any event of default (other than a Payment
Default) the occurrence of which entitles one or more Persons to accelerate the
maturity of any Designated Senior Indebtedness.
"Non-U.S. Person" means a person who is not a U.S. person as defined
in Regulation S.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 305.
"Notes" has the meaning stated in the first recital of this Indenture.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Offshore Global Note" has the meaning set forth in Section 201.
"Offshore Note Exchange Date" has the meaning set forth in Section
203.
"Offshore Physical Note" has the meaning set forth in Section 201.
"Opinion of Counsel" means a written opinion of legal counsel, who may
be counsel for the Company, including an employee of the Company, and who shall
be reasonably acceptable to the Trustee.
"Outstanding", when used with respect to Notes, means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes, or portions thereof, for whose payment or redemption or
repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of such
Notes; provided that, if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Notes, except to the extent provided in Sections 1402 and 1403,
with respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article Fourteen; and
(iv) Notes which have been paid pursuant to Section 306 or in exchange
for or in lieu of which other Notes have been authenticated and delivered
pursuant to this Indenture, other than any such Notes in respect of which
there shall have been presented to the Trustee proof satisfactory to it
that such Notes are held by a bona fide purchaser in whose hands such Notes
are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in making
such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which a Responsible Officer of
the Trustee actually knows to be so owned shall be so disregarded. Notes so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
to act with respect to such Notes and that the pledgee is not the Company or any
other obligor upon the Notes or any Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (or premium, if
any, on) or interest on any Notes on behalf of the Company.
"Payment Blockage Period" has the meaning specified in Section 1503.
"Payment Default" means any default in the payment (whether at stated
maturity, upon scheduled installment, by acceleration or otherwise) of principal
of, or premium, if any, or interest on Designated Senior Indebtedness.
"Permitted Indebtedness" means any of the following:
(a) (i) Indebtedness of the Company, any Guarantor or any Foreign
Subsidiary (provided that Indebtedness of any Foreign Subsidiary is
incurred to fund operations outside the United States), under the Credit
Agreement in an aggregate principal amount at any one time outstanding not
to exceed $600,000,000 less (x) the amount of any principal payments made
by the Company in respect of any term loans under the Credit Agreement
other than principal payments made with proceeds of the offering of the
Notes and the Senior Notes and (y) the amount by which the aggregate
commitment under any revolving credit facility under the Credit Agreement
at any time has been permanently reduced and (ii) any guarantee by the
Company or any Guarantor of Indebtedness incurred under clause (i);
(b) Indebtedness of the Company pursuant to the Notes or the Senior
Notes or of any Restricted Subsidiary pursuant to a Guarantee of the Notes
or a guarantee of the Senior Notes;
(c) Indebtedness of the Company or any Restricted Subsidiary not
otherwise referred to in this definition, whether contingent or otherwise,
that is outstanding on the date of this Indenture;
(d) Indebtedness of the Company owing to any Restricted Subsidiary;
provided that any Indebtedness of the Company owing to any such Restricted
Subsidiary is made pursuant to an intercompany note in the form attached
hereto as Exhibit B and is subordinated in right of payment from and after
such time as the Notes shall become due and payable (whether at Stated
Maturity, acceleration or otherwise) to the payment and performance of the
Company's obligations under such Notes; provided further that any
disposition, pledge or transfer of any such Indebtedness to a Person (other
than a disposition, pledge or transfer to the Company or another Restricted
Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the
Company not permitted by this clause (d);
(e) Indebtedness of any Restricted Subsidiary owing to the Company or
to another Restricted Subsidiary; provided that any such Indebtedness is
made pursuant to an intercompany note in the form attached to this
Indenture and such Indebtedness of any Guarantor is subordinated in right
of payment to the Guarantee of such Guarantor; provided further that any
disposition, pledge or transfer of any such Indebtedness to a Person (other
than a disposition, pledge or transfer to (i) the Company or a Restricted
Subsidiary or (ii) the Banks as security for obligations under the Credit
Agreement by the Company or a Restricted Subsidiary) shall be deemed to be
an incurrence of such Indebtedness by such Restricted Subsidiary not
permitted by this clause (e);
(f) guarantees of any Restricted Subsidiary of Indebtedness of the
Company entered into in accordance with the provisions of Section 1013;
(g) obligations of the Company or any Guarantor entered into in the
ordinary course of business (i) pursuant to Interest Rate Agreements
designed to protect the Company or any Restricted Subsidiary against
fluctuations in interest rates in respect of Indebtedness of the Company or
any Restricted Subsidiary, which obligations do not exceed the aggregate
principal amount of such Indebtedness and (ii) pursuant to Currency
Agreements entered into by the Company or any of its Restricted
Subsidiaries in respect of its (x) assets or (y) obligations, as the case
may be, denominated in a foreign currency;
(h) Capitalized Lease Obligations and Purchase Money Obligations of
the Company or any Guarantor in an aggregate amount which does not exceed
(i) $25,000,000 incurred in any one year and (ii) $50,000,000 at any one
time outstanding;
(i) Indebtedness of the Company or any Guarantor consisting of
guarantees, indemnities or obligations in respect of purchase price
adjustments in connection with the acquisition or disposition of assets,
including, without limitation, shares of Capital Stock of Restricted
Subsidiaries;
(j) any renewals, extensions, substitutions, refinancings or
replacements (each, for purposes of this clause, a "refinancing") of any
Indebtedness referred to in clause (b) or (c) of this definition, including
any successive refinancings, so long as (i) any such new Indebtedness shall
be in a principal amount that does not exceed the principal amount (or, if
such Indebtedness being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of determination)
so refinanced, plus the lesser of the amount of any premium required to be
paid in connection with such refinancing pursuant to the terms of the
Indebtedness refinanced or the amount of any premium reasonably determined
as necessary to accomplish such refinancing, (ii) in the case of any
refinancing of Indebtedness that is expressly subordinated to the
Indebtedness under the Notes such new Indebtedness is made subordinate to
the Notes at least to the same extent as the Indebtedness being refinanced,
(iii) such new Indebtedness has an Average Life longer than the Average
Life of the Notes and a final Stated Maturity later than the final Stated
Maturity of the Notes and (iv) Indebtedness of the Company or a Guarantor
may only be refinanced with Indebtedness of the Company or a Guarantor;
(k) Indebtedness of the Company or any Restricted Subsidiary 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 or such Restricted Subsidiary, as the
case may be, obtaining knowledge of the incurrence thereof;
(1) Indebtedness of the Company or any Restricted Subsidiary
represented by (x) letters of credit for the account of the Company or any
Restricted Subsidiary or (y) other obligations to reimburse third parties
pursuant to any surety bond or other similar arrangements, 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;
(m) Indebtedness, if any, of the Company or any Restricted Subsidiary
arising by reason of the recharacterization of the sale of accounts
receivable to an Accounts Receivable Subsidiary;
(n) Indebtedness of any Foreign Subsidiary incurred to fund operations
outside the United States, provided that at the time of, and immediately
after giving effect to, such incurrence the Company could incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 1008; and
(o) Indebtedness of the Company or any Restricted Subsidiary not
otherwise permitted by the foregoing clauses (a) through (n) in an
aggregate principal amount not in excess of $50,000,000 at any one time
outstanding.
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents;
(b) Investments in the Company or any Restricted Subsidiary;
(c) intercompany Indebtedness to the extent permitted under clauses
(d) and (e) of the definition of "Permitted Indebtedness";
(d) Investments not otherwise permitted by the foregoing clauses (a)
through (c) or in the following clauses (e) through (m) in an amount not to
exceed $37,500,000 at any one time outstanding;
(e) Investments by the Company or any Restricted Subsidiary in another
Person, if as a result of such Investment (i) such other Person becomes a
Restricted Subsidiary or (ii) such other Person is merged or consolidated
with or into, or transfers or conveys all or substantially all of its
assets to, the Company or a Restricted Subsidiary;
(f) bonds, notes, debentures and other securities received as
consideration for Asset Sales to the extent permitted under Section 1015;
(g) lease, utility and other similar deposits in the ordinary course
of business;
(h) prepaid expenses incurred in the ordinary course of business
consistent with past practices;
(i) negotiable instruments held for collection;
(j) Investments in the form of the sale (on a "true-sale" non-recourse
basis) or the servicing of receivables transferred from the Company or any
Restricted Subsidiary, or transfers of cash, to an Accounts Receivable
Subsidiary as a capital contribution or in exchange for Indebtedness of
such Accounts Receivable Subsidiary or cash in the ordinary course of
business;
(k) Investments in joint ventures, partnerships or other Persons made
at any time reasonably related or complementary to the businesses of the
Company on the date of this Indenture so long as at the time of making such
Investment and after giving effect to such Investment on a pro forma basis,
the Consolidated Fixed Charge Coverage Ratio calculated as set forth in
Section 1008 would have been at least equal to 4.0 to 1.0, provided that
such Investment is in furtherance of the Company's business and no
Affiliate of the Company (other than a Restricted Subsidiary) or beneficial
holder of 5% or more of any class of Capital Stock of the Company shall
beneficially own Capital Stock in the Person in which such Investment is
made;
(l) personal loans or advances to employees of the Company or any
Restricted Subsidiary which loans and advances do not in the aggregate
exceed $10,000,000 outstanding at any one time; and
(m) loans or advances to customers or suppliers of the Company or any
Restricted Subsidiary in the ordinary course of business, which loans and
advances do not in the aggregate exceed $10,000,000 outstanding at any one
time.
"Permitted Junior Securities" has the meaning specified in Section
1502.
"Permitted Liens" means the following types of Liens:
(a) Liens on any property or assets of a Restricted Subsidiary granted
in favor of the Company or any wholly owned Restricted Subsidiary;
(b) Liens securing the Notes;
(c)Liens securing the Guarantees of the Notes;
(d) Liens securing Acquired Indebtedness created prior to (and not in
connection with or in contemplation of) the incurrence of such Indebtedness
by the Company or any Restricted Subsidiary, provided that such Lien does
not extend to any property or assets of the Company or any Restricted
Subsidiary other than the assets acquired in connection with the incurrence
of such Acquired Indebtedness; and
(e) any extension, renewal or replacement, in whole or in part, of any
Lien described in the foregoing clauses (a) through (d), provided that any
such extension, renewal or replacement shall be no more restrictive in any
material respect than the Lien so extended, renewed or replaced and shall
not extend to any additional property or assets.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Physical Notes" has the meaning set forth in Section 201.
"Place of Payment" means the office or agency maintained by the
Company where the principal of (and premium, if any, on) and interest on the
Notes are payable as specified in Section 1002.
"Predecessor Note" of any particular Note, means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"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, including, without limitation, all classes and
series of preferred or preference stock of such Person.
"Private Placement Legend" has the meaning set forth in Section 203.
"Public Equity Offering" means an underwritten offer and sale of
Common Stock of the Company to the public pursuant to a registration statement
that has been declared effective by the Commission pursuant to the Securities
Act (other than a registration statement on Form S-8 or otherwise relating to
equity securities issuable under any employee benefit plan of the Company).
"Purchase Money Obligations" means, with respect to any Person,
obligations, other than Capitalized Lease Obligations, incurred or assumed in
the ordinary course of business in connection with the purchase of property to
be used in the business of such Person within 90 days of such purchase, provided
that the amount of any Purchase Money Obligation shall not exceed the purchase
price of the property purchased.
"QIB" means a "Qualified Institutional Buyer" within the meaning of
Rule 144A under the Securities Act.
"Qualified Capital Stock" of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any class or series of Capital Stock
that, either by its terms, 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 final Stated Maturity of the Notes or is redeemable at the option of the
holder thereof at any time prior to such final Stated Maturity, or is
convertible into or exchangeable for debt securities at any time prior to such
final Stated Maturity.
"Redemption Date", when used with respect to any Note to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of July 9, 1997, among the Company, the Guarantors and the
Holders of Initial Notes.
"Registration Statement" means the Registration Statement as defined
in the Registration Rights Agreement.
"Regular Record Date" has the meaning specified in Section 301.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, 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 or her knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary.
"S&P" means Standard and Poor's Ratings Group, A Division of McGraw-
Hill, Inc., and its successors.
"Sale and Leaseback Transaction" means any transaction or series of
related transactions pursuant to which the Company or a Restricted Subsidiary
sells or transfers any property or asset in connection with the leasing, or the
resale against installment payments, of such property or asset to the seller or
transferor.
"Senior Indebtedness" means (i) all obligations of the Company, now or
hereafter existing, under or in respect of the Credit Agreement, whether for
principal, premium, if any, interest (including interest accruing after the
filing of, or which would have accrued but for the filing of, a petition by or
against the Company under Bankruptcy Law, whether or not such interest is
allowed as a claim after such filing in any proceeding under such law), fees,
expenses, indemnities, gross-ups or other payments thereunder, (ii) the
principal of, premium, if any, and interest on the Senior Notes and (iii) the
principal of, premium, if any, and interest on all other Indebtedness of the
Company (other than the Notes and the Convertible Notes), whether outstanding on
the date of this Indenture or thereafter created, incurred or assumed, unless,
in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Notes. Notwithstanding the foregoing, "Senior Indebtedness" shall not include
(i) Indebtedness evidenced by the Notes or the Convertible Notes, (ii)
Indebtedness of the Company that is expressly subordinated in right of payment
to any Indebtedness of the Company, (iii) Indebtedness of the Company to the
extent incurred in violation of any covenant prohibiting the incurrence of
Indebtedness under this Indenture, (iv) any liability for federal, state or
local taxes or other taxes, owed or owing by the Company, (v) trade account
payables owed or owing by the Company, (vi) amounts owed by the Company for
compensation to employees or for services rendered to the Company, (vii)
Indebtedness of the Company to any Subsidiary or any other Affiliate of the
Company, (viii) Redeemable Capital Stock of the Company and (ix) Indebtedness
which when incurred and without respect to any election under Section 1111 (b)
of Title 11 of the United States Code is without recourse to the Company or any
Subsidiary.
"Senior Notes" means the 8-3/8% Senior Notes due 2005 of the Company,
issued pursuant to an Indenture dated the date hereof among the Company, the
Guarantors and The Bank of New York, as trustee.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that,
together with its Subsidiaries, (i) for the most recent fiscal year of the
Company, accounted for more than 5% of the consolidated revenues of the Company
and its Restricted Subsidiaries or (ii) as of the end of such fiscal year, was
the owner of more than 5% of the consolidated assets of the Company and its
Restricted Subsidiaries, all as set forth on the most recently available
consolidated financial statements of the Company for such fiscal year.
"Special Record Date" for the payment of any Defaulted Interest on the
Notes means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable, 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.
"Subsidiary" means any Person, a majority of the equity ownership or
Voting Stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries or by the Company and one or more
other Subsidiaries.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
"United States" means the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"Unrestricted Subsidiary" means (a) any Subsidiary that at the time of
determination shall be an Unrestricted Subsidiary (as designated by the Board of
Directors of the Company, as provided below) and (b) any Subsidiary of an
Unrestricted Subsidiary; provided, however, that in no event shall any Guarantor
be an Unrestricted Subsidiary. The Board of Directors of the Company may
designate any Subsidiary (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary so long as (i) neither the Company
nor any Restricted Subsidiary is directly or indirectly liable for any
Indebtedness of such Subsidiary, (ii) no default with respect to any
Indebtedness of such Subsidiary would permit (upon notice, lapse of time or
otherwise) any holder of any other Indebtedness of the Company or any Restricted
Subsidiary to declare a default on such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated maturity, (iii) any
Investment in such Subsidiary made as a result of designating such Subsidiary an
Unrestricted Subsidiary will not violate the provisions of Section 1017, (iv)
neither the Company nor any Restricted Subsidiary has a contract, agreement,
arrangement, understanding or obligation of any kind, whether written or oral,
with such Subsidiary other than those that might be obtained at the time from
persons who are not Affiliates of the Company and (v) neither the Company nor
any Restricted Subsidiary has any obligation (1) to subscribe for additional
shares of Capital Stock or other equity interest in such Subsidiary or (2) to
maintain or preserve such Subsidiary's financial condition or to cause such
Subsidiary to achieve certain levels of operating results. Any such designation
by the Board of Directors of the Company shall be evidenced to the Trustee by
filing a board resolution with the Trustee giving effect to such designation.
The Board of Directors of the Company may designate any Unrestricted Subsidiary
as a Restricted Subsidiary if, immediately after giving effect to such
designation, there would be no Default or Event of Default under this Indenture
and the Company could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 1008.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
"U.S. Global Note" has the meaning set forth in Section 201.
"U.S. Physical Note" has the meaning set forth in Section 201.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" 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, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel to the effect that in the opinion
of such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of any such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant to
Section 1007) shall include:
(1) a statement to the effect that each individual or firm signing
such certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement to the effect that, in the opinion of each such
individual or such firm, he or she has or they have made such examination
or investigation as is necessary to enable him, her or them to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual
or such firm, such covenant or condition has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or of a
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his or her
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or such Guarantor stating that the information with respect to such
factual matters is in the possession of the Company or such Guarantor, unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Notes may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held by any
Person, and the date of holding the same, shall be proved by the Note Register.
(d) If the Company shall solicit from the Holders of Notes any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date
is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Notes have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the Outstanding Notes shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company or
any Guarantor in reliance thereon, whether or not notation of such action is
made upon such Note.
SECTION 105. Notices, etc., to Trustee, Company and Agent Bank.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any Guarantor shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or
(2) the Company or any Guarantor by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to the Company or such Guarantor addressed to it at the address of its
principal office, for the attention of the Chief Financial Officer,
specified in the first paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Company, or
(3) the Agent Bank by the Company or any Guarantor, the Trustee or any
Holder shall be sufficient for any purpose hereunder if made, given,
furnished or delivered, in writing to or with the Agent Bank addressed to
it as set forth in the Credit Agreement, or at any other address previously
furnished in writing to the Company and the Trustee by the Agent Bank.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Notes by the Company or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at its
address as it appears in the Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be sufficient giving of
such notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Note shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto, any Authenticating Agent, any
Paying Agent, any Notes Registrar and their successors hereunder and the Holders
and, with respect to any provisions hereof relating to the subordination of the
Notes or the rights of holders of Senior Indebtedness, the holders of Senior
Indebtedness, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 111. Governing Law.
This Indenture and the Notes shall be governed by and construed in
accordance with the law of the State of New York. Upon the effectiveness of the
Shelf Registration Statement or the consummation of the Exchange Offer, this
Indenture will be subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, or
Stated Maturity or Maturity of any Note shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or of
any Note) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date or at the Stated
Maturity or Maturity; provided that no interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date, Stated Maturity or
Maturity, as the case may be.
SECTION 113. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the provision required by the TIA shall control.
SECTION 114. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
or any Guarantor shall not have any liability for any obligations of the Company
or such Guarantor under the Notes, any Guarantee or this Indenture, as
applicable, or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note and the related Guarantee,
each Holder shall waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the Notes and the
Guarantees.
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.
The Initial Notes shall be known as the "9% Senior Subordinated Notes
due 2007" and the Exchange Notes shall be known as the "9% Series B Senior
Subordinated Notes due 2007", in each case, of the Company. The Notes and the
Trustee's certificate of authentication shall be in substantially the forms set
forth in this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers of the Company executing such Notes, as evidenced by
their execution of the Notes. Any portion of the text of any Note may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Note.
The definitive Notes shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers of the Company executing such Notes, as evidenced by their
execution of such Notes.
Initial Notes offered and sold in reliance on Rule 144A under the
Securities Act may be issued in the form of one or more permanent global Notes
in substantially the form set forth in Exhibit A and contain each of the legends
set forth in Section 203 (the "U.S. Global Note"), deposited with the Trustee,
as custodian for the Depositary or its nominee, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the U.S. Global Note may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depositary or its nominee, as hereinafter provided.
Initial Notes offered and sold in offshore transactions in reliance on
Regulation S under the Securities Act shall be issued in the form of a single
permanent global Note in substantially the form set forth in Exhibit A (the
"Offshore Global Note") deposited with the Trustee, as custodian for the
Depositary or its nominee, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the Offshore
Global Note may from time to time be increased or decreased by adjustments made
in the records of the Trustee, as custodian for the Depositary or its nominee,
as herein provided. Initial Notes issued pursuant to Section 305 in exchange
for or upon transfer of beneficial interests in the U.S. Global Note or the
Offshore Global Note shall be in the form of U.S. Physical Notes or in the form
of permanent certificated Notes substantially in the form set forth in Exhibit A
(the "Offshore Physical Notes"), respectively, as hereinafter provided.
Initial Notes which are offered and sold to Institutional Accredited
Investors which are not QIBs (excluding Non-U.S. Persons) shall be issued in the
form of permanent certificated Notes in substantially the form set forth in
Exhibit A and contain the Private Placement Legend as set forth in Section 203
(the "U.S. Physical Notes").
The Offshore Physical Notes and U.S. Physical Notes are sometimes
collectively herein referred to as the "Physical Notes". The U.S. Global Note
and the Offshore Global Note are sometimes collectively referred to as the
"Global Notes".
Exchange Notes shall be issued substantially in the form set forth in
Exhibit A.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: __________ By _____________________________
Authorized Signatory
SECTION 203. Restrictive Legends.
Unless and until (i) an Initial Note is sold pursuant to an effective
Shelf Registration Statement or (ii) an Initial Note is exchanged for an
Exchange Note in an Exchange Offer pursuant to an effective Exchange Offer
Registration Statement, in each case pursuant to the Registration Rights
Agreement, (A) each U.S. Global Note and U.S. Physical Note shall bear the
following legend set forth below (the "Private Placement Legend") on the face
thereof and (B) the Offshore Physical Notes and Offshore Global Note shall bear
the Private Placement Legend on the face thereof until at least 41 days after
the date hereof (the "Offshore Note Exchange Date") and receipt by the Company
and the Trustee of a certificate substantially in the form provided in Section
204:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A")) OR (B) IT IS 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" PURSUANT TO
RULE 903 OR 904 OF REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X)
THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED
BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION
THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY
PREDECESSOR OR THIS SECURITY) AND THE LAST DAY ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION DATE"),
OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT, PURSUANT TO RULE 904 OF
REGULATION S, (E) TO AN ACCREDITED INVESTOR THAT IS ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT (AND
IF ACQUIRING THE SECURITIES FROM SUCH AN ACCREDITED INVESTOR, IS ACQUIRING
SECURITIES HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN
$100,000), OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF 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; PROVIDED THAT THE COMPANY, THE
TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D), (E) OR (F)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. 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.
Each Global Note, whether or not an Initial Note, shall also bear
thefollowing legend on the face thereof:
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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTIONS 311 AND 312 OF THE INDENTURE.
SECTION 204. Form of Certificate to Be Delivered upon Termination of
Restricted Period.
On or after August 18, 1997
THE BANK OF NEW YORK
101 Barclay Street
New York, NY 10286
Attention: Corporate Trust Trustee Administration
Re: NINE WEST GROUP INC. (the "Company")
9% Senior Subordinated Notes due 2007 (the "Notes")
Ladies and Gentlemen:
This letter relates to $__________ principal amount of Notes
represented by the offshore global note certificate (the "Offshore Global
Note"). Pursuant to Section 203 of the Indenture dated as of July 9, 1997
relating to the Notes (the "Indenture"), we hereby certify that (1) we are the
beneficial owner of such principal amount of Notes represented by the Offshore
Global Note and (2) we are a Non-U.S. Person to whom the Notes could be
transferred in accordance with Rule 904 of Regulation S promulgated under the
Securities Act of 1933, as amended ("Regulation S"). Accordingly, you are
hereby requested to issue an Offshore Physical Note representing the
undersigned's interest in the principal amount of Notes represented by the
Offshore Global Note, all in the manner provided by the Indenture.
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 proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:___________________________________
Authorized Signature
ARTICLE THREE
THE NOTES
SECTION 301. Amount.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to $125,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 304, 305, 306, 311, 312,
906, 1014, 1015 or 1108 or pursuant to an Exchange Offer.
The Stated Maturity of the Notes shall be August 15, 2007, and they
shall bear interest at the rate of 9% per annum from July 9, 1997, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, payable on February 15, 1998 and semi-annually thereafter on
February 15th and August 15th in each year, until the principal thereof is paid
in full and to the Person in whose name the Note (or any predecessor Note) is
registered at the close of business on the February 1st or August 1st
immediately preceding such Interest Payment Date (each, a "Regular Record
Date"). Interest will be computed on the Notes as specified in Section 310
hereof.
The principal of (and premium, if any) and interest on the Notes shall
be payable at the office or agency of the Company maintained for such purpose in
The City of New York, or at such other office or agency of the Company as may be
maintained for such purpose; provided, however, that, at the option of the
Company, interest may be paid (a) by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Note Register or (b) by
wire transfer to an account maintained by the payee in the United States.
Holders shall have the right to require the Company to purchase their
Notes, in whole or in part, in the event of a Change of Control pursuant to
Section 1014 and in the event of certain Asset Sales pursuant to Section 1015.
The Notes shall be redeemable as provided in Article Eleven and in the
Notes.
The Indebtedness evidenced by the Notes shall be subordinated in right
of payment to Senior Indebtedness as provided in Article Fifteen.
SECTION 302. Denominations.
The Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its Chairman
of the Board, its Chief Executive Officer, its President, its Chief Operating
Officer, its Chief Financial Officer or a Vice President. The signature of any
of these officers on the Notes may be the manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or otherwise
reproduced on the Notes.
Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
On Company Order, the Trustee shall authenticate for original issue
Initial Notes in an aggregate principal amount not to exceed $125,000,000. On
Company Order, the Trustee shall authenticate for original issue Exchange Notes
in an aggregate principal amount not to exceed $125,000,000; provided that such
Exchange Notes shall be issuable only upon the valid surrender for cancellation
of Initial Notes of a like aggregate principal amount in accordance with an
Exchange Offer pursuant to the Registration Rights Agreement. In each case, the
Trustee shall be entitled to receive an Officers' Certificate and an Opinion of
Counsel of the Company that it may reasonably request in connection with such
authentication of Notes. Such order shall specify the amount of Notes to be
authenticated and the date on which the original issue of Notes is to be
authenticated.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
In case the Company or any Guarantor, pursuant to Article Eight, shall
be consolidated or merged with or into any other Person or shall convey,
transfer, lease or otherwise dispose of its properties and assets substantially
as an entirety to any Person, and
the successor Person resulting from such consolidation, or surviving such
merger, or into which the Company or such Guarantor shall have been merged, or
the Person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article Eight, any of the Notes authenticated or
delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Notes executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Notes surrendered for such exchange
and of like principal amount; and the Trustee, upon Company Request of the
successor Person, shall authenticate and deliver Notes as specified in such
request for the purpose of such exchange. If Notes shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section 303 in exchange or substitution for or upon registration of
transfer of any Notes, such successor Person, at the option of the Holders but
without expense to them, shall provide for the exchange of all Notes at the time
Outstanding for Notes authenticated and delivered in such new name.
SECTION 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Notes which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as conclusively evidenced by their execution
of such Notes.
If temporary Notes are issued, the Company will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes, upon
surrender of the temporary Notes at the office or agency of the Company in a
Place of Payment, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Notes, the Company shall execute and, upon Company
Order, the Trustee shall authenticate and make available for delivery in
exchange therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for the Notes (the register maintained in the Corporate
Trust Office of the Trustee and in any other office or agency of the Company in
a Place of Payment being herein sometimes collectively referred to as the "Note
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Notes and of transfers of
Notes. The Note Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, the Note Register shall be open to inspection by the Trustee. The
Trustee is hereby initially appointed as note registrar (the Trustee in such
capacity, together with any successor Trustee in such capacity, the "Note
Registrar") for the purpose of registering Notes and transfers of Notes as
herein provided.
Upon surrender for registration of transfer of any Note at the office
or agency in a Place of Payment, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, in the name of the
designated transferee, one or more new Notes, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Notes may be exchanged for other Notes,
of any authorized denomination and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Notes which the
Holder making the exchange is entitled to receive; provided that no exchange of
Initial Notes for Exchange Notes shall occur until an Exchange Offer
Registration Statement shall have been declared effective by the Commission, the
Trustee shall have received an Officers' Certificate confirming that the
Exchange Offer Registration Statement has been declared effective by the
Commission and the Initial Notes to be exchanged for the Exchange Notes shall be
cancelled by the Trustee.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Note Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Note Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 304, 906, 1014, 1015 or 1108 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Notes during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of Notes under Section
1104 and ending at the close of business on the day of the mailing of the
relevant notice of redemption, (ii) to register the transfer of or exchange any
Note so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part, or (iii) to issue, register the
transfer of or exchange any Note which has been surrendered for repayment at the
option of the Holder, except the portion, if any, of such Note not to be so
repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and make available for delivery in
exchange therefor a new Note of like tenor and principal amount and bearing a
number not contemporaneously outstanding, or, in case any such mutilated Note
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Note, pay such Note.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and upon Company Order the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Note, a new Note of like tenor and principal amount and bearing a
number not contemporaneously outstanding, or, in case any such destroyed, lost
or stolen Note has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note, shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest at the Place of Payment;
provided, however, that each installment of interest on any Note may at the
Company's option be paid (i) by mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 308,
to the address of such Person as it appears on the Note Register or (ii) by wire
transfer to an account located in the United States maintained by the payee.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such defaulted interest and, if applicable, interest on
such defaulted interest (to the extent lawful) at the rate specified in the
Notes (such defaulted interest and, if applicable, interest thereon herein
collectively called "Defaulted Interest") may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Note and the date
of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given in the manner provided in
Section 106, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so given, such Defaulted Interest shall be
paid to the Persons in whose name the Registered Notes (or their respective
Predecessor Notes) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted Interest on the
Notes in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer, the
Company, any Guarantor, the Trustee and any agent of the Company, any Guarantor
or the Trustee may treat the Person in whose name such Note is registered as the
owner of such Note for the purpose of receiving payment of principal of (and
premium, if any, on) and (subject to Sections 305 and 307) interest on such Note
and for all other purposes whatsoever, whether or not such Note be overdue, and
none of the Company, any Guarantor, the Trustee or any agent of the Company, any
Guarantor or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Notes surrendered for payment, redemption, repayment at the option
of the Holder, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Notes so
delivered to the Trustee shall be promptly cancelled by it. The Company may at
any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold, and all Notes so delivered
shall be promptly cancelled by the Trustee. If the Company shall so acquire any
of the Notes, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled
Notes held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures unless by Company Order the Company shall direct that
cancelled Notes be returned to it.
SECTION 310. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
SECTION 311. Book-Entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in the name of
the Depositary for such Global Notes or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) bear legends
as set forth in Section 203.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note, and the
Depositary may be treated by the Company, the Guarantors, the Trustee and any
agent of the Company, the Guarantors or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Guarantors, the Trustee or any
agent of the Company, the Guarantors or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a beneficial owner
of any Note. The registered holder of a Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
(b) Interests of beneficial owners in a Global Note may be
transferred in accordance with the applicable rules and procedures of the
Depositary and the provisions of Section 312. Transfers of a Global Note shall
be limited to transfers of such Global Note in whole, but not in part, to the
Depositary, its successors or their respective nominees, except (i) as otherwise
set forth in Section 312 and (ii) U.S. Physical Notes or Offshore Physical Notes
shall be transferred to all beneficial owners in exchange for their beneficial
interests in the U.S. Global Note or the Offshore Global Note, respectively, in
the event that the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for the applicable Global Note or the
Depositary ceases to be a "Clearing Agency" registered under the Exchange Act
and a successor depositary is not appointed by the Company within 90 days. In
connection with a transfer of an entire Global Note to beneficial owners
pursuant to clause (ii) of this paragraph (b), the applicable Global Note shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the applicable Global Note, an equal aggregate principal amount at
maturity of U.S. Physical Notes (in the case of the U.S. Global Note) or
Offshore Physical Notes (in the case of the Offshore Global Note), as the case
may be, of authorized denominations.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(d) Any U.S. Physical Note delivered in exchange for an interest in
the U.S. Global Note pursuant to paragraph (b) of this Section shall, unless
such exchange is made on or after the Resale Restriction Termination Date and
except as otherwise provided in Section 312, bear the Private Placement Legend.
SECTION 312. Transfer Provisions.
Unless and until (i) an Initial Note is sold pursuant to an effective
Registration Statement, or (ii) an Initial Note is exchanged for an Exchange
Note in the Exchange Offer pursuant to an effective Registration Statement, in
each case, pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) General. The provisions of this Section 312 shall apply to all
transfers involving any Physical Note and any beneficial interest in any Global
Note.
(b) Certain Definitions. As used in this Section 312 only,
"delivery" of a certificate by a transferee or transferor means the delivery to
the Note Registrar by such transferee or transferor of the applicable
certificate duly completed; "holding" includes both possession of a Physical
Note and ownership of a beneficial interest in a Global Note, as the context
requires; "transferring" a Global Note means transferring that portion of the
principal amount of the transferor's beneficial interest therein that the
transferor has notified the Note Registrar that it has agreed to transfer; and
"transferring" a Physical Note means transferring that portion of the principal
amount thereof that the transferor has notified the Note Registrar that it has
agreed to transfer.
As used in this Indenture, "Accredited Investor Certificate" means a
certificate substantially in the form set forth in Section 313; "Regulation S
Certificate" means a certificate substantially in the form set forth in Section
314; "Rule 144A Certificate" means a certificate substantially in the form set
forth in Section 315; and "Non-Registration Opinion and Supporting Evidence"
means a written opinion of counsel reasonably acceptable to the Company to the
effect that, and such other certification or information as the Company may
reasonably require to confirm that, the proposed transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
(c) [Intentionally Omitted]
(d) Deemed Delivery of a Rule 144A Certificate in Certain
Circumstances. A Rule 144A Certificate, if not actually delivered, will be
deemed delivered if (A) (i) the transferor advises the Company and the Trustee
in writing that the relevant offer and sale were made in accordance with the
provisions of Rule 144A (or, in the case of a transfer of a Physical Note, the
transferor checks the box provided on the Physical Note to that effect) and (ii)
the transferee advises the Company and the Trustee in writing that (x) it and,
if applicable, each account for which it is acting in connection with the
relevant transfer, is a qualified institutional buyer within the meaning of Rule
144A, (y) it is aware that the transfer of Notes to it is being made in reliance
on the exemption from the provisions of Section 5 of the Securities Act provided
by Rule 144A, and (z) prior to the proposed date of transfer it has been given
the opportunity to obtain from the Company the information referred to in Rule
144A(d)(4), and has either declined such opportunity or has received such
information (or, in the case of a transfer of a Physical Note, the transferee
signs the certification provided on the Physical Note to that effect); or (B)
the transferor holds the U.S. Global Note and is transferring to a transferee
that will take delivery in the form of the U.S. Global Note.
(e) Procedures and Requirements.
1. If the proposed transfer occurs prior to the Offshore Note
Exchange Date, and the proposed transferor holds:
(A) a U.S. Physical Note which is surrendered to the Note Registrar,
and the proposed transferee or transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if required
by the Company, a Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to clause (d) above)
a Rule 144A Certificate and the proposed transferee requests delivery
in the form of a U.S. Physical Note, then the Note Registrar shall (x)
register such transfer in the name of such transferee and record the
date thereof in its books and records, (y) cancel such surrendered
U.S. Physical Note and (z) deliver a new U.S. Physical Note to such
transferee duly registered in the name of such transferee in principal
amount equal to the principal amount being transferred of such
surrendered U.S. Physical Note;
(ii) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests that the proposed
transferee receive a beneficial interest in the U.S. Global Note, then
the Note Registrar shall (x) cancel such surrendered U.S. Physical
Note, (y) record an increase in the principal amount of the U.S.
Global Note equal to the principal amount being transferred of such
surrendered U.S. Physical Note and (z) notify the Depositary in
accordance with the procedures of the Depositary that it approves of
such transfer; or
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the Offshore
Global Note, then the Note Registrar shall (x) cancel such surrendered
U.S. Physical Note, (y) record an increase in the principal amount of
the Offshore Global Note equal to the principal amount being
transferred of such surrendered U.S. Physical Note and (z) notify the
Depositary in accordance with the procedures of the Depositary that it
approves of such transfer.
In any of the cases described in this Section 312(e)(1)(A), the Note
Registrar shall deliver to the transferor a new U.S. Physical Note in
principal amount equal to the principal amount not being transferred of
such surrendered U.S. Physical Note, as applicable.
(B) the U.S. Global Note, and the proposed transferee or transferor,
as applicable:
(i) delivers an Accredited Investor Certificate and, if required
by the Company, a Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to clause (d) above)
a Rule 144A Certificate and the proposed transferee requests delivery
in the form of a U.S. Physical Note, then the Note Registrar shall (w)
register such transfer in the name of such transferee and record the
date thereof in its books and records, (x) record a decrease in the
principal amount of the U.S. Global Note in an amount equal to the
beneficial interest therein being transferred, (y) deliver a new U.S.
