SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (Date of earliest event reported): JANUARY 28, 2000
PARAGON TRADE BRANDS, INC.
(Exact name of registrant as specified in charter)
DELAWARE
(State or other jurisdiction of incorporation)
1-11368
(Commission File Number)
91-1554663
(IRS Employer Identification No.)
180 TECHNOLOGY PARKWAY, NORCROSS, GA 30092
(Address of principal executive offices) (Zip Code)
(678) 969-5000
(Registrant's telephone number, including area code)
NONE
(Former name or former address, if changed since last report)
Page 1
Exhibit Index is at Page 5
<PAGE>
ITEM 1. CHANGE IN CONTROL OF REGISTRANT
On January 6, 1998, Paragon Trade Brands, Inc., a Delaware corporation (the
"Company"), filed a voluntary petition for relief under Chapter 11 of the United
States Bankruptcy Code (the "Bankruptcy Code"), thereby commencing Case No.
98-60390, in the United States Bankruptcy Court for the Northern District of
Georgia (the "Bankruptcy Court"). On or about November 15, 1999, the Company and
its Official Committee of Unsecured Creditors (the "Creditors' Committee") filed
a Second Amended Plan of Reorganization (as subsequently modified through
January 13, 2000, the "Plan") and related Disclosure Statement (as subsequently
modified through November 18, 1999, the "Disclosure Statement") with the
Bankruptcy Court. By order dated November 18, 1999, the Bankruptcy Court
approved the Disclosure Statement as containing "adequate information" as such
term is defined in Section 1125 of the Bankruptcy Code. At such time, the Court
also approved certain voting procedures and established Friday, January 7, 2000
as the voting deadline for the Plan and Thursday, January 13, 2000 as the date
for a hearing to consider confirmation of the Plan. A confirmation hearing was
held by the Bankruptcy Court on January 13, 2000. By order dated January 13,
2000, the Bankruptcy Court confirmed the Plan. A copy of the Plan is attached
hereto as Exhibit 2.1 and is incorporated herein by reference. Capitalized terms
used herein and not defined have the meanings assigned to them in the Plan.
The Plan incorporates the Stock Purchase Agreement by and between PTB
Acquisition Company, LLC and Paragon Trade Brands, Inc. dated as of November 16,
1999 (the "Stock Purchase Agreement") pursuant to which PTB Acquisition Company,
LLC, an affiliate of Wellspring Capital Management LLC (collectively,
"Wellspring"), agreed to acquire substantially all of the New Common Stock of
the Company as part of the plan of reorganization (the "Wellspring
Transaction").
On January 28, 2000, Paragon was reorganized pursuant to the Plan through the
consummation of the Wellspring Transaction.
Prior to the consummation of the Wellspring Transaction, Wellspring assigned (i)
its right to purchase approximately 20.2% of the New Common Stock of the Company
to Co-Investment Partners, L.P. ("CIP"), and (ii) its right to purchase
approximately a further 20.2% of the New Common Stock of the Company to Ontario
Teachers' Pension Plan Board ("Ontario"). Pursuant to the Wellspring
Transaction, Wellspring, CIP and Ontario purchased, in the aggregate,
approximately 96.8% of the New Common Stock (the "Investor Shares") issued
pursuant to the Plan on the Effective Date for a purchase price equal to $10.00
per share of New Common Stock, or approximately $115 million, in cash. Under a
Rights Offering conducted pursuant to the Plan, approximately 196,230 shares,
representing 1.7% of the New Common Stock, were subscribed for by certain of the
holders of the Company's common stock prior to the consummation of the Plan.
Holders of the Company's common stock prior to the consummation of the Plan will
receive their pro rata share of the remaining 1.5% of the New Common Stock to be
issued pursuant to the Plan. Pursuant to the Plan, holders of allowed unsecured
claims will receive distributions in amounts equal to their pro rata share of
approximately $117 million of cash, after payment of administrative and priority
claims, and $146 million of 11.25% five-year Senior Subordinated Notes (the "New
Notes") to be issued under the Indenture attached hereto as Exhibit 4.1 and 4.2
and incorporated herein by reference.