Physical Note to such transferee duly registered in the name of such
transferee in principal amount equal to the amount of such decrease
and (z) notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer;
(ii) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests that the proposed
transferee receive a beneficial interest in the U.S. Global Note, then
the transfer shall be effected in accordance with the procedures of
the Depositary therefor; or
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the Offshore
Global Note, then the Note Registrar shall (w) register such transfer
in the name of such transferee and record the date thereof in its
books and records, (x) record a decrease in the principal amount of
the U.S. Global Note in an amount equal to the beneficial interest
therein being transferred, (y) record an increase in the principal
amount of the Offshore Global Note equal to the amount of such
decrease and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer.
(C) the Offshore Global Note, and the proposed transferee or
transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if required
by the Company, a Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to clause (d) above)
a Rule 144A Certificate and the proposed transferee requests delivery
in the form of a U.S. Physical Note, then the Note Registrar shall (w)
register such transfer in the name of such transferee and record the
date thereof in its books and records, (x) record a decrease in the
principal amount of the Offshore Global Note in an amount equal to the
beneficial interest therein being transferred, (y) deliver a new U.S.
Physical Note to such transferee duly registered in the name of such
transferee in principal amount equal to the amount of such decrease
and (z) notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer;
(ii) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests that the proposed
transferee receive a beneficial interest in the U.S. Global Note, then
the Note Registrar shall (x) record a decrease in the principal amount
of the Offshore Global Note in an amount equal to the beneficial
interest therein being transferred, (y) record an increase in the
principal amount of the U.S. Global Note equal to the amount of such
decrease and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer; or
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the Offshore
Global Note, then the transfer shall be effected in accordance with
the procedures of the Depositary therefor; provided, however, that
until the Offshore Note Exchange Date occurs, beneficial interests in
the Offshore Global Note may be held only in or through accounts
maintained at the Depositary by Euroclear or Cedel (or by Agent
Members acting for the account thereof), and no person shall be
entitled to effect any transfer or exchange that would result in any
such interest being held otherwise than in or through such an account.
2. If the proposed transfer occurs on or after the Offshore Notes
Exchange Date and the proposed transferor holds:
(A) a U.S. Physical Note which is surrendered to the Note Registrar,
and the proposed transferee or transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if required
by the Company, a Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to clause (d) above)
a Rule 144A Certificate and the proposed transferee requests delivery
in the form of a U.S. Physical Note, then the procedures set forth in
Section 312(e)(1)(A)(i) shall apply;
(ii) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests that the proposed
transferee receive a beneficial interest in the Offshore Global Note,
then the procedures set forth in Section 312(e)(1)(A)(ii) shall apply;
or
(iii) delivers a Regulation S Certificate, then the Note
Registrar shall cancel such surrendered U.S. Physical Note and at the
direction of the transferee, either:
(x) register such transfer in the name of such transferee,
record the date thereof in its books and records and deliver a
new Offshore Physical Note to such transferee in principal amount
equal to the principal amount being transferred of such
surrendered U.S. Physical Note, or
(y) if the proposed transferee is or is acting through an
Agent Member, record an increase in the principal amount of the
Offshore Global Note equal to the principal amount being
transferred of such surrendered U.S. Physical Note and notify the
Depositary in accordance with the procedures of the Depositary
that it approves of such transfer.
In any of the cases described in this Section 312(e)(2)(A)(i), (ii) or
(iii)(x), the Note Registrar shall deliver to the transferor a new U.S.
Physical Note in principal amount equal to the principal amount not being
transferred of such surrendered U.S. Physical Note, as applicable.
(B) the U.S. Global Note, and the proposed transferee or transferor,
as applicable:
(i) delivers an Accredited Investor Certificate and, if required
by the Company, a Non-Registration Opinion and Supporting Evidence, or
delivers (or is deemed to have delivered pursuant to clause (d) above)
a Rule 144A Certificate and the proposed transferee requests delivery
in the form of a U.S. Physical Note, then the procedures set forth in
Section 312(e)(1)(B)(i) shall apply; or
(ii) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests that the proposed
transferee receive a beneficial interest in the U.S. Global Note, then
the procedures set forth in Section 312(e)(1)(B)(ii) shall apply; or
(iii) delivers a Regulation S Certificate, then the Note
Registrar shall (x) record a decrease in the principal amount of the
U.S. Global Note in an amount equal to the beneficial interest therein
being transferred, (y) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer and (z)
at the direction of the transferee, either:
(x) register such transfer in the name of such transferee,
record the date thereof in its books and records and deliver a
new Offshore Physical Note to such transferee in principal amount
equal to the amount of such decrease, or
(y) if the proposed transferee is or is acting through an
Agent Member, record an increase in the principal amount of the
Offshore Global Note equal to the amount of such decrease.
(C) an Offshore Physical Note which is surrendered to the Note
Registrar, and the proposed transferee or transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests delivery in the form of
the U.S. Global Note, then the Note Registrar shall (x) cancel such
surrendered Offshore Physical Note, (y) record an increase in the
principal amount of the U.S. Global Note equal to the principal amount
being transferred of such surrendered Offshore Physical Note and (z)
notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer;
(ii) where the proposed transferee is or is acting through an
Agent Member, requests that the proposed transferee receive a
beneficial interest in the Offshore Global Note, then the Note
Registrar shall (x) cancel such surrendered Offshore Physical Note,
(y) record an increase in the principal amount of the Offshore Global
Note equal to the principal amount being transferred of such
surrendered Offshore Physical Note and (z) notify the Depositary in
accordance with the procedures of the Depositary that it approves of
such transfer; or
(iii) does not make a request covered by Section 312(e)(2)(C)(i)
or Section 312(e)(2)(C)(ii), then the Note Registrar shall (x)
register such transfer in the name of such transferee and record the
date thereof in its books and records, (y) cancel such surrendered
Offshore Physical Note and (z) deliver a new Offshore Physical Note to
such transferee duly registered in the name of such transferee in
principal amount equal to the principal amount being transferred of
such surrendered Offshore Physical Note.
In any of the cases described in this Section 312(e)(2)(C), the Note
Registrar shall deliver to the transferor a new U.S. Physical Note in principal
amount equal to the principal amount not being transferred of such surrendered
U.S. Physical Note, as applicable.
(D) the Offshore Global Note, and the proposed transferee or
transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant to clause
(d) above) a Rule 144A Certificate and the proposed transferee is or
is acting through an Agent Member and requests delivery in the form of
the U.S. Global Note, then the Note Registrar shall (x) record a
decrease in the principal amount of the Offshore Global Note in an
amount equal to the beneficial interest therein being transferred, (y)
record an increase in the principal amount of the U.S. Global Note
equal to the amount of such decrease and (z) notify the Depositary in
accordance with the procedures of the Depositary that it approves of
such transfer;
(ii) where the proposed transferee is or is acting through an
Agent Member, requests that the proposed transferee receive a
beneficial interest in the Offshore Global Note, then the transfer
shall be effected in accordance with the procedures of the Depositary
therefor; or
(iii) does not make a request covered by Section 312(e)(2)(D)(i)
or Section 312(e)(2)(D)(ii), then the Note Registrar shall (w)
register such transfer in the name of such transferee and record the
date thereof in its books and records, (x) record a decrease in the
principal amount of the Offshore Global Note in an amount equal to the
beneficial interest therein being transferred, (y) deliver a new
Offshore Physical Note to such transferee duly registered in the name
of such transferee in principal amount equal to the amount of such
decrease and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer.
(f) Execution, Authentication and Delivery of Physical Notes. In any
case in which the Note Registrar is required to deliver a Physical Note to a
transferee or transferor, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, such Physical Note.
(g) Certain Additional Terms Applicable to Physical Notes. Any
transferee entitled to receive a Physical Note may request that the principal
amount thereof be evidenced by one or more Physical Notes in any authorized
denomination or denominations and the Note Registrar shall comply with such
request if all other transfer restrictions are satisfied.
(h) Transfers Not Covered by Section 312(e). The Note Registrar
shall effect and record, upon receipt of a written request from the Company so
to do, a transfer not otherwise permitted by Section 312(e), such recording to
be done in accordance with the otherwise applicable provisions of Section
312(e), upon the furnishing by the proposed transferor or transferee of a Non-
Registration Opinion and Supporting Evidence.
(i) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in the
Indenture. The Note Registrar shall not register a transfer of any Note unless
such transfer complies with the restrictions with respect thereto set forth in
this Indenture. The Note Registrar shall not be required to determine (but may
rely upon a determination made by the Company) the sufficiency of any such
certifications, legal opinions or other information.
(j) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Note
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Note Registrar shall deliver only Notes that bear the
Private Placement Legend unless (i) the circumstances exist contemplated by the
fourth paragraph of Section 201 (with respect to an Offshore Physical Note) or
the requested transfer is at least two years after the original issue date of
the Initial Note (with respect to any Physical Notes), (ii) there is delivered
to the Note Registrar 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 (iii) such Notes are exchanged for Exchange
Notes pursuant to an Exchange Offer.
SECTION 313. Form of Accredited Investor Certificate.
Transferee Letter of Representation
The Bank of New York,
as Trustee
101 Barclay Street, 21W
New York, New York 10286
Ladies and Gentlemen:
In connection with our proposed purchase of $_______ aggregate
principal amount of the 9% Senior Subordinated Notes due 2007 (the "Notes") of
Nine West Group Inc. (the "Company"), we confirm that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of
1933, as amended (the "Securities Act")) purchasing for our own account or
for the account of such an institutional "accredited investor," and we are
acquiring the Notes for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of the
Securities Act or other applicable securities law and we have such
knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we
and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
2. We understand and acknowledge that the Notes have not been
registered under the Securities Act, or any other applicable securities law
and may not be offered, sold or otherwise transferred except in compliance
with the registration requirements of the Securities Act or any other
applicable securities law, or pursuant to an exemption therefrom, and in
each case in compliance with the conditions for transfer set forth below.
We agree on our own behalf and on behalf of any investor account for which
we are purchasing Notes to offer, sell or otherwise transfer such Notes
prior to the date which is two years after the later of the date of
original issue and the last date on which the Company or any affiliate of
the Company was the owner of such Notes (or any predecessor thereto) (the
"Resale Restriction Termination Date") only (a) to the Company or any
affiliate of the Company, (b) pursuant to a registration statement which
has been declared effective under the Securities Act, (c) for so long as
the Notes are eligible for resale pursuant to Rule 144A under the
Securities Act ("Rule 144A"), to a person we reasonably believe is a
"Qualified Institutional Buyer" within the meaning of Rule 144A (a "QIB")
that purchases for its own account or for the account of a QIB and to whom
notice is given that the transfer is being made in reliance on Rule 144A,
(d) pursuant to offers and sales to non-U.S. persons that occur outside the
United States within the meaning of Regulation S under the Securities Act,
(e) to an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501 under the
Securities Act that is acquiring the Notes for its own account or for the
account of such an institutional "accredited investor" for investment
purposes and not with a view to, or for offer or sale in connection with,
any distribution in violation of the Securities Act or (f) pursuant to any
other available exemption from the registration requirements of the
Securities Act, subject in each of the foregoing cases to any requirement
of law that the disposition of our property or the property of such
investor account or accounts be at all times within our or their control
and to compliance with any applicable state securities laws. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Notes is proposed
to be made pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver to the trustee (the
"Trustee") under the Indenture pursuant to which the Notes are issued a
letter from the transferee substantially in the form of this letter, which
shall provide, among other things, that the transferee is a person or
entity as defined in paragraph 1 of this letter and that it is acquiring
such Notes for investment purposes and not for distribution in violation of
the Securities Act. We acknowledge that the Company and the Trustee
reserve the right prior to any offer, sale or other transfer of the Notes
pursuant to clauses (d), (e) and (f) above prior to the Resale Restriction
Termination Date to require the delivery of an opinion of counsel,
certifications and/or other information satisfactory to the Company and the
Trustee.
3. We are acquiring the Notes purchased by us for our own account or
for one or more accounts as to each of which we exercise sole investment
discretion.
4. 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.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
(Name of Purchaser)
By:_______________________________
Date:_____________________________
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
By:_________________________
Date:_________________________
SECTION 314. Form of Regulation S Certificate.
Regulation S Certificate
To: The Bank of New York,
as Trustee (the "Trustee")
101 Barclay Street, 21W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: Nine West Group Inc. (the "Company") 9% Senior Subordinated Notes due
2007 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $____ aggregate principal
amount of Notes, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S ("Regulation S") under the Securities Act of 1933,
as amended (the "Securities Act"), and accordingly, we hereby certify as
follows:
1. The offer of the Notes was not made to a person in the United
States (unless such person or the account held by it for which it is acting
is excluded from the definition of "U.S. person" pursuant to Rule 902(o) of
Regulation S under the circumstances described in Rule 902(i)(3) of
Regulation S) or specifically targeted at an identifiable group of U.S.
citizens abroad.
2. Either (a) at the time the buy order was originated, the buyer was
outside the United States or we and any person acting on our behalf
reasonably believed that the buyer was outside the United States or (b) the
transaction was executed in, on or through the facilities of a designated
offshore securities market, and neither we nor any person acting on our
behalf knows that the transaction was pre-arranged with a buyer in the
United States.
3. Neither we, any of our affiliates, nor any person acting on our or
their behalf has made any directed selling efforts in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable.
4. The proposed transfer of Notes is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling concession or
other fee or remuneration in respect of the Notes, and the proposed
transfer takes place before the Offshore Note Exchange Date referred to in
the Indentures, each dated as of July 9, 1997, among the Company, the
guarantors thereunder and the Trustee, or we are an officer or director of
the Company or a distributor, we certify that the proposed transfer is
being made in accordance with the provisions of Rules 903 and 904(c) of
Regulation S.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[NAME OF SELLER]
By:__________________________
Name:
Title:
Address:
Date of this Certificate: __________ __, 199_
SECTION 315. Form of Rule 144A Certificate.
Rule 144A Certificate
To: The Bank of New York,
as Trustee (the "Trustee")
101 Barclay Street, 21W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: Nine West Group Inc. (the "Company") 9% Senior Subordinated Notes due
2007 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $____ aggregate principal
amount of Notes, we confirm that such sale has been effected pursuant to and in
accordance with Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act"). We are aware that the transfer of Notes to us
is being made in reliance on the exemption from the provisions of Section 5 of
the Securities Act provided by Rule 144A. Prior to the date of this Certificate
we have been given the opportunity to obtain from the Company the information
referred to in Rule 144A(d)(4), and have either declined such opportunity or
have received such information.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate 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 PURCHASER]
By:__________________________
Name:
Title:
Address:
Date of this Certificate: __________ __, 199_
SECTION 316. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption or other notices to Holders as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further
effect with respect to Notes (except as to any surviving rights of registration
of transfer or exchange of Notes expressly provided for) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture when
(1) either
(A) all Notes theretofore authenticated and delivered (other
than (i) Notes which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306, and (ii) Notes
for whose payment money has theretofore been deposited in trust with
the Trustee or any Paying Agent or segregated and held in trust by the
Company and thereafter repaid to the Company, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) all Notes and, in the case of (i) or (ii) below, not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company or any Guarantor, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount sufficient
to pay and discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such deposit (in the
case of Notes which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company or any Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company or any Guarantor; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations of
the Company to any Authenticating Agent under Section 611 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest on any Note when such
interest becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Note at its Maturity (upon acceleration, optional redemption,
required purchase or otherwise); or
(3) default in the performance, or breach, of the provisions of
Article Eight, the failure to make or consummate a Change of Control Offer
in accordance with Section 1014 or the failure to make or consummate an
Excess Proceeds Offer in accordance with Section 1015; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company or any Guarantor contained in this Indenture (other
than a default in the performance, or breach of a covenant or warranty
which is specifically dealt with elsewhere in this Section), and
continuance of such default or breach for a period of 45 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of all Outstanding Notes a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) (a) one or more defaults in the payment of principal of (or
premium, if any, on) Indebtedness of the Company or any Restricted
Subsidiary aggregating $25,000,000 or more, when the same becomes due and
payable at the stated maturity thereof, and such default or defaults shall
have continued after any applicable grace period and shall not have been
cured or waived or (b) Indebtedness of the Company or any Restricted
Subsidiary aggregating $25,000,000 or more shall have been accelerated or
otherwise declared due and payable, or required to be prepaid or
repurchased (other than by regularly scheduled required prepayment) prior
to the stated maturity thereof; or
(6) one or more final judgments or orders rendered against the
Company or any Restricted Subsidiary which require the payment in money,
either individually or in an aggregate amount, in excess of $25,000,000 and
shall not be discharged and either (a) an enforcement proceeding shall have
been commenced by any creditor upon such judgment or order or (b) there
shall have been a period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, was not in effect; or
(7) any Guarantee ceases to be in full force and effect or is
declared null and void or any Guarantor denies that it has any further
liability under any Guarantee or gives notice to such effect (other than by
reason of the termination of this Indenture or the release of any such
Guarantee in accordance with this Indenture); or
(8) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company or any Significant Subsidiary a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any Significant Subsidiary under a Bankruptcy Law or any
other applicable federal or state law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Company or any Significant Subsidiary or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(9) the institution by the Company or any Significant Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by it
to the institution of bankruptcy or insolvency proceedings against it, or
the filing by it of a petition or answer or consent seeking reorganization
or relief under a Bankruptcy Law or any other applicable federal or state
law, or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or any Significant Subsidiary or of
any substantial part of its property, or the making by it of a general
assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
clause (8) or (9) of Section 501) occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Notes by written notice to the Company (and to the
Trustee if such notice is given by the Holders), may, and the Trustee upon the
written request of such Holders shall, declare the principal of, premium, if
any, and accrued interest on all of the Outstanding Notes to be due and payable
immediately, and upon any such declaration all such amounts payable shall become
immediately due and payable. If an Event of Default described in clause (8) or
(9) of Section 501 occurs and is continuing, then the principal of, premium, if
any, and accrued interest on all the Outstanding Notes 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.
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Outstanding Notes, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Outstanding Notes,
(B) all unpaid principal of (and premium, if any, on) any
Outstanding Notes that has become due otherwise than by such
declaration of acceleration together with interest on such unpaid
principal at the rate borne by such Notes,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest and overdue principal at the rate or
rates borne by such Notes, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of amounts of
principal of (or premium, if any, on) or interest on Notes which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Notes because of an Event of Default specified
in Section 501(5) shall have occurred and be continuing, such Event of Default
and all consequences thereof (including, without limitation, any acceleration or
resulting payment default) shall be automatically annulled, waived and rescinded
if the Indebtedness that is the subject of such Event of Default has been
discharged or the holders thereof have rescinded their declaration of
acceleration in respect of such Indebtedness or the default that is the basis
for such Event of Default has been cured, and written notice of such discharge
or rescission or cure, as the case may be, shall have been given to the Trustee
by the Company and countersigned by the holders of such Indebtedness or a
trustee, fiduciary or agent for such holders, within 30 days after such
declaration of acceleration in respect of the Notes, and no other Event of
Default has occurred during such 30-day period which has not been cured or
waived during such period.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Note when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Note at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Notes, the whole amount then due and payable on
such Notes for principal (and premium, if any) and interest, and interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of
interest, at the rate borne by such Notes, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any Guarantor (in accordance with the applicable
Guarantee) or any other obligor upon such Notes and collect the moneys adjudged
or decreed to be payable in the manner provided by law out of the property of
the Company, any Guarantor or any other obligor upon such Notes, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor, including any
Guarantor, upon the Notes or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal, premium, if any,
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
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 Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture, the Notes or the
Guarantees may be prosecuted and enforced by the Trustee without the possession
of any of the Notes or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Fifteen, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon presentation of the
Notes and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
606;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest on the Notes in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Notes for principal (and premium, if any)
and interest, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto, including the Company or any other obligor on the Notes, as their
interests may appear or as a court of competent jurisdiction may direct.
SECTION 507. Limitation on Suits.
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Notes shall have made a written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture, any Note or any Guarantee to affect, disturb or prejudice the
rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, any Note or any Guarantee, except in the manner herein provided and
for the equal and ratable benefit of all Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article Eleven) of the
principal of (and premium, if any, on) and (subject to Section 307) interest on,
such Note on the respective Stated Maturities expressed in such Note (or, in the
case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders of
Notes shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders of Notes is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Notes shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) subject to Section 315 of the Trust Indenture Act, the Trustee
may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of Notes not
consenting.
SECTION 513. Waiver of Past Defaults.
Subject to Section 902 and the last paragraph of Section 502, the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Notes may on behalf of the Holders of all the Notes waive any past
default hereunder and its consequences under this Indenture or any Guarantee,
except a default
(1) in respect of the payment of the principal of (or premium, if
any, on) or interest on any Note, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Note affected.
Upon any such waiver, any such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture and the Guarantees; but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
Each of the Company, the Guarantors and any other obligor on the Notes
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and each of the Company, the Guarantors and any other obligor
on the Notes (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within five days after the earlier of receipt from the Company of
notice of the occurrence of any Default or Event of Default hereunder or the
date when such Default or Event of Default becomes known to the Trustee, the
Trustee shall transmit, in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee, unless such
Default shall have been cured or waived; provided, however, that, except in the
case of a Default in the payment of the principal of (or premium, if any, on) or
interest on any Note, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the Holders;
and provided further that in the case of any Default of the character specified
in Section 501(4) with respect to Notes, no such notice to Holders shall be
given until at least 45 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d)
(determined as if the TIA were applicable to this Indenture at all times):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Notes pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture; and
(9) the Trustee shall not be deemed to have notice of any Event of
Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture.
The Trustee shall not be required 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.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Notes.
The recitals contained herein and in the Notes, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Notes, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Notes and perform its obligations hereunder and that
the statements made by it in its Statement of Eligibility on Form T-1 supplied
to the Company are true and accurate, subject to the qualifications set forth
therein. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Notes or the proceeds thereof.
SECTION 604. May Hold Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any Note
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Notes and, subject to
TIA Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Note Registrar or such other agent.
SECTION 605. Money Held in Trust.
All money received by the Trustee shall, until used or applied as
herein provided, be held in trust hereunder for the purposes for which they were
received. Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
shall be agreed in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee and
its agents for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts 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 obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the Notes
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any, on) or
interest on particular Notes.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(8) or Section 501(9), the
expenses (including the reasonable charges and expenses of its counsel) of and
the compensation of the Trustee for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and 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, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Notes by
giving written notice thereof to the Company. If the instrument of acceptance
by a successor Trustee required by Section 609 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Notes.
(c) The Trustee may be removed at any time with respect to the Notes
by Act of the Holders of not less than a majority in principal amount of the
Outstanding Notes, delivered to the Trustee and to the Company. If the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the Trustee being removed may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Notes.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Note for at least six months,
or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Note for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Notes, or (ii) subject to TIA Section 315(e), any
Holder who has been a bona fide Holder of a Note for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all Notes
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Notes, the Company, by a Board Resolution, shall promptly appoint
a successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Notes shall be appointed by Act of the Holders of a majority in
aggregate principal amount of the Outstanding Notes delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Trustee with respect to
the Notes and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Notes shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Note for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Notes.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Notes and each appointment of a
successor Trustee with respect to the Notes to the Holders of Notes in the
manner provided for in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Notes and the address of its Corporate
Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) Each successor Trustee shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless at the
time of such acceptance, such successor Trustee shall be qualified and eligible
under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes. In case at that
time any of the Notes shall not have been authenticated, any successor Trustee
may authenticate such Notes either in the name of any predecessor hereunder or
in the name of the successor Trustee. In all such cases such certificates shall
have the full force which it is anywhere in the Notes or in this Indenture,
provided that the certificate of authentication the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Notes remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents with respect to the Notes which shall
be authorized to act on behalf of the Trustee to authenticate Notes and the
Trustee shall give written notice of such appointment to all Holders of Notes
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Notes so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Notes by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such 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 an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of Notes, in the manner provided for in Section
106. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time such compensation for its services under this Section as shall be agreed in
writing between the Company and such Authenticating Agent.
If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Notes designated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By__________________________________________
as Authenticating Agent
By__________________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Notes, by receiving and holding the same, agrees with
the Company and the Trustee that none of the Company or the Trustee or any agent
of either of them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders in accordance with
TIA Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Notes pursuant to this Indenture, the Trustee
shall transmit to the Holders of Notes (with a copy to the Company at the Place
of Payment), in the manner and to the extent provided in TIA Section 313(c), a
brief report dated as of such May 15 if required by TIA Section 313(a).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not, in a single transaction or a series of
transactions, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease or otherwise dispose of its properties and
assets to any Person or Persons, and the Company will not permit any Restricted
Subsidiary 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 and its Restricted
Subsidiaries, to any Person or Persons, unless:
(a) either (1) the Company shall be the continuing corporation or (2)
the Person (if other than the Company) formed by such consolidation or into
which the Company or such Restricted Subsidiary is merged or the Person
which acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of the
Company or such Restricted Subsidiary, as the case may be, (i) shall be a
corporation duly organized and validly existing under the laws of the
United States or any state thereof or the District of Columbia and (ii)
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on
all the Notes and the performance and observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(b) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (and treating
any obligation of the Company or any Restricted Subsidiary incurred in
connection with or as a result of such transaction or series of
transactions as having been incurred at the time of such transaction), no
Default or Event of Default shall have occurred and be continuing;
(c) immediately before and immediately after giving effect to any
such transaction or series of transactions on a pro forma basis (on the
assumption that the transaction or series of transactions occurred on the
first day of the four-quarter period immediately prior to the consummation
of such transaction or series of transactions with the appropriate
adjustments with respect to the transaction or series of transactions being
included in such pro forma calculations), the Company (in the case of
clause (1) of Subsection (a) above) or such Person (in the case of clause
(2) of Subsection (a) above), could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section 1008;
(d) each Guarantor, if any, unless it is the other party to the
transactions described above, shall have by supplemental indenture
confirmed that its Guarantee will apply to such Person's obligations
hereunder and under the Notes;
(e) if any of the property or assets of the Company or any of its
Restricted Subsidiaries would thereupon become subject to any Lien, the
provisions of Section 1012 are complied with; and
(f) the Company or such Person shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Section 801 and
that all conditions precedent herein provided for relating to such
transaction have been satisfied.
SECTION 802. Guarantors May Consolidate, etc., Only on Certain Terms.
Each Guarantor, if any (other than any Restricted Subsidiary whose
Guarantee is being released pursuant to the provisions of Section 1308 as a
result of such transaction), shall not, and the Company shall not permit a
Guarantor to, in a single transaction or a series of transactions, consolidate
with or merge with or into any other Person or sell, assign, convey, transfer,
lease or otherwise dispose of its properties and assets to any Person or Persons
(other than the Company or any Guarantor) 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 such Guarantor and its Restricted Subsidiaries on a
consolidated basis, to any Person or Persons (other than the Company or any
Guarantor), unless at the time and after giving effect thereto:
(a) either (1) such Guarantor shall be the continuing corporation or
(2) the Person (if other than such Guarantor) formed by such consolidation
or into which such Guarantor or such Restricted Subsidiary is merged or the
Person which acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of such
Guarantor and its Restricted Subsidiaries on a consolidated basis, (i)
shall be a corporation duly organized and validly existing under the laws
of the United States or any state thereof or the District of Columbia or
the laws of the jurisdiction in which such Guarantor was organized and (ii)
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on
all the Notes and the performance and observance of every covenant of this
Indenture on the part of such Guarantor to be performed or observed;
(b) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (and treating
any obligation of the Company, such Guarantor or any Restricted Subsidiary
incurred in connection with or as a result of such transaction or series of
transactions as having been incurred at the time of such transaction), no
Default or Event of Default shall have occurred and be continuing; and
(c) such Guarantor or such Person shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Section 802 and
that all conditions precedent herein provided for relating to such
transaction have been satisfied.
SECTION 803. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
properties and assets of the Company or any Guarantor in accordance with
Sections 801 and 802, the successor Person formed by such consolidation or into
which the Company or such Guarantor, as the case may be, is merged or the
successor Person to which such sale, assignment, conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company or such Guarantor, as the case may be, under this
Indenture or the Guarantee, as the case may be, with the same effect as if such
successor had been named as the Company or the Guarantor, as the case may be,
herein or the Guarantee, as the case may be; and thereafter, except in the case
of a lease, the Company shall be discharged from all obligations and covenants
under the Indenture, the Note or the Guarantee, as the case may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company or any Guarantor, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, a
Guarantor or any other obligor on the Notes, and the assumption by any such
successor of the covenants of the Company or such Guarantor or obligor
contained herein and in the Notes and Guarantees in accordance with Article
Eight; or
(2) to add to the covenants of the Company, any Guarantor or any
other obligor on the Notes for the benefit of the Holders or to surrender
any right or power conferred upon the Company, or any Guarantor or any
other obligor on the Notes, herein and in the Notes or in any Guarantee; or
(3) to cure any ambiguity, to correct or supplement any provision
herein or in the Notes or in any Guarantee which may be defective or
inconsistent with any other provision herein or in the Notes or in any
Guarantee, or to make any other provisions with respect to matters or
questions arising under this Indenture, the Notes or any Guarantee;
provided that, in each case, such provisions shall not adversely affect the
interests of the Holders; or
(4) to comply with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the Trust
Indenture Act; or
(5) to add a Guarantor of the Notes under this Indenture; or
(6) to evidence and provide the acceptance of the appointment of a
successor Trustee under this Indenture; or
(7) to mortgage, pledge, hypothecate or grant a security interest in
favor of the Trustee for the benefit of the Holders as additional security
for the payment and performance of the Company's and any guarantor's
obligations under this Indenture, in any property, or assets, including any
of which are required to be mortgaged, pledged or hypothecated, or in which
a security interest is required to be granted, to the Trustee pursuant to
this Indenture or otherwise.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Notes that are affected thereby, by Act of
said Holders delivered to the Company, the Guarantors and the Trustee, the
Company and the Guarantors, when authorized by or pursuant to their respective
Board Resolutions, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Notes under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the coin or currency in which any Note or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) amend, change or modify any of the provisions of Section 1014 or
Section 1015 including any definitions relating thereto, or
(3) reduce the percentage in principal amount of the Outstanding
Notes, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture, or
(4) modify any provisions of this Section, Section 1020 or Section
513, except to increase the percentage in principal amount of the
Outstanding Notes required to take any of the actions described therein or
to provide that certain additional provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Note affected thereby, or
(5) except as otherwise permitted under Article Eight, consent to the
assignment or transfer by the Company or any Guarantor of their rights or
obligations under this Indenture, or
(6) amend or modify any of the provisions of Article Thirteen in any
manner adverse to the Holders, or
(7) modify any of the provisions of this Indenture relating to the
subordination of the Notes in a manner adverse to the Holders.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Note affected, in
the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
SECTION 908. Effect on Senior Indebtedness.
No supplemental indenture shall adversely affect the rights of the
holders of Senior Indebtedness under Article Fifteen of this Indenture without
the consent of such holders affected thereby.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest.
The Company covenants and agrees for the benefit of the Holders of
Notes that it will duly and punctually pay the principal of (and premium, if
any, on) and interest on the Notes in accordance with the terms of the Notes and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the City of New York an office or agency
where Notes may be presented or surrendered for payment (the "Place of
Payment"), where Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company hereby designates the
Corporate Trust Office as the Place of Payment.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of the Place of Payment. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind any such designation;
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
accordance with the requirements set forth above for Notes for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Notes Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to the Notes, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Notes, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Notes, it will, prior to or on each due date of the principal of (and premium,
if any, on) or interest on any Notes, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) and interest on the Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Notes) in the making of any payment of principal of
(or premium, if any) or interest on the Notes; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Note and remaining unclaimed for one year after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, the City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of the Company and each
Restricted Subsidiary; provided, however, that, subject to the other provisions
of this Indenture, the Company shall not be required to preserve any such right
or franchise, or the existence of any Restricted Subsidiary, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries as a whole
and that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 1005. 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 Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and (b)
all lawful claims for labor, materials and supplies, which, if unpaid, would by
law become a lien (other than a Permitted Lien) upon the property of the Company
or any Subsidiary; provided, however, that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 1006. Maintenance of Properties.
The Company will cause all material properties owned by the Company or
any Restricted Subsidiary or used or held for use in the conduct of its business
or the business of any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order (except ordinary wear and tear) and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company or any
of its Restricted Subsidiaries from discontinuing the maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Restricted Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 1007. Statement by Officers As to Default.
(a) The Company and each Guarantor will deliver to the Trustee,
within 50 days after the end of each fiscal quarter and within 120 days after
the end of each fiscal year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer of the
Company and each Guarantor as to his or her knowledge of the Company's or such
Guarantor's, as the case may be, compliance with all conditions and covenants
under this Indenture since the beginning of such quarter or such year, as the
case may be. For purposes of this Section 1007(a), such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
(b) When any Default has occurred and is continuing under this
Indenture, or if the trustee for or the holder of any other evidence of
Indebtedness of the Company or any Subsidiary gives any notice or takes any
other action with respect to a claimed default (other than with respect to
Indebtedness in the principal amount of less than US$10,000,000), the Company
shall deliver to the Trustee by registered or certified mail or by telegram,
telex or facsimile transmission an Officers' Certificate specifying such event,
notice or other action within five Business Days of its occurrence.
SECTION 1008. Limitation on Indebtedness.
The Company shall not, and shall not permit any Restricted Subsidiary
to, create, issue, assume, guarantee or in any manner become directly or
indirectly liable for the payment of, or otherwise incur (collectively,
"incur"), any Indebtedness (including any Acquired Indebtedness), other than
Permitted Indebtedness; provided, however, that (i) the Company and any
Guarantor may incur Indebtedness (including Acquired Indebtedness) and (ii) any
Restricted Subsidiary may incur Acquired Indebtedness (provided that such
Acquired Indebtedness was not incurred by the acquired Person or the Person from
whom the applicable assets were acquired, in connection with or in contemplation
of such acquisition by such Restricted Subsidiary) if, in either case, at the
time of such incurrence the Consolidated Fixed Charge Coverage Ratio for the
four full fiscal quarters immediately preceding the incurrence of such
Indebtedness, taken as one period (and after giving pro forma effect to (i) the
incurrence of such Indebtedness and (if applicable) the application of the net
proceeds therefrom, including to refinance other Indebtedness, as if such
Indebtedness was incurred, and the application of such proceeds occurred, on the
first day of such four-quarter period, (ii) the incurrence, repayment or
retirement of any other Indebtedness by the Company or its Restricted
Subsidiaries since the first day of such four-quarter period as if such
Indebtedness was incurred, repaid or retired on the first day of such four-
quarter period (except that, in making such computation, the amount of
Indebtedness under any revolving credit facility shall be computed based upon
the average daily balance of such Indebtedness during such four-quarter period)
and (iii) the acquisition (whether by purchase, merger or otherwise) or
disposition (whether by sale, merger or otherwise) of any company, entity or
business acquired or disposed of by the Company or its Restricted Subsidiaries,
as the case may be, since the first day of such four-quarter period, as if such
acquisition or disposition occurred on the first day of such four-quarter
period), would have been at least equal to 2.0 to 1.0.
SECTION 1009. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly,
(i) declare or pay any dividend, or make any distribution, on any
shares of the Capital Stock of the Company or any Restricted Subsidiary
(other than dividends or distributions payable solely in shares of its
Qualified Capital Stock or in options, warrants or other rights to acquire
such shares of Qualified Capital Stock or dividends and distributions made
by a Restricted Subsidiary on a pro rata basis to all shareholders of such
Restricted Subsidiary);
(ii) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any shares of Capital Stock of the Company or any
options, warrants or other rights to acquire such shares of Capital Stock
(other than such options, warrants or rights owned by the Company or a
wholly owned Restricted Subsidiary);
(iii) make any principal payment on, or repurchase, redeem, defease
or otherwise acquire or retire for value, prior to any scheduled principal
payment, sinking fund payment or maturity, any Indebtedness of the Company
that is expressly subordinated in right of payment to the Notes or
Indebtedness of any Guarantor that is expressly subordinated in right of
payment to Indebtedness under such Guarantor's Guarantee (in each case,
other than any such Indebtedness held by the Company or any Restricted
Subsidiary); or
(iv) make any Investment (other than any Permitted Investment) in any
Person;
(such payments or other actions described in (but not excluded from) clauses (i)
through (iv) are collectively referred to as "Restricted Payments"), unless at
the time of, and immediately after giving effect to, the proposed Restricted
Payment (the amount of any such Restricted Payment, if other than cash, as
determined by the Board of Directors of the Company, whose determination shall
be conclusive and evidenced by a Board Resolution), (1) no Default or Event of
Default shall have occurred and be continuing, (2) the Company could incur at
least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 1008 and (3) the aggregate amount of all Restricted Payments
declared or made after the date of this Indenture shall not exceed the sum of:
(A) 50% of the Consolidated Adjusted Net Income of the Company
accrued on a cumulative basis during the period beginning on the first day
of the Company's first fiscal quarter after the date of this Indenture and
ending on the last day of the Company's fiscal quarter ending immediately
prior to the date of such proposed Restricted Payment (or, if such
aggregate cumulative Consolidated Adjusted Net Income shall be a loss,
minus 100% of such amount), plus
(B) the aggregate net cash proceeds received by the Company after the
date of this Indenture from the issuance or sale (other than to any of its
Restricted Subsidiaries) of shares of Qualified Capital Stock of the
Company or warrants, options or rights to purchase shares of Qualified
Capital Stock of the Company, plus
(C) the aggregate net cash proceeds received after the date of this
Indenture by the Company from the issuance or sale (other than to any of
its Restricted Subsidiaries) of debt securities or Redeemable Capital Stock
that have been converted into or exchanged for Qualified Capital Stock of
the Company, to the extent such debt securities or Redeemable Capital Stock
were originally sold for cash, together with the aggregate net cash
proceeds received by the Company at the time of such conversion or
exchange, plus
(D) to the extent that any Investment constituting a Restricted
Payment that was made after the date of this Indenture is sold or is
otherwise liquidated or repaid, an amount (to the extent not included in
Consolidated Adjusted Net Income) equal to the lesser of (x) the cash
proceeds with respect to such Investment (less the cost of the disposition
of such Investment and net of taxes) and (y) the initial amount of such
Investment, plus
(E) $25,000,000.
(b) Notwithstanding paragraph (a) above, the Company and any
Restricted Subsidiary may take the following actions so long as (with respect to
clauses (ii) through (viii) below) no Default or Event of Default shall have
occurred and be continuing:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration the payment of such
dividend would have complied with the provisions of paragraph (a) above and
such payment shall be deemed to have been paid on such date of declaration
for purposes of the calculation required by paragraph (a) above;
(ii) the repurchase, redemption or other acquisition or retirement
for value of any shares of Capital Stock of the Company in exchange for, or
out of the net cash proceeds of a substantially concurrent issuance and
sale (other than to a Restricted Subsidiary) of, shares of Qualified
Capital Stock of the Company;
(iii) the repurchase, redemption, defeasance or other acquisition or
retirement for value of any Indebtedness that is expressly subordinated in
right of payment to the Notes in exchange for, or out of the net cash
proceeds of a substantially concurrent issuance and sale (other than to a
Restricted Subsidiary) of, shares of Qualified Capital Stock of the
Company;
(iv) the purchase of any Indebtedness that is expressly subordinated
in right of payment to the Notes at a purchase price not greater than 101%
of the principal amount thereof in the event of (A) a Change of Control in
accordance with provisions similar to those of Section 1014 or (B) an
Excess Proceeds Offer in accordance with provisions similar to those of
Section 1015; provided that prior to such purchase the Company has made the
Change of Control Offer or Excess Proceeds Offer, as the case may be, as
provided in such relevant Section with respect to the Notes and has
purchased all Notes validly tendered for payment in connection with such
Change of Control Offer or Excess Proceeds Offer, as the case may be;
(v) the purchase, redemption, defeasance or other acquisition or
retirement for value of Indebtedness (other than Redeemable Capital Stock)
that is expressly subordinated in right of payment to the Notes in exchange
for, or out of the net cash proceeds of a substantially concurrent
incurrence (other than to a Restricted Subsidiary) of, new Indebtedness of
the Company that is expressly subordinated in right of payment to the Notes
so long as (A) the principal amount of such new Indebtedness does not
exceed the principal amount (or, if such Indebtedness being refinanced
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof, such lesser amount as
of the date of determination) of the Indebtedness being so purchased,
redeemed, defeased, acquired or retired, plus the lesser of (i) the amount
of any premium required to be paid in connection with such refinancing
pursuant to the terms of the Indebtedness being refinanced or (ii) the
amount of any premium reasonably determined by the Company as necessary to
accomplish such refinancing, (B) such new Indebtedness is subordinated to
the Notes to the same extent as such Indebtedness so purchased, redeemed,
defeased, acquired or retired and (C) such new Indebtedness has an Average
Life longer than the Average Life of the Notes and a final Stated Maturity
of principal later than the final Stated Maturity of principal of the
Notes;
(vi) the repurchase, redemption or other acquisition or retirement
for value of shares of Capital Stock of the Company issued pursuant to
stock option plans of the Company; provided that (1) the Company is
required, by the terms of such plans, to effect such purchase, redemption
or other acquisition or retirement for value of such shares and (2) the
aggregate consideration paid by the Company for such shares so purchased,
redeemed or otherwise acquired or retired for value does not exceed
$5,000,000 during any fiscal year of the Company;
(vii) payments or distributions to dissenting stockholders pursuant
to applicable law, pursuant to or in connection with an Asset Sale or Asset
Acquisition that complies with the provisions of this Indenture; and
(viii) repurchases of Capital Stock (or warrants or options
convertible into or exchangeable for such Capital Stock) deemed to occur
upon exercise of stock options to the extent that shares of such Capital
Stock (or warrants or options convertible into or exchangeable for such
Capital Stock) represent a portion of the exercise price of such options.
The actions described in clauses (i), (ii), (iii), (iv), (vi), (vii) and (viii)
of this paragraph (b) shall be Restricted Payments that shall be permitted to be
taken in accordance with this paragraph (b) but shall reduce the amount that
would otherwise be available for Restricted Payments under clause (3) of
paragraph (a) above and the actions described in clause (v) of this paragraph
(b) shall be Restricted Payments that shall be permitted to be taken in
accordance with this paragraph (b) and shall not reduce the amount that would
otherwise be available for Restricted Payments under clause (3) of paragraph (a)
above.
(c) In computing Consolidated Adjusted Net Income of the Company
under paragraph (a) above, (1) the Company shall use audited financial
statements for the portions of the relevant period for which audited financial
statements are available on the date of determination and unaudited financial
statements and other current financial data based on the books and records of
the Company for the remaining portion of such period and (2) the Company shall
be permitted to rely in good faith on the financial statements and other
financial data derived from the books and records of the Company that are
available on the date of determination. If the Company makes a Restricted
Payment which, at the time of the making of such Restricted Payment would in the
good faith determination of the Company be permitted under the requirements of
the Indenture, such Restricted Payment shall be deemed to have been made in
compliance with this Indenture notwithstanding any subsequent adjustments made
in good faith to the Company's financial statements affecting Consolidated
Adjusted Net Income of the Company for any period.
SECTION 1010. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries.
The Company shall not sell, and shall not permit any Restricted
Subsidiary to issue, any Capital Stock of such Restricted Subsidiary (other than
to the Company or a Restricted Subsidiary); provided, however, that this Section
1010 shall not prohibit (i) the sale or other disposition of all, but not less
than all, of the issued and outstanding Capital Stock of any Restricted
Subsidiary owned by the Company or any Restricted Subsidiary in compliance with
the other provisions of this Indenture, (ii) issuances or sales of Common Stock
of a Restricted Subsidiary if such issuance or sale complies with Section 1015,
provided that if, immediately after giving effect to such issuance or sale, such
Restricted Subsidiary would no longer constitute a Restricted Subsidiary, any
Investment in such Person remaining after giving effect to such issuance or sale
would have been permitted to be made under Section 1009, if made on the date of
such issuance or sale, or (iii) the ownership by directors of director's
qualifying shares or the ownership by foreign nationals of Capital Stock of any
Restricted Subsidiary, to the extent mandated by applicable law.
SECTION 1011. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, enter into or suffer to exist, any transaction or
series of related transactions (including, without limitation, the sale,
purchase, exchange or lease of assets, property or services) with, or for the
benefit of, any Affiliate of the Company or any Restricted Subsidiary (other
than the Company or a Restricted Subsidiary so long as no Affiliate of the
Company (other than a Restricted Subsidiary) or beneficial holder of 5% or more
of any class or series of Capital Stock of the Company shall beneficially own
Capital Stock in such Restricted Subsidiary), unless (i) such transaction or
series of transactions are on terms that are no less favorable to the Company or
such Restricted Subsidiary, as the case may be, than those that could have been
obtained in an arm's-length transaction with third parties that are not
Affiliates of the Company, (ii) with respect to any transaction or series of
related transactions involving aggregate consideration equal to or greater than
$5,000,000, the Company has delivered an Officers' Certificate to the Trustee
certifying that such transaction or series of related transactions complies with
clause (i) above and (iii) with respect to any transaction or series of related
transactions involving aggregate consideration equal to or greater than
$10,000,000, such transaction or series of related transactions has been
approved by the Board of Directors of the Company (including a majority of the
Disinterested Directors) or the Company has obtained a written opinion from a
nationally recognized investment banking firm to the effect that such
transaction or series of related transactions is fair to the Company or its
Restricted Subsidiary, as the case may be, from a financial point of view;
provided, however, that this Section 1011 shall not restrict (1) customary
directors' fees, indemnification and similar arrangements, consulting fees,
employee salaries, bonuses or employment agreements, compensation or employee
benefit arrangements and incentive arrangements with any officer, director or
employee of the Company or any Restricted Subsidiary entered into in the
ordinary course of business (including customary benefits thereunder) and
payments under any indemnification arrangements permitted by applicable law, (2)
the issue and sale by the Company to its stockholders of Capital Stock (other
than Redeemable Capital Stock), (3) any dividends made in compliance with
Section 1009, (4) loans and advances to officers, directors, employees and
consultants of the Company or any Restricted Subsidiary for travel,
entertainment, moving and other relocation expenses, in each case made in the
ordinary course of business, (5) the performance of any written agreement as in
effect on the date of this Indenture and as amended from time to time, provided
that any such amendment is not less favorable in any material respect to the
Company or any Restricted Subsidiary than the terms in effect on the date of
this Indenture, (6) tax sharing agreements between the Company and any
Restricted Subsidiary providing for the payment by such Restricted Subsidiary of
an amount equal to the hypothetical United States tax liability of such
Restricted Subsidiary as if such Restricted Subsidiary had filed its own United
States federal tax return for any given tax year and (7) transactions with or by
any Accounts Receivable Subsidiary made in the ordinary course of business.
SECTION 1012. Limitation on Liens.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien of any kind (other than Permitted Liens) securing Indebtedness that is
pari passu with or subordinated to the Notes, on or with respect to any of its
property or assets, including any shares of stock or indebtedness of any
Restricted Subsidiary, whether owned at the date of this Indenture or hereafter
acquired, or any income, profits or proceeds therefrom, or assign or otherwise
convey any right to receive income thereon, unless (x) in the case of any Lien
securing Indebtedness that is expressly subordinated in right of payment to the
Notes, the Notes are secured by a Lien on such property, assets or proceeds that
is senior in priority to such Lien and (y) in the case of any Lien securing
Indebtedness that is pari passu in right of payment to the Notes, the Notes are
secured by a Lien on such property, assets or proceeds that is senior in
priority to or pari passu with such Lien.
(b) The Company shall not, and shall not permit any Guarantor to,
directly or indirectly, create, incur, assume or suffer to exist any Lien of any
kind (other than Permitted Liens) securing Indebtedness that is pari passu with
or subordinated to such Guarantor's Guarantee, on or with respect to any of its
property or assets, including any shares of stock or indebtedness of any
Restricted Subsidiary, whether owned at the date of this Indenture or hereafter
acquired, or any income, profits or proceeds therefrom, or assign or otherwise
convey any right to receive income thereon, unless (x) in the case of any Lien
securing Indebtedness that is expressly subordinated in right of payment to such
Guarantee, such Guarantee is secured by a Lien on such property, assets or
proceeds that is senior in priority to such Lien and (y) in the case of any Lien
securing Indebtedness that is pari passu in right of payment to such Guarantee,
such Guarantee is secured by a Lien on such property, assets or proceeds that is
senior in priority to or pari passu with such Lien.
SECTION 1013. Limitations on Guarantees of Indebtedness by Restricted
Subsidiaries.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to guarantee, assume or in any other manner become liable with
respect to any Indebtedness of the Company unless (a) (i) if such Restricted
Subsidiary is not a Guarantor, such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture, in form satisfactory to the
Trustee, providing for a Guarantee of the Notes by such Restricted Subsidiary
and delivers to the Trustee an Opinion of Counsel reasonably satisfactory to the
Trustee to the effect that such supplemental indenture has been duly executed
and delivered by such Restricted Subsidiary and is in compliance with the terms
of this Indenture and (ii) with respect to any guarantee by a Restricted
Subsidiary of Indebtedness that is expressly subordinated in right of payment to
the Notes, any such guarantee shall be subordinated to such Restricted
Subsidiary's Guarantee at least to the same extent as such guaranteed
Indebtedness is subordinated to the Notes, and (b) such Restricted Subsidiary
waives and shall not in any manner whatsoever claim or take the benefit or
advantage of, any rights of reimbursement, indemnity or subrogation or any other
rights against the Company or any other Restricted Subsidiary as a result of any
payment by such Restricted Subsidiary under its Guarantee.
SECTION 1014. Purchase of Notes upon Change of Control.
(a) If a Change of Control shall occur at any time, then each Holder
of Notes shall have the right to require that the Company purchase such Holder's
Notes, in whole or in part in integral multiples of $1,000, at a purchase price
(the "Change of Control Purchase Price") in cash in an amount equal to 101% of
the principal amount thereof, plus accrued interest, if any, to the date of
purchase (the "Change of Control Purchase Date"), pursuant to the offer
described below (the "Change of Control Offer") and the other procedures set
forth in this Indenture.
(b) Within 30 days following any Change of Control, the Company shall
notify the Trustee thereof and give written notice of such Change of Control
Offer to each Holder of Notes by first-class mail, postage prepaid, at the
address of such Holder appearing in the Note Register, stating (i) the Change of
Control Purchase Price and the Change of Control Purchase Date, which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date such
notice is mailed, or such later date as is necessary to comply with requirements
under the Exchange Act or any applicable securities laws or regulations; (ii)
that any Note not tendered will continue to accrue interest; (iii) that, unless
the Company defaults in the payment of the Change of Control Purchase Price, any
Notes accepted for payment pursuant to the Change of Control Offer shall cease
to accrue interest after the Change of Control Purchase Date; (iv) that Holders
electing to have any Notes purchased pursuant to a Change of Control Offer shall
be required to surrender the Notes, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Notes completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Purchase Date; (v) that Holders
shall be entitled to withdraw their election if the Paying Agent receives, not
later than the close of business on the second Business Day preceding the Change
of Control Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes delivered
for purchase, and a statement that such Holder is withdrawing its election to
have such Notes purchased; (vi) that Holders whose Notes are being purchased
only in part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple thereof; (vii) the
instructions that the Holders of Notes must follow in order to tender their
Notes; and (viii) the circumstances and relevant facts regarding such Change of
Control.
(c) The Company shall comply to the extent applicable with the
requirements of the tender offer rules, including Rule 14e-1 under the Exchange
Act, and any other applicable securities laws and regulations in connection with
a Change of Control Offer.
(d) The Company shall not, and shall not permit any Restricted
Subsidiary to, create or permit to exist or become effective any restriction
(other than restrictions existing or under Indebtedness as in effect on the date
of this Indenture or under any agreement that extends, renews, refinances or
replaces any agreement governing such restrictions or Indebtedness, provided
that the restrictions contained in such new agreement are no more restrictive
than those under or pursuant to the agreement so extended, renewed, refinanced
or replaced) that would materially impair the ability of the Company to make a
Change of Control Offer to purchase the Notes or, if such Change of Control
Offer is made, to pay for the Notes tendered for purchase.
SECTION 1015. Limitation on Sale of Assets.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly, or indirectly, consummate an Asset Sale unless (i) the
consideration received by the Company or such Restricted Subsidiary for such
Asset Sale is not less than the fair market value of the assets sold (as
determined by the Board of Directors of the Company, whose determination shall
be conclusive and evidenced by a Board Resolution) and (ii) the consideration
received by the Company or the relevant Restricted Subsidiary in respect of such
Asset Sale consists of at least 75% cash or Cash Equivalents; provided that any
Designated Noncash Consideration received by the Company or any Restricted
Subsidiary in such Asset Sale having an aggregate fair market value, taken
together with all other Designated Noncash Consideration received pursuant to
this proviso that is at that time outstanding, not in excess of $20,000,000
(with the fair market value of each item of Designated Noncash Consideration
being measured at the time received and without giving effect to subsequent
changes in value), shall be deemed to be cash for the purposes of this Section
1015.
(b) If the Company or any Restricted Subsidiary consummates an Asset
Sale, the Company may use the Net Cash Proceeds thereof, within 12 months after
such Asset Sale, to (i) permanently repay or prepay any then outstanding Senior
Indebtedness of the Company or any Guarantor or Indebtedness of any non-
Guarantor Restricted Subsidiary or (ii) invest (or enter into a legally binding
agreement to invest) in properties and assets to replace the properties and
assets that were the subject of the Asset Sale or in properties and assets that
will be used in businesses of the Company or its Restricted Subsidiaries, as the
case may be, existing on the date of this Indenture or reasonably related
thereto. If any such legally binding agreement to invest such Net Cash Proceeds
is terminated, then the Company may, within 90 days of such termination or
within 12 months of such Asset Sale, whichever is later, invest such Net Cash
Proceeds as provided in clause (i) or (ii) (without regard to the parenthetical
contained in such clause (ii)) above. The amount of such Net Cash Proceeds not
so used as set forth above in this paragraph (b) shall constitute "Excess
Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $20,000,000,
the Company shall, within 15 Business Days, make an offer to purchase (an
"Excess Proceeds Offer") from all holders of Notes, on a pro rata basis, in
accordance with the procedures set forth below, the maximum principal amount
(expressed as a multiple of $1,000) of Notes that may be purchased with the
Excess Proceeds; provided, however, that no Excess Proceeds Offer shall be
required to be commenced with respect to the Notes until the Business Day
following the Offer Date (as defined below) with respect to the Senior Notes and
need not be commenced if the Excess Proceeds remaining after application to the
Senior Notes purchased in the Excess Proceeds Offer applicable thereto are less
than $10,000,000; and provided further, however, that no Notes may be purchased
under this Section 1015 unless the Company shall have purchased all Senior Notes
tendered pursuant to the Excess Proceeds Offer applicable thereto. The offer
price as to each Note shall be payable in cash in an amount equal to 100% of the
principal amount of such Note plus accrued interest, if any (the "Offered
Price"), to the date such Excess Proceeds Offer is consummated (the "Offer
Date"). To the extent that the aggregate principal amount of Notes tendered
pursuant to an Excess Proceeds Offer is less than the Excess Proceeds, the
Company may use such deficiency for general corporate purposes. If the
aggregate principal amount of Notes validly tendered and not withdrawn by
holders thereof exceeds the Excess Proceeds, Notes to be purchased shall be
selected on a pro rata basis. Upon completion of such Exceeds Proceeds Offer
(or, in the event that an Excess Proceeds Offer is not required to be made to
the Holders of the Notes as a result of the proviso in the first sentence of
this Section 1015(c)), the amount of Excess Proceeds shall be reset to zero.
(d) Whenever the Excess Proceeds received by the Company exceed
$20,000,000, such Excess Proceeds shall be set aside by the Company in a
separate account pending (i) deposit with the Trustee or a paying agent of the
amount required to purchase the Notes tendered in an Excess Proceeds Offer, (ii)
delivery by the Company of the Offered Price to the holders of the Notes
tendered in an Excess Proceeds Offer and (iii) application, as set forth above,
of Excess Proceeds for general corporate purposes. Such Excess Proceeds may be
invested in Cash Equivalents, provided that the maturity date of any investment
shall not be later than the Offer Date. The Company shall be entitled to any
interest or dividends accrued, earned or paid on such Cash Equivalents.
(e) If the Company becomes obligated to make an Excess Proceeds Offer
pursuant to clause (c) above, the Notes shall be purchased by the Company, at
the option of the Holders thereof, in whole or in part in integral multiples of
$1,000, on a date that is not earlier than 30 days and not later than 60 days
from the date the notice is given to holders, or such later date as may be
necessary for the Company to comply with the requirements under the Exchange
Act, subject to proration in the event the amount of Excess Proceeds is less
than the aggregate Offered Price of all Notes tendered.
(f) Within 15 days after the obligation of the Company to make an
Excess Proceeds Offer arises, the Company shall notify the Trustee thereof and
give written notice of such Excess Proceeds Offer to each Holder of Notes by
first-class mail, postage prepaid, at the address of such Holder appearing in
the Note Register, stating, (i) the Offered Price and the Offer Date, which
shall be a Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed, or such later date as is necessary to comply with
requirements under the Exchange Act or any applicable securities laws or
regulations; (ii) that any Note not tendered will continue to accrue interest;
(iii) that, unless the Company defaults in the payment of the Offered Price, any
Notes accepted for payment pursuant to the Excess Proceeds Offer shall cease to
accrue interest after the date of purchase; (iv) that Holders electing to have
any Notes purchased pursuant to a Excess Proceeds Offer shall be required to
surrender the Notes, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third Business Day
preceding the Offer Date; (v) that Holders shall be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Offer Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing its election to have such Notes purchased; (vi) that Holders whose
Notes are being purchased only in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $1,000 in principal amount or an integral
multiple thereof; (vii) the instructions that the Holders of Notes must follow
in order to tender their Notes; and (viii) the circumstances and relevant facts
regarding such Excess Proceeds Offer.
(g) The Company shall comply to the extent applicable with the
requirements of the tender offer rules, including Rule 14e-1 under the Exchange
Act, and any other applicable securities laws and regulations in connection with
an Excess Proceeds Offer.
SECTION 1016. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction of any kind on the ability of
any Restricted Subsidiary to (a) pay dividends, in cash or otherwise, or make
any other distributions on or in respect of its Capital Stock, (b) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary, (c) make
loans or advances to the Company or any other Restricted Subsidiary, (d)
transfer any of its properties or assets to the Company or any other Restricted
Subsidiary (other than customary restrictions on transfers of property subject
to a Lien permitted under this Indenture that would not materially adversely
affect the Company's ability to satisfy its obligations under the Notes and this
Indenture) or (e) guarantee any Indebtedness of the Company or any other
Restricted Subsidiary, except for such encumbrances or restrictions existing
under or by reason of (i) any agreement in effect on the date of this Indenture,
(ii) applicable law, (iii) customary provisions restricting subletting or
assignment of any lease or assignment of any other contract to which the Company
or any Restricted Subsidiary is a party or to which any of their respective
properties or assets are subject, (iv) any agreement or other instrument of a
Person acquired by the Company or any Restricted Subsidiary 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) any encumbrance or restriction contained in contracts
for sales of assets permitted by Section 1015 with respect to the assets to be
sold pursuant to such contract and (vi) any encumbrance or restriction existing
under any agreement that extends, renews, refinances or replaces the agreements
containing the encumbrances or restrictions in the foregoing clauses (i) and
(iv); provided that the terms and conditions of any such encumbrances or
restrictions are no less favorable to the holders of the Notes than those under
or pursuant to the agreement so extended, renewed, refinanced or replaced.
SECTION 1017. Limitation on Unrestricted Subsidiaries.
The Company shall not make, and shall not permit any of its Restricted
Subsidiaries to make, any Investments in Unrestricted Subsidiaries if, at the
time thereof, the aggregate amount of such Investments would exceed the amount
of Restricted Payments then permitted to be made pursuant to Section 1009. Any
Investments in Unrestricted Subsidiaries permitted to be made pursuant to this
Section 1017 (i) shall be treated as the making of a Restricted Payment in
calculating the amount of Restricted Payments made by the Company or a
Restricted Subsidiary and (ii) may be made in cash or property.
SECTION 1018. Limitation on Issuance of Other Senior Subordinated
Indebtedness.
Neither the Company nor any Restricted Subsidiary shall incur, create,
assume, guarantee or in any other manner become directly or indirectly liable
with respect to or responsible for, or permit to remain outstanding, any
Indebtedness that is subordinate or junior in right of payment to any Senior
Indebtedness unless such Indebtedness is also pari passu with, or subordinate in
right of payment to, the Notes pursuant to subordination provisions
substantially similar to those contained in this Indenture.
SECTION 1019. Provision of Financial Statements and Reports.
The Company shall file on a timely basis with the Commission, to the
extent such filings are accepted by the Commission and whether or not the
Company has a class of securities registered under the Exchange Act, the annual
reports, quarterly reports and other documents that the Company would be
required to file if it were subject to Section 13 or 15 of the Exchange Act. The
Company shall also (a) file with the Trustee, and provide to each Holder of
Notes (at their respective addresses set forth in the Note Register), without
cost to such Holder, copies of such reports and documents within 15 days after
the date on which the Company files such reports and documents with the
Commission or the date on which the Company would be required to file such
reports and documents if the Company were so required, and (b) if filing such
reports and documents with the Commission is not accepted by the Commission or
is prohibited under the Exchange Act, supply at the Company's cost copies of
such reports and documents to any prospective Holder of Notes promptly upon
written request.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 1020. Waiver of Certain Covenants.
The Company and the Restricted Subsidiaries may omit in any particular
instance to comply with any term, provision or condition set forth in Sections
1005 to 1019, inclusive, if before or after the time for such compliance the
Holders of at least a majority in aggregate principal amount of all Outstanding
Notes affected by such term, provision or covenant, by Act of such Holders,
waive such compliance in such instance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company, the Restricted Subsidiaries and the
duties of the Trustee, as applicable, in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Redemption.
The Notes may or shall be, as the case may be, redeemed, as a whole or
from time to time in part, subject to the conditions and the Redemption Prices
specified in the form of Note, together with accrued and unpaid interest, if
any, to the Redemption Date (subject to the right of Holders of record on
relevant record dates to receive interest due on an Interest Payment Date), on
the Redemption Date.
SECTION 1102. Applicability of Article.
The Notes shall be redeemable in accordance with the terms of such
Notes and in accordance with this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of the Notes to
be redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Notes to be redeemed pursuant to Section
1104.
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the particular Notes to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Notes not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate (and in such
manner that complies with all applicable legal requirements) and which may
provide for the selection for redemption of portions of the principal of Notes;
provided, however, that no such partial redemption shall reduce the portion of
the principal amount of a Note not redeemed to less than the minimum authorized
denomination for the Notes established pursuant to Section 302.
The Trustee shall promptly notify the Company and the Note Registrar
(if other than the Trustee) in writing of the Notes selected for redemption and,
in the case of any Notes selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Note redeemed or to be redeemed only in part, to the portion of
the principal amount of such Note which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given in the manner provided for in
Section 106 not less than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Notes to be redeemed.
All notices of redemption shall identify the Notes (including CUSIP
number) to be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Notes are to be redeemed,
the identification (and, in the case of partial redemption, the principal
amounts) of the particular Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price (together
with accrued interest, if any, to the Redemption Date payable as provided
in Section 1107) will become due and payable upon each such Note, or the
portion thereof, to be redeemed and, if applicable, that interest thereon
will cease to accrue on and after said date, and
(5) the place or places where such Notes are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. Such notice shall be
deemed to have been given to each Holder if sent in accordance with Section 106
hereof.
SECTION 1106. Deposit of Redemption Price.
On or prior to 10:00 A.M. on any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of, and accrued
interest on, all the Notes which are to be redeemed on that date.
SECTION 1107. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price stated therein (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Notes shall
cease to bear interest. Upon surrender of any such Note for redemption in
accordance with said notice, such Note shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest on Notes whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Notes, or one or more Predecessor Notes, registered as such at the close
of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate of interest set forth in the
Note.
SECTION 1108. Notes Redeemed in Part.
Any Note which is to be redeemed only in part (pursuant to the
provisions of this Article) shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note without service charge, a
new Note or Notes, of any authorized denomination as requested by such Holder,
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Note so surrendered.
ARTICLE TWELVE
SECTION 1201. [Reserved.]
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Guarantees.
Each Guarantor hereby jointly and severally, absolutely,
unconditionally and irrevocably guarantees the Notes and obligations of the
Company hereunder and thereunder, and guarantees to each Holder of a Note
authenticated and delivered by the Trustee, and to the Trustee on behalf of such
Holder, that: (a) the principal of (and premium, if any) and interest on the
Notes will be paid in full when due, whether at Stated Maturity, by
acceleration, call for redemption or otherwise (including, without limitation,
the amount that would become due but for the operation of the automatic stay
under Section 362(a) of the Bankruptcy Law), together with interest on the
overdue principal, if any, and interest on any overdue interest, to the extent
lawful, and all other obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be paid in full or performed, all in accordance
with the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Notes or of any such other obligations, the same will
be paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at Stated Maturity, by acceleration or otherwise,
subject, however, in the case of clauses (a) and (b) above, to the limitations
set forth in Section 1304 hereof.
Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor.
Each Guarantor hereby waives (to the extent permitted by law) the
benefits of diligence, presentment, demand for payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company or any other Person, protest,
notice and all demands whatsoever and covenants that the Guarantee of such
Guarantor will not be discharged as to any Note except by complete performance
of the obligations contained in such Note and such Guarantee. Each of the
Guarantors hereby agrees that, in the event of a default in payment of principal
(or premium, if any) or interest on such Note, whether at its Stated Maturity,
by acceleration, call for redemption, purchase or otherwise, legal proceedings
may be instituted by the Trustee on behalf of, or by, the Holder of such Note,
subject to the terms and conditions set forth in this Indenture, directly
against each of the Guarantors to enforce such Guarantor's Guarantee without
first proceeding against the Company or any other Guarantor. Each Guarantor
agrees that if, after the occurrence and during the continuance of an Event of
Default, the Trustee or any of the Holders are prevented by applicable law from
exercising their respective rights to accelerate the maturity of the Notes, to
collect interest on the Notes, or to enforce or exercise any other right or
remedy with respect to the Notes, such Guarantor will pay to the Trustee for the
account of the Holders, upon demand therefor, the amount that would otherwise
have been due and payable had such rights and remedies been permitted to be
exercised by the Trustee or any of the Holders.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company or any Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or any
Guarantor, any amount paid by any of them to the Trustee or such Holder, the
Guarantee of each of the Guarantors, to the extent theretofore discharged, shall
be reinstated in full force and effect. Each Guarantor further agrees that, as
between each Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Five hereof for the purposes of the Guarantee
of such Guarantor, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any acceleration of such obligations as provided in
Article Five hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of the
Guarantee of such Guarantor.
SECTION 1302. Severability.
In case any provision of any Guarantee shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1303. Subordination of Guarantees.
The Guarantee issued by any Guarantor will be unsecured senior
subordinated obligations of such Guarantor, ranking pari passu with all other
existing and future senior subordinated indebtedness of such Guarantor, if any.
The Indebtedness evidenced by such Guarantee will be subordinated on the same
basis to Guarantor Senior Indebtedness of such Guarantor as the Notes are
subordinated to Senior Indebtedness under Article Fifteen.
SECTION 1304. Limitation of Guarantors' Liability.
Each Guarantor and by its acceptance hereof each Holder confirms that
it is the intention of all such parties that the guarantee by each such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law or
the provisions of its local law relating to fraudulent transfer or conveyance.
To effectuate the foregoing intention, the Holders and each such Guarantor
hereby irrevocably agree that the obligations of such Guarantor under its
Guarantee shall be limited to the maximum amount that will not, after giving
effect to all other contingent and fixed liabilities of such Guarantor and after
giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under its
Guarantee or pursuant to Section 1305 hereof, result in the obligations of such
Guarantor under its Guarantee constituting such fraudulent transfer or
conveyance.
SECTION 1305. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under a Guarantee,
such Funding Guarantor shall be entitled to a contribution from all other
Guarantors in a pro rata amount based on the Adjusted Net Assets (as defined
below) of each Guarantor (including the Funding Guarantor) for all payments,
damages and expenses incurred by that Funding Guarantor in discharging the
Company's obligations with respect to the Notes or any other Guarantor's
obligations with respect to the Guarantee of such Guarantor. "Adjusted Net
Assets" of such Guarantor at any date shall mean the lesser of (x) the amount by
which the fair value of the property of such Guarantor exceeds the total amount
of liabilities, including, without limitation, contingent liabilities (after
giving effect to all other fixed and contingent liabilities incurred or assumed
on such date), but excluding liabilities under the Guarantee of such Guarantor
at such date and (y) the amount by which the present fair salable value of the
assets of such Guarantor at such date exceeds the amount that will be required
to pay the probable liability of such Guarantor on its debts (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date), excluding debt in respect of the Guarantee of such Guarantor, as they
become absolute and matured.
SECTION 1306. Subrogation.
Each Guarantor shall be subrogated to all rights of Holders against
the Company in respect of any amounts paid by any Guarantor pursuant to the
provisions of Section 1301; provided, however, that, if an Event of Default has
occurred and is continuing, no Guarantor shall be entitled to enforce or receive
any payments arising out of, or based upon, such right of subrogation until all
amounts then due and payable by the Company under this Indenture or the Notes
shall have been paid in full.
SECTION 1307. Reinstatement.
Each Guarantor hereby agrees (and each Person who becomes a Guarantor
shall agree) that the Guarantee provided for in Section 1301 shall continue to
be effective or be reinstated, as the case may be, if at any time, payment, or
any part thereof, of any obligations or interest thereon is rescinded or must
otherwise be restored by a Holder to the Company upon the bankruptcy or
insolvency of the Company or any Guarantor.
SECTION 1308. Release of a Guarantor.
(a) The Guarantee issued by any Guarantor under this Indenture shall
be automatically and unconditionally released and discharged (i) upon any sale,
exchange or transfer to any Person not an Affiliate of the Company or a
Restricted Subsidiary of all of the Company's Capital Stock in, or all or
substantially all the assets of, such Guarantor (which sale, exchange or
transfer is not prohibited by this Indenture) or (ii) at the request of the
Company, if such Guarantor is not a Leveraged Subsidiary, in the event that (A)
no other Indebtedness of the Company remains guaranteed by such Guarantor or (B)
the holders of all such other Indebtedness that is guaranteed by such Guarantor
also release their guarantee by such Guarantor (including any deemed release
upon payment in full of all obligations under such Indebtedness except by or as
a result of payment under such guarantee); provided, however, that a release of
a Guarantor that is a Leveraged Subsidiary may only be obtained under the
circumstances described in this clause (ii) if, after giving effect to the
release, such Guarantor would have been permitted to incur all of its then
outstanding Indebtedness under the provisions of Section 1008.
(b) Concurrently with the discharge of the Notes under Section 401,
the defeasance of the Notes under Section 1402 hereof, or the covenant
defeasance of the Notes under Section 1403 hereof, the Guarantors shall be
released from all their obligations under their Guarantees under this Article
Thirteen.
SECTION 1309. Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
its guarantee and waivers pursuant to its Guarantee are knowingly made in
contemplation of such benefits.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option and at any time, effect defeasance of
the Notes under Section 1402, or covenant defeasance of the Notes under Section
1403, in accordance with the terms of the Notes and in accordance with this
Article.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise under Section 1401 of the option
applicable to this Section 1402, the Company and the Guarantors shall be deemed
to have been discharged from their obligations with respect to the Outstanding
Notes and the Guarantees, respectively, on the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company and the Guarantors shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Notes, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 1405 and the other Sections of this Indenture referred to in
(A) and (B) below, and to have satisfied all its other obligations under the
Notes and this Indenture insofar as the Notes are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Outstanding Notes to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest on such Notes when such payments are due, (B) the Company's
obligations with respect to such Notes under Sections 305, 306, 1002 and 1003,
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (D) this Article Fourteen. Subject to compliance with this Article
Fourteen, the Company may exercise its option under this Section 1402
notwithstanding the prior exercise of its option under Section 1403 with respect
to such Notes.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise under Section 1401 of the option
applicable to this Section 1403, the Company and the Guarantors shall be
released from their obligations under Section 803 and Sections 1005 through 1019
with respect to the Outstanding Notes on and after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "covenant defeasance"), and
such Notes shall thereafter be deemed not to be "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Notes, the Company and any Guarantor, as applicable, 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 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 501(3) or 501(4) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1402 or Section 1403 to the Outstanding Notes:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Notes, (A) an
amount in cash, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment of principal (including any premium) and interest,
if any, on such Notes, money in an amount, or (C) a combination thereof, in
each case in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of (and premium, if any, on)
and interest on such Outstanding Notes on the Stated Maturity (or
Redemption Date, if applicable) of such principal (and premium, if any) or
installment of interest; provided that the Trustee (or such qualifying
trustee) shall have been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to said payments with respect
to such Notes. Before such a deposit, the Company may give to the Trustee,
in accordance with Section 1103 hereof, a notice of its election to redeem
all or any portion of such Outstanding Notes at a future date in accordance
with the terms of the Notes and Article Eleven hereof, which notice shall
be irrevocable. Such irrevocable redemption notice, if given, shall be
given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such Notes shall
have occurred and be continuing on the date of such deposit or, insofar as
paragraphs (8) and (9) of Section 501 are concerned, at any time during the
period ending on the 123rd day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any material agreement to which the Company or any Guarantor is a party or
is bound.