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<PAGE>
After giving effect to the assignment by Wellspring of its rights under the
Stock Purchase Agreement as described above, Wellspring invested approximately
$67 million, which funds were provided by Wellspring Capital Partners II, L.P.
from funds contributed by its limited and general partners, to acquire
approximately 56.5% of the New Common Stock, CIP invested approximately $24
million, which funds were provided by its limited and general partners, to
acquire approximately 20.2% of the New Common Stock and Ontario invested
approximately $24 million, which funds came from the pension fund which it
manages, to acquire approximately 20.2% of the New Common Stock.
Pursuant to proxies given on January 28, 2000 by CIP and Ontario, Wellspring has
the right to vote all of the Investor Shares. Therefore, Wellspring may be
deemed to beneficially own these shares of New Common Stock. Pursuant to the
Plan, Wellspring was entitled to designate a super majority of the members of
the new Board of Directors of the Company and exercised this authority on
January 28, 2000, subject to the constraints imposed by the Plan, to designate
seven new directors to serve, along with two Company-designated directors, as
the Board of Directors of the Company.
On January 28, 2000, the Company issued the press release attached hereto as
Exhibit 99.1, which is incorporated herein by reference.
Paragon Trade Brands, Inc. is the leading manufacturer of store brand infant
disposable diapers in the United States and, through its wholly owned
subsidiary, Paragon Trade Brands (Canada) Inc., is the leading marketer of store
brand infant disposable diapers in Canada. Paragon manufactures a line of
premium and economy diapers, training pants, feminine care and adult
incontinence products, which are distributed throughout the United States and
Canada, primarily through grocery and food stores, mass merchandisers, warehouse
clubs, toy stores and drug stores that market the products under their own store
brand names. Paragon has also established international joint ventures in
Mexico, Argentina, Brazil and China for the sale of infant disposable diapers
and other absorbent personal care products.
Statements made in this Form 8-K, other than those concerning historical
information, should be considered forward-looking statements. Such statements
are subject to certain risks and uncertainties that could cause actual results
to differ materially from those expressed in the Company's forward-looking
statements. Factors which could affect the Company's financial results,
including, but not limited to: increased raw material prices and product costs;
new product and packaging introductions by competitors; increased price and
promotion pressure from competitors; new competitors in the market; increased
financial leverage; Year 2000 compliance issues; and patent litigation, are
described herein and in the Company's Annual Report on Form 10-K filed with the
Securities and Exchange Commission. Readers are cautioned not to place undue
reliance on the forward-looking statements contained herein, which speak only as
of the date hereof, and which are made by management pursuant to the "safe
harbor" provisions of the Private Securities Litigation Reform Act of 1995.
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<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PARAGON TRADE BRANDS, INC.
By: /S/ ALAN J. CYRON
------------------------
Name: Alan J. Cryon
Title: Chief Financial Officer
Dated: February 10, 2000
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EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION
- -------------- ---------------------------
2.1 Modified Second Amended Plan of Reorganization.
Incorporated by reference from Paragon Trade
Brands, Inc.'s Current Report on Form 8-K dated
January 13, 2000.
2.2 Stock Purchase Agreement by and between PTB
Acquisition Company LLC and Paragon Trade Brands,
Inc. dated as of November 16, 1999. Incorporated
by reference from Exhibit T3E.1 to Paragon Trade
Brands, Inc.'s Application for Qualification of
Indenture Under the Trust Indenture Act of 1939 on
Form T-3 filed with the Commission on January 26,
2000.
4.1 Indenture for $182,000,000 11.25% Senior
Subordinated Notes due 2005, dated as of January
28, 2000.
4.2 First Supplemental Indenture for $182,000,000
11.25% Senior Subordinated Notes due 2005, dated
as of January 28, 2000.
99.1 Paragon Trade Brands, Inc. Press Release dated
January 28, 2000.
-5-
- --------------------------------------------------------------------------------
PARAGON TRADE BRANDS, INC.