(4) In the case of an election under Section 1402, 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 June 30, 1997, there has been a
change in the applicable federal income tax law or interpretation of such
federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Notes will not
recognize income, gain or loss for federal income tax purposes as a result
of such defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(5) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Notes 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.
(6) In the case of defeasance or covenant defeasance, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that (A) the trust funds will not be subject to any rights of holders of
Senior Indebtedness under Article Fifteen hereof, and (B) after the 123rd
day following the deposit or after the date such Opinion of Counsel is
delivered, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1402
or the covenant defeasance under Section 1403 (as the case may be) have
been complied with.
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1405, the "Trustee") pursuant to Sections 1404 and 1406 in respect of
such Outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such Notes of
all sums due and to become due thereon in respect of principal (and premium, if
any) and interest, but such money need not be segregated from other funds except
to the extent required by law. Money and U.S. Government Obligations so held in
trust are not subject to Article Fifteen.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Notes.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations (or other property and any
proceeds therefrom) held by it as provided in Section 1404 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1402 or 1403, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1405; provided, however, that if the Company makes any payment of principal of
(or premium, if any) or interest on any such Note following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE FIFTEEN
SUBORDINATION OF NOTES
SECTION 1501. Notes Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Note, by its
acceptance thereof, likewise covenants and agrees, for the benefit of the
Holders, from time to time, of Senior Indebtedness that, to the extent and in
the manner hereinafter set forth in this Article, the Indebtedness represented
by the Notes and the payment of the principal of (and premium, if any) and
interest on each and all of the Notes are hereby expressly made subordinate and
subject in right of payment as provided in this Article to the prior payment in
full in cash or Cash Equivalents (or in any other form acceptable to the holders
of Senior Indebtedness) of all Senior Indebtedness; provided, however, that the
Notes, the Indebtedness represented thereby and the payment of the principal of
(and premium, if any) and interest on the Notes in all respects shall rank
equally with, or prior to, all existing and future senior subordinated
indebtedness (including, without limitation, Indebtedness) of the Company that
is subordinated to Senior Indebtedness; provided further that the Notes shall
rank senior in right of payment to the Convertible Notes.
SECTION 1502. Payment over of Proceeds upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relating to the Company or to its assets, or
(b) any liquidation, dissolution or other winding-up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any assignment for the benefit of creditors or other marshalling of
assets or liabilities of the Company (except in connection with the
consolidation or merger of the Company or its liquidation or dissolution
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety upon the terms and conditions described under
Article Eight), then and in any event:
(1) the holders of Senior Indebtedness shall first be entitled to
receive payment in full in cash or Cash Equivalents (or in any other form
acceptable to the holders of Senior Indebtedness) of all Senior
Indebtedness, or provision shall be made for such payment in full, before
the Holders will be entitled to receive any payment or distribution of any
kind or character (other than any payment or distribution in the form of
equity securities or subordinated securities of the Company or any
successor obligor that, in the case of any such subordinated securities,
are subordinated in right of payment to all Senior Indebtedness that may at
the time be outstanding to at least the same extent as the Notes are so
subordinated as provided in this Indenture (such equity securities or
subordinated securities hereinafter being "Permitted Junior Securities"))
on account of principal of (or premium, if any) or interest on the Notes or
on account of the purchase or redemption or other acquisition of Notes;
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (other than a payment
or distribution in the form of Permitted Junior Securities), by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Indenture shall be paid by the liquidating trustee
or agent or other Person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Senior Indebtedness or their representative
ratably according to the aggregate amounts remaining unpaid on account of
the Senior Indebtedness to the extent necessary to make payment in full of
all Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior
Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the conveyance, transfer or lease of its properties and assets substantially as
an entirety to another Person upon the terms and conditions set forth in Article
Eight shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of assets
and liabilities of the Company for the purposes of this Section if the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance, transfer or lease such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance, transfer or lease, comply with the conditions
set forth in Article Eight.
SECTION 1503. Suspension of Payment When Designated Senior
Indebtedness in Default.
(a) Unless Section 1502 shall be applicable, upon the occurrence of a
Payment Default, then no payment (other than payments made pursuant to Article
Fourteen from monies or U.S. Government Obligations previously deposited with
the Trustee) or distribution of any assets of the Company of any kind or
character, whether in cash, property or securities (other than Permitted Junior
Securities), shall be made by the Company on account of principal of (or
premium, if any) or interest on the Notes or on account of the purchase or
redemption or other acquisition of Notes unless and until such Payment Default
shall have been cured or waived in writing from the Agent Bank or any other
representative of a holder of Designated Senior Indebtedness or shall have
ceased to exist or such Designated Senior Indebtedness shall have been
discharged or paid in full in cash or Cash Equivalents (or in any other form
acceptable to the holders of such Designated Senior Indebtedness), after which
the Company shall resume making any and all required payments in respect of the
Notes, including any missed payments.
(b) Unless Section 1502 shall be applicable, upon (1) the occurrence
of a Non-Payment Default and (2) receipt by the Trustee and the Company of
written notice thereof from the Agent Bank or any other representative of a
holder of Designated Senior Indebtedness, then no payment (other than payments
made pursuant to Article Fourteen from monies or U.S. Government Obligations
previously deposited with the Trustee) or distribution of any assets of the
Company of any kind or character, whether in cash, property or securities (other
than Permitted Junior Securities), shall be made by the Company on account of
any principal of (or premium, if any) or interest on the Notes or on account of
the purchase, redemption or other acquisition of Notes for a period ("Payment
Blockage Period") commencing on the date of receipt by the Trustee of written
notice from the Agent Bank or such other representative and ending on the
earliest of (i) 179 days thereafter (provided that any Designated Senior
Indebtedness as to which notice was given shall not theretofore have been
accelerated, in which case the provisions of paragraph (a) shall apply), (ii)
the date on which such Non-Payment Default is cured, waived or ceases to exist
or such Designated Senior Indebtedness is discharged or paid in full in cash or
Cash Equivalents (or in any other form acceptable to the holders of such
Designated Senior Indebtedness) or (iii) the date on which such Payment Blockage
Period shall have been terminated by written notice to the Trustee or the
Company from the Agent Bank or such other representative initiating such Payment
Blockage Period, after which the Company will resume making any and all required
payments in respect of the Notes, including any missed payments. In any event,
not more than one Payment Blockage Period may be commenced during any period of
360 consecutive days. No event of default that existed or was continuing on the
date of the commencement of any Payment Blockage Period will be, or can be, made
the basis for the commencement of a subsequent Payment Blockage Period, unless
such default has been cured or waived for a period of not less than 180
consecutive days. In no event will a Payment Blockage Period extend beyond 179
days.
In the event that, notwithstanding the foregoing and the provisions of
Section 1502, any payments or distribution shall be made to the Trustee (and not
paid over to the Holders of the Notes) which is prohibited by the foregoing
provisions of this Section and the provisions of Section 1502, then and in such
event such payment shall be paid over and delivered forthwith by the Trustee to
the Agent Bank and any other representative of holders of Designated Senior
Indebtedness, as their interests may appear, to the extent necessary to pay in
full, in cash or Cash Equivalents all Designated Senior Indebtedness.
SECTION 1504. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Notes shall prevent the Company, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 1502 or under the conditions
described in Section 1503, from making payments at any time of principal of, and
premium, if any, or interest on the Notes.
SECTION 1505. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Notes shall be subrogated (equally and ratably with the holders of all
Indebtedness of the Company which by its express terms is subordinated to Senior
Indebtedness of the Company to the same extent as the Notes are subordinated and
which is entitled to like rights of subrogation) to the rights of the holders of
such Senior Indebtedness to receive payments and distributions of cash, property
and securities applicable to the Senior Indebtedness until the principal of, and
premium, if any, and interest on the Notes shall be paid in full. For purposes
of such subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the Holders of the
Notes or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Notes or the Trustee, shall, as
among the Company, its creditors other than holders of Senior Indebtedness, and
the Holders of the Notes, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
SECTION 1506. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Notes on the one
hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Notes is
intended to or shall (a) impair, as between the Company and the Holders of the
Notes, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders of the Notes the principal of, and premium, if any, and
interest on the Notes as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Notes and creditors of the Company other than the
holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder of any
Note from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Indebtedness.
SECTION 1507. Trustee to Effectuate Subordination.
Each Holder of a Note by its acceptance thereof authorizes and directs
the Trustee on its behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 1508. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
(b) Without in any way limiting the generality of paragraph (a) of
this Section, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Notes to the holders of Senior
Indebtedness, do any one or more of the following: (1) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (2) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (3) release any Person liable in any manner for the collection of
Senior Indebtedness; and (4) exercise or refrain from exercising any rights
against the Company and any other Person.
SECTION 1509. Notice to Trustee.
(a) The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Notes. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Notes, unless and
until the Trustee shall have received written notice thereof from the Company,
the Agent Bank or a holder of Senior Indebtedness or from any trustee, fiduciary
or agent therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to TIA Sections 315(a) through 315(d), shall be entitled in all
respects to assume that no such facts exist; provided, however, that, if the
Trustee shall not have received the notice provided for in this Section at least
three Business Days prior to the date upon which by the terms hereof any money
may become payable for any purpose (including, without limitation, the payment
of the principal of, and premium, if any, or interest on any Note), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
(b) Subject to TIA Sections 315(a) through 315(d), the Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing itself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 1510. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to TIA Sections 315(a) through 315(d), and
the Holders of the Notes shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Notes, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 1511. Rights of Trustee As a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 606.
SECTION 1512. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1511 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1513. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the Trustee
or the Holders of Notes to take any action to accelerate the maturity of the
Notes pursuant to Article Five or to pursue any rights or remedies hereunder or
under applicable law.
SECTION 1514. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments
from cash or the proceeds of U.S. Government Obligations held in trust under
Article Fourteen hereof by the Trustee (or other qualifying trustee) and which
were deposited in accordance with the terms of Article Fourteen hereof and not
in violation of Section 1503 hereof for the payment of principal of (and
premium, if any) and interest on the Notes shall not be subordinated to the
prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article Fifteen, and none of the Holders shall be obligated to pay
over any such amount to the Company or any holder of Senior Indebtedness or any
other creditor of the Company; provided, however, the Company will not exercise
and the Trustee will not take the benefit of any defeasance under Article
Fourteen without the prior written consent of the Banks.
SECTION 1515. Trustee Not Fiduciary for Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
the Trustee shall mistakenly, in the absence of gross negligence or willful
misconduct, pay over or distribute to Holders of Notes or to the Company or to
any other person cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article and no implied covenants or obligations with respect to
holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
NINE WEST GROUP INC.
By: /s/ Robert C. Galvin
Name: Robert C. Galvin
Title: Executive Vice President,
Treasurer
NINE WEST DEVELOPMENT CORPORATION
By: /s/ Robert C. Galvin
Name: Robert C. Galvin
Title: Executive Vice President,
Chief Officer and
Treasurer
NINE WEST DISTRIBUTION CORPORATION
By: /s/ Robert C. Galvin
Name: Robert C. Galvin
Title: Executive Vice President
Chief Officer and
Treasurer
NINE WEST FOOTWEAR CORPORATION
By: /s/ Robert C. Galvin
Name: Robert C. Galvin
Title: Executive Vice President
Chief Officer and
Treasurer
NINE WEST MANUFACTURING
CORPORATION
By: /s/ Robert C. Galvin
Name: Robert C. Galvin
Title: Executive Vice President
Chief Officer and
Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Denise Leopold
Name: Denise Leopold
Title: Assitant Treasurer
Exhibit A
[FACE OF NOTE]
NINE WEST GROUP INC.
9% (Series B)** Senior Subordinated Note due 2007
CUSIP _________
No. _______ $_________________
NINE WEST GROUP INC., a Delaware corporation (the "Company", which
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to ___________, or its registered assigns, the
principal sum of ____________________________________ Dollars ($___________), on
August 15, 2007.
(Initial Interest Rate: 9% per annum.)*
(Interest Rate: 9% per annum.)**
Interest Payment Dates: February 15 and August 15 of each year
commencing February 15, 1998.
Regular Record Dates: February 1 and August 1 of each year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Date:______________ NINE WEST GROUP INC.
By:___________________________
Title:
___________________________________
* Include Only for Initioal Notes
** Include only for Exchange Notes
(Form of Trustee's Certificate of Authentication)
This is one of the 9% (Series B)** Senior Subordinated Notes due 2007 referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: __________ By:___________________________
Authorized Signatory
___________________________________
** Include only for Exchange Note.
[REVERSE SIDE OF NOTE]
NINE WEST GROUP INC.
9% (Series B)** Senior Subordinated Note due 2007
1. Principal and Interest; Subordination.
The Company will pay the principal of this Note on August 15, 2007.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate of 9% per
annum [(subject to adjustment as provided below)],* [except that interest
accrued on this Note pursuant to the fourth paragraph of this Section 1 for
periods prior to the applicable Exchange Date (as such term is defined in the
Registration Rights Agreement referred to below) will accrue at the rate or
rates borne by the Notes from time to time during such periods].**
Interest will be payable semi-annually (to the Holders of record of
the Notes (or any Predecessor Notes) at the close of business on the February 1
or August 1 immediately preceding the Interest Payment Date) on each Interest
Payment Date, commencing February 15, 1998.
[The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement, dated July 9, 1997, among the Company, the
Guarantors and the Purchasers named therein (the "Registration Rights
Agreement"). In the event that either (a) the Exchange Offer Registration
Statement (as such term is defined in the Registration Rights Agreement) is not
filed with the Securities and Exchange Commission on or prior to the 60th
calendar day following the date of original issue of the Notes, (b) the Exchange
Offer Registration Statement or a Shelf Registration Statement (as such terms
are defined in the Registration Rights Agreement) has not been declared
effective on or prior to the 365th calendar day following the date of original
issue of the Notes or (c) the Exchange Offer (as such term is defined in the
Registration Rights Agreement) is not consummated on or prior to the 45th
calendar day following the effectiveness of the Exchange Offer Registration
Statement, the interest rate borne by this Note shall be increased by one-
quarter of one percent per annum following such 60-day period in the case of (a)
above, following such 365-day period in the case of (b) above or following such
45-day period in the case of (c) above, which rate will be increased by an
additional one-quarter of one percent per annum for each 90-day period that any
additional interest continues to accrue; provided that the aggregate increase in
such annual interest rate shall in no event exceed one percent. Upon (x) the
filing of the Exchange Offer Registration Statement after the 60-day period
described in clause (a) above, (y) the effectiveness of the Exchange Offer
Registration Statement or a Shelf Registration Statement, as the case may be,
after the 365-day period described in clause (b) above or (z) the day before the
consummation of the Exchange Offer after the 45-day period described in clause
(c) above, the interest rate borne by this Note from the date of such filing,
effectiveness or day before the consummation, as the case may be, will be
reduced to the interest rate set forth above; provided, however, that, if after
any such reduction in interest rate, a different event specified in clause (a),
(b) or (c) above occurs, the interest rate may again be increased pursuant to
the foregoing provisions.]*
Interest on this Note will accrue from the most recent date to which
interest has been paid [on this Note or the Note surrendered in exchange
herefor]** or, if no interest has been paid, from July 9, 1997; provided that,
if there is no existing default in the payment of interest and if this Note is
authenticated between a Regular Record Date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such
Interest Payment Date. 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 and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
a rate per annum equal to the rate of interest applicable to the Notes.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness, and this Note is issued
subject to such provisions. Each Holder of this Note, by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes and directs
the Trustee on its behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Trustee its attorney-in-fact for such purpose.
_____________________________________
* Include only for Initial Note.
** Include only for Exchange Note.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on the
principal amount of the Notes on each February 15 and August 15 to the Persons
who are Holders (as reflected in the Note Register at the close of business on
the February 1 and August 1 immediately preceding the Interest Payment Date), in
each case, even if the Note is cancelled on registration of transfer or
registration of exchange after such Regular Record Date; provided that, with
respect to the payment of principal, the Company will make payment to the Holder
that surrenders this Note to any Paying Agent on or after August 15, 2007.
The Company will pay principal (premium, if any) and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may pay principal (premium, if
any) and interest by its check payable in such money. The Company may pay
interest on the Notes either (a) by mailing a check for such interest to a
Holder's registered address (as reflected in the Note Register) or (b) by wire
transfer to an account located in the United States maintained by the payee. If
a payment date is a date other than a Business Day at a place of payment,
payment may be made at that place on the next succeeding day that is a Business
Day and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar upon written notice thereto.
The Company, any Subsidiary or any Affiliate of any of them may act as Paying
Agent, Registrar or co-registrar.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of July 9,
1997 (the "Indenture"), among the Company, the Guarantors and The Bank of New
York, as trustee (the "Trustee"). Capitalized terms herein are used as defined
in the Indenture unless otherwise indicated. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act. The Notes are subject to all such terms, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control.
The Notes are unsecured senior subordinated obligations of the
Company. The Indenture limits the aggregate principal amount of the Notes to
$125,000,000.
5. Redemption.
Optional Redemption. The Notes may be redeemed at the option of the
Company, in whole or in part, at any time and from time to time on or after
August 15, 2002, at the following Redemption Prices (expressed in percentages of
principal amount), plus accrued and unpaid interest, if any, to the Redemption
Date (subject to the right of Holders of record on the relevant Regular Record
Date to receive interest due on an Interest Payment Date that is on or prior to
the Redemption Date), if redeemed during the 12-month period beginning August 15
of each of the years set forth below:
Redemption
Year Price
---- -----
2002 ............................. 104.50%
2003 ............................. 103.00%
2004 ............................. 101.50%
2005 and thereafter ............... 100.00%
In addition to the optional redemption of the Notes in accordance with
the provisions of the preceding paragraph, at any time or from time to time
prior to August 15, 2000, the Company may redeem up to $37,500,000 aggregate
principal amount of the Notes, within 60 days of one or more Public Equity
Offerings with the net proceeds of such offerings, at 109% of the principal
amount thereof, together with accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of holders of record on relevant record
dates to receive interest due on an Interest Payment Date); provided, however,
that at least $87,500,000 of the original aggregate principal amount of the
Notes remains outstanding thereafter.
Notice of a redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder to be redeemed at such
Holder's last address as it appears in the Note Register. Notes in original
denominations larger than $1,000 may be redeemed in part in integral multiples
of $1,000. On and after the Redemption Date, interest ceases to accrue on Notes
or portions of Notes called for redemption, unless the Company defaults in the
payment of the Redemption Price.
6. Repurchase upon a Change in Control and Asset Sales.
Upon the occurrence of (a) a Change of Control, the Company is
obligated to make an offer to purchase all outstanding Notes at a redemption
price of 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the date of purchase and (b) Asset Sales, the Company may be
obligated to make offers to purchase Notes with a portion of the Net Cash
Proceeds of such Asset Sales at a redemption price of 100% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons, in denominations of
$1,000 and multiples of $1,000 in excess thereof. A Holder may register the
transfer or exchange of Notes in accordance with the Indenture. The Note
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Note Registrar need not register the
transfer or exchange of any Notes selected for redemption (except the unredeemed
portion of any Note being redeemed in part). Also, it need not register the
transfer or exchange of any Notes for a period of 15 days before a selection of
Notes to be redeemed is made.
8. Persons Deemed Owners.
A Holder may be treated as the owner of a Note for all purposes.
9. Unclaimed Money.
If money for the payment of principal (premium, if any) or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity.
If the Company irrevocably deposits, or causes to be deposited, with
the Trustee money or U.S. Government Obligations sufficient to pay the then
outstanding principal of (premium, if any) and accrued interest on the Notes (a)
to redemption or maturity, the Company will be discharged from the Indenture and
the Notes, except in certain circumstances for certain sections thereof, and (b)
to the Stated Maturity, the Company will be discharged from certain covenants
set forth in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and any existing
default or compliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Indebtedness;
(ii) Restricted Payments; (iii) issuances and sales of Capital Stock of
Restricted Subsidiaries; (iv) transactions with Affiliates; (v) Liens; (vi)
guarantees of Indebtedness by Restricted Subsidiaries; (vii) disposition of
proceeds of Asset Sales; (viii) dividend and other payment restrictions
affecting Restricted Subsidiaries; (ix) merger and certain transfers of assets;
(x) limitation on Unrestricted Subsidiaries and (xi) issuance of other senior
subordinated indebtedness. Within 120 days after the end of each fiscal year
and within 50 days after each fiscal quarter, the Company must report to the
Trustee on compliance with such limitations.
13. Successor Persons.
When a successor person or other entity assumes all the obligations of
its predecessor under the Notes and the Indenture, the predecessor person will
be released from those obligations.
14. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding may declare all the Notes to be
immediately due and payable. If a bankruptcy or insolvency default with respect
to the Company or any of its Significant Subsidiaries occurs and is continuing,
the Notes automatically become immediately due and payable. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of at least a
majority in aggregate principal amount of the Notes then outstanding may direct
the Trustee in its exercise of any trust or power.
15. Guarantee.
The Company's obligations under the Notes are fully and irrevocably
guaranteed on a senior unsecured basis by the Guarantors.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may make loans to, accept
deposits from, perform services for, and otherwise deal with, the Company and
its Affiliates as if it were not the Trustee.
17. Authentication.
This Note shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Note.
18. Abbreviations.
Customary abbreviations may be used in the name of a Holder 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).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Nine West Group
Inc., 9 West Broad Street, Stamford, Connecticut 06902, Attention: Chief
Financial Officer.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
__________________________________________________________________________
__________________________________________________________________________
(Please print or typewrite name and address including zip code of assignee)
___________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
___________________________________________________________________________
attorney to transfer such Note on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT PERMANENT OFFSHORE PHYSICAL
CERTIFICATES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
July 9, 1999, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided
by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 312 of the Indenture shall have
been satisfied.
Date: ___________________________
________________________________
NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of the within-mentioned instrument
in every particular, without
alteration or any change
whatsoever.
Signature Guarantee: ___________________________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ________________________________ ______________________________
NOTICE: To be executed by
an executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 1014 or Section 1015 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 1014 or Section 1015 of the Indenture, state the amount (in
original principal amount) below:
$_____________________.
Date: ____________________
Your Signature: _______________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: _______________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
Exhibit B
SUBORDINATED PROMISSORY NOTE
Dated: _____________
FOR VALUE RECEIVED, the undersigned, _________________________, a
_______________ corporation ("Borrower"), HEREBY PROMISES TO PAY to
_______________ (the "Holder") and its successors and assigns on
________________, the aggregate unpaid principal amount of all advances made by
the Holder to Borrower and outstanding on such date; together with interest
(computed on the basis of a year of 360 days for the actual number of days
elapsed) on any and all principal amounts hereunder from time to time
outstanding from and including the date hereof until said principal amounts are
paid in full, on demand, at a rate per annum equal to _______; interest may be
paid in cash, or if not paid in cash on any date specified for the payment
thereof, shall be added to, and deemed for all purposes of this Subordinated
Promissory Note to constitute a portion of, the principal amount outstanding
hereunder; provided that any and all cash advanced by Borrower to the Holder at
a time when there shall be amounts outstanding hereunder shall be applied to the
prepayment of amounts outstanding hereunder, such payments to be applied in each
case, first, to the prepayment of accrued and unpaid interest to the date of
such prepayment and, second, to the payment of principal.
THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATED IN RIGHT
OF PAYMENT FROM AND AFTER SUCH TIME AS THE BORROWER'S 8-3/8% SENIOR NOTES DUE
2005 (THE "SENIOR NOTES") AND 9% SENIOR SUBORDINATED NOTES DUE 2007 (THE "SENIOR
SUBORDINATED NOTES" AND TOGETHER WITH THE SENIOR NOTES, THE SECURITIES") BECOME
DUE AND PAYABLE (WHETHER AT STATED MATURITY, ACCELERATION OR OTHERWISE) TO THE
PAYMENT AND PERFORMANCE OF THE BORROWER'S OBLIGATIONS UNDER THE SECURITIES.
By its acceptance hereof in the space provided below, the Holder
agrees that the accounts of Borrower shall be prima facie evidence of the
amounts advanced by the Holder to Borrower and the amounts repaid or prepaid by
Borrower to the Holder.
The Holder also agrees to pay on demand all reasonable costs and
expenses (including reasonable fees and expenses of counsel) incurred by the
Holder in enforcing this Intercompany Note.
Both principal and interest are payable in lawful money of the United
States of America to the Holder at the offices of the Holder or at such other
locations as the Holder shall from time to time specify by notice to Borrower at
its address at _________________.
This Subordinated Promissory Note shall not be assigned by the Holder
except by operation of law.
THIS SUBORDINATED PROMISSORY NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
BY ITS ACCEPTANCE HEREOF IN THE SPACE PROVIDED BELOW, THE HOLDER
HEREBY (1) ACKNOWLEDGES AND AGREES THAT THIS SUBORDINATED PROMISSORY NOTE AMENDS
AND RESTATES IN ITS ENTIRETY EACH AND EVERY OTHER PROMISSORY NOTE HERETOFORE
EXECUTED BY BORROWER IN FAVOR OF THE HOLDER AND (2) UNCONDITIONALLY AND
IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
SUBORDINATED PROMISSORY NOTE, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
[NAME OF BORROWER]
By____________________________________
Title:
ACCEPTED:
[NAME OF HOLDER]
By________________________
Title:
Registration Rights Agreement
Dated as of July 9, 1997
among
Nine West Group Inc.,
Issuer,
Nine West Development Corporation,
Nine West Distribution Corporation,
Nine West Footwear Corporation and
Nine West Manufacturing Corporation,
Subsidiary Guarantors
and
Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Bear, Stearns & Co. Inc.,
Citicorp Securities, Inc. and
NationsBanc Capital Markets, Inc.,
Initial Purchasers
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of July 9, 1997, by and among Nine West Group Inc., a Delaware
corporation (the "Company"), Nine West Development Corporation, Nine West
Distribution Corporation, Nine West Footwear Corporation and Nine West
Manufacturing Corporation, as guarantors (the "Subsidiary Guarantors") and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"), Bear, Stearns & Co. Inc., Citicorp Securities, Inc. and
NationsBanc Capital Markets, Inc. (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated July
1, 1997 between the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company and the Subsidiary
Guarantors to the Initial Purchasers of $200,000,000 aggregate principal amount
of the Company's 8-3/8% Senior Notes due 2005 (the "Senior Notes") and
$125,000,000 aggregate principal amount of the Company's 9% Senior Subordinated
Notes due 2007 (the "Senior Subordinated Notes" and, together with the Senior
Notes, the "Notes"). The obligations of the Company under the Notes and the
Indentures (as defined herein) will be guaranteed by the Subsidiary Guarantors
pursuant to the terms of the Indentures (the "Subsidiary Guarantees"). In order
to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company and the Subsidiary Guarantors have agreed to provide to the Initial
Purchasers and their direct and indirect transferees and assigns the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time, and the rules and regulations of the SEC promulgated thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble of this
Agreement and also includes the Company's successors.
"Depositary" shall mean The Depositary Trust Company, or any other
depositary appointed by the Company, provided, however, that any such
depositary must have an address in the Borough of Manhattan, in the City of
New York.
"Exchange Notes" shall mean collectively, (i) 8-3/8% Series B Senior
Notes due 2005 which are unconditionally guaranteed on a senior unsecured
basis and (ii) 9% Series B Senior Subordinated Notes due 2007 which are
unconditionally guaranteed on a senior subordinated unsecured basis by the
Subsidiary Guarantors under the Indentures containing terms identical to
the respective Notes (except that (i) interest thereon shall accrue from
the last date on which interest was paid on the Notes or, if no such
interest has been paid, from July 9, 1997, (ii) the transfer restrictions
thereon shall be eliminated and (iii) certain provisions relating to an
increase in the stated rate of interest thereon shall be eliminated) to be
offered to Holders of Notes in exchange for Notes pursuant to the Exchange
Offer.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Notes for Registrable Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Notes, and each of their successors, assigns and direct and
indirect transferees who become registered owners of Registrable Notes
under the Indentures.
"Indentures" shall mean the Senior Notes Indenture and the Senior
Subordinated Notes Indenture.
"Initial Purchasers" shall have the meaning set forth in the preamble
of this Agreement.
"Majority Holders" shall mean (i) with respect to Registrable Notes
that are Senior Notes, the Holders of a majority of the aggregate principal
amount of such Registrable Notes outstanding and (ii) with respect to
Registrable Notes that are Senior Subordinated Notes, the Holders of a
majority of the aggregate principal amount of such Registrable Notes
outstanding; provided that whenever the consent or approval of Holders of a
specified percentage of Registrable Notes is required hereunder,
Registrable Notes held by the Company or any of its affiliates (as such
term is defined in Rule 405 under the 1933 Act) shall be disregarded in
determining whether such consent or approval was given by the Holders of
such required percentage or amount.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government
or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Notes covered by a Shelf Registration Statement,
and by all other amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all material
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
of this Agreement.
"Registrable Notes" shall mean the Notes and the Subsidiary
Guarantees; provided, however, that the Notes and the Subsidiary Guarantees
shall cease to be Registrable Notes when (i) a Registration Statement with
respect to such Notes and Subsidiary Guarantees shall have been declared
effective under the 1933 Act and such Notes and Subsidiary Guarantees shall
have been disposed of pursuant to such Registration Statement, (ii) such
Notes and Subsidiary Guarantees shall have been sold to the public pursuant
to Rule 144 (or any similar provision then in force, but not Rule 144A)
under the 1933 Act, (iii) such Notes and Subsidiary Guarantees shall have
ceased to be outstanding or (iv) such Notes and Subsidiary Guarantees have
been exchanged for Exchange Notes upon consummation of the Exchange Offer.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Subsidiary Guarantors
with this Agreement, including without limitation: (i) all SEC, stock
exchange or National Association of Securities Dealers, Inc. ("NASD")
registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state or other securities or blue sky laws
and compliance with the rules of the NASD (including reasonable fees and
disbursements of one counsel for any underwriters and Holders in connection
with state or other securities or blue sky qualification of any of the
Exchange Notes or Registrable Notes), (iii) all expenses of any Persons in
preparing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting
agreements, securities sales agreements, certificates representing the
Exchange Notes and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and expenses incurred in connection with the listing, if any, of any of the
Registrable Notes on any securities exchange or exchanges, (vi) all fees
and disbursements relating to the qualification of the Indentures under
applicable securities laws, (vii) the reasonable fees and disbursements of
counsel for the Company and the Subsidiary Guarantors and of the
independent public accountants of the Company and the Subsidiary
Guarantors, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, (viii)
in the case of a Shelf Registration Statement, the reasonable fees and
disbursements of one counsel for the Holders of Registrable Notes (which
counsel shall be selected by the Majority Holders) and (ix) the fees and
expenses of a "qualified independent underwriter" as defined by Conduct
Rule 2720 of the NASD, if required by the NASD rules, in connection with
the offering of the Registrable Securities, (x) the reasonable fees and
expenses of the trustee, including its counsel, and any escrow agent or
custodian, and (xi) any fees and disbursements of the underwriters
customarily required to be paid by issuers or sellers of securities and the
reasonable fees and expenses of any special experts retained by the Company
and the Subsidiary Guarantors in connection with any Registration
Statement, but excluding underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Notes by a Holder.
"Registration Statement" shall mean any registration statement of the
Company and the Subsidiary Guarantors which covers any of the Exchange
Notes or Registrable Notes pursuant to the provisions of this Agreement,
and all amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Senior Notes Indenture" shall mean the Indenture relating to the
Senior Notes dated as of July 9, 1997, among the Company, the Subsidiary
Guarantors and The Bank of New York, as trustee (the "Senior Notes
Trustee"), and as the same may be amended from time to time in accordance
with the terms thereof.
"Senior Subordinated Notes Indenture" shall mean the Indenture
relating to the Senior Subordinated Notes dated as of July 9, 1997, among
the Company, the Subsidiary Guarantors and The Bank of New York, as trustee
(the "Senior Subordinated Notes Trustee"), and as the same may be amended
from time to time in accordance with the terms thereof.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Subsidiary Guarantors pursuant to the
provisions of Section 2(b) of this Agreement which covers all of the
Registrable Notes on an appropriate form under Rule 415 under the 1933 Act,
or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Subsidiary Guarantees" shall have the meaning set forth in the
preamble.
"Subsidiary Guarantors" shall have the meaning set forth in the
preamble and shall also include the Subsidiary Guarantors' successors.
"Trustee" shall mean the Senior Notes Trustee under the Senior Notes
Indenture or the Senior Subordinated Notes Trustee under the Senior
Subordinated Notes Indenture, as applicable.
2. Registration Under the 1933 Act. (a) Exchange Offer Registration.
To the extent not prohibited by any applicable law or applicable interpretation
of the staff of the SEC, the Company and the Subsidiary Guarantors shall (A)
file within 60 days after the Closing Time an Exchange Offer Registration
Statement covering the offer by the Company and the Subsidiary Guarantors to the
Holders to Exchange Notes for all of the Registrable Notes, (B) use their best
efforts to cause such Exchange Offer Registration Statement to be declared
effective by the SEC within 365 days after the Closing Time,
(C) use their best efforts to cause such Registration Statement to remain
effective until the closing of the Exchange Offer and (D) use their best efforts
to consummate the Exchange Offer within 45 days following the date of
effectiveness of the Exchange Offer Registration Statement. The Exchange Notes
will be issued under the Indentures. Upon the effectiveness of the Exchange
Offer Registration Statement, the Company and the Subsidiary Guarantors shall
promptly commence the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder (other than Participating Broker-Dealers (as defined
in Section 3(f))) eligible and electing to exchange Registrable Notes for
Exchange Notes (assuming that such Holder is not an affiliate of the Company
within the meaning of Rule 405 under the 1933 Act, acquires the Exchange Notes
in the ordinary course of such Holder's business and has no arrangements or
understandings with any person to participate in the Exchange Offer for the
purpose of distributing the Exchange Notes) to trade such Exchange Notes from
and after their receipt without any limitations or restrictions under the 1933
Act and without material restrictions under the securities laws of a substantial
proportion of the several states of the United States.
In connection with the Exchange Offer, the Company and the Subsidiary
Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 20 business days
after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(iii) use the services of the Depositary for the Exchange Offer with
respect to Notes evidenced by global certificates;
(iv) permit Holders to withdraw tendered Registrable Notes at any
time prior to the close of business, New York City time, on the last
business day on which the Exchange Offer shall remain open, by sending to
the institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Registrable Notes delivered for exchange, and a statement that
such Holder is withdrawing its election to have such Notes exchanged; and
(v) otherwise comply with all applicable laws relating to the
Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company and the Subsidiary Guarantors shall:
(i) accept for exchange Registrable Notes duly tendered and not
validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes so accepted for exchange by the Company
and the Subsidiary Guarantors; and
(iii) cause the Trustee promptly to authenticate and deliver Exchange
Notes to each Holder of Registrable Notes equal in amount to the
Registrable Notes of such Holder so accepted for exchange.
Interest on each Exchange Note will accrue from the last date on which
interest was paid on the Registrable Notes surrendered in exchange therefor or,
if no interest has been paid on the Registrable Notes, from July 9, 1997. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer, or the making of any exchange by a Holder, does not violate
applicable law or any applicable interpretation of the staff of the SEC. Each
Holder of Registrable Notes (other than Participating Broker-Dealers) who wishes
to exchange such Registrable Notes for Exchange Notes in the Exchange Offer
shall have represented that (i) it is not an affiliate (as defined in Rule 405
under the 1933 Act) of the Company, (ii) any Exchange Notes to be received by it
were acquired in the ordinary course of business, (iii) at the time of the
commencement of the Exchange Offer it has no arrangement with any person to
participate in the distribution (within the meaning of the 1933 Act) of the
Exchange Notes and (iv) it is not acting on behalf of any person who could not
make the representations in clauses (i) through (iii). The Company shall inform
the Initial Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the right to
contact such Holders and otherwise facilitate the tender of Registrable Notes in
the Exchange Offer.
(b) Shelf Registration. (i) If, because of any change in law or
applicable interpretations thereof by the staff of the SEC, the Company and the
Subsidiary Guarantors are not permitted to effect the Exchange Offer as
contemplated by Section 2(a) hereof, or (ii) if for any other reason the
Exchange Offer Registration Statement is not declared effective within 365 days
following the Closing Time or the Exchange Offer cannot be consummated within 45
days following the date of the effectiveness of the Exchange Offer Registration
Statement, or (iii) if any Holder (other than an Initial Purchaser) is not
eligible to participate in the Exchange Offer or (iv) upon the written request
of any Initial Purchaser (with respect to any Registrable Notes which it
acquired directly from the Company) following the consummation of the Exchange
Offer if any such Initial Purchaser shall hold Registrable Notes which it
acquired directly from the Company and if such Initial Purchaser is not
permitted, in the opinion of counsel to such Initial Purchaser, pursuant to
applicable law or applicable interpretation of the staff of the SEC to
participate in the Exchange Offer, the Company and the Subsidiary Guarantors
shall, at their cost:
(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the Registrable
Notes by the Holders from time to time in accordance with the methods of
distribution elected by the Majority Holders of such Registrable Notes and
set forth in such Shelf Registration Statement, and use their best efforts
to cause such Shelf Registration Statement to be declared effective by the
SEC by the 365th day after the date hereof (or promptly in the event of a
request by any Initial Purchaser pursuant to clause (iv) above). In the
event that the Company and the Subsidiary Guarantors are required to file a
Shelf Registration Statement upon the request of any Holder (other than an
Initial Purchaser) not eligible to participate in the Exchange Offer
pursuant to clause (iii) above or upon the request of any Initial Purchaser
pursuant to clause (iv) above, the Company and the Subsidiary Guarantors
shall file and use their best efforts to have declared effective by the SEC
both an Exchange Offer Registration Statement pursuant to Section 2(a) with
respect to all Registrable Notes and a Shelf Registration Statement (which
may be a combined Registration Statement with the Exchange Offer
Registration Statement) with respect to offers and sales of Registrable
Notes held by such Holder or such Initial Purchaser, as applicable, after
completion of the Exchange Offer;
(B) use their best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years from the Closing
Time (or one year from the effective date of the Shelf Registration
Statement if such Shelf Registration Statement is filed upon the request of
any Initial Purchaser pursuant to clause (iv) above) or such shorter period
which will terminate when all of the Registrable Notes covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or all of the Registrable Notes become eligible for resale
pursuant to Rule 144 under the 1933 Act without volume restrictions; and
(C) notwithstanding any other provisions hereof, use their best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act and
the rules and regulations thereunder, (ii) any Shelf Registration Statement
and any amendment thereto does not, when it becomes effective, 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
not misleading and (iii) any Prospectus forming part of any Shelf
Registration Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
The Company and the Subsidiary Guarantors further agree, if necessary,
to supplement or amend the Shelf Registration Statement if reasonably requested
by the Majority Holders with respect to information relating to the Holders and
otherwise as required by Section 3(b) below, to use all reasonable efforts to
cause any such amendment to become effective and such Shelf Registration to
become usable as soon as practicable thereafter and to furnish to the Holders of
Registrable Notes copies of any such supplement or amendment promptly after its
being used or filed with the SEC; provided, however, that no Holder shall be
entitled to have its Registerable Notes covered by the Shelf Registration
Statement unless such Holder agrees in writing to be bound by the terms and
provisions of this Agreement.
(c) Expenses. The Company and the Subsidiary Guarantors shall pay
all Registration Expenses in connection with the registration pursuant to
Section 2(a) and 2(b). Each Holder shall pay all expenses of its counsel other
than as set forth in the preceding sentence, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Notes pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. (i) The Company and the
Subsidiary Guarantors will be deemed not to have used their best efforts to
cause a Registration Statement to become, or to remain, effective during the
requisite periods set forth herein if the Company or the Subsidiary Guarantors
voluntarily take any action that could reasonably be expected to result in any
such Registration Statement not being declared effective or in the Holders of
Registrable Notes covered thereby not being able to exchange or offer and sell
such Registrable Notes during that period unless (A) such action is required by
applicable law or (B) such action is taken by the Company or the Subsidiary
Guarantors in good faith and for valid business reasons (but not including
avoidance of the Company's or the Subsidiary Guarantors', as applicable,
obligations hereunder), including a material corporate transaction, so long as
the Company and the Subsidiary Guarantors promptly comply with the requirements
of Section 3(k) hereof, if applicable.
(ii) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Notes pursuant to a Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have been effective during the
period of such interference, until the offering of Registrable Notes pursuant to
such Registration Statement may legally resume.
(e) Increase in Interest Rate. In the event that (i) the Exchange
Offer Registration Statement is not filed with the SEC on or prior to the 60th
day following the date hereof, (ii) the Exchange Offer Registration Statement or
a Shelf Registration Statement with respect to the Registrable Notes is not
declared effective on or prior to the 365th day following the date hereof or
(iii) the Exchange Offer is not consummated on or prior to the 45th day
following the date of effectiveness of the Exchange Offer Registration
Statement, the interest rate borne by the Notes shall be increased by
one-quarter of one percent per annum following such 60-day period in the case of
clause (i) above, following such 365-day period in the case of clause (ii) above
or following such 45-day period in the case of clause (iii) above, which rate
will be increased by an additional one-quarter of one percent per annum for each
90-day period that any such additional interest continues to accrue, provided
that the aggregate increase in such annual interest rate will in no event exceed
one percent. Upon (x) the filing of the Exchange Offer Registration Statement
after the 60-day period described in clause (i) above, (y) the effectiveness of
the Exchange Offer Registration Statement or Shelf Registration Statement after
the 365-day period described in clause (ii) above, or (z) the day before
consummation of the Exchange Offer after the 45-day period described in clause
(iii) above, the interest rate borne by the Notes from the date of such filing,
effectiveness or the day before the date of consummation, as the case may be,
will be reduced to the original interest rate if the Company and the Subsidiary
Guarantors are otherwise in compliance with this paragraph; provided, however,
that, if after any such reduction in interest rate, a different event specified
in clauses (i), (ii) or (iii) above occurs, the interest rate will again be
increased and thereafter reduced pursuant to the foregoing provisions. If the
Company and the Subsidiary Guarantors issue a notice that the Shelf Registration
Statement is unusable pending the announcement of a material corporate
transaction or otherwise pursuant to Section 3(k) hereof, or such a notice is
required under applicable securities laws to be issued by the Company and the
Subsidiary Guarantors, and the aggregate number of days in any consecutive
12-month period for which all such notices are issued or required to be issued
exceeds 30 days in the aggregate, then the interest rate borne by the Notes will
be increased by one-quarter of one percent per annum following the date that
such Shelf Registration Statement ceases to be usable beyond the period
permitted above, which rate shall be increased by an additional one-quarter of
one percent per annum for each subsequent 90-day period that such additional
interest continues to accrue; provided that the aggregate increase in such
annual interest rate may in no event exceed one percent. Upon the Company and
the Subsidiary Guarantors declaring that the Shelf Registration Statement is
usable after the interest rate has been increased pursuant to the preceding
sentence, the interest rate borne by the Notes will be reduced to the original
interest rate if the Company and the Subsidiary Guarantors are otherwise in
compliance with this paragraph; provided, however, that if after any such
reduction in interest rate the Shelf Registration Statement again ceases to be
usable beyond the period permitted above, the interest rate will again be
increased and thereafter reduced pursuant to the foregoing provisions.
(f) Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company and the Subsidiary
Guarantors acknowledge that any failure by the Company and the Subsidiary
Guarantors to comply with their respective obligations under Sections 2(a) and
2(b) hereof may result in material irreparable injury to the Initial Purchasers
or the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Company's and the Subsidiary
Guarantors' obligations under Sections 2(a) and 2(b); provided, however, with
respect to any failure by the Company and the Subsidiary Guarantors to comply
with Section 2(a) or Section 2(b) hereof, such relief shall not be available to
any Holder who fails to make the required representations in Section 2(a) or
Section 3(f), as applicable.
3. Registration Procedures. In connection with the obligations of
the Company and the Subsidiary Guarantors with respect to the Registration
Statements pursuant to Sections 2(a) and 2(b) hereof, the Company and the
Subsidiary Guarantors shall:
(a) prepare and file with the SEC a Registration Statement, within
the time period specified in Section 2, on the appropriate form under the
1933 Act, which form (i) shall be selected by the Company and the
Subsidiary Guarantors, (ii) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Notes by the selling Holders
thereof and (iii) shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate by reference
all financial statements required by the SEC to be filed therewith;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
applicable period; cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the 1933 Act; and comply with the provisions of the 1933 Act with
respect to the disposition of all securities covered by each Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes, at least ten days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Notes is being filed
and advising such Holders that the distribution of Registrable Notes will
be made in accordance with the method elected by the Majority Holders; and
(ii) furnish to each Holder of Registrable Notes, to counsel for the
Initial Purchasers, to counsel for the Holders and to each underwriter of
an underwritten offering of Registrable Notes, if any, without charge, as
many copies of each Prospectus, including each preliminary Prospectus, and
any amendment or supplement thereto and such other documents as such Holder
or underwriter may reasonably request, including financial statements and
schedules and, if the Holder so requests, all exhibits (including those
incorporated by reference) in order to facilitate the public sale or other
disposition of the Registrable Notes; and (iii) subject to the last
paragraph of Section 3, hereby consent to the use of the Prospectus,
including each preliminary Prospectus, or any amendment or supplement
thereto by each of the selling Holders of Registrable Notes in connection
with the offering and sale of the Registrable Notes covered by the
Prospectus or any amendment or supplement thereto;
(d) use their best efforts to register or qualify the Registrable
Notes under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Notes covered by a Registration
Statement and each underwriter of an underwritten offering of Registrable
Notes shall reasonably request in writing by the time the applicable
Registration Statement is declared effective by the SEC, to cooperate with
the Holders in connection with any filings required to be made with the
NASD and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder to consummate the disposition
in each such jurisdiction of such Registrable Notes owned by such Holder;
provided, however, that neither the Company nor the Subsidiary Guarantors
shall be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d) or (ii) take any action which would
subject it to general service of process or taxation in any such
jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Notes and counsel for such Holders promptly and, if requested
by such Holder or counsel, confirm such advice in writing promptly (i) when
a Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by
the SEC or any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of
the issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) if, during the period a
Registration Statement is effective, the representations and warranties of
the Company contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to such offering
cease to be true and correct in all material respects, (v) of the receipt
by the Company or the Subsidiary Guarantors of any notification with
respect to the suspension of the qualification of the Registrable Notes for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, (vi) of the happening of any event or the discovery of
any facts during the period a Shelf Registration Statement is effective
which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which requires the
making of any changes in such Registration Statement or Prospectus in order
to make the statements therein not misleading and (vii) of any
determination by the Company and the Subsidiary Guarantors that a post-
effective amendment to a Registration Statement would be appropriate;
(f) (A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who have exchanged their
Registrable Notes for Exchange Notes for the resale of such Exchange Notes,
(ii) furnish to each broker-dealer who desires to participate in the
Exchange Offer, without charge, as many copies of each Prospectus included
in the Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such broker-dealer
may reasonably request, (iii) include in the Exchange Offer Registration
Statement a statement that any broker-dealer who holds Registrable Notes
acquired for its own account as a result of market-making activities or
other trading activities (a "Participating Broker-Dealer"), and who
receives Exchange Notes for Registrable Notes pursuant to the Exchange
Offer, may be a statutory underwriter and must deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such
Exchange Notes, (iv) subject to the last paragraph of Section 3, hereby
consent to the use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto, by any
broker-dealer in connection with the sale or transfer of the Exchange Notes
covered by the Prospectus or any amendment or supplement thereto, and (v)
include in the transmittal letter or similar documentation to be executed
by an exchange offeree in order to participate in the Exchange Offer the
following provision:
"If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Notes. If the undersigned is a broker-dealer
that will receive Exchange Notes for its own account in exchange for
Registrable Notes, it represents that the Registrable Notes to be
exchanged for Exchange Notes were acquired by it as a result of
market-making activities or other trading activities and acknowledges
that it will deliver a prospectus meeting the requirements of the 1933
Act in connection with any resale of such Exchange Notes pursuant to
the Exchange Offer; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the 1933 Act;"
(B) to the extent any Participating Broker-Dealer participates in the
Exchange Offer, the Company and the Subsidiary Guarantors shall use their
best efforts to cause to be delivered at the request of an entity
representing the Participating Broker-Dealers (which entity shall be one of
the Initial Purchasers, unless it elects not to act as such representative)
only one, if any, "cold comfort" letter with respect to the Prospectus in
the form existing on the last date for which exchanges are accepted
pursuant to the Exchange Offer and with respect to each subsequent
amendment or supplement, if any, effected during the period specified in
clause (C) below; and
(C) to the extent any Participating Broker-Dealer participates in the
Exchange Offer, the Company and the Subsidiary Guarantors shall use their
best efforts to maintain the effectiveness of the Exchange Offer
Registration Statement for a period of 120 days following the closing of
the Exchange Offer; and
(D) the Company and the Subsidiary Guarantors shall not be required
to amend or supplement the Prospectus contained in the Exchange Offer
Registration Statement as would otherwise be contemplated by Section 3(b),
or take any other action as a result of this Section 3(f), for a period
exceeding 120 days after the last date for which exchanges are accepted
pursuant to the Exchange Offer (as such period may be extended by the
Company) and Participating Broker-Dealers shall not be authorized by the
Company to, and shall not, deliver such Prospectus after such period in
connection with resales contemplated by this Section 3.
(g) (A) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (B) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Notes copies of any request by the
SEC or any state securities authority for amendments or supplements to a
Registration Statement and Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon as
practicable and provide notice as soon as practicable to each Holder of the
withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested in writing);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and
delivery of certificates to the Trustee representing Registrable Notes to
be sold and not bearing any restrictive legends; and cause such Registrable
Notes to be in such denominations (consistent with the provisions of the
Indentures) in a form eligible for deposit with the Depositary and
registered in such names as the selling Holders or the underwriters, if
any, may reasonably request in writing at least one business day prior to
the closing of any sale of Registrable Notes;
(k) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Section
3(e)(vi) hereof, use their best efforts to prepare a supplement or post-
effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Notes, such Prospectus will not contain at the time of such
delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company
agrees to notify each Holder to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until the Company and the
Subsidiary Guarantors have amended or supplemented the Prospectus to
correct such misstatement or omission. At such time as such public
disclosure is otherwise made or the Company determines that such disclosure
is not necessary, in each case to correct any misstatement of a material
fact or to include any omitted material fact, the Company agrees promptly
to notify each Holder of such determination and to furnish each Holder such
numbers of copies of the Prospectus, as amended or supplemented, as such
Holder may reasonably request;
(l) obtain CUSIP number for all Exchange Notes, or Registrable Notes,
as the case may be, not later than the effective date of a Registration
Statement, and provide the Trustee with printed certificates for the
Exchange Notes in a form eligible for deposit with the Depositary;
(m) (i) cause the Indentures to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Notes, or Registrable Notes, as the case may
be, (ii) cooperate with the Trustee and the Holders to effect such changes
to the Indentures as may be required for the Indentures to be so qualified
in accordance with the terms of the TIA and (iii) execute, and use their
best efforts to cause the Trustee to execute, all 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 Indentures to be so qualified in a
timely manner;
(n) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions (including those reasonably requested by the Majority
Holders) in order to expedite or facilitate the disposition of such
Registrable Notes and in such connection, 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 Registrable Notes and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters
in similar underwritten offerings as may be reasonably requested by
them;
(ii) obtain opinions of counsel to the Company and the Subsidiary
Guarantors and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the holders of a majority in principal
amount of the Registrable Notes being sold) addressed to each selling
Holder and the underwriters, if any, covering the matters customarily
covered in opinions requested in sales of securities or underwritten
offerings and such other matters as may be reasonably requested by
such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from the
Company's and the Subsidiary Guarantors' independent certified public
accountants addressed to the underwriters, if any, and will use best
efforts to have such letters addressed to the selling Holders of
Registrable Notes, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters to
underwriters in connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Notes, which agreement shall be in
form, substance and scope customary for similar offerings; and
(v) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto) and
(ii) each closing under any underwriting or similar agreement as and to the
extent required thereunder. In the case of any underwritten offering, the
Company and the Subsidiary Guarantors shall provide written notice to the
Holders of all Registrable Notes of such underwritten offering at least 30
days prior to the filing of a prospectus supplement for such underwritten
offering. Such notice shall (x) offer each such Holder the right to
participate in such underwritten offering, (y) specify a date, which shall
be no earlier than 10 days following the date of such notice, by which such
Holder must inform the Company of its intent to participate in such
underwritten offering and (z) include the instructions such Holder must
follow in order to participate in such underwritten offering;
(o) in the case of a Shelf Registration, make reasonably available
for inspection by representatives of the Holders of the Registrable Notes
and any underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant retained by such
Holders or underwriters, upon reasonable notice, at reasonable times and in
a reasonable manner, all relevant financial and other records, pertinent
corporate documents and properties of the Company and the Subsidiary
Guarantors reasonably requested by any such persons, and cause the
respective officers, directors, employees, and any other agents of the
Company and the Subsidiary Guarantors to supply all relevant information
reasonably requested by any such representative, underwriter, special
counsel or accountant in connection with a Registration Statement;
provided, however, that such Persons shall first agree in writing with the
Company and the Subsidiary Guarantors that any information that is
reasonably and in good faith designated by the Company and the Subsidiary
Guarantors in writing as confidential at the time of delivery of such
information shall be kept confidential by such Persons, unless (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 such Shelf Registration Statement or 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; provided, further, that the foregoing
investigation shall be coordinated on behalf of the Holders by one
representative designated by and on behalf of such Holders and any such
confidential information shall be available from such representative to
such Holders so long as any Holder agrees to be bound by such
confidentiality agreement;
(p) (i) in the case of an Exchange Offer, a reasonable time prior to
the filing of any Exchange Offer Registration Statement, any Prospectus
forming a part thereof, any amendment to an Exchange Offer Registration
Statement or amendment or supplement to a Prospectus, provide copies of
such document to the Initial Purchasers, upon request; (ii) in the case of
a Shelf Registration, a reasonable time prior to filing any Shelf
Registration Statement, any Prospectus forming a part thereof, any
amendment to such Shelf Registration Statement or amendment or supplement
to such Prospectus, provide copies of such document to the Holders of
Registrable Notes, to the Initial Purchasers, to counsel on behalf of the
Holders and to the underwriter or underwriters of an underwritten offering
of Registrable Notes, if any, upon request; and (iii) cause the
representatives of the Company and the Subsidiary Guarantors to be
available for discussion of such document as shall be reasonably requested
by the Holders of Registrable Notes, the Initial Purchasers on behalf of
such Holders or any underwriter and shall not at any time make any filing
of any such document of which such Holders, the Initial Purchasers on
behalf of such Holders, their counsel or any underwriter shall not have
previously been advised and furnished a copy or to which such Holders, the
Initial Purchasers on behalf of such Holders, their counsel or any
underwriter shall reasonably object on or prior to the later of five
business days after receipt thereof or three business days prior to filing
thereof, each of which actions in this clause (iii) by the Holders shall be
coordinated by one representative for all the Holders at reasonable times
and in a reasonable manner; the Holders shall be deemed to have reasonably
objected to such filing only if such Registration Statement, amendment,
Prospectus or supplement to the Prospectus, as applicable, as proposed to
be filed, contains a material misstatement or omission;
(q) in the case of a Shelf Registration, use their best efforts to
cause all Registrable Securities to be listed on any securities exchange on
which similar debt securities issued by the Company or the Subsidiary
Guarantors are then listed if requested by the Majority Holders or by the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any;
(r) in the case of a Shelf Registration, use their best efforts to
cause the Registrable Notes to be rated with the appropriate rating
agencies, if so requested by the Majority Holders or by the underwriter or
underwriters of an underwritten offering of Registrable Notes, if any,
unless the Registrable Notes are already so rated;
(s) otherwise use their best efforts to comply with all applicable
rules and regulations of the SEC and make available to their security
holders, as soon as reasonably practicable, an earnings statement covering
at least 12 months which shall satisfy the provisions of Section 11(a) of
the 1933 Act and Rule 158 thereunder; and
(t) cooperate and assist in any filings required to be made with the
NASD.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Notes to furnish to the Company such information regarding
such Holder and the proposed distribution by such Holder of such Registrable
Notes as the Company may from time to time reasonably request in writing. The
Company may exclude from such registration the Registrable Notes of any Holder
who unreasonably fails to furnish such information or make such representations
within a reasonable time after receiving such request. Each Holder as to which
any Shelf Registration Statement is being affected 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.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company of the happening of any event
or the discovery of any facts, each of the kind described in Section 3(e)(ii)-
(vii) hereof, such Holder will forthwith discontinue disposition of Registrable
Notes pursuant to a Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(k)
hereof, and, if so directed by the Company and the Subsidiary Guarantors, such
Holder will deliver to the Company and the Subsidiary Guarantors (at their
expense) all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable Notes
current at the time of receipt of such notice. If the Company and the
Subsidiary Guarantors shall give any such notice to suspend the disposition of
Registrable Notes pursuant to a Shelf Registration Statement as a result of the
happening of any event or the discovery of any facts, each of the kind described
in Section 3(e)(vi) hereof, the Company and the Subsidiary Guarantors shall be
deemed to have used their best efforts to keep the Shelf Registration Statement
effective during such period of suspension provided that the Company and the
Subsidiary Guarantors shall use their best efforts to file and have declared
effective (if an amendment) as soon as practicable an amendment or supplement to
the Shelf Registration Statement and shall extend the period during which the
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days during the period from and including the date of the
giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions.
4. Underwritten Registrations. If any of the Registrable 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
manage the offering will be selected by the Majority Holders of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Company and the Subsidiary Guarantors.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
5. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless each Initial Purchaser, each Holder, including
Participating Broker-Dealers, each underwriter who participates in an offering
of Registrable Notes, their respective affiliates, and their respective
directors, officers, employees, agents and each Person, if any, who controls any
of such parties within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
(or any amendment thereto) pursuant to which Exchange Notes or Registrable
Notes were registered under the 1933 Act, including all documents
incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever, in each case, based upon any such untrue statement or omission,
or any such alleged untrue statement or omission; provided that (subject to
Section 5(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred (including
reasonable fees and disbursements of counsel chosen by any indemnified
party), and reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) of this Section 5(a);
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchasers, any Holder, including Participating Broker-Dealers or any
underwriter expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto). The
foregoing indemnity with respect to any untrue statement contained in or any
omission from a Prospectus shall not inure to the benefit of any Initial
Purchaser, Holder (in its capacity as Holder), including Participating
Broker-Dealers (or any person who controls such party within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act) from whom the person
asserting any such loss, liability, claim, damage or expense purchased any of
the Notes that are the subject thereof, was not sent or given a copy of such
Prospectus (as amended or supplemented) by such Initial Purchaser or such
selling Holder (in its capacity as Holder) to the extent such Initial Purchaser
or such Holder (in its capacity as Holder) was required by law to deliver such
Prospectus as amended or supplemented, at or prior to the written confirmation
of the sale of such Notes and the untrue statement contained in or the omission
from such Prospectus was corrected in such amended or supplemented Prospectus,
unless such failure resulted from noncompliance by the Company with its
obligations hereunder to furnish such Initial Purchaser or such Holder (in its
capacity as Holder), as the case may be, with copies of such Prospectus as
amended or supplemented.
(b) In the case of a Shelf Registration, each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, the
Subsidiary Guarantors, each Initial Purchaser, each underwriter who participates
in an offering of Registrable Notes and the other selling Holders and each of
their respective directors and officers (including each officer of the Company
and the Subsidiary Guarantors who signed the Registration Statement) and each
Person, if any, who controls the Company, the Subsidiary Guarantors, any Initial
Purchaser, any underwriter or any other selling Holder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in Section 5(a) hereof, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company and the Subsidiary Guarantors by such
Holder, as the case may be, expressly for use in the Registration Statement (or
any amendment thereto), or the Prospectus (or any amendment or supplement
thereto); provided, however, that no such Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by such Holder from
the sale of Registrable Notes pursuant to such Shelf Registration Statement.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to either paragraph (a) or (b)
above, such person (the "indemnified party") shall give notice as promptly as
reasonably practicable to each person against whom such indemnity may be sought
(the "indemnifying party"), but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability hereunder to the extent
it is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. In no event shall the indemnifying
party or parties be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 5 hereof (whether or not the indemnified parties
are actual or potential parties thereof), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested in
writing an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 5(a)(ii) hereof effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in any of the indemnity
provisions set forth in this Section 5 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, in such proportion as is appropriate to reflect the relative fault of
such indemnifying party or parties on the one hand, and such indemnified party
or parties on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party or parties on the one hand, and such indemnified party or
parties on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or parties or such indemnified party or
parties and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Initial Purchasers and the Holders of the Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity, and the Holders were treated as one entity, for such purpose) or
by another method of allocation which does not take account of the equitable
considerations referred to above in Section 5. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 5 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by an governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any 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 1993 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5, each person, if any, who
controls an Initial Purchaser or Holder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Initial Purchaser or Holder, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so long as the
Company is subject to the reporting requirements of Section 13 or 15 of the 1934
Act, the Company covenants that it will file the reports required to be filed by
it under Section 13(a) or 15(d) of the 1934 Act and the rules and regulations
adopted by the SEC thereunder, that if it ceases to be so required to file such
reports, it will upon the request of any Holder of Registrable Notes (i) make
publicly available such information as is necessary to permit sales pursuant to
Rule 144 under the 1933 Act, (ii) deliver such information to a prospective
purchaser as is necessary to permit sales pursuant to Rule 144A under the 1933
Act and it will take such further action as any Holder of Registrable Notes may
reasonably request in writing, and (iii) take such further action that is
reasonable in the circumstances, in each case, to the extent required from time
to time to enable such Holder to sell its Registrable Notes without registration
under the 1933 Act within the limitation of the exemptions provided by (x) Rule
144 under the 1933 Act, as such Rule may be amended from time to time, (y) Rule
144A under the 1933 Act, as such Rule may be amended from time to time, or (z)
any similar rules or regulations hereafter adopted by the SEC. Upon the written
request of any Holder of Registrable Notes, the Company will deliver to such
Holder a written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. Neither the Company nor the
Subsidiary Guarantors have entered into nor will the Company or the Subsidiary
Guarantors on or after the date of this Agreement enter into any agreement which
is inconsistent with the rights granted to the Holders of Registrable Notes in
this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's or the
Subsidiary Guarantors' other issued and outstanding securities under any such
agreements.
(c) 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 unless the Company and the Subsidiary Guarantors have obtained
the written consent of Holders of at least a majority in aggregate principal
amount of the outstanding Registrable Notes affected by such amendment,
modification, supplement, waiver or departure; provided, however, that no
amendment, modification, supplement or waiver or consent to any departure from
the provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Notes unless consented to in writing by such Holder.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder (other than an Initial Purchaser), at the most current address
set forth on the records of the Registrar under the Indentures, (ii) if to an
Initial Purchaser, at the most current address given by such Initial Purchaser
to the Company and the Subsidiary Guarantors by means of a notice given in
accordance with the provisions of this Section 6(d), which address initially is
the address set forth in the Purchase Agreement; and (iii) if to the Company or
the Subsidiary Guarantors, initially at the address set forth in the Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next business day if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indentures.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms hereof or of the Purchase Agreement or the
Indentures. If any transferee of any Holder shall acquire Registrable Notes, in
any manner, whether by operation of law or otherwise, such Registrable Notes
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Notes, such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and,
if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Subsidiary Guarantors on the one hand, and the Initial Purchasers, on the other
hand, and shall have the right to enforce such agreements directly to the extent
it deems such enforcement necessary or advisable to protect its rights or the
rights of Holders hereunder.
(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) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NINE WEST GROUP INC.
By /s/ Robert C. Galvin
----------------------
Name: Robert C. Galvin
Title: Executive Vice President, Chief Financial
Officer and Treasurer
NINE WEST DEVELOPMENT CORPORATION
By /s/ Robert C. Galvin
----------------------
Name: Robert C. Galvin
Title: Executive Vice President, Chief Financial
Officer and Treasurer
NINE WEST DISTRIBUTION CORPORATION
By /s/ Robert C. Galvin
----------------------
Name: Robert C. Galvin
Title: Executive Vice President, Chief Financial
Officer and Treasurer
NINE WEST FOOTWEAR CORPORATION
By /s/ Robert C. Galvin
----------------------
Name: Robert C. Galvin
Title: Executive Vice President, Chief Financial
Officer and Treasurer
NINE WEST MANUFACTURING CORPORATION
By /s/ Robert C. Galvin
----------------------
Name: Robert C. Galvin
Title: Executive Vice President, Chief Financial
Officer and Treasurer
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
BEAR, STEARNS & CO. INC.
CITICORP SECURITIES, INC.
NATIONSBANC CAPITAL MARKETS, INC.
By: MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: /s/ Lisa Craig
-----------------
Name: Lisa Craig
Title: Vice President
Exhibit 4.4
-----------
[FORM OF GLOBAL 8-3/8% SENIOR NOTES DUE 2005]
[FACE OF NOTE]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES
LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A")) OR (B) IT IS 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" PURSUANT TO RULE 903 OR 904 OF
REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) AND THE LAST
DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTION
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, (E) TO AN ACCREDITED
INVESTOR THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT
OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT (AND IF ACQUIRING THE SECURITIES FROM SUCH AN ACCREDITED
INVESTOR, IS ACQUIRING SECURITIES HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT
LESS THAN $100,000) OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF 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; PROVIDED THAT THE COMPANY, THE TRUSTEE, THE TRANSFER
AGENT AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (I) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. 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.
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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 311 AND 312 OF THE INDENTURE.
NINE WEST GROUP INC.
8-3/8% Senior Note due 2005
CUSIP _________
No. _______ $_________________
NINE WEST GROUP INC., a Delaware corporation (the "Company", which
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to ___________, or its registered assigns, the
principal sum of ____________________________________ Dollars ($___________), on
August 15, 2005.
Initial Interest Rate: 8-3/8% per annum.
Interest Payment Dates: February 15 and August 15 of each year
commencing February 15, 1998.
Regular Record Dates: February 1 and August 1 of each year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officer.
Date: _______________ NINE WEST GROUP INC.
By: __________________________
Title:
(Form of Trustee's Certificate of Authentication)
This is one of the 8-3/8% Senior Notes due 2005 referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: __________ By: ___________________________
Authorized Signatory
[REVERSE SIDE OF NOTE]
NINE WEST GROUP INC.
8-3/8% Senior Note due 2005
1. Principal and Interest.
The Company will pay the principal of this Note on August 15, 2005.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate of 8-3/8%
per annum (subject to adjustment as provided below).
Interest will be payable semi-annually (to the Holders of record of
the Notes (or any Predecessor Notes) at the close of business on the February 1
or August 1 immediately preceding the Interest Payment Date) on each Interest
Payment Date, commencing February 15, 1998.
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement, dated July 9, 1997, among the Company, the
Guarantors and the Purchasers named therein (the "Registration Rights
Agreement"). In the event that either (a) the Exchange Offer Registration
Statement (as such term is defined in the Registration Rights Agreement) is not
filed with the Securities and Exchange Commission on or prior to the 60th
calendar day following the date of original issue of the Notes, (b) the Exchange
Offer Registration Statement or a Shelf Registration Statement (as such terms
are defined in the Registration Rights Agreement) has not been declared
effective on or prior to the 365th calendar day following the date of original
issue of the Notes or (c) the Exchange Offer (as such term is defined in the
Registration Rights Agreement) is not consummated on or prior to the 45th
calendar day following the effectiveness of the Exchange Offer Registration
Statement, the interest rate borne by this Note shall be increased by
one-quarter of one percent per annum following such 60-day period in the case of
(a) above, following such 365-day period in the case of (b) above or following
such 45-day period in the case of (c) above, which rate will be increased by an
additional one-quarter of one percent per annum for each 90-day period that any
additional interest continues to accrue; provided that the aggregate increase in
such annual interest rate shall in no event exceed one percent. Upon (x) the
filing of the Exchange Offer Registration Statement after the 60-day period
described in clause (a) above, (y) the effectiveness of the Exchange Offer
Registration Statement or a Shelf Registration Statement, as the case may be,
after the 365-day period described in clause (b) above or (z) the day before the
consummation of the Exchange Offer after the 45-day period described in
clause (c) above, the interest rate borne by this Note from the date of such
filing, effectiveness or day before the consummation, as the case may be, will
be reduced to the interest rate set forth above; provided, however, that, if
after any such reduction in interest rate, a different event specified in clause
(a), (b) or (c) above occurs, the interest rate may again be increased pursuant
to the foregoing provisions.
Interest on this Note will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from July 9, 1997;
provided that, if there is no existing default in the payment of interest and if
this Note is authenticated between a Regular Record Date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such Interest Payment Date. 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 and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
a rate per annum equal to the rate of interest applicable to the Notes.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on the
principal amount of the Notes on each February 15 and August 15 to the Persons
who are Holders (as reflected in the Note Register at the close of business on
the February 1 and August 1 immediately preceding the Interest Payment Date), in
each case, even if the Note is cancelled on registration of transfer or
registration of exchange after such Regular Record Date; provided that, with
respect to the payment of principal, the Company will make payment to the Holder
that surrenders this Note to any Paying Agent on or after August 15, 2005.
The Company will pay principal (premium, if any) and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may pay principal
(premium, if any) and interest by its check payable in such money. The Company
may pay interest on the Notes either (a) by mailing a check for such interest to
a Holder's registered address (as reflected in the Note Register) or (b) by wire
transfer to an account located in the United States maintained by the payee. If
a payment date is a date other than a Business Day at a place of payment,
payment may be made at that place on the next succeeding day that is a Business
Day and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar upon written notice thereto.
The Company, any Subsidiary or any Affiliate of any of them may act as Paying
Agent, Registrar or co-registrar.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of July 9,
1997 (the "Indenture"), among the Company and Nine West Development Corporation,
Nine West Distribution Corporation, Nine West Footwear Corporation and Nine West
Manufacturing Corporation, as guarantors, (the "Guarantors"), and The Bank of
New York, as trustee (the "Trustee"). Capitalized terms herein are used as
defined in the Indenture unless otherwise indicated. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act. The Notes are subject to all such terms,
and Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control.
The Notes are unsecured senior obligations of the Company. The
Indenture limits the aggregate principal amount of the Notes to $200,000,000.
5. Redemption.
The Notes will not be redeemable at the option of the Company prior
to their Stated Maturity.
6. Repurchase upon a Change in Control and Asset Sales.
Upon the occurrence of (a) a Change of Control, the Company is
obligated to make an offer to purchase all outstanding Notes at a redemption
price of 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the date of purchase and (b) Asset Sales, the Company may be
obligated to make offers to purchase Notes with a portion of the Net Cash
Proceeds of such Asset Sales at a redemption price of 100% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons, in denominations
of $1,000 and multiples of $1,000 in excess thereof. A Holder may register the
transfer or exchange of Notes in accordance with the Indenture. The Note
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
8. Persons Deemed Owners.
A Holder may be treated as the owner of a Note for all purposes.
9. Unclaimed Money.
If money for the payment of principal (premium, if any) or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. Discharge Prior to Maturity.
If the Company irrevocably deposits, or causes to be deposited, with
the Trustee money or U.S. Government Obligations sufficient to pay the then
outstanding principal of (premium, if any) and accrued interest on the Notes
(a) to maturity, the Company will be discharged from the Indenture and the
Notes, except in certain circumstances for certain sections thereof, and (b) to
the Stated Maturity, the Company will be discharged from certain covenants set
forth in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and any existing
default or compliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Indebtedness;
(ii) Restricted Payments; (iii) issuances and sales of Capital Stock of
Restricted Subsidiaries; (iv) transactions with Affiliates; (v) Liens;
(vi) guarantees of Indebtedness by Restricted Subsidiaries; (vii) disposition of
proceeds of Asset Sales; (viii) dividend and other payment restrictions
affecting Restricted Subsidiaries; (ix) merger and certain transfers of assets;
and (x) limitation on Unrestricted Subsidiaries. Within 120 days after the end
of each fiscal year and within 50 days after each fiscal quarter, the Company
must report to the Trustee on compliance with such limitations. If no Default
or Event of Default has occurred and is continuing, from and after the time the
Notes are assigned Investment Grade Ratings, the Company will not be subject to
certain covenants.
13. Successor Persons.
When a successor person or other entity assumes all the obligations
of its predecessor under the Notes and the Indenture, the predecessor person
will be released from those obligations.
14. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding may declare all the Notes to be
immediately due and payable. If a bankruptcy or insolvency default with respect
to the Company or any of its Significant Subsidiaries occurs and is continuing,
the Notes automatically become immediately due and payable. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of at least a
majority in aggregate principal amount of the Notes then outstanding may direct
the Trustee in its exercise of any trust or power.
15. Guarantees.
The Company's obligations under the Notes are fully and irrevocably
guaranteed by the Guarantors.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may make loans to, accept
deposits from, perform services for, and otherwise deal with, the Company and
its Affiliates as if it were not the Trustee.
17. Authentication.
This Note shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Note.
18. Abbreviations.
Customary abbreviations may be used in the name of a Holder 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).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Nine West Group
Inc., 9 West Broad Street, Stamford, Connecticut 06902, Attention: Chief
Financial Officer.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including zip code of assignee)
_____________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
_____________________________________________________________________________
attorney to transfer such Note on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT PERMANENT OFFSHORE PHYSICAL
CERTIFICATES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
July 9, 1999, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided
by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 312 of the Indenture shall have
been satisfied.