AS ISSUER
PTB INTERNATIONAL, INC.,
PTB ACQUISITION SUB, INC.,
AND
PTB HOLDINGS, INC.,
AS GUARANTORS
$182,000,000
11.25% SENIOR SUBORDINATED NOTES DUE 2005
INDENTURE
DATED AS OF JANUARY 28, 2000
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
AS TRUSTEE
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
CROSS-REFERENCE TABLE
TIA SECTION INDENTURE SECTION
<S> <C> <C>
Sec.310 (a)(1)..............................................................................7.10
(a)(2)..............................................................................7.10
(a)(3)..............................................................................N.A.
(a)(4)..............................................................................N.A.
(b)...........................................................................7.08; 7.10
(c).................................................................................N.A.
Sec.311 (a).................................................................................7.11
(b).................................................................................7.11
(c).................................................................................N.A.
Sec.312 (a).................................................................................7.13
(b)................................................................................13.03
(c)................................................................................13.03
Sec.313 (a).................................................................................7.06
(b)(1)..............................................................................N.A.
(b)(2)..............................................................................7.06
(c)..........................................................................7.06; 13.02
(d).................................................................................7.06
Sec.314 (a)...........................................................................4.07; 4.18
(b).................................................................................N.A.
(c)(1).............................................................................13.04
(c)(2).............................................................................13.04
(c)(3)..............................................................................N.A.
(d).................................................................................N.A.
(e)................................................................................13.05
(f).................................................................................N.A.
Sec.315 (a).................................................................................7.01
(b)..........................................................................7.05; 13.02
(c).................................................................................7.01
(d).................................................................................7.01
(e).................................................................................6.11
Sec.316 (a)(last sentence).................................................................13.06
(a)(1)(A)...........................................................................6.05
(a)(1)(B)...........................................................................6.04
(a)(2)..............................................................................N.A.
(b).................................................................................6.07
(c)...........................................................................1.01; 2.11
Sec.317 (a)(1)..............................................................................6.08
(a)(2)..............................................................................6.09
(b).................................................................................2.04
Sec.318 (a)................................................................................13.01
</TABLE>
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE................................................1
Section 1.01 Incorporation by Reference of Trust Indenture Act............................29
Section 1.02 Rules of Construction........................................................29
ARTICLE II. THE NOTES................................................................................30
Section 2.01 Form and Dating..............................................................30
Section 2.02 Execution and Authentication.................................................30
Section 2.03 Registrar and Paying Agent...................................................32
Section 2.04 Paying Agent To Hold Money in Trust..........................................33
Section 2.05 Global Notes.................................................................33
Section 2.06 Transfer and Exchange........................................................34
Section 2.07 Replacement Notes............................................................35
Section 2.08 Outstanding Notes............................................................35