Date: _______________________ _____________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
Signature Guarantee: ______________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ______________________ ___________________________________
NOTICE: To be executed by an
executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 1014 or Section 1015 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 1014 or Section 1015 of the Indenture, state the amount (in
original principal amount) below:
$_____________________.
Date: __________________
Your Signature: _____________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: ____________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
Exhibit 4.5
[FORM OF DEFINITIVE 8-3/8% SENIOR NOTES DUE 2005]
[FACE OF NOTE]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES
LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A")) OR (B) IT IS 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" PURSUANT TO RULE 903 OR 904 OF
REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) AND THE LAST
DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTION
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, (E) TO AN ACCREDITED
INVESTOR THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT
OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT (AND IF ACQUIRING THE SECURITIES FROM SUCH AN ACCREDITED
INVESTOR, IS ACQUIRING SECURITIES HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT
LESS THAN $100,000) OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF 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; PROVIDED THAT THE COMPANY, THE TRUSTEE, THE TRANSFER
AGENT AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (I) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. 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.
NINE WEST GROUP INC.
8-3/8% Senior Note due 2005
CUSIP _________
No. _______ $_________________
NINE WEST GROUP INC., a Delaware corporation (the "Company", which
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to ___________, or its registered assigns, the
principal sum of ____________________________________ Dollars ($___________), on
August 15, 2005.
Initial Interest Rate: 8-3/8% per annum.
Interest Payment Dates: February 15 and August 15 of each year
commencing February 15, 1998.
Regular Record Dates: February 1 and August 1 of each year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officer.
Date: _____________________ NINE WEST GROUP INC.
By: ____________________________
Title:
(Form of Trustee's Certificate of Authentication)
This is one of the 8-3/8% Senior Notes due 2005 referred to in the within-
mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: __________ By:______________________________
Authorized Signatory
[REVERSE SIDE OF NOTE]
NINE WEST GROUP INC.
8-3/8% Senior Note due 2005
1. Principal and Interest.
The Company will pay the principal of this Note on August 15, 2005.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate of 8-3/8%
per annum (subject to adjustment as provided below).
Interest will be payable semi-annually (to the Holders of record of
the Notes (or any Predecessor Notes) at the close of business on the February 1
or August 1 immediately preceding the Interest Payment Date) on each Interest
Payment Date, commencing February 15, 1998.
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement, dated July 9, 1997, among the Company, the
Guarantors and the Purchasers named therein (the "Registration Rights
Agreement"). In the event that either (a) the Exchange Offer Registration
Statement (as such term is defined in the Registration Rights Agreement) is not
filed with the Securities and Exchange Commission on or prior to the 60th
calendar day following the date of original issue of the Notes, (b) the Exchange
Offer Registration Statement or a Shelf Registration Statement (as such terms
are defined in the Registration Rights Agreement) has not been declared
effective on or prior to the 365th calendar day following the date of original
issue of the Notes or (c) the Exchange Offer (as such term is defined in the
Registration Rights Agreement) is not consummated on or prior to the 45th
calendar day following the effectiveness of the Exchange Offer Registration
Statement, the interest rate borne by this Note shall be increased by one-
quarter of one percent per annum following such 60-day period in the case of (a)
above, following such 365-day period in the case of (b) above or following such
45-day period in the case of (c) above, which rate will be increased by an
additional one-quarter of one percent per annum for each 90-day period that any
additional interest continues to accrue; provided that the aggregate increase in
such annual interest rate shall in no event exceed one percent. Upon (x) the
filing of the Exchange Offer Registration Statement after the 60-day period
described in clause (a) above, (y) the effectiveness of the Exchange Offer
Registration Statement or a Shelf Registration Statement, as the case may be,
after the 365-day period described in clause (b) above or (z) the day before the
consummation of the Exchange Offer after the 45-day period described in clause
(c) above, the interest rate borne by this Note from the date of such filing,
effectiveness or day before the consummation, as the case may be, will be
reduced to the interest rate set forth above; provided, however, that, if after
any such reduction in interest rate, a different event specified in clause (a),
(b) or (c) above occurs, the interest rate may again be increased pursuant to
the foregoing provisions.
Interest on this Note will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from July 9, 1997;
provided that, if there is no existing default in the payment of interest and if
this Note is authenticated between a Regular Record Date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such Interest Payment Date. 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 and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
a rate per annum equal to the rate of interest applicable to the Notes.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on the
principal amount of the Notes on each February 15 and August 15 to the Persons
who are Holders (as reflected in the Note Register at the close of business on
the February 1 and August 1 immediately preceding the Interest Payment Date), in
each case, even if the Note is cancelled on registration of transfer or
registration of exchange after such Regular Record Date; provided that, with
respect to the payment of principal, the Company will make payment to the Holder
that surrenders this Note to any Paying Agent on or after August 15, 2005.
The Company will pay principal (premium, if any) and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may pay principal (premium, if
any) and interest by its check payable in such money. The Company may pay
interest on the Notes either (a) by mailing a check for such interest to a
Holder's registered address (as reflected in the Note Register) or (b) by wire
transfer to an account located in the United States maintained by the payee. If
a payment date is a date other than a Business Day at a place of payment,
payment may be made at that place on the next succeeding day that is a Business
Day and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar upon written notice thereto.
The Company, any Subsidiary or any Affiliate of any of them may act as Paying
Agent, Registrar or co-registrar.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of July 9,
1997 (the "Indenture"), among the Company and Nine West Development Corporation,
Nine West Distribution Corporation, Nine West Footwear Corporation and Nine West
Manufacturing Corporation, as guarantors, (the "Guarantors"), and The Bank of
New York, as trustee (the "Trustee"). Capitalized terms herein are used as
defined in the Indenture unless otherwise indicated. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act. The Notes are subject to all such terms,
and Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control.
The Notes are unsecured senior obligations of the Company. The
Indenture limits the aggregate principal amount of the Notes to $200,000,000.
5. Redemption.
The Notes will not be redeemable at the option of the Company prior to
their Stated Maturity.
6. Repurchase upon a Change in Control and Asset Sales.
Upon the occurrence of (a) a Change of Control, the Company is
obligated to make an offer to purchase all outstanding Notes at a redemption
price of 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the date of purchase and (b) Asset Sales, the Company may be
obligated to make offers to purchase Notes with a portion of the Net Cash
Proceeds of such Asset Sales at a redemption price of 100% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons, in denominations of
$1,000 and multiples of $1,000 in excess thereof. A Holder may register the
transfer or exchange of Notes in accordance with the Indenture. The Note
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
8. Persons Deemed Owners.
A Holder may be treated as the owner of a Note for all purposes.
9. Unclaimed Money.
If money for the payment of principal (premium, if any) or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. Discharge Prior to Maturity.
If the Company irrevocably deposits, or causes to be deposited, with
the Trustee money or U.S. Government Obligations sufficient to pay the then
outstanding principal of (premium, if any) and accrued interest on the Notes (a)
to maturity, the Company will be discharged from the Indenture and the Notes,
except in certain circumstances for certain sections thereof, and (b) to the
Stated Maturity, the Company will be discharged from certain covenants set forth
in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and any existing
default or compliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Indebtedness;
(ii) Restricted Payments; (iii) issuances and sales of Capital Stock of
Restricted Subsidiaries; (iv) transactions with Affiliates; (v) Liens; (vi)
guarantees of Indebtedness by Restricted Subsidiaries; (vii) disposition of
proceeds of Asset Sales; (viii) dividend and other payment restrictions
affecting Restricted Subsidiaries; (ix) merger and certain transfers of assets;
and (x) limitation on Unrestricted Subsidiaries. Within 120 days after the end
of each fiscal year and within 50 days after each fiscal quarter, the Company
must report to the Trustee on compliance with such limitations. If no Default
or Event of Default has occurred and is continuing, from and after the time the
Notes are assigned Investment Grade Ratings, the Company will not be subject to
certain covenants.
13. Successor Persons.
When a successor person or other entity assumes all the obligations of
its predecessor under the Notes and the Indenture, the predecessor person will
be released from those obligations.
14. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding may declare all the Notes to be
immediately due and payable. If a bankruptcy or insolvency default with respect
to the Company or any of its Significant Subsidiaries occurs and is continuing,
the Notes automatically become immediately due and payable. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of at least a
majority in aggregate principal amount of the Notes then outstanding may direct
the Trustee in its exercise of any trust or power.
15. Guarantees.
The Company's obligations under the Notes are fully and irrevocably
guaranteed by the Guarantors.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may make loans to, accept
deposits from, perform services for, and otherwise deal with, the Company and
its Affiliates as if it were not the Trustee.
17. Authentication.
This Note shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Note.
18. Abbreviations.
Customary abbreviations may be used in the name of a Holder 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).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Nine West Group
Inc., 9 West Broad Street, Stamford, Connecticut 06902, Attention: Chief
Financial Officer.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including zip code of assignee)
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
________________________________________________________________________________
attorney to transfer such Note on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT PERMANENT OFFSHORE PHYSICAL
CERTIFICATES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
July 9, 1999, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided
by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 312 of the Indenture shall have
been satisfied.
Date: ________________________ _____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written upon
the face of the within-mentioned instrument
in every particular, without alteration or
any change whatsoever.
Signature Guarantee: __________________________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: _______________________ ____________________________________________
NOTICE: To be executed by an
executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 1014 or Section 1015 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 1014 or Section 1015 of the Indenture, state the amount (in
original principal amount) below:
$_____________________.
Date: ______________________________
Your Signature: _________________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: ____________________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
Exhibit 4.6
-----------
[FORM OF 8-3/8% SERIES B SENIOR NOTES DUE 2005]
[FACE OF NOTE]
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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 311 AND 312 OF THE INDENTURE.
NINE WEST GROUP INC.
8-3/8% Series B Senior Note due 2005
CUSIP _________
No. _______ $_________________
NINE WEST GROUP INC., a Delaware corporation (the "Company", which
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to ___________, or its registered assigns, the
principal sum of ____________________________________ Dollars ($___________), on
August 15, 2005.
Interest Rate: 8-3/8% per annum.
Interest Payment Dates: February 15 and August 15 of each year
commencing February 15, 1998.
Regular Record Dates: February 1 and August 1 of each year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officer.
Date: ____________________ NINE WEST GROUP INC.
By: _______________________________
Title:
(Form of Trustee's Certificate of Authentication)
This is one of the 8-3/8% Series B Senior Notes due 2005 referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: __________ By: ____________________________
Authorized Signatory
[REVERSE SIDE OF NOTE]
NINE WEST GROUP INC.
8-3/8% Series B Senior Note due 2005
1. Principal and Interest.
The Company will pay the principal of this Note on August 15, 2005.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate of 8-3/8%
per annum except that interest accrued on the Note surrendered in exchange
herefor pursuant to the fourth paragraph of Section 1 thereof for periods prior
to the consummation of the Exchange Offer will accrue at the rate or rates borne
by the Notes from time to time during such periods.
Interest will be payable semi-annually (to the Holders of record of
the Notes (or any Predecessor Notes) at the close of business on the February 1
or August 1 immediately preceding the Interest Payment Date) on each Interest
Payment Date, commencing February 15, 1998.
Interest on this Note will accrue from the most recent date to which
interest has been paid on this Note or the Note surrendered in exchange herefor
or, if no interest has been paid, from July 9, 1997; provided that, if there is
no existing default in the payment of interest and if this Note is authenticated
between a Regular Record Date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such Interest
Payment Date. 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 and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
a rate per annum equal to the rate of interest applicable to the Notes.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on the
principal amount of the Notes on each February 15 and August 15 to the Persons
who are Holders (as reflected in the Note Register at the close of business on
the February 1 and August 1 immediately preceding the Interest Payment Date), in
each case, even if the Note is cancelled on registration of transfer or
registration of exchange after such Regular Record Date; provided that, with
respect to the payment of principal, the Company will make payment to the Holder
that surrenders this Note to any Paying Agent on or after August 15, 2005.
The Company will pay principal (premium, if any) and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may pay principal
(premium, if any) and interest by its check payable in such money. The Company
may pay interest on the Notes either (a) by mailing a check for such interest to
a Holder's registered address (as reflected in the Note Register) or (b) by wire
transfer to an account located in the United States maintained by the payee. If
a payment date is a date other than a Business Day at a place of payment,
payment may be made at that place on the next succeeding day that is a Business
Day and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar upon written notice thereto.
The Company, any Subsidiary or any Affiliate of any of them may act as Paying
Agent, Registrar or co-registrar.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of July 9,
1997 (the "Indenture"), among the Company and Nine West Development Corporation,
Nine West Distribution Corporation, Nine West Footwear Corporation and Nine West
Manufacturing Corporation, as guarantors (the "Guarantors"), and The Bank of New
York, as trustee (the "Trustee"). Capitalized terms herein are used as defined
in the Indenture unless otherwise indicated. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act. The Notes are subject to all such terms, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control.
The Notes are unsecured senior obligations of the Company. The
Indenture limits the aggregate principal amount of the Notes to $200,000,000.
5. Redemption.
The Notes will not be redeemable at the option of the Company prior
to their Stated Maturity.
6. Repurchase upon a Change in Control and Asset Sales.
Upon the occurrence of (a) a Change of Control, the Company is
obligated to make an offer to purchase all outstanding Notes at a redemption
price of 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the date of purchase and (b) Asset Sales, the Company may be
obligated to make offers to purchase Notes with a portion of the Net Cash
Proceeds of such Asset Sales at a redemption price of 100% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons, in denominations
of $1,000 and multiples of $1,000 in excess thereof. A Holder may register the
transfer or exchange of Notes in accordance with the Indenture. The Note
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
8. Persons Deemed Owners.
A Holder may be treated as the owner of a Note for all purposes.
9. Unclaimed Money.
If money for the payment of principal (premium, if any) or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. Discharge Prior to Maturity.
If the Company irrevocably deposits, or causes to be deposited, with
the Trustee money or U.S. Government Obligations sufficient to pay the then
outstanding principal of (premium, if any) and accrued interest on the Notes
(a) to maturity, the Company will be discharged from the Indenture and the
Notes, except in certain circumstances for certain sections thereof, and (b) to
the Stated Maturity, the Company will be discharged from certain covenants set
forth in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and any existing
default or compliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Indebtedness;
(ii) Restricted Payments; (iii) issuances and sales of Capital Stock of
Restricted Subsidiaries; (iv) transactions with Affiliates; (v) Liens;
(vi) guarantees of Indebtedness by Restricted Subsidiaries; (vii) disposition of
proceeds of Asset Sales; (viii) dividend and other payment restrictions
affecting Restricted Subsidiaries; (ix) merger and certain transfers of assets;
and (x) limitation on Unrestricted Subsidiaries. Within 120 days after the end
of each fiscal year and within 50 days after each fiscal quarter, the Company
must report to the Trustee on compliance with such limitations. If no Default
or Event of Default has occurred and is continuing, from and after the time the
Notes are assigned Investment Grade Ratings, the Company will not be subject to
certain covenants.
13. Successor Persons.
When a successor person or other entity assumes all the obligations
of its predecessor under the Notes and the Indenture, the predecessor person
will be released from those obligations.
14. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding may declare all the Notes to be
immediately due and payable. If a bankruptcy or insolvency default with respect
to the Company or any of its Significant Subsidiaries occurs and is continuing,
the Notes automatically become immediately due and payable. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of at least a
majority in aggregate principal amount of the Notes then outstanding may direct
the Trustee in its exercise of any trust or power.
15. Guarantees.
The Company's obligations under the Notes are fully and irrevocably
guaranteed by the Guarantors.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may make loans to, accept
deposits from, perform services for, and otherwise deal with, the Company and
its Affiliates as if it were not the Trustee.
17. Authentication.
This Note shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Note.
18. Abbreviations.
Customary abbreviations may be used in the name of a Holder 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).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Nine West Group
Inc., 9 West Broad Street, Stamford, Connecticut 06902, Attention: Chief
Financial Officer.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including zip code of assignee)
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
_______________________________________________________________________________
attorney to transfer such Note on the books of the Company with full power of
substitution in the premises.
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 1014 or Section 1015 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 1014 or Section 1015 of the Indenture, state the amount (in
original principal amount) below:
$_____________________.
Date: ______________________
Your Signature: _________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: _________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
Exhibit 4.7
-----------
[FORM OF 9% SENIOR SUBORDINATED NOTES DUE 2007]
[FACE OF NOTE]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES
LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A")) OR (B) IT IS 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" PURSUANT TO RULE 903 OR 904 OF
REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) AND THE LAST
DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTION
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, (E) TO AN ACCREDITED
INVESTOR THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT
OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT (AND IF ACQUIRING THE SECURITIES FROM SUCH AN ACCREDITED
INVESTOR, IS ACQUIRING SECURITIES HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT
LESS THAN $100,000) OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF 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; PROVIDED THAT THE COMPANY, THE TRUSTEE, THE TRANSFER
AGENT AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (I) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. 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.
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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 311 AND 312 OF THE INDENTURE.
NINE WEST GROUP INC.
9% Senior Subordinated Note due 2007
CUSIP _________
No. _______ $_________________
NINE WEST GROUP INC., a Delaware corporation (the "Company", which
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to ___________, or its registered assigns, the
principal sum of ____________________________________ Dollars ($___________), on
August 15, 2007.
Initial Interest Rate: 9% per annum.
Interest Payment Dates: February 15 and August 15 of each year
commencing February 15, 1998.
Regular Record Dates: February 1 and August 1 of each year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officer.
Date: ____________________________ NINE WEST GROUP INC.
By: ______________________________
Title:
(Form of Trustee's Certificate of Authentication)
This is one of the 9% Senior Subordinated Notes due 2007 referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: __________ By:________________________________
Authorized Signatory
[REVERSE SIDE OF NOTE]
NINE WEST GROUP INC.
9% Senior Subordinated Note due 2007
1. Principal and Interest; Subordination.
The Company will pay the principal of this Note on August 15, 2007.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate of 9% per
annum (subject to adjustment as provided below).
Interest will be payable semi-annually (to the Holders of record of
the Notes (or any Predecessor Notes) at the close of business on the February 1
or August 1 immediately preceding the Interest Payment Date) on each Interest
Payment Date, commencing February 15, 1998.
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement, dated July 9, 1997, among the Company, the
Guarantors and the Purchasers named therein (the "Registration Rights
Agreement"). In the event that either (a) the Exchange Offer Registration
Statement (as such term is defined in the Registration Rights Agreement) is not
filed with the Securities and Exchange Commission on or prior to the 60th
calendar day following the date of original issue of the Notes, (b) the Exchange
Offer Registration Statement or a Shelf Registration Statement (as such terms
are defined in the Registration Rights Agreement) has not been declared
effective on or prior to the 365th calendar day following the date of original
issue of the Notes or (c) the Exchange Offer (as such term is defined in the
Registration Rights Agreement) is not consummated on or prior to the 45th
calendar day following the effectiveness of the Exchange Offer Registration
Statement, the interest rate borne by this Note shall be increased by
one-quarter of one percent per annum following such 60-day period in the case of
(a) above, following such 365-day period in the case of (b) above or following
such 45-day period in the case of (c) above, which rate will be increased by an
additional one-quarter of one percent per annum for each 90-day period that any
additional interest continues to accrue; provided that the aggregate increase in
such annual interest rate shall in no event exceed one percent. Upon (x) the
filing of the Exchange Offer Registration Statement after the 60-day period
described in clause (a) above, (y) the effectiveness of the Exchange Offer
Registration Statement or a Shelf Registration Statement, as the case may be,
after the 365-day period described in clause (b) above or (z) the day before the
consummation of the Exchange Offer after the 45-day period described in
clause (c) above, the interest rate borne by this Note from the date of such
filing, effectiveness or day before the consummation, as the case may be, will
be reduced to the interest rate set forth above; provided, however, that, if
after any such reduction in interest rate, a different event specified in clause
(a), (b) or (c) above occurs, the interest rate may again be increased pursuant
to the foregoing provisions.
Interest on this Note will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from July 9, 1997;
provided that, if there is no existing default in the payment of interest and if
this Note is authenticated between a Regular Record Date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such Interest Payment Date. 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 and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
a rate per annum equal to the rate of interest applicable to the Notes.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness, and this Note is issued
subject to such provisions. Each Holder of this Note, by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes and directs
the Trustee on its behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Trustee its attorney-in-fact for such purpose.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on the
principal amount of the Notes on each February 15 and August 15 to the Persons
who are Holders (as reflected in the Note Register at the close of business on
the February 1 and August 1 immediately preceding the Interest Payment Date), in
each case, even if the Note is cancelled on registration of transfer or
registration of exchange after such Regular Record Date; provided that, with
respect to the payment of principal, the Company will make payment to the Holder
that surrenders this Note to any Paying Agent on or after August 15, 2007.
The Company will pay principal (premium, if any) and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may pay principal (premium, if
any) and interest by its check payable in such money. The Company may pay
interest on the Notes either (a) by mailing a check for such interest to a
Holder's registered address (as reflected in the Note Register) or (b) by wire
transfer to an account located in the United States maintained by the payee. If
a payment date is a date other than a Business Day at a place of payment,
payment may be made at that place on the next succeeding day that is a Business
Day and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar upon written notice thereto.
The Company, any Subsidiary or any Affiliate of any of them may act as Paying
Agent, Registrar or co-registrar.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of July 9,
1997 (the "Indenture"), among the Company and Nine West Development Corporation,
Nine West Distribution Corporation, Nine West Footwear Corporation and Nine West
Manufacturing Corporation, as guarantors (the "Guarantors"), and The Bank of New
York, as trustee (the "Trustee"). Capitalized terms herein are used as defined
in the Indenture unless otherwise indicated. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act. The Notes are subject to all such terms, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control.
The Notes are unsecured senior subordinated obligations of the
Company. The Indenture limits the aggregate principal amount of the Notes to
$125,000,000.
5. Redemption.
Optional Redemption. The Notes may be redeemed at the option of the
Company, in whole or in part, at any time and from time to time on or after
August 15, 2002, at the following Redemption Prices (expressed in percentages of
principal amount), plus accrued and unpaid interest, if any, to the Redemption
Date (subject to the right of Holders of record on the relevant Regular Record
Date to receive interest due on an Interest Payment Date that is on or prior to
the Redemption Date), if redeemed during the 12-month period beginning August 15
of each of the years set forth below:
Redemption
Year Price
---- ----------
2002 .............................. 104.50%
2003 .............................. 103.00%
2004 .............................. 101.50%
2005 and thereafter ............... 100.00%
In addition to the optional redemption of the Notes in accordance with
the provisions of the preceding paragraph, at any time or from time to time
prior to August 15, 2000, the Company may redeem up to $37,500,000 aggregate
principal amount of the Notes, within 60 days of one or more Public Equity
Offerings with the net proceeds of such offerings, at 109% of the principal
amount thereof, together with accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of holders of record on relevant record
dates to receive interest due on an Interest Payment Date); provided, however,
that at least $87,500,000 of the original aggregate principal amount of the
Notes remains outstanding thereafter.
Notice of a redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder to be redeemed at such
Holder's last address as it appears in the Note Register. Notes in original
denominations larger than $1,000 may be redeemed in part in integral multiples
of $1,000. On and after the Redemption Date, interest ceases to accrue on Notes
or portions of Notes called for redemption, unless the Company defaults in the
payment of the Redemption Price.
6. Repurchase upon a Change in Control and Asset Sales.
Upon the occurrence of (a) a Change of Control, the Company is
obligated to make an offer to purchase all outstanding Notes at a redemption
price of 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the date of purchase and (b) Asset Sales, the Company may be
obligated to make offers to purchase Notes with a portion of the Net Cash
Proceeds of such Asset Sales at a redemption price of 100% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons, in denominations of
$1,000 and multiples of $1,000 in excess thereof. A Holder may register the
transfer or exchange of Notes in accordance with the Indenture. The Note
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Note Registrar need not register the
transfer or exchange of any Notes selected for redemption (except the unredeemed
portion of any Note being redeemed in part). Also, it need not register the
transfer or exchange of any Notes for a period of 15 days before a selection of
Notes to be redeemed is made.
8. Persons Deemed Owners.
A Holder may be treated as the owner of a Note for all purposes.
9. Unclaimed Money.
If money for the payment of principal (premium, if any) or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity.
If the Company irrevocably deposits, or causes to be deposited, with
the Trustee money or U.S. Government Obligations sufficient to pay the then
outstanding principal of (premium, if any) and accrued interest on the Notes
(a) to redemption or maturity, the Company will be discharged from the Indenture
and the Notes, except in certain circumstances for certain sections thereof, and
(b) to the Stated Maturity, the Company will be discharged from certain
covenants set forth in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and any existing
default or compliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Indebtedness;
(ii) Restricted Payments; (iii) issuances and sales of Capital Stock of
Restricted Subsidiaries; (iv) transactions with Affiliates; (v) Liens;
(vi) guarantees of Indebtedness by Restricted Subsidiaries; (vii) disposition of
proceeds of Asset Sales; (viii) dividend and other payment restrictions
affecting Restricted Subsidiaries; (ix) merger and certain transfers of assets;
(x) limitation on Unrestricted Subsidiaries and (xi) issuance of other senior
subordinated indebtedness. Within 120 days after the end of each fiscal year
and within 50 days after each fiscal quarter, the Company must report to the
Trustee on compliance with such limitations.
13. Successor Persons.
When a successor person or other entity assumes all the obligations of
its predecessor under the Notes and the Indenture, the predecessor person will
be released from those obligations.
14. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding may declare all the Notes to be
immediately due and payable. If a bankruptcy or insolvency default with respect
to the Company or any of its Significant Subsidiaries occurs and is continuing,
the Notes automatically become immediately due and payable. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of at least a
majority in aggregate principal amount of the Notes then outstanding may direct
the Trustee in its exercise of any trust or power.
15. Guarantee.
The Company's obligations under the Notes are fully and irrevocably
guaranteed on a senior unsecured basis by the Guarantors.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may make loans to, accept
deposits from, perform services for, and otherwise deal with, the Company and
its Affiliates as if it were not the Trustee.
17. Authentication.
This Note shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Note.
18. Abbreviations.
Customary abbreviations may be used in the name of a Holder 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).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Nine West Group
Inc., 9 West Broad Street, Stamford, Connecticut 06902, Attention: Chief
Financial Officer.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including zip code of assignee)
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
_______________________________________________________________________________
attorney to transfer such Note on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT PERMANENT OFFSHORE PHYSICAL
CERTIFICATES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
July 9, 1999, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided by
Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 312 of the Indenture shall have
been satisfied.
Date: ________________________ _______________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
Signature Guarantee: _____________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: _______________________ ____________________________________
NOTICE: To be executed by an
executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 1014 or Section 1015 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 1014 or Section 1015 of the Indenture, state the amount (in
original principal amount) below:
$_____________________.
Date: __________________________
Your Signature: _____________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: ______________________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, 9% as amended.
Exhibit 4.8
-----------
[FORM OF 9% SERIES B SENIOR SUBORDINATED NOTES DUE 2007]
[FACE OF NOTE]
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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 311 AND 312 OF THE INDENTURE.
NINE WEST GROUP INC.
9% Series B Senior Subordinated Note due 2007
CUSIP _________
No. _______ $_________________
NINE WEST GROUP INC., a Delaware corporation (the "Company", which
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to ___________, or its registered assigns, the
principal sum of ____________________________________ Dollars ($___________), on
August 15, 2007.
Interest Rate: 9% per annum.
Interest Payment Dates: February 15 and August 15 of each year
commencing February 15, 1998.
Regular Record Dates: February 1 and August 1 of each year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officer.
Date: __________________ NINE WEST GROUP INC.
By: _________________________________
Title:
(Form of Trustee's Certificate of Authentication)
This is one of the 9% Series B Senior Subordinated Notes due 2007 referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: __________ By: _________________________________
Authorized Signatory
[REVERSE SIDE OF NOTE]
NINE WEST GROUP INC.
9% Series B Senior Subordinated Note due 2007
1. Principal and Interest; Subordination.
The Company will pay the principal of this Note on August 15, 2007.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate of 9% per
annum, except that interest accrued on the Note surrendered in exchange herefor
pursuant to the fourth paragraph of Section 1 thereof for periods prior to the
consummation of the Exchange Offer will accrue at the rate or rates borne by the
Notes from time to time during such periods.
Interest will be payable semi-annually (to the Holders of record of
the Notes (or any Predecessor Notes) at the close of business on the February 1
or August 1 immediately preceding the Interest Payment Date) on each Interest
Payment Date, commencing February 15, 1998.
Interest on this Note will accrue from the most recent date to which
interest has been paid on this Note or the Note surrendered in exchange herefor
or, if no interest has been paid, from July 9, 1997; provided that, if there is
no existing default in the payment of interest and if this Note is authenticated
between a Regular Record Date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such Interest
Payment Date. 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 and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
a rate per annum equal to the rate of interest applicable to the Notes.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness, and this Note is issued
subject to such provisions. Each Holder of this Note, by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes and directs
the Trustee on its behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Trustee its attorney-in-fact for such purpose.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on the
principal amount of the Notes on each February 15 and August 15 to the Persons
who are Holders (as reflected in the Note Register at the close of business on
the February 1 and August 1 immediately preceding the Interest Payment Date), in
each case, even if the Note is cancelled on registration of transfer or
registration of exchange after such Regular Record Date; provided that, with
respect to the payment of principal, the Company will make payment to the Holder
that surrenders this Note to any Paying Agent on or after August 15, 2007.
The Company will pay principal (premium, if any) and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may pay principal (premium, if
any) and interest by its check payable in such money. The Company may pay
interest on the Notes either (a) by mailing a check for such interest to a
Holder's registered address (as reflected in the Note Register) or (b) by wire
transfer to an account located in the United States maintained by the payee. If
a payment date is a date other than a Business Day at a place of payment,
payment may be made at that place on the next succeeding day that is a Business
Day and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar upon written notice thereto.
The Company, any Subsidiary or any Affiliate of any of them may act as Paying
Agent, Registrar or co-registrar.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of July 9,
1997 (the "Indenture"), among the Company and Nine West Development Corporation,
Nine West Distribution Corporation, Nine West Footwear Corporation and Nine West
Manufacturing Corporation, as guarantors (the "Guarantors"), and The Bank of New
York, as trustee (the "Trustee"). Capitalized terms herein are used as defined
in the Indenture unless otherwise indicated. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act. The Notes are subject to all such terms, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control.
The Notes are unsecured senior subordinated obligations of the
Company. The Indenture limits the aggregate principal amount of the Notes to
$125,000,000.
5. Redemption.
Optional Redemption. The Notes may be redeemed at the option of the
Company, in whole or in part, at any time and from time to time on or after
August 15, 2002, at the following Redemption Prices (expressed in percentages of
principal amount), plus accrued and unpaid interest, if any, to the Redemption
Date (subject to the right of Holders of record on the relevant Regular Record
Date to receive interest due on an Interest Payment Date that is on or prior to
the Redemption Date), if redeemed during the 12-month period beginning August 15
of each of the years set forth below:
Redemption
Year Price
---- ----------
2002 .............................. 104.50%
2003 .............................. 103.00%
2004 .............................. 101.50%
2005 and thereafter ............... 100.00%
In addition to the optional redemption of the Notes in accordance with
the provisions of the preceding paragraph, at any time or from time to time
prior to August 15, 2000, the Company may redeem up to $37,500,000 aggregate
principal amount of the Notes, within 60 days of one or more Public Equity
Offerings with the net proceeds of such offerings, at 109% of the principal
amount thereof, together with accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of holders of record on relevant record
dates to receive interest due on an Interest Payment Date); provided, however,
that at least $87,500,000 of the original aggregate principal amount of the
Notes remains outstanding thereafter.
Notice of a redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder to be redeemed at such
Holder's last address as it appears in the Note Register. Notes in original
denominations larger than $1,000 may be redeemed in part in integral multiples
of $1,000. On and after the Redemption Date, interest ceases to accrue on Notes
or portions of Notes called for redemption, unless the Company defaults in the
payment of the Redemption Price.
6. Repurchase upon a Change in Control and Asset Sales.
Upon the occurrence of (a) a Change of Control, the Company is
obligated to make an offer to purchase all outstanding Notes at a redemption
price of 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the date of purchase and (b) Asset Sales, the Company may be
obligated to make offers to purchase Notes with a portion of the Net Cash
Proceeds of such Asset Sales at a redemption price of 100% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons, in denominations of
$1,000 and multiples of $1,000 in excess thereof. A Holder may register the
transfer or exchange of Notes in accordance with the Indenture. The Note
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Note Registrar need not register the
transfer or exchange of any Notes selected for redemption (except the unredeemed
portion of any Note being redeemed in part). Also, it need not register the
transfer or exchange of any Notes for a period of 15 days before a selection of
Notes to be redeemed is made.
8. Persons Deemed Owners.
A Holder may be treated as the owner of a Note for all purposes.
9. Unclaimed Money.
If money for the payment of principal (premium, if any) or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity.
If the Company irrevocably deposits, or causes to be deposited, with
the Trustee money or U.S. Government Obligations sufficient to pay the then
outstanding principal of (premium, if any) and accrued interest on the Notes
(a) to redemption or maturity, the Company will be discharged from the Indenture
and the Notes, except in certain circumstances for certain sections thereof, and
(b) to the Stated Maturity, the Company will be discharged from certain
covenants set forth in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and any existing
default or compliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Indebtedness;
(ii) Restricted Payments; (iii) issuances and sales of Capital Stock of
Restricted Subsidiaries; (iv) transactions with Affiliates; (v) Liens;
(vi) guarantees of Indebtedness by Restricted Subsidiaries; (vii) disposition of
proceeds of Asset Sales; (viii) dividend and other payment restrictions
affecting Restricted Subsidiaries; (ix) merger and certain transfers of assets;
(x) limitation on Unrestricted Subsidiaries and (xi) issuance of other senior
subordinated indebtedness. Within 120 days after the end of each fiscal year
and within 50 days after each fiscal quarter, the Company must report to the
Trustee on compliance with such limitations.
13. Successor Persons.
When a successor person or other entity assumes all the obligations of
its predecessor under the Notes and the Indenture, the predecessor person will
be released from those obligations.
14. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding may declare all the Notes to be
immediately due and payable. If a bankruptcy or insolvency default with respect
to the Company or any of its Significant Subsidiaries occurs and is continuing,
the Notes automatically become immediately due and payable. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of at least a
majority in aggregate principal amount of the Notes then outstanding may direct
the Trustee in its exercise of any trust or power.
15. Guarantee.
The Company's obligations under the Notes are fully and irrevocably
guaranteed on a senior unsecured basis by the Guarantors.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may make loans to, accept
deposits from, perform services for, and otherwise deal with, the Company and
its Affiliates as if it were not the Trustee.
17. Authentication.
This Note shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Note.
18. Abbreviations.
Customary abbreviations may be used in the name of a Holder 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).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Nine West Group
Inc., 9 West Broad Street, Stamford, Connecticut 06902, Attention: Chief
Financial Officer.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including zip code of assignee)
______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
______________________________________________________________________________
attorney to transfer such Note on the books of the Company with full power of
substitution in the premises.
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 1014 or Section 1015 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 1014 or Section 1015 of the Indenture, state the amount (in
original principal amount) below:
$_____________________.
Date: ___________________
Your Signature: ______________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: ______________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
Exhibit 5
---------
August 20, 1997
Nine West Group Inc.
9 West Broad Street
Stamford, Connecticut 06902
Ladies and Gentlemen:
We have acted as special counsel for Nine West Group Inc., a Delaware
corporation (the "Company"), Nine West Development Corporation, Nine West
Distribution Corporation, Nine West Footwear Corporation and Nine West
Manufacturing Corporation (collectively, excluding the Company, the
"Guarantors"), each a Delaware corporation, in connection with the Registration
Statement on Form S-4 (the "Registration Statement") filed by the Company and
the Guarantors with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), relating to
the issuance by the Company of $200,000,000 aggregate principal amount of its
8-3/8% Series B Senior Notes due 2005 (the "Senior Exchange Notes") and
$125,000,000 aggregate principal amount of its 9% Series B Senior Subordinated
Notes due 2007 (the "Senior Subordinated Exchange Notes, and together with the
Senior Exchange Notes, the "Exchange Notes"). The Exchange Notes are to be
offered (the "Exchange Offer") by the Company in exchange for $200,000,000
aggregate principal amount of its outstanding 8-3/8% Senior Notes due 2005 (the
"Old Senior Notes") and $125,000,000 aggregate principal amount of its
outstanding 9% Senior Subordinated Notes due 2007 (the "Old Senior Subordinated
Notes" and, together with the Old Senior Notes, the "Old Notes"). The Old
Senior Notes have been, and the Senior Exchange Notes will be, issued under the
Senior Indenture dated as of July 9, 1997 (the "Senior Note Indenture") among
the Company, the Guarantors and The Bank of New York, as Trustee (the "Senior
Note Trustee"). The Old Senior Subordinated Notes have been, and the Senior
Subordinated Exchange Notes will be, issued under the Senior Subordinated
Indenture dated as of July 9, 1997 (the "Senior Subordinated Note Indenture"
and, together with the Senior Note Indenture, the "Indentures") among the
Company, the Guarantors and The Bank of New York, as Trustee (the "Senior
Subordinated Note Trustee" and, together with the Senior Note Trustee, the
"Trustees").
The performance and punctual payment when due, whether at maturity, by
acceleration or otherwise, of all obligations of the Company under the Old
Senior Notes, the Senior Exchange Notes and the Senior Note Indenture will be
unconditionally guaranteed on a senior basis by the Guarantors pursuant to the
guarantees set forth in the Senior Note Indenture (the "Senior Note
Guarantees"). The performance and punctual payment when due, whether at
maturity, by acceleration or otherwise, of all obligations of the Company under
the Old Senior Subordinated Notes, the Senior Subordinated Exchange Notes and
the Senior Subordinated Note Indenture will be unconditionally guaranteed on a
senior subordinated basis by the Guarantors pursuant to the guarantees set forth
in the Senior Subordinated Note Indenture (the "Senior Subordinated Note
Guarantees" and, together with the Senior Note Guarantees, the "Guarantees").
We have examined the Registration Statement and the Indentures which
have been filed with the Commission as Exhibits to the Registration Statement.
In addition, we have examined, and have relied as to matters of fact upon, the
originals or copies, certified or otherwise identified to our satisfaction, of
such corporate records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of officers and
representatives of the Company and the Guarantors, and have made such other and
further investigations, as we have deemed relevant and necessary as a basis for
the opinion hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals and the conformity to original documents
of all documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein:
1. Assuming the Indentures have been duly authorized and validly
executed and delivered by the parties thereto, when (i) the Indentures have
been duly qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), (ii) the Board of Directors of the Company, a duly
constituted and acting committee thereof or duly authorized officers
thereof has taken all necessary corporate action to approve the issuance
and terms of the Exchange Notes, the terms of the Exchange Offer and
related matters, and (iii) the Exchange Notes have been duly executed,
authenticated, issued and delivered in accordance with the provisions of
the Indentures upon the Exchange Offer, we are of the opinion that the
Exchange Notes will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms.
2. Assuming the Indentures have been duly authorized and validly
executed and delivered by the parties thereto, when the Indentures have
been duly qualified under the Trust Indenture Act, upon due execution,
issuance, authentication and delivery of the Exchange Notes in accordance
with the provisions of the Indentures upon exchange, we are of the opinion
that the Guarantees will constitute valid and legally binding obligations
of the Guarantors, enforceable against each of them in accordance with the
terms of the Guarantees.
Our opinions set forth in paragraphs 1 and 2 are subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus included therein.
Very truly yours,
/s/ SIMPSON THACHER & BARTLETT
SIMPSON THACHER & BARTLETT
<TABLE>
EXHIBIT 12
NINE WEST GROUP INC. AND SUBSIDIARIES
Computation of Ratio of Earnings to Fixed Charges
(in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Thirteen Weeks Ended Year Ended
-------------------- ----------------------------------------------------
May 3 May 4 Feb. 1 Feb. 3 Dec. 31 Dec. 31 Dec. 31
1997 1996 1997 1996 1994 1993 1992
-------- ------- -------- ------- -------- ------- -------
Earnings:
- ---------
Income before provision
for income taxes per
statement of income........ $28,792 $25,082 $139,406(A) $33,634(B) $106,809 $79,453 $52,415
Add:
Portion of rents
representative of the
interest factor........... 6,961 6,184 26,887 19,965 9,099 6,633 5,066
Interest on indebtedness.. 11,882 9,727 40,629 29,761 2,343 3,323 7,014
Amortization of debt
expense and premium....... 532 405 2,348 1,054 - - -
------- ------- -------- ------- -------- ------- -------
Income as adjusted........ $48,167 $41,398 $209,270(A) $84,414(B) $118,251 $89,409 $64,495
======= ======= ======== ======= ======== ======= =======
Fixed Charges:
- --------------
Portion of rents
representative of the
interest factor........... $ 6,961 $ 6,184 $ 26,887 $19,965 $ 9,099 $ 6,633 $ 5,066
Interest on indebtedness.. 11,882 9,727 40,629 29,761 2,343 3,323 7,014
Amortization of debt
expense and premium....... 532 405 2,348 1,054 - - -
------- ------- -------- ------- -------- ------- -------
Fixed charges............. $19,375 $16,316 $ 69,864 $50,780 $ 11,442 $ 9,956 $12,080
======= ======= ======== ======= ======== ======= =======
Ratio of earnings to
fixed charges............. 2.49 2.54 3.00(A) 1.66(B) 10.33 8.98 5.34
======= ======= ======== ======= ======== ======= =======
(A) Income from continuing operations for 1996 was $83.6 million, or $2.26 per share on a fully diluted
basis, compared to income from continuing operations of $19.0 million, or $0.53 per share, for 1995.
Results for 1996 include a net pretax charge of $19.0 million, of which approximately $13.8 million
represents non-cash charges, primarily attributable to costs associated with the restructuring of North
American manufacturing facilities.
(B) Includes the impact of: (1) a $34.9 million Cost of Goods Sold Adjustment; and (2) $51.9 million in
business restructuring and integration expenses and charges associated with the integration of the
Footwear Group into the Company.
</TABLE>
EXHIBIT 23.2
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
Nine West Group Inc., Nine West Development Corporation, Nine West Distribution
Corporation, Nine West Footwear Corporation, and Nine West Manufacturing
Corporation on Form S-4 of our report dated March 17, 1997, appearing in the
Annual Report on Form 10-K/A No. 1 of Nine West Group, Inc. for the fifty-two
week period ended February 1, 1997 and to the reference to us under the heading
"Independent Auditors" in the Prospectus, which is part of this Registration
Statement.
/S/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Stamford, Connecticut
August 20, 1997
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-4 of our report dated May 11,
1995 appearing in the Current Report on Form 8-K dated May 23, 1995 filed by
Nine West Group Inc. and to all references to our Firm included in this
Registration Statement.
/S/ ARTHUR ANDERSON LLP
Cincinnati, Ohio
August 19, 1997
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
_____________________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
_______________________________
NINE WEST GROUP INC.
NINE WEST DEVELOPMENT CORPORATION
NINE WEST DISTRIBUTION CORPORATION
NINE WEST FOOTWEAR CORPORATION
NINE WEST MANUFACTURING CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 06-1093855
Delaware 06-1462089
Delaware 43-1660658
Delaware 43-1660656
Delaware 31-1435374
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
9 West Broad Street
Stamford, Connecticut 06902
(Address of principal executive offices) (Zip code)
______________________
8 3/8% Series B Senior Notes due 2005
(Title of the indenture securities)
================================================================================
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State 2 Rector Street, New York, N.Y.
of New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 29th day of July, 1997.
THE BANK OF NEW YORK
By: /s/ Thomas E. Tabor
--------------------------
Name: Thomas E. Tabor
Title: Assistant Treasurer
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
______________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________
NINE WEST GROUP INC.
NINE WEST DEVELOPMENT CORPORATION
NINE WEST DISTRIBUTION CORPORATION
NINE WEST FOOTWEAR CORPORATION
NINE WEST MANUFACTURING CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 06-1093855
Delaware 06-1462089
Delaware 43-1660658
Delaware 43-1660656
Delaware 31-1435374
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
9 West Broad Street
Stamford, Connecticut 06902
(Address of principal executive offices) (Zip code)
______________________
9% Series B Senior Subordinated Notes due 2007
(Title of the indenture securities)
================================================================================
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 29th day of July, 1997.
THE BANK OF NEW YORK
By: /s/ Thomas E. Tabor
___________________________
Name: Thomas E. Tabor
Title: Assistant Treasurer
Exhibit 99.1
------------
LETTER OF TRANSMITTAL
for
8-3/8% Senior Notes due 2005
of
NINE WEST GROUP INC.
Unconditionally Guaranteed on a Senior Basis by
NINE WEST DEVELOPMENT CORPORATION, NINE WEST DISTRIBUTION CORPORATION,
NINE WEST FOOTWEAR CORPORATION AND NINE WEST MANUFACTURING CORPORATION
(the "Guarantors")
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 1997
(THE "EXPIRATION DATE") UNLESS EXTENDED by NINE WEST GROUP INC.
EXCHANGE AGENT:
THE BANK OF NEW YORK
By Hand or Overnight Facsimile Transmissions: By Registered or
Delivery: (Eligible Institutions Certified Mail:
Only)
The Bank of New York The Bank of New York
101 Barclay Street (212) 571-3080 101 Barclay Street, 7E
Corporate Trust New York, New York 10286
Services Window Attention: Reorganization
Ground Level Section, Arwen Gibbons
Attention: Reorganization To Confirm by Telephone
Section, Arwen Gibbons or for Information Call:
(212) 815-6333
Delivery of this Letter of Transmittal to an address other than as set
forth above or transmission via a facsimile transmission to a number other than
as set forth above will not constitute a valid delivery.
The undersigned acknowledges receipt of the Prospectus dated , 1997
(the "Prospectus") of Nine West Group Inc. (the "Company") and the Guarantors,
and this Letter of Transmittal (the "Letter of Transmittal"), which together
describe the Company's offer (the "Exchange Offer") to exchange $1,000 in
principal amount of the Company's new 8 3/8% Series B Senior Notes due 2005 (the
"Exchange Notes") for each $1,000 in principal amount of outstanding 8 3/8%
Senior Notes due 2005 (the "Old Notes"). The terms of the Exchange Notes are
identical in all material respects (including principal amount, interest rate
and maturity) to the terms of the Old Notes for which they may be exchanged
pursuant to the Exchange Offer, except that the Exchange Notes are freely
transferable by holders thereof (except as provided herein or in the Prospectus)
and are not subject to any covenant regarding registration under the Securities
Act of 1933, as amended (the "Securities Act").
The undersigned has checked the appropriate boxes below and signed this
Letter of Transmittal to indicate the action the undersigned desires to take
with respect to the Exchange Offer.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY BEFORE
CHECKING ANY BOX BELOW.
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE INSTRUCTIONS
INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND
REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS AND THIS
LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
List below the Old Notes to which this Letter of Transmittal relates. If
the space provided below is inadequate, the Certificate Numbers and Principal
Amounts should be listed on a separate signed schedule affixed hereto.
List below the Old Notes to which this Letter of Transmittal relates. If
the space provided below is inadequate, the Certificate Numbers and Principal
Amounts should be listed on a separate signed schedule affixed hereto.
DESCRIPTION OF OLD NOTES TENDERED HEREWITH
Name(s) and Address(es) Certificate Aggregate
of Registered Holder(s) Number(s)* Principal Amount
Please fill in) Represented by Principal Amount
Old Notes* Tendered**
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- ---------------------------Total-----------------------------------------------
- -------------------------------------------------------------------------------
* Need not be completed by book-entry holders.
** Unless otherwise indicated, the holder will be deemed to have tendered the
full aggregate principal amount represented by such Old Notes. See
instruction 2.
This Letter of Transmittal is to be used either if certificates
representing Old Notes are to be forwarded herewith or if delivery of Old Notes
is to be made by book-entry transfer to an account maintained by the Exchange
Agent at The Depository Trust Company ("DTC"), pursuant to the procedures set
forth in "The Exchange Offer Procedures for Tendering Old Notes" in the
Prospectus. Delivery of documents to the book-entry transfer facility does not
constitute delivery to the Exchange Agent.
Unless the context requires otherwise, the term "holder" for purposes of
this Letter of Transmittal means any person in whose name Old Notes are
registered or any other person who has obtained a properly completed bond power
from the registered holder or any person whose Old Notes are held of record by
DTC.
Holders whose Old Notes are not immediately available or who cannot
deliver their Old Notes and all other documents required hereby to the Exchange
Agent on or prior to the Expiration Date must tender their Old Notes according
to the guaranteed delivery procedure set forth in the Prospectus under the
caption "The Exchange Offer Procedures for Tendering Old Notes."
__ CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE
BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution____________________________________________
The Depository Trust Company
Account Number___________________________________________________________
Transaction Code Number _________________________________________________
__ CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s) ____________________________________________
Name of Eligible Institution that Guaranteed Delivery ___________________
Date of Execution of Notice of Guaranteed Delivery ______________________
If Delivered by Book-Entry Transfer:
Account Number __________________________________________________________
__ CHECK HERE IF EXCHANGE NOTES ARE TO BE DELIVERED TO PERSON OTHER THAN
PERSON SIGNING THE LETTER OF TRANSMITTAL:
Name ____________________________________________________________________
(Please Print)
Address _________________________________________________________________
(Including Zip Code)
__ CHECK HERE IF EXCHANGE NOTES ARE TO BE DELIVERED TO ADDRESS DIFFERENT FROM
THAT LISTED ELSEWHERE IN THIS LETTER OF TRANSMITTAL:
Address _________________________________________________________________
(Including Zip Code)
__ CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THIS PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO:
Name ____________________________________________________________________
Address _________________________________________________________________
If the undersigned, or the person receiving such Exchange Notes, whether
or not such person is the undersigned, is not a broker-dealer, the undersigned
represents that neither it nor such person is engaged in, and does not intend to
engage in, a distribution of Exchange Notes. If the undersigned, or the person
receiving such Exchange Notes, whether or not such person is the undersigned, is
a broker-dealer that will receive Exchange Notes for its own account in exchange
for Old Notes that were acquired as a result of market-making activities or
other trading activities, the undersigned acknowledges that it or such person,
as the case may be, will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, neither the undersigned nor such person will be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act. Any holder who
is an "affiliate" of the Company or who has an arrangement or understanding with
respect to the distribution of the Exchange Notes to be acquired pursuant to the
Exchange Offer, or any broker-dealer who purchased Old Notes from the Company to
resell pursuant to Rule 144A under the Securities Act or any other available
exemption under the Securities Act, must comply with the registration and
prospectus delivery requirements under the Securities Act.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the principal amount of the Old Notes
indicated above. Subject to, and effective upon, the acceptance for exchange of
the Old Notes tendered herewith, the undersigned hereby exchanges, assigns and
transfers to, or upon the order of, the Company all right, title and interest in
and to such Old Notes. The undersigned hereby irrevocably constitutes and
appoints the Exchange Agent the true and lawful agent and attorney-in-fact of
the undersigned (with full knowledge that said Exchange Agent acts as the agent
of the Company, in connection with the Exchange Offer) to cause the Old Notes to
be assigned, transferred and exchanged. The undersigned represents and warrants
that it has full power and authority to tender, exchange, assign and transfer
the Old Notes and to acquire Exchange Notes issuable upon the exchange of such
tendered Old Notes, and that, when the same are accepted for exchange, the
Company will acquire good and unencumbered title to the tendered Old Notes, free
and clear of all liens, restrictions, charges and encumbrances and not subject
to any adverse claim. The undersigned also warrants that it will, upon request,
execute and deliver any additional documents deemed by the Exchange Agent or the
Company to be necessary or desirable to complete the exchange, assignment and
transfer of tendered Old Notes or transfer ownership of such Old Notes on the
account books maintained by the book-entry transfer facility. The undersigned
further agrees that acceptance of any and all validly tendered Old Notes by the
Company and the issuance of Exchange Notes in exchange therefor shall constitute
performance in full by the Company and the Guarantors of their obligations under
the Registration Rights Agreement (as defined in the Prospectus) and that the
Company and the Guarantors shall have no further obligations or liabilities
thereunder except as provided in the first paragraph of Section 2 of said
agreement.
The Exchange Offer is subject to certain conditions as set forth in the
Prospectus under the caption "The Exchange Offer Certain Conditions to the
Exchange Offer." The undersigned recognizes that as a result of these
conditions (which may be waived, in whole or in part, by the Company), as more
particularly set forth in the Prospectus, the Company may not be required to
exchange any of the Old Notes tendered hereby and, in such event, the Old Notes
not exchanged will be returned to the undersigned at the address shown above.
In addition, the Company may amend the Exchange Offer at any time prior to the
Expiration Date if any of the conditions set forth under "The Exchange
Offer Certain Conditions to the Exchange Offer" occur.
By tendering, each holder represents to the Company that, among other
things, (a) the Exchange Notes acquired pursuant to the Exchange Offer are being
acquired in the ordinary course of business of the person receiving such
Exchange Notes, whether or not such person is the holder, (b) neither the holder
nor any such other person has an arrangement or understanding with any person to
participate in the distribution of such Exchange Notes and (c) neither the
holder nor any such other person is an "affiliate" of the Company as defined
under Rule 405 of the Securities Act, or if it is an affiliate, it will comply
with the registration and prospectus delivery requirements of the Securities Act
to the extent applicable. Any holder of Old Notes using the Exchange Offer to
participate in a distribution of the Exchange Notes (i) cannot rely on the
position of the staff of the Securities and Exchange Commission (the
"Commission") enunciated in its interpretive letter with respect to Exxon
Capital Holdings Corporation (available April 13, 1989) or similar letters and
(ii) must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with a secondary resale transaction.
If the undersigned, or the person receiving such Exchange Notes, whether
or not such person is the undersigned, is not a broker-dealer, the undersigned
represents that neither it nor such person is engaged in, and does not intend to
engage in, a distribution of Exchange Notes. If the undersigned, or the person
receiving such Exchange Notes, whether or not such person is the undersigned, is
a broker-dealer that will receive Exchange Notes for its own account in exchange
for Old Notes that were acquired as a result of market-making activities or
other trading activities, the undersigned acknowledges that it or such person,
as the case may be, will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, neither the undersigned nor such person will be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, legal representatives, successors,
assigns, executors and administrators of the undersigned. Tendered Old Notes
may be withdrawn at any time prior to the Expiration Date in accordance with the
terms of this Letter of Transmittal. See Instruction 2.
Certificates for all Exchange Notes delivered in exchange for tendered Old
Notes and any Old Notes delivered herewith but not exchanged, and in each case
registered in the name of the undersigned, shall be delivered to the undersigned
at the address shown below the signature of the undersigned.
TENDERING HOLDER(S) SIGN HERE
(Complete accompanying substitute Form W-9)
________________________________________________________________________________
________________________________________________________________________________
Signature(s) of Holder(s)
Dated____________________________
(Must be signed by registered holder(s) exactly as name(s) appear(s) on
certificate(s) for Old Notes. If signature is by a trustee, executor,
administrator, guardian, attorney-in-fact, officer of a corporation or other
person acting in a fiduciary or representative capacity, please set forth the
full title of such person.) See Instruction 3.
Name(s) ____________________________________________________________________
____________________________________________________________________________
(Please Print)
Capacity (full title) ______________________________________________________
Address ____________________________________________________________________
(Including Zip Code)
Area Code and Telephone No. ________________________________________________
Taxpayer Identification No. ________________________________________________
GUARANTEE OF SIGNATURE(S)
(If Required See Instruction 3)
Authorized Signature _______________________________________________________
Name _______________________________________________________________________
Title ______________________________________________________________________
Address ____________________________________________________________________
Name of Firm _______________________________________________________________
Area Code and Telephone No. ________________________________________________
Dated ______________________________________________________________________
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of this Letter of Transmittal and Certificates.
A holder of Old Notes may tender the same by (i) properly completing and
signing this Letter of Transmittal or a facsimile hereof (all references in the
Prospectus to the Letter of Transmittal shall be deemed to include a facsimile
thereof) and delivering the same, together with the certificate or certificates
representing the Old Notes being tendered and any required signature guarantees
and any other documents required by this Letter of Transmittal, to the Exchange
Agent at its address set forth above on or prior to the Expiration Date (or
complying with the procedure for book-entry transfer described below) or (ii)
complying with the guaranteed delivery procedures described below.
The method of delivery of this Letter of Transmittal, the Old Notes and
any other required documents is at the election and risk of the holder, and
except as otherwise provided below, the delivery will be deemed made only when
actually received or confirmed by the Exchange Agent. If such delivery is by
mail, it is suggested that registered mail with return receipt requested,
properly insured, be used. In all cases sufficient time should be allowed to
permit timely delivery. No Old Notes or Letters of Transmittal should be sent to
the Company.
If tendered Old Notes are registered in the name of the signer of the
Letter of Transmittal and the Exchange Notes to be issued in exchange therefor
are to be issued (and any untendered Old Notes are to be reissued) in the name
of the registered holder (which term, for the purposes described herein, shall
include any participant in The Depository Trust Company (also referred to as a
"book-entry transfer facility") whose name appears on a security listing as the
owner of Old Notes), the signature of such signer need not be guaranteed. In any
other case, the tendered Old Notes must be endorsed or accompanied by written
instruments of transfer in form satisfactory to the Company and duly executed by
the registered holder, and the signature on the endorsement or instrument of
transfer must be guaranteed by a bank, broker, dealer, credit union, savings
association, clearing agency or other institution (each an "Eligible
Institution") that is a member of a recognized signature guarantee medallion
program within the meaning of Rule 17Ad-15 under the Securities Exchange Act of
1934, as amended. If the Exchange Notes and/or Old Notes not exchanged are to be
delivered to an address other than that of the registered holder appearing on
the note register for the Old Notes, the signature on the Letter of Transmittal
must be guaranteed by an Eligible Institution.
The Exchange Agent will make a request within two business days after the
date of receipt of this Prospectus to establish accounts with respect to the Old
Notes at the book-entry transfer facility for the purpose of facilitating the
Exchange Offer, and subject to the establishment thereof, any financial
institution that is a participant in the book-entry transfer facility's system
may make book-entry delivery of Old Notes by causing such book-entry transfer
facility to transfer such Old Notes into the Exchange Agent's account with
respect to the Old Notes in accordance with the book-entry transfer facility's
procedures for such transfer. Although delivery of Old Notes may be effected
through book-entry transfer into the Exchange Agent's account at the book-entry
transfer facility, an appropriate Letter of Transmittal with any required
signature guarantee and all other required documents must in each case be
transmitted to and received or confirmed by the Exchange Agent on or prior to
the Expiration Date, or, if the guaranteed delivery procedures described below
are complied with, within the time period provided under such procedures.
If a holder desires to accept the Exchange Offer and time will not permit
a Letter of Transmittal or Old Notes to reach the Exchange Agent before the
Expiration Date or the procedure for book-entry transfer cannot be completed on
a timely basis, a tender may be effected if the Exchange Agent has received on
or prior to the Expiration Date, a letter, telegram or facsimile transmission
(receipt confirmed by telephone and an original delivered by guaranteed
overnight courier) from an Eligible Institution setting forth the name and
address of the tendering holder, the names in which the Old Notes are registered
and, if possible, the certificate numbers of the Old Notes to be tendered, and
stating that the tender is being made thereby and guaranteeing that within three
business days after the Expiration Date, the Old Notes in proper form for
transfer (or a confirmation of book-entry transfer of such Old Notes into the
Exchange Agent's account at the book-entry transfer facility), will be delivered
by such Eligible Institution together with a properly completed and duly
executed Letter of Transmittal (and any other required documents). Unless Old
Notes being tendered by the above-described method are deposited with the
Exchange Agent within the time period set forth above (accompanied or preceded
by a properly completed and duly executed Letter of Transmittal and any other
required documents), the Company may, at its option, reject the tender. Copies
of the notice of guaranteed delivery ("Notice of Guaranteed Delivery") which may
be used by Eligible Institutions for the purposes described in this paragraph
are available from the Exchange Agent.
A tender will be deemed to have been received as of the date when (i) the
tendering holder's properly completed and duly executed Letter of Transmittal
accompanied by the Old Notes (or a confirmation of book-entry transfer of such
Old Notes into the Exchange Agent's account at the book-entry transfer facility)
is received by the Exchange Agent, or (ii) a Notice of Guaranteed Delivery or
letter, telegram or facsimile transmission to similar effect (as provided above)
from an Eligible Institution is received by the Exchange Agent. Issuances of
Exchange Notes in exchange for Old Notes tendered pursuant to a Notice of
Guaranteed Delivery or letter, telegram or facsimile transmission to similar
effect (as provided above) by an Eligible Institution will be made only against
deposit of the Letter of Transmittal (and any other required documents) and the
tendered Old Notes (or a confirmation of book-entry transfer of such Old Notes
into the Exchange Agent's account at the book-entry transfer facility).
If the Letter of Transmittal signed by a person or persons other than the
registered holder or holders of Old Notes, such Old Notes must be endorsed or
accompanied by appropriate powers of attorney in a form satisfactory to the
Company, in either case signed exactly as the name or names of the registered
holder or holders appear on the Old Notes.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering holders, by execution of this Letter of Transmittal (or
facsimile thereof), shall waive any right to receive notice of the acceptance of
the Old Notes for exchange.
2. Partial Tenders; Withdrawals.
If less than the entire principal amount of Old Notes evidenced by a
submitted certificate is tendered, the tendering holder should fill in the
principal amount tendered in the box entitled "Principal Amount Tendered." A
newly issued certificate for the principal amount of Old Notes submitted but not
tendered will be sent to such holder as soon as practicable after the Expiration
Date. All Old Notes delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise clearly indicated.
Tenders of Old Notes may be withdrawn at any time prior to the Expiration
Date.
For a withdrawal to be effective, a written notice of withdrawal sent by
telegram, facsimile transmission (receipt confirmed by telephone) or letter must
be received by the Exchange Agent at the address set forth herein prior to the
Expiration Date. Any such notice of withdrawal must (i) specify the name of the
person having tendered the Old Notes to be withdrawn (the "Depositor"), (ii)
identify the Old Notes to be withdrawn (including the certificate number or
numbers of such Old Notes and principal amount of each such Old Note), (iii)
specify the principal amount of Old Notes to be withdrawn, (iv) include a
statement that such holder is withdrawing its election to have such Old Notes
exchanged, (v) be signed by the holder in the same manner as the original
signature on the Letter of Transmittal by which such Old Notes were tendered or
as otherwise described above (including any required signature guarantees) or be
accompanied by documents of transfer sufficient to have the Trustee under the
Indenture register the transfer of such Old Notes into the name of the person
withdrawing the tender and (vi) specify the name in which any such Old Notes are
to be registered, if different from that of the Depositor. The Exchange Agent
will return the properly withdrawn Old Notes promptly following receipt of
notice of withdrawal. If Old Notes have been tendered pursuant to the procedure
for book-entry transfer, any notice of withdrawal must specify the name and
number of the account at the book-entry transfer facility to be credited with
the withdrawn Old Notes or otherwise comply with the book-entry transfer
facility procedure. All questions as to the validity of notices of withdrawals,
including time of receipt, will be determined by the Company and such
determination will be final and binding on all parties.
Any Old Notes so withdrawn will be deemed not to have been validly
tendered for exchange for purposes of the Exchange Offer. Any Old Notes which
have been tendered for exchange but which are not exchanged for any reason will
be returned to the holder thereof without cost to such holder (or, in the case
of Old Notes tendered by book-entry transfer into the Exchange Agent's account
at the book-entry transfer facility pursuant to the book-entry transfer
procedures described above, such Old Notes will be credited to an account with
such book-entry transfer facility specified by the holder) as soon as
practicable after withdrawal, rejection of tender or termination of the Exchange
Offer. Properly withdrawn Old Notes may be retendered by following one of the
procedures described under the caption "Procedure for Tendering Old Notes" in
the Prospectus at any time on or prior to the Expiration Date.
3. Signature on this Letter of Transmittal; Written Instruments and
Endorsements; Guarantee of Signatures.
If this Letter of Transmittal is signed by the registered holder(s) of the
Old Notes tendered hereby, the signature must correspond with the name(s) as
written on the face of the certificates without alteration, enlargement or any
change whatsoever.
If any of the Old Notes tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If a number of Old Notes registered in different names are tendered, it
will be necessary to complete, sign and submit as many separate copies of this
Letter of Transmittal as there are different registrations of Old Notes.
When this Letter of Transmittal is signed by the registered holder or
holders (which term, for the purposes described herein, shall include the
book-entry transfer facility whose name appears on a security listing as the
owner of the Old Notes) of Old Notes listed and tendered hereby, no endorsements
of certificates or separate written instruments of transfer or exchange are
required.
If this Letter of Transmittal is signed by a person other than the
registered holder or holder of the Old Notes listed, such Old Notes must be
endorsed or accompanied by separate written instruments of transfer or exchange
in form satisfactory to the Company and duly executed by the registered holder,
in either case signed exactly as the name or names of the registered holder or
holders appear(s) on the Old Notes.
If this Letter of Transmittal, any certificates or separate written
instruments of transfer or exchange are signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, such persons should so
indicate when signing, and, unless waived by the Company, proper evidence
satisfactory to the Company of their authority so to act must be submitted.
Endorsements on certificates or signatures on separate written instruments
of transfer or exchange required by this Instruction 3 must be guaranteed by an
Eligible Institution.
Signatures on this Letter of Transmittal need not be guaranteed by an
Eligible Institution, provided the Old Notes are tendered: (i) by a registered
holder of such Old Notes, for the holder of such Old Notes; or (ii) for the
account of an Eligible Institution.
4. Transfer Taxes.
The Company shall pay all transfer taxes, if any, applicable to the
transfer and exchange of Old Notes pursuant to the Exchange Offer. If, however,
certificates representing Exchange Notes or Old Notes for principal amounts not
tendered or accepted for exchange are to be delivered to, or are to be issued in
the name of, any person other than the registered holder of the Old Notes
tendered, or if tendered Old Notes are registered in the name of any person
other than the person signing the Letter of Transmittal, or if a transfer tax is
imposed for any reason other than the exchange of Old Notes pursuant to the
Exchange Offer, then the amount of any such transfer taxes (whether imposed on
the registered holder or any other persons) will be payable by the tendering
holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted herewith, the amount of such transfer taxes will be
billed directly to such tendering holder.
Except as provided in this Instruction 4, it will not be necessary for
transfer tax stamps to be affixed to the Old Notes listed in this Letter of
Transmittal.
5. Waiver of Conditions.
The Company reserves the right to waive in its reasonable judgment, in
whole or in part, any of the conditions to the Exchange Offer set forth in the
Prospectus.
6. Mutilated, Lost, Stolen or Destroyed Old Notes.
Any holder whose Old Notes have been mutilated, lost, stolen or destroyed,
should contact the Exchange Agent at the address indicated above for further
instructions.
7. Substitute Form W-9.
Each holder of Old Notes whose Old Notes are accepted for exchange (or
other payee) is required to provide a correct taxpayer identification number
("TIN"), generally the holder's Social Security or federal employer
identification number, and certain other information, on Substitute Form W-9,
which is provided under "Important Tax Information" below, and to certify that
the holder (or other payee) is not subject to backup withholding. Failure to
provide the information on the Substitute Form W-9 may subject the holder (or
other payee) to a $50 penalty imposed by the Internal Revenue Service and 31%
federal income tax backup withholding on payments made in connection with the
Exchange Notes. The box in Part 3 of the Substitute Form W-9 may be checked if
the holder (or other payee) has not been issued a TIN and has applied for a TIN
or intends to apply for a TIN in the near future. If the box in Part 3 is
checked and a TIN is not provided by the time any payment is made in connection
with the Exchange Notes, 31% of all such payments will be withheld until a TIN
is provided.
8. Requests for Assistance or Additional Copies.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus and this Letter of Transmittal, may be
directed to the Exchange Agent at the address and telephone number set forth
above. In addition, all questions relating to the Exchange Offer, as well as
requests for assistance or additional copies of the Prospectus and this Letter
of Transmittal, may be directed to Nine West Group Inc., 11933 Westline
Industrial Drive, St. Louis, Missouri 63146, Attention: Investor Relations
(telephone (314) 579-8812).
IMPORTANT: This Letter of Transmittal or a facsimile hereof (together
with certificates for Old Notes (or confirmation of book-entry transfer) and all
other required documents) or a Notice of Guaranteed Delivery must be received by
the Exchange Agent on or prior to the Expiration Date.
IMPORTANT TAX INFORMATION
Under U.S. Federal income tax law, a holder of Old Notes whose Old Notes
are accepted for exchange may be subject to backup withholding unless the holder
provides The Bank of New York (as payor) (the "Paying Agent"), through the
Exchange Agent, with either (i) such holder's correct taxpayer identification
number ("TIN") on Substitute Form W-9 attached hereto, certifying that the TIN
provided on Substitute Form W-9 is correct (or that such holder of Old Notes is
awaiting a TIN) and that (A) the holder of Old Notes has not been notified by
the Internal Revenue Service that he or she is subject to backup withholding as
a result of a failure to report all interest or dividends or (B) the Internal
Revenue Service has notified the holder of Old Notes that he or she is no longer
subject to backup withholding; or (ii) an adequate basis for exemption from
backup withholding. If such holder of Old Notes is an individual, the TIN is
such holder's social security number. If the Paying Agent is not provided with
the correct TIN, the holder of Old Notes may be subject to certain penalties
imposed by the Internal Revenue Service.
Certain holders of Old Notes (including, among others, all corporations
and certain foreign individuals) are not subject to these backup withholding and
reporting requirements. However, exempt holders of Old Notes should indicate
their exempt status on Substitute Form W-9. For example, a corporation must
complete the Substitute Form W-9, providing its TIN and indicating that it is
exempt from backup withholding. In order for a foreign individual to qualify as
an exempt recipient, the holder must submit a Form W-8, signed under penalties
of perjury, attesting to that individual's exempt status. A Form W-8 can be
obtained from the Paying Agent. See the enclosed "Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9" for more instructions.
If backup withholding applies, the Paying Agent is required to withhold
31% of any such payments made to the holder of Old Notes or other payee. Backup
withholding is not an additional tax. Rather, the tax liability of persons
subject to backup withholding will be reduced by the amount of tax withheld. If
withholding results in an overpayment of taxes, a refund may be obtained from
the Internal Revenue Service.
The box in Part 3 of the Substitute Form W-9 may be checked if the
surrendering holder of Old Notes has not been issued a TIN and has applied for a
TIN or intends to apply for a TIN in the near future. If the box in Part 3 is
checked, the holder of Old Notes or other payee must also complete the
Certificate of Awaiting Taxpayer Identification Number below in order to avoid
backup withholding. Notwithstanding that the box in Part 3 is checked and the
Certificate of Awaiting Taxpayer Identification Number is completed, the Paying
Agent will withhold 31% of all payments made prior to the time a properly
certified TIN is provided to the Paying Agent.
The holder of Old Notes is required to give the Paying Agent the TIN
(e.g., social security number or employer identification number) of the record
owner of the Old Notes. If the Old Notes are in more than one name or are not
in the name of the actual owner, consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
<TABLE>
<S> <C> <C>
PAYOR'S NAME: THE BANK OF NEW YORK, AS PAYING AGENT
- -------------------------------------------------------------------------------------------
SUBSTITUTE | Part 1 PLEASE PROVIDE YOUR | Social Security number(s) or
| TIN IN THE BOX AT RIGHT AND | Employer Identification Number(s)
| CERTIFY BY SIGNING AND DATING |
| BELOW |
| | ________________________________
----------------------------------------------------------------------
|
|
Form W-9 | Part 2 Certification Under penalties of perjury, I certify that:
Department of the |
Treasury Internal | (1) The number shown on this form is my correct taxpayer
Revenue Service | identification number (or I am waiting for a number to be
| issued for me), and
|
| (2) I am not subject to backup withholding because: (a) I am
| exempt from backup withholding, or (b) I have not been
| notified by the Internal Revenue Service (IRS) that I am
| subject to backup withholding as a result of a failure to
| report all interest or dividends, or (c) the IRS has
| notified me that I am no longer subject to backup withholding.
|
Payor's Request for | Certification Instructions You must cross out item (2) above
Taxpayer Identifica- | it you have been notified by the IRS that you are currently
tion Number ("TIN") | subject to backup withholding because of underreporting
| interest or dividends on your tax return.
|---------------------------------------------------------------------
| Signature ______________ | Part 3 Awaiting TIN __
| Date____________________ |
- --------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN A $50 PENALTY
IMPOSED BY THE INTERNAL REVENUE SERVICE AND BACKUP WITHHOLDING OF
31% OF ANY CASH PAYMENTS MADE TO YOU. PLEASE REVIEW THE ENCLOSED
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART
3 OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (2)
I intend to mail or deliver an application in the near future. I understand
that if I do not provide a taxpayer identification number by the time of
payment, 31% of all reportable cash payments made to me thereafter will be
withheld until I provide a taxpayer identification number.
____________________________ _________________________
Signature Date
Exhibit 99.2
------------
LETTER OF TRANSMITTAL
for
9% Senior Notes due 2007
of
NINE WEST GROUP INC.