Section 2.09 Temporary Notes..............................................................36
Section 2.10 Cancellation.................................................................36
Section 2.11 Payment of Interest; Interest Rights Preserved...............................36
Section 2.12 CUSIP Numbers................................................................38
Section 2.13 Transfers, etc...............................................................38
ARTICLE III. REDEMPTION...............................................................................39
Section 3.01 Redemption of Notes; Notices to Trustee......................................39
Section 3.02 Selection of Notes To Be Redeemed............................................40
Section 3.03 Notice of Redemption.........................................................40
Section 3.04 Effect of Notice of Redemption...............................................41
Section 3.05 Deposit of Redemption Price..................................................41
Section 3.06 Notes Redeemed in Part.......................................................41
ARTICLE IV. COVENANTS................................................................................42
Section 4.01 Payment of Notes.............................................................42
Section 4.02 Maintenance of Office or Agency..............................................42
Section 4.03 Money for the Note Payments to be Held in Trust..............................43
Section 4.04 Corporate Existence..........................................................43
Section 4.05 Maintenance of Property......................................................44
Section 4.06 Payment of Taxes and Other Claims............................................44
Section 4.07 SEC Reports..................................................................44
Section 4.08 Limitation on Indebtedness...................................................45
Section 4.09 Limitation on Restricted Payments............................................45
Section 4.10 Limitation on Restrictions on Distributions from Restricted Subsidiaries.....48
Section 4.11 Limitation on Sales of Assets and Subsidiary Stock...........................50
Section 4.12 Limitation on Affiliate Transactions.........................................53
Section 4.13 Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries...................................................54
<PAGE>
Section 4.14 Change of Control............................................................55
Section 4.15 Limitation on Liens..........................................................55
Section 4.16 Designation of Unrestricted Subsidiaries.....................................56
Section 4.17 Limitation on Layered Indebtedness...........................................57
Section 4.18 Compliance Certificate.......................................................57
Section 4.19 Waiver of Stay, Extension or Usury Laws......................................57
Section 4.20 Investment Company Act.......................................................58
Section 4.21 Further Instruments and Acts.................................................58
ARTICLE V. SUCCESSOR COMPANY........................................................................58
Section 5.01 Merger, Consolidation and Sale of Assets.....................................58
ARTICLE VI. DEFAULTS AND REMEDIES....................................................................60
Section 6.01 Events of Default............................................................60
Section 6.02 Acceleration.................................................................62
Section 6.03 Other Remedies...............................................................62
Section 6.04 Waiver of Past Defaults......................................................63
Section 6.05 Control by Majority..........................................................63
Section 6.06 Limitation on Suits..........................................................63
Section 6.07 Rights of Holders to Receive Payment.........................................64
Section 6.08 Collection Suit by Trustee...................................................64
Section 6.09 Trustee May File Proofs of Claim.............................................64
Section 6.10 Priorities...................................................................64
Section 6.11 Undertaking for Costs........................................................65
Section 6.12 Waiver of Stay or Extension Laws.............................................65
ARTICLE VII. TRUSTEE..................................................................................66
Section 7.01 Duties of Trustee............................................................66
Section 7.02 Rights of Trustee............................................................67
Section 7.03 Individual Rights of Trustee.................................................67
Section 7.04 Trustee's Disclaimer.........................................................68
Section 7.05 Notice of Defaults...........................................................68