Unconditionally Guaranteed on a Senior Basis by
NINE WEST DEVELOPMENT CORPORATION, NINE WEST DISTRIBUTION CORPORATION,
NINE WEST FOOTWEAR CORPORATION AND NINE WEST MANUFACTURING CORPORATION
(the "Guarantors")
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 1997
(THE "EXPIRATION DATE") UNLESS EXTENDED by NINE WEST GROUP INC.
EXCHANGE AGENT:
THE BANK OF NEW YORK
By Hand or Overnight Facsimile Transmissions: By Registered or
Delivery: (Eligible Institutions Certified Mail:
Only)
The Bank of New York The Bank of New York
101 Barclay Street (212) 571-3080 101 Barclay Street, 7E
Corporate Trust New York, New York 10286
Services Window Attention: Reorganization
Ground Level Section, Arwen Gibbons
Attention: Reorganization To Confirm by Telephone
Section, Arwen Gibbons or for Information Call:
(212) 815-6333
Delivery of this Letter of Transmittal to an address other than as set
forth above or transmission via a facsimile transmission to a number other than
as set forth above will not constitute a valid delivery.
The undersigned acknowledges receipt of the Prospectus dated , 1997
(the "Prospectus") of Nine West Group Inc. (the "Company") and the Guarantors,
and this Letter of Transmittal (the "Letter of Transmittal"), which together
describe the Company's offer (the "Exchange Offer") to exchange $1,000 in
principal amount of the Company's new 9% Series B Senior Subordinated Notes due
2007 (the "Exchange Notes") for each $1,000 in principal amount of outstanding
9% Senior Subordinated Notes due 2007 (the "Old Notes"). The terms of the
Exchange Notes are identical in all material respects (including principal
amount, interest rate and maturity) to the terms of the Old Notes for which they
may be exchanged pursuant to the Exchange Offer, except that the Exchange Notes
are freely transferable by holders thereof (except as provided herein or in the
Prospectus) and are not subject to any covenant regarding registration under the
Securities Act of 1933, as amended (the "Securities Act").
The undersigned has checked the appropriate boxes below and signed this
Letter of Transmittal to indicate the action the undersigned desires to take
with respect to the Exchange Offer.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS
CAREFULLY BEFORE CHECKING ANY BOX BELOW.
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE INSTRUCTIONS
INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND
REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS AND THIS
LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
List below the Old Notes to which this Letter of Transmittal relates. If
the space provided below is inadequate, the Certificate Numbers and Principal
Amounts should be listed on a separate signed schedule affixed hereto.
DESCRIPTION OF OLD NOTES TENDERED HEREWITH
Name(s) and Address(es) Certificate Aggregate
of Registered Holder(s) Number(s)* Principal Amount
Please fill in) Represented by Principal Amount
Old Notes* Tendered**
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* Need not be completed by book-entry holders.
** Unless otherwise indicated, the holder will be deemed to have tendered the
full aggregate principal amount represented by such Old Notes. See
instruction 2.
This Letter of Transmittal is to be used either if certificates
representing Old Notes are to be forwarded herewith or if delivery of Old Notes
is to be made by book-entry transfer to an account maintained by the Exchange
Agent at The Depository Trust Company ("DTC"), pursuant to the procedures set
forth in "The Exchange Offer Procedures for Tendering Old Notes" in the
Prospectus. Delivery of documents to the book-entry transfer facility does not
constitute delivery to the Exchange Agent.
Unless the context requires otherwise, the term "holder" for purposes of
this Letter of Transmittal means any person in whose name Old Notes are
registered or any other person who has obtained a properly completed bond power
from the registered holder or any person whose Old Notes are held of record by
DTC.
Holders whose Old Notes are not immediately available or who cannot deliver
their Old Notes and all other documents required hereby to the Exchange Agent on
or prior to the Expiration Date must tender their Old Notes according to the
guaranteed delivery procedure set forth in the Prospectus under the caption "The
Exchange Offer Procedures for Tendering Old Notes."
__ CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution____________________________________________
The Depository Trust Company
Account Number___________________________________________________________
Transaction Code Number _________________________________________________
__ CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s) ____________________________________________
Name of Eligible Institution that Guaranteed Delivery ___________________
Date of Execution of Notice of Guaranteed Delivery ______________________
If Delivered by Book-Entry Transfer:
Account Number __________________________________________________________
__ CHECK HERE IF EXCHANGE NOTES ARE TO BE DELIVERED TO PERSON OTHER THAN
PERSON SIGNING THE LETTER OF TRANSMITTAL:
Name ____________________________________________________________________
(Please Print)
Address _________________________________________________________________
(Including Zip Code)
__ CHECK HERE IF EXCHANGE NOTES ARE TO BE DELIVERED TO ADDRESS DIFFERENT FROM
THAT LISTED ELSEWHERE IN THIS LETTER OF TRANSMITTAL:
Address _________________________________________________________________
(Including Zip Code)
__ CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THIS PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO:
Name ____________________________________________________________________
Address _________________________________________________________________
If the undersigned, or the person receiving such Exchange Notes, whether or
not such person is the undersigned, is not a broker-dealer, the undersigned
represents that neither it nor such person is engaged in, and does not intend to
engage in, a distribution of Exchange Notes. If the undersigned, or the person
receiving such Exchange Notes, whether or not such person is the undersigned, is
a broker-dealer that will receive Exchange Notes for its own account in exchange
for Old Notes that were acquired as a result of market-making activities or
other trading activities, the undersigned acknowledges that it or such person,
as the case may be, will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, neither the undersigned nor such person will be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act. Any holder who
is an "affiliate" of the Company or who has an arrangement or understanding with
respect to the distribution of the Exchange Notes to be acquired pursuant to the
Exchange Offer, or any broker-dealer who purchased Old Notes from the Company to
resell pursuant to Rule 144A under the Securities Act or any other available
exemption under the Securities Act, must comply with the registration and
prospectus delivery requirements under the Securities Act.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the principal amount of the Old Notes
indicated above. Subject to, and effective upon, the acceptance for exchange of
the Old Notes tendered herewith, the undersigned hereby exchanges, assigns and
transfers to, or upon the order of, the Company all right, title and interest in
and to such Old Notes. The undersigned hereby irrevocably constitutes and
appoints the Exchange Agent the true and lawful agent and attorney-in-fact of
the undersigned (with full knowledge that said Exchange Agent acts as the agent
of the Company, in connection with the Exchange Offer) to cause the Old Notes to
be assigned, transferred and exchanged. The undersigned represents and warrants
that it has full power and authority to tender, exchange, assign and transfer
the Old Notes and to acquire Exchange Notes issuable upon the exchange of such
tendered Old Notes, and that, when the same are accepted for exchange, the
Company will acquire good and unencumbered title to the tendered Old Notes, free
and clear of all liens, restrictions, charges and encumbrances and not subject
to any adverse claim. The undersigned also warrants that it will, upon request,
execute and deliver any additional documents deemed by the Exchange Agent or the
Company to be necessary or desirable to complete the exchange, assignment and
transfer of tendered Old Notes or transfer ownership of such Old Notes on the
account books maintained by the book-entry transfer facility. The undersigned
further agrees that acceptance of any and all validly tendered Old Notes by the
Company and the issuance of Exchange Notes in exchange therefor shall constitute
performance in full by the Company and the Guarantors of their obligations under
the Registration Rights Agreement (as defined in the Prospectus) and that the
Company and the Guarantors shall have no further obligations or liabilities
thereunder except as provided in the first paragraph of Section 2 of said
agreement.
The Exchange Offer is subject to certain conditions as set forth in the
Prospectus under the caption "The Exchange Offer Certain Conditions to the
Exchange Offer." The undersigned recognizes that as a result of these
conditions (which may be waived, in whole or in part, by the Company), as more
particularly set forth in the Prospectus, the Company may not be required to
exchange any of the Old Notes tendered hereby and, in such event, the Old Notes
not exchanged will be returned to the undersigned at the address shown above.
In addition, the Company may amend the Exchange Offer at any time prior to the
Expiration Date if any of the conditions set forth under "The Exchange
Offer Certain Conditions to the Exchange Offer" occur.
By tendering, each holder represents to the Company that, among other
things, (a) the Exchange Notes acquired pursuant to the Exchange Offer are being
acquired in the ordinary course of business of the person receiving such
Exchange Notes, whether or not such person is the holder, (b) neither the holder
nor any such other person has an arrangement or understanding with any person to
participate in the distribution of such Exchange Notes and (c) neither the
holder nor any such other person is an "affiliate" of the Company as defined
under Rule 405 of the Securities Act, or if it is an affiliate, it will comply
with the registration and prospectus delivery requirements of the Securities Act
to the extent applicable. Any holder of Old Notes using the Exchange Offer to
participate in a distribution of the Exchange Notes (i) cannot rely on the
position of the staff of the Securities and Exchange Commission (the
"Commission") enunciated in its interpretive letter with respect to Exxon
Capital Holdings Corporation (available April 13, 1989) or similar letters and
(ii) must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with a secondary resale transaction.
If the undersigned, or the person receiving such Exchange Notes, whether or
not such person is the undersigned, is not a broker-dealer, the undersigned
represents that neither it nor such person is engaged in, and does not intend to
engage in, a distribution of Exchange Notes. If the undersigned, or the person
receiving such Exchange Notes, whether or not such person is the undersigned, is
a broker-dealer that will receive Exchange Notes for its own account in exchange
for Old Notes that were acquired as a result of market-making activities or
other trading activities, the undersigned acknowledges that it or such person,
as the case may be, will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, neither the undersigned nor such person will be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, legal representatives, successors,
assigns, executors and administrators of the undersigned. Tendered Old Notes
may be withdrawn at any time prior to the Expiration Date in accordance with the
terms of this Letter of Transmittal. See Instruction 2.
Certificates for all Exchange Notes delivered in exchange for tendered Old
Notes and any Old Notes delivered herewith but not exchanged, and in each case
registered in the name of the undersigned, shall be delivered to the undersigned
at the address shown below the signature of the undersigned.
TENDERING HOLDER(S) SIGN HERE
(Complete accompanying substitute Form W-9)
________________________________________________________________________________
________________________________________________________________________________
Signature(s) of Holder(s)
Dated____________________________
(Must be signed by registered holder(s) exactly as name(s) appear(s) on
certificate(s) for Old Notes. If signature is by a trustee, executor,
administrator, guardian, attorney-in-fact, officer of a corporation or other
person acting in a fiduciary or representative capacity, please set forth the
full title of such person.) See Instruction 3.
Name(s) ____________________________________________________________________
____________________________________________________________________________
(Please Print)
Capacity (full title) ______________________________________________________
Address ____________________________________________________________________
(Including Zip Code)
Area Code and Telephone No. ________________________________________________
Taxpayer Identification No. ________________________________________________
GUARANTEE OF SIGNATURE(S)
(If Required See Instruction 3)
Authorized Signature _______________________________________________________
Name _______________________________________________________________________
Title ______________________________________________________________________
Address ____________________________________________________________________
Name of Firm _______________________________________________________________
Area Code and Telephone No. ________________________________________________
Dated ______________________________________________________________________
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of this Letter of Transmittal and Certificates.
A holder of Old Notes may tender the same by (i) properly completing and
signing this Letter of Transmittal or a facsimile hereof (all references in the
Prospectus to the Letter of Transmittal shall be deemed to include a facsimile
thereof) and delivering the same, together with the certificate or certificates
representing the Old Notes being tendered and any required signature guarantees
and any other documents required by this Letter of Transmittal, to the Exchange
Agent at its address set forth above on or prior to the Expiration Date (or
complying with the procedure for book-entry transfer described below) or (ii)
complying with the guaranteed delivery procedures described below.
The method of delivery of this Letter of Transmittal, the Old Notes and any
other required documents is at the election and risk of the holder, and except
as otherwise provided below, the delivery will be deemed made only when actually
received or confirmed by the Exchange Agent. If such delivery is by mail, it is
suggested that registered mail with return receipt requested, properly insured,
be used. In all cases sufficient time should be allowed to permit timely
delivery. No Old Notes or Letters of Transmittal should be sent to the Company.
If tendered Old Notes are registered in the name of the signer of the
Letter of Transmittal and the Exchange Notes to be issued in exchange therefor
are to be issued (and any untendered Old Notes are to be reissued) in the name
of the registered holder (which term, for the purposes described herein, shall
include any participant in The Depository Trust Company (also referred to as a
"book-entry transfer facility") whose name appears on a security listing as the
owner of Old Notes), the signature of such signer need not be guaranteed. In any
other case, the tendered Old Notes must be endorsed or accompanied by written
instruments of transfer in form satisfactory to the Company and duly executed by
the registered holder, and the signature on the endorsement or instrument of
transfer must be guaranteed by a bank, broker, dealer, credit union, savings
association, clearing agency or other institution (each an "Eligible
Institution") that is a member of a recognized signature guarantee medallion
program within the meaning of Rule 17Ad-15 under the Securities Exchange Act of
1934, as amended. If the Exchange Notes and/or Old Notes not exchanged are to be
delivered to an address other than that of the registered holder appearing on
the note register for the Old Notes, the signature on the Letter of Transmittal
must be guaranteed by an Eligible Institution.
The Exchange Agent will make a request within two business days after the
date of receipt of this Prospectus to establish accounts with respect to the Old
Notes at the book-entry transfer facility for the purpose of facilitating the
Exchange Offer, and subject to the establishment thereof, any financial
institution that is a participant in the book-entry transfer facility's system
may make book-entry delivery of Old Notes by causing such book-entry transfer
facility to transfer such Old Notes into the Exchange Agent's account with
respect to the Old Notes in accordance with the book-entry transfer facility's
procedures for such transfer. Although delivery of Old Notes may be effected
through book-entry transfer into the Exchange Agent's account at the book-entry
transfer facility, an appropriate Letter of Transmittal with any required
signature guarantee and all other required documents must in each case be
transmitted to and received or confirmed by the Exchange Agent on or prior to
the Expiration Date, or, if the guaranteed delivery procedures described below
are complied with, within the time period provided under such procedures.
If a holder desires to accept the Exchange Offer and time will not permit a
Letter of Transmittal or Old Notes to reach the Exchange Agent before the
Expiration Date or the procedure for book-entry transfer cannot be completed on
a timely basis, a tender may be effected if the Exchange Agent has received on
or prior to the Expiration Date, a letter, telegram or facsimile transmission
(receipt confirmed by telephone and an original delivered by guaranteed
overnight courier) from an Eligible Institution setting forth the name and
address of the tendering holder, the names in which the Old Notes are registered
and, if possible, the certificate numbers of the Old Notes to be tendered, and
stating that the tender is being made thereby and guaranteeing that within three
business days after the Expiration Date, the Old Notes in proper form for
transfer (or a confirmation of book-entry transfer of such Old Notes into the
Exchange Agent's account at the book-entry transfer facility), will be delivered
by such Eligible Institution together with a properly completed and duly
executed Letter of Transmittal (and any other required documents). Unless Old
Notes being tendered by the above-described method are deposited with the
Exchange Agent within the time period set forth above (accompanied or preceded
by a properly completed and duly executed Letter of Transmittal and any other
required documents), the Company may, at its option, reject the tender. Copies
of the notice of guaranteed delivery ("Notice of Guaranteed Delivery") which may
be used by Eligible Institutions for the purposes described in this paragraph
are available from the Exchange Agent.
A tender will be deemed to have been received as of the date when (i) the
tendering holder's properly completed and duly executed Letter of Transmittal
accompanied by the Old Notes (or a confirmation of book-entry transfer of such
Old Notes into the Exchange Agent's account at the book-entry transfer facility)
is received by the Exchange Agent, or (ii) a Notice of Guaranteed Delivery or
letter, telegram or facsimile transmission to similar effect (as provided above)
from an Eligible Institution is received by the Exchange Agent. Issuances of
Exchange Notes in exchange for Old Notes tendered pursuant to a Notice of
Guaranteed Delivery or letter, telegram or facsimile transmission to similar
effect (as provided above) by an Eligible Institution will be made only against
deposit of the Letter of Transmittal (and any other required documents) and the
tendered Old Notes (or a confirmation of book-entry transfer of such Old Notes
into the Exchange Agent's account at the book-entry transfer facility).
If the Letter of Transmittal signed by a person or persons other than the
registered holder or holders of Old Notes, such Old Notes must be endorsed or
accompanied by appropriate powers of attorney in a form satisfactory to the
Company, in either case signed exactly as the name or names of the registered
holder or holders appear on the Old Notes.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering holders, by execution of this Letter of Transmittal (or
facsimile thereof), shall waive any right to receive notice of the acceptance of
the Old Notes for exchange.
2. Partial Tenders; Withdrawals.
If less than the entire principal amount of Old Notes evidenced by a
submitted certificate is tendered, the tendering holder should fill in the
principal amount tendered in the box entitled "Principal Amount Tendered." A
newly issued certificate for the principal amount of Old Notes submitted but not
tendered will be sent to such holder as soon as practicable after the Expiration
Date. All Old Notes delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise clearly indicated.
Tenders of Old Notes may be withdrawn at any time prior to the Expiration
Date.
For a withdrawal to be effective, a written notice of withdrawal sent by
telegram, facsimile transmission (receipt confirmed by telephone) or letter must
be received by the Exchange Agent at the address set forth herein prior to the
Expiration Date. Any such notice of withdrawal must (i) specify the name of the
person having tendered the Old Notes to be withdrawn (the "Depositor"), (ii)
identify the Old Notes to be withdrawn (including the certificate number or
numbers of such Old Notes and principal amount of each such Old Note), (iii)
specify the principal amount of Old Notes to be withdrawn, (iv) include a
statement that such holder is withdrawing its election to have such Old Notes
exchanged, (v) be signed by the holder in the same manner as the original
signature on the Letter of Transmittal by which such Old Notes were tendered or
as otherwise described above (including any required signature guarantees) or be
accompanied by documents of transfer sufficient to have the Trustee under the
Indenture register the transfer of such Old Notes into the name of the person
withdrawing the tender and (vi) specify the name in which any such Old Notes are
to be registered, if different from that of the Depositor. The Exchange Agent
will return the properly withdrawn Old Notes promptly following receipt of
notice of withdrawal. If Old Notes have been tendered pursuant to the procedure
for book-entry transfer, any notice of withdrawal must specify the name and
number of the account at the book-entry transfer facility to be credited with
the withdrawn Old Notes or otherwise comply with the book-entry transfer
facility procedure. All questions as to the validity of notices of withdrawals,
including time of receipt, will be determined by the Company and such
determination will be final and binding on all parties.
Any Old Notes so withdrawn will be deemed not to have been validly tendered
for exchange for purposes of the Exchange Offer. Any Old Notes which have been
tendered for exchange but which are not exchanged for any reason will be
returned to the holder thereof without cost to such holder (or, in the case of
Old Notes tendered by book-entry transfer into the Exchange Agent's account at
the book-entry transfer facility
pursuant to the book-entry transfer procedures described above, such Old Notes
will be credited to an account with such book-entry transfer facility specified
by the holder) as soon as practicable after withdrawal, rejection of tender or
termination of the Exchange Offer. Properly withdrawn Old Notes may be
retendered by following one of the procedures described under the caption
"Procedure for Tendering Old Notes" in the Prospectus at any time on or prior to
the Expiration Date.
3. Signature on this Letter of Transmittal; Written Instruments and
Endorsements; Guarantee of Signatures.
If this Letter of Transmittal is signed by the registered holder(s) of the
Old Notes tendered hereby, the signature must correspond with the name(s) as
written on the face of the certificates without alteration, enlargement or any
change whatsoever.
If any of the Old Notes tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If a number of Old Notes registered in different names are tendered, it
will be necessary to complete, sign and submit as many separate copies of this
Letter of Transmittal as there are different registrations of Old Notes.
When this Letter of Transmittal is signed by the registered holder or
holders (which term, for the purposes described herein, shall include the
book-entry transfer facility whose name appears on a security listing as the
owner of the Old Notes) of Old Notes listed and tendered hereby, no endorsements
of certificates or separate written instruments of transfer or exchange are
required.
If this Letter of Transmittal is signed by a person other than the
registered holder or holder of the Old Notes listed, such Old Notes must be
endorsed or accompanied by separate written instruments of transfer or exchange
in form satisfactory to the Company and duly executed by the registered holder,
in either case signed exactly as the name or names of the registered holder or
holders appear(s) on the Old Notes.
If this Letter of Transmittal, any certificates or separate written
instruments of transfer or exchange are signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, such persons should so
indicate when signing, and, unless waived by the Company, proper evidence
satisfactory to the Company of their authority so to act must be submitted.
Endorsements on certificates or signatures on separate written instruments
of transfer or exchange required by this Instruction 3 must be guaranteed by an
Eligible Institution.
Signatures on this Letter of Transmittal need not be guaranteed by an
Eligible Institution, provided the Old Notes are tendered: (i) by a registered
holder of such Old Notes, for the holder of such Old Notes; or (ii) for the
account of an Eligible Institution.
4. Transfer Taxes.
The Company shall pay all transfer taxes, if any, applicable to the
transfer and exchange of Old Notes pursuant to the Exchange Offer. If, however,
certificates representing Exchange Notes or Old Notes for principal amounts not
tendered or accepted for exchange are to be delivered to, or are to be issued in
the name of, any person other than the registered holder of the Old Notes
tendered, or if tendered Old Notes are registered in the name of any person
other than the person signing the Letter of Transmittal, or if a transfer tax is
imposed for any reason other than the exchange of Old Notes pursuant to the
Exchange Offer, then the amount of any such transfer taxes (whether imposed on
the registered holder or any other persons) will be payable by the tendering
holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted herewith, the amount of such transfer taxes will be
billed directly to such tendering holder.
Except as provided in this Instruction 4, it will not be necessary for
transfer tax stamps to be affixed to the Old Notes listed in this Letter of
Transmittal.
5. Waiver of Conditions.
The Company reserves the right to waive in its reasonable judgment, in
whole or in part, any of the conditions to the Exchange Offer set forth in the
Prospectus.
6. Mutilated, Lost, Stolen or Destroyed Old Notes.
Any holder whose Old Notes have been mutilated, lost, stolen or destroyed,
should contact the Exchange Agent at the address indicated above for further
instructions.
7. Substitute Form W-9.
Each holder of Old Notes whose Old Notes are accepted for exchange (or
other payee) is required to provide a correct taxpayer identification number
("TIN"), generally the holder's Social Security or federal employer
identification number, and certain other information, on Substitute Form W-9,
which is provided under "Important Tax Information" below, and to certify that
the holder (or other payee) is not subject to backup withholding. Failure to
provide the information on the Substitute Form W-9 may subject the holder (or
other payee) to a $50 penalty imposed by the Internal Revenue Service and 31%
federal income tax backup withholding on payments made in connection with the
Exchange Notes. The box in Part 3 of the Substitute Form W-9 may be checked if
the holder (or other payee) has not been issued a TIN and has applied for a TIN
or intends to apply for a TIN in the near future. If the box in Part 3 is
checked and a TIN is not provided by the time any payment is made in connection
with the Exchange Notes, 31% of all such payments will be withheld until a TIN
is provided.
8. Requests for Assistance or Additional Copies.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus and this Letter of Transmittal, may be
directed to the Exchange Agent at the address and telephone number set forth
above. In addition, all questions relating to the Exchange Offer, as well as
requests for assistance or additional copies of the Prospectus and this Letter
of Transmittal, may be directed to Nine West Group Inc., 11933 Westline
Industrial Drive, St. Louis, Missouri 63146, Attention: Investor Relations
(telephone (314) 579-8812).
IMPORTANT: This Letter of Transmittal or a facsimile hereof (together with
certificates for Old Notes (or confirmation of book-entry transfer) and all
other required documents) or a Notice of Guaranteed Delivery must be received by
the Exchange Agent on or prior to the Expiration Date.
IMPORTANT TAX INFORMATION
Under U.S. Federal income tax law, a holder of Old Notes whose Old Notes
are accepted for exchange may be subject to backup withholding unless the holder
provides The Bank of New York (as payor) (the "Paying Agent"), through the
Exchange Agent, with either (i) such holder's correct taxpayer identification
number ("TIN") on Substitute Form W-9 attached hereto, certifying that the TIN
provided on Substitute Form W-9 is correct (or that such holder of Old Notes is
awaiting a TIN) and that (A) the holder of Old Notes has not been notified by
the Internal Revenue Service that he or she is subject to backup withholding as
a result of a failure to report all interest or dividends or (B) the Internal
Revenue Service has notified the holder of Old Notes that he or she is no longer
subject to backup withholding; or (ii) an adequate basis for exemption from
backup withholding. If such holder of Old Notes is an individual, the TIN is
such holder's social security number. If the Paying Agent is not provided with
the correct TIN, the holder of Old Notes may be subject to certain penalties
imposed by the Internal Revenue Service.
Certain holders of Old Notes (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. However, exempt holders of Old Notes should indicate
their exempt status on Substitute Form W-9. For example, a corporation must
complete the Substitute Form W-9, providing its TIN and indicating that it is
exempt from backup withholding. In order for a foreign individual to qualify as
an exempt recipient, the holder must submit a Form W-8, signed under penalties
of perjury, attesting to that individual's exempt status. A Form W-8 can be
obtained from the Paying Agent. See the enclosed "Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9" for more instructions.
If backup withholding applies, the Paying Agent is required to withhold 31%
of any such payments made to the holder of Old Notes or other payee. Backup
withholding is not an additional tax. Rather, the tax liability of persons
subject to backup withholding will be reduced by the amount of tax withheld. If
withholding results in an overpayment of taxes, a refund may be obtained from
the Internal Revenue Service.
The box in Part 3 of the Substitute Form W-9 may be checked if the
surrendering holder of Old Notes has not been issued a TIN and has applied for a
TIN or intends to apply for a TIN in the near future. If the box in Part 3 is
checked, the holder of Old Notes or other payee must also complete the
Certificate of Awaiting Taxpayer Identification Number below in order to avoid
backup withholding. Notwithstanding that the box in Part 3 is checked and the
Certificate of Awaiting Taxpayer Identification Number is completed, the Paying
Agent will withhold 31% of all payments made prior to the time a properly
certified TIN is provided to the Paying Agent.
The holder of Old Notes is required to give the Paying Agent the TIN (e.g.,
social security number or employer identification number) of the record owner of
the Old Notes. If the Old Notes are in more than one name or are not in the
name of the actual owner, consult the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for additional guidance
on which number to report.
<TABLE>
<S> <C> <C>
PAYOR'S NAME: THE BANK OF NEW YORK, AS PAYING AGENT
- -------------------------------------------------------------------------------------------
SUBSTITUTE | Part 1 PLEASE PROVIDE YOUR | Social Security number(s) or
| TIN IN THE BOX AT RIGHT AND | Employer Identification Number(s)
| CERTIFY BY SIGNING AND DATING |
| BELOW |
| | ________________________________
----------------------------------------------------------------------
|
|
Form W-9 | Part 2 Certification Under penalties of perjury, I certify that:
Department of the |
Treasury Internal | (1) The number shown on this form is my correct taxpayer
Revenue Service | identification number (or I am waiting for a number to be
| issued for me), and
|
| (2) I am not subject to backup withholding because: (a) I am
| exempt from backup withholding, or (b) I have not been
| notified by the Internal Revenue Service (IRS) that I am
| subject to backup withholding as a result of a failure to
| report all interest or dividends, or (c) the IRS has
| notified me that I am no longer subject to backup withholding.
|
Payor's Request for | Certification Instructions You must cross out item (2) above
Taxpayer Identifica- | it you have been notified by the IRS that you are currently
tion Number ("TIN") | subject to backup withholding because of underreporting
| interest or dividends on your tax return.
|---------------------------------------------------------------------
| Signature ______________ | Part 3 Awaiting TIN __
| Date____________________ |
- --------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN A $50 PENALTY
IMPOSED BY THE INTERNAL REVENUE SERVICE AND BACKUP WITHHOLDING OF 31%
OF ANY CASH PAYMENTS MADE TO YOU. PLEASE REVIEW THE ENCLOSED
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART
3 OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (2)
I intend to mail or deliver an application in the near future. I understand
that if I do not provide a taxpayer identification number by the time of
payment, 31% of all reportable cash payments made to me thereafter will be
withheld until I provide a taxpayer identification number.
____________________________ _________________________
Signature Date
Exhibit 99.3
NOTICE OF GUARANTEED DELIVERY
for
Tender of all Outstanding
8 3/8% Senior Notes due 2005
in Exchange for New
8 3/8% Series B Senior Notes due 2005
of
NINE WEST GROUP INC.
Unconditionally Guaranteed on a Senior Basis by
NINE WEST DEVELOPMENT CORPORATION, NINE WEST DISTRIBUTION CORPORATION,
NINE WEST FOOTWEAR CORPORATION AND NINE WEST MANUFACTURING CORPORATION
(the "Guarantors")
Registered holders of outstanding 8 3/8% Senior Notes due 2005 (the "Old
Notes") who wish to tender their Old Notes in exchange for a like principal
amount of new 8 3/8% Series B Senior Notes due 2005 (the "Exchange Notes") and
whose Old Notes are not immediately available or who cannot deliver their Old
Notes and Letter of Transmittal (and any other documents required by the Letter
of Transmittal) to The Bank of New York (the "Exchange Agent") prior to the
Expiration Date, may use this Notice of Guaranteed Delivery or one substantially
equivalent hereto. This Notice of Guaranteed Delivery may be delivered by hand
or sent by facsimile transmission (receipt confirmed by telephone and an
original delivered by guaranteed overnight courier) or mail to the Exchange
Agent. See "The Exchange Offer Procedure for Tendering Old Notes" in the
Prospectus.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE BANK OF NEW YORK
By Hand or Overnight Facsimile Transmissions: By Registered or
Delivery: (Eligible Institutions Certified Mail:
Only)
The Bank of New York The Bank of New York
101 Barclay Street (212) 571-3080 101 Barclay Street, 7E
Corporate Trust New York, New York 10286
Services Window Attention: Reorganization
Ground Level Section, Arwen Gibbons
Attention: Reorganization To Confirm by Telephone
Section, Arwen Gibbons or for Information Call:
(212) 815-6333
Delivery of this Notice of Guaranteed Delivery to an address other than as
set forth above or transmission via a facsimile transmission to a number other
than as set forth above will not constitute a valid delivery.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an Eligible Institution (as defined in the Prospectus), such
signature guarantee must appear in the applicable space provided on the Letter
of Transmittal for Guarantee of Signatures.
Ladies and Gentlemen:
The undersigned hereby tenders to the Exchange Agent the principal amount
of Old Notes indicated below, upon the terms and subject to the conditions
contained in the Prospectus dated , 1997 of Nine West Group Inc. (the
"Prospectus"), receipt of which is hereby acknowledged.
DESCRIPTION OF SECURITIES TENDERED
Certificate
Name and address of Number(s) of Old
registered holder as Notes Tendered (or Principal Amount
Name of Tendering it appears on the Old Account Number at of Old Notes
Holder Notes (Please Print) Book-Entry Facility) Tendered
_________________ _____________________ ____________________ ________________
_________________ _____________________ ____________________ ________________
_________________ _____________________ ____________________ ________________
_________________ _____________________ ____________________ ________________
_________________ _____________________ ____________________ ________________
SIGN HERE
Name of Registered or Acting Holder:____________________________________________
Signature(s):___________________________________________________________________
Name(s) (please print):_________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________________
Telephone Number:_______________________________________________________________
Date:___________________________________________________________________________
THE FOLLOWING GUARANTEE MUST BE COMPLETED
GUARANTEE OF DELIVERY
(Not to be used for signature guarantee)
The undersigned, a member of a recognized signature guarantee medallion
program within the meaning of Rule 17Ad-15 under the Securities Exchange Act of
1934, as amended, hereby guarantees to deliver to the Exchange Agent at one of
its addresses set forth above, the certificates representing the Old Notes (or a
confirmation of book-entry transfer of such Old Notes into the Exchange Agent's
account at the book-entry transfer facility), together with a properly completed
and duly executed Letter of Transmittal (or facsimile thereof), with any
required signature guarantees, and any other documents required by the Letter of
Transmittal within three business days after the Expiration Date (as defined in
the Prospectus and the Letter of Transmittal).
Name of Firm:_________________________ _______________________________________
(Authorized Signature)
Address:______________________________
Title:__________________________________
______________________________________
(Zip Code) Name:___________________________________
Area Code and Telephone No.: (Please type or print)
______________________________________ Date:_________________________________
NOTE: DO NOT SEND OLD NOTES WITH THIS NOTICE OF GUARANTEED DELIVERY. OLD
NOTES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
Exhibit 99.4
------------
NOTICE OF GUARANTEED DELIVERY
for
Tender of all Outstanding
9% Senior Subordinated Notes due 2007
in Exchange for New
9% Series B Senior Subordinated Notes due 2007
of
NINE WEST GROUP INC.
Unconditionally Guaranteed on a Senior Basis by
NINE WEST DEVELOPMENT CORPORATION, NINE WEST DISTRIBUTION CORPORATION,
NINE WEST FOOTWEAR CORPORATION AND NINE WEST MANUFACTURING CORPORATION
(the "Guarantors")
Registered holders of outstanding 9% Senior Subordinated Notes due
2007 (the "Old Notes") who wish to tender their Old Notes in exchange for a like
principal amount of new 9% Series B Senior Subordinated Notes due 2007 (the
"Exchange Notes") and whose Old Notes are not immediately available or who
cannot deliver their Old Notes and Letter of Transmittal (and any other
documents required by the Letter of Transmittal) to The Bank of New York (the
"Exchange Agent") prior to the Expiration Date, may use this Notice of
Guaranteed Delivery or one substantially equivalent hereto. This Notice of
Guaranteed Delivery may be delivered by hand or sent by facsimile transmission
(receipt confirmed by telephone and an original delivered by guaranteed
overnight courier) or mail to the Exchange Agent. See "The Exchange Offer--
Procedure for Tendering Old Notes" in the Prospectus.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE BANK OF NEW YORK
By Hand or Overnight Facsimile Transmissions: By Registered or
Delivery: (Eligible Institutions Certified Mail:
Only)
The Bank of New York The Bank of New York
101 Barclay Street (212) 571-3080 101 Barclay Street, 7E
Corporate Trust New York, New York 10286
Services Window Attention: Reorganization
Ground Level Section, Arwen Gibbons
Attention: Reorganization To Confirm by Telephone
Section, Arwen Gibbons or for Information Call:
(212) 815-6333
Delivery of this Notice of Guaranteed Delivery to an address other than as
set forth above or transmission via a facsimile transmission to a number other
than as set forth above will not constitute a valid delivery.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an Eligible Institution (as defined in the Prospectus), such
signature guarantee must appear in the applicable space provided on the Letter
of Transmittal for Guarantee of Signatures.
Ladies and Gentlemen:
The undersigned hereby tenders to the Exchange Agent the principal amount
of Old Notes indicated below, upon the terms and subject to the conditions
contained in the Prospectus dated , 1997 of Nine West Group Inc. (the
"Prospectus"), receipt of which is hereby acknowledged.
DESCRIPTION OF SECURITIES TENDERED
Certificate
Name and address of Number(s) of Old
registered holder as Notes Tendered (or Principal Amount
Name of Tendering it appears on the Old Account Number at of Old Notes
Holder Notes (Please Print) Book-Entry Facility) Tendered
_________________ _____________________ ____________________ ________________
_________________ _____________________ ____________________ ________________
_________________ _____________________ ____________________ ________________
_________________ _____________________ ____________________ ________________
_________________ _____________________ ____________________ ________________
SIGN HERE
Name of Registered or Acting Holder: ___________________________________________
Signature(s): __________________________________________________________________
Name(s) (please print): ________________________________________________________
Address: _______________________________________________________________________
___________________________________________________________________________
Telephone Number: ______________________________________________________________
Date: __________________________________________________________________________
THE FOLLOWING GUARANTEE MUST BE COMPLETED
GUARANTEE OF DELIVERY
(Not to be used for signature guarantee)
The undersigned, a member of a recognized signature guarantee medallion
program within the meaning of Rule 17Ad-15 under the Securities Exchange Act of
1934, as amended, hereby guarantees to deliver to the Exchange Agent at one of
its addresses set forth above, the certificates representing the Old Notes (or a
confirmation of book-entry transfer of such Old Notes into the Exchange Agent's
account at the book-entry transfer facility), together with a properly completed
and duly executed Letter of Transmittal (or facsimile thereof), with any
required signature guarantees, and any other documents required by the Letter of
Transmittal within three business days after the Expiration Date (as defined in
the Prospectus and the Letter of Transmittal).
Name of Firm:_______________________ ________________________________________
(Authorized Signature)
Address:____________________________
Title:__________________________________
____________________________________
(Zip Code) Name:___________________________________
Area Code and Telephone No.: (Please type or print)
____________________________________ Date:___________________________________
NOTE: DO NOT SEND OLD NOTES WITH THIS NOTICE OF GUARANTEED DELIVERY. OLD
NOTES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