Section 7.06 Reports by Trustee to Holders................................................68
Section 7.07 Compensation and Indemnity...................................................68
Section 7.08 Replacement of Trustee.......................................................69
Section 7.09 Successor Trustee by Merger..................................................70
Section 7.10 Eligibility; Disqualification................................................71
Section 7.11 Preferential Collection of Claims Against Company............................71
Section 7.12 Trustee's Application for Instructions from the Company......................71
Section 7.13 Company to Furnish Trustee Names and Addresses of Holders....................71
ARTICLE VIII. DISCHARGE OF INDENTURE; DEFEASANCE.......................................................72
Section 8.01 Discharge of Liability on Notes; Defeasance..................................72
Section 8.02 Conditions to Defeasance.....................................................73
Section 8.03 Application of Trust Money...................................................74
Section 8.04 Repayment to Company.........................................................75
Section 8.05 Indemnity for Government Obligations.........................................75
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<PAGE>
Section 8.06 Reinstatement................................................................75
ARTICLE IX. AMENDMENTS...............................................................................75
Section 9.01 Without Consent of Holders...................................................75
Section 9.02 With Consent of Holders......................................................76
Section 9.03 Compliance with Trust Indenture Act..........................................77
Section 9.04 Revocation and Effect of Consents and Waivers................................77
Section 9.05 Notation on or Exchange of Notes.............................................78
Section 9.06 Trustee To Sign Amendments...................................................78
Section 9.07 Payment for Consent..........................................................78
ARTICLE X. SUBORDINATION OF THE NOTES...............................................................78
Section 10.01 Agreement to Subordinate.....................................................78
Section 10.02 Liquidation, Dissolution, Bankruptcy.........................................79
Section 10.03 Default on Senior Indebtedness of the Company................................79
Section 10.04 Acceleration of Payment of Notes.............................................80
Section 10.05 When Distribution Must Be Paid Over..........................................80
Section 10.06 Subrogation..................................................................81
Section 10.07 Relative Rights..............................................................81
Section 10.08 Subordination May Not Be Impaired by Company.................................81
Section 10.09 Rights of Trustee and Paying Agent...........................................81
Section 10.10 Distribution or Notice to Representative.....................................82
Section 10.11 Article 10 Not to Prevent Events of Default or Limit Right to Accelerate.....82
Section 10.12 Trust Moneys Not Subordinated................................................82
Section 10.13 Trustee Entitled to Rely upon Any Payment or Distribution....................82
Section 10.14 Trustee To Effectuate Subordination..........................................83
Section 10.15 Trustee not Fiduciary for Holders of Senior Indebtedness.....................83
Section 10.16 Reliance by Holders of Senior Indebtedness on Subordination Provisions.......83
ARTICLE XI. NOTE GUARANTEES; RELEASE OF NOTE GUARANTEES; ADDITIONAL NOTE GUARANTEES.................83
Section 11.01 Note Guarantees..............................................................83
Section 11.02 Successors and Assigns.......................................................85
Section 11.03 No Waiver....................................................................86
Section 11.04 Modification.................................................................86
Section 11.05 Limitation of Note Guarantor's Liability.....................................86
Section 11.06 Release of Note Guarantees...................................................86
Section 11.07 Additional Note Guarantees...................................................87
ARTICLE XII. SUBORDINATION OF THE NOTE GUARANTEES.....................................................87
Section 12.01 Agreement to Subordinate.....................................................87
Section 12.02 Liquidation, Dissolution, Bankruptcy.........................................87
Section 12.03 Default on Senior Indebtedness of Note Guarantors............................88
Section 12.04 Demand for Payment...........................................................89
Section 12.05 When Distribution Must Be Paid Over..........................................89
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<PAGE>
Section 12.06 Subrogation..................................................................89
Section 12.07 Relative Rights..............................................................90
Section 12.08 Subordination May not Be Impaired by Note Guarantors.........................90
Section 12.09 Rights of Trustee and Paying Agent...........................................90
Section 12.10 Distribution or Notice to Representative.....................................91
Section 12.11 Article 12 not to Prevent Defaults Under the Note Guarantees or
Limit Right to Demand Payment.............................................91
Section 12.12 Trustee Entitled to Rely Upon Any Payment or Distribution....................91
Section 12.13 Trustee to Effectuate Subordination..........................................91
Section 12.14 Trustee not Fiduciary for Holders of Senior Indebtedness of Note Guarantors..92
Section 12.15 Reliance by Holders of Senior Indebtedness on Subordination Provisions.......92
ARTICLE XIII. MISCELLANEOUS............................................................................92
Section 13.01 Trust Indenture Act Controls.................................................92
Section 13.02 Notices......................................................................92
Section 13.03 Communication by Holders with Other Holders..................................93
Section 13.04 Certificate and Opinion as to Conditions Precedent...........................93
Section 13.05 Statements Required in Certificate or Opinion................................94
Section 13.06 When Notes Disregarded.......................................................94
Section 13.07 Rules by Trustee, Paying Agent and Registrar.................................94
Section 13.08 Legal Holidays...............................................................94
Section 13.09 Governing Law................................................................95
Section 13.10 No Recourse Against Others...................................................95
Section 13.11 Successors...................................................................95
Section 13.12 Multiple Originals...........................................................95
Section 13.13 Table of Contents; Headings..................................................96
Section 13.14 Severability.................................................................96
Section 13.15 Further Instruments and Acts.................................................96
FORM OF GLOBAL NOTE......................................................................................1
</TABLE>
iv
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ATL01/10615713v15
INDEX OF DEFINED TERMS
11.25% Senior Subordinated Notes Due 2005, 4
A
ACQUIRED INDEBTEDNESS, 1
ADDITIONAL GUARANTEE, 1, 87
ADDITIONAL GUARANTOR, 1
adequately capitalized, 5
AFFILIATE, 2
AFFILIATE TRANSACTION, 2, 53
AGENT MEMBERS, 2, 33, 10
ASSET SALE, 2
ASSET SALE OFFER, 3, 51
ASSET SALE OFFER
AMOUNT, 3, 51
B
BANKRUPTCY LAW, 3
beneficial ownership, 5, 6
beneficially owned, 6
BLOCKAGE NOTICE, 3, 80
BOARD OF DIRECTORS, 3
BOARD RESOLUTION, 4
BUSINESS ACQUISITION, 4
BUSINESS DAY, 4 BUSINESS DISPOSITION, 4
C
CAPITAL STOCK, 4
CAPITALIZED LEASE OBLIGATION, 4
CASH EQUIVALENTS, 5
CASH FLOW, 4
CERTIFICATED NOTES, 5
CHANGE OF CONTROL, 5
CHANGE OF CONTROL OFFER, 6, 55
CHANGE OF CONTROL PAYMENT DATE, 6, 55
CODE, 6
COMMISSION, 29
COMMODITY HEDGING AGREEMENTS, 6
Company, 1, 6, 5, 3
COMPANY ORDER, 6
CONSOLIDATED COVERAGE RATIO, 7
CONSOLIDATED EBITDA, 8
CONSOLIDATED FIXED CHARGES, 8
CONSOLIDATED INTEREST EXPENSE, 8
CONSOLIDATED NET INCOME, 9
CONSOLIDATED NON-CASH CHARGES, 9
CONSOLIDATED REVENUES, 9
control, 2
controlled by, 2
controlling, 2
CORPORATE NATIONAL TRUST OFFICE, 10
covenant defeasance option, 73
CUSIP, 38
CUSTODIAN, 10
D
DEFAULT, 10
DEFAULTED INTEREST, 10, 37, 5, 4
DEPOSITARY, 10
DESIGNATED SENIOR INDEBTEDNESS, 10
Designation, 56
Designation Amount, 56
DISQUALIFIED STOCK, 10
DOMESTIC RESTRICTED SUBSIDIARY, 11
E
EVENT OF DEFAULT, 11, 60
EXCESS PROCEEDS, 11, 51
EXCHANGE ACT, 11
EXTRAORDINARY EXPENSES, 11
F
FAIR MARKET VALUE, 11
FOREIGN INVESTMENT AGREEMENTS, 11
FOREIGN JOINT VENTURE, 12
FOREIGN SUBSIDIARY, 12
FOUR QUARTER PERIOD, 12
G
GAAP, 12
GLOBAL NOTE, 13
GUARANTEE, 13
Guarantee Obligations, 84
H
HOLDER, 13
I
INCUR, 13
INDEBTEDNESS, 13
INDENTURE, 14, 4, 3
INDENTURE SECURITIES, 29
INSOLVENCY OR LIQUIDATION PROCEEDING, 14
INTEREST PAYMENT DATE, 14
INTEREST RATE OR CURRENCY PROTECTION AGREEMENT, 15
INVESTMENT, 15
ISSUE DATE, 15
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<PAGE>
J
JOINT VENTURE, 15
K
KC, 15
L
legal defeasance option, 72
LEGAL HOLIDAY, 15, 94
LIEN, 16
M
MABESA OPTION, 16
Moody's, 5
N
NET AVAILABLE CASH, 16
NET CASH PROCEEDS, 16
NET COST SAVINGS, 16
NEW JOINT VENTURE, 17
NON-US PERSON, 17
NOTE CUSTODIAN, 17
NOTE GUARANTEE, 17
NOTE GUARANTOR, 17
Note Guarantors, 1, 4, 3
NOTE REGISTER, 17, 32
NOTEHOLDER, 13
NOTES, 17, 4, 3
NOTICE OF DEFAULT, 17, 61
O
OBLIGATIONS, 17
OBLIGOR, 29
OFFICER, 17
OFFICERS'CERTIFICATE, 17
OPINION OF COUNSEL, 18
Option of Holder to Elect Purchase, 55, 9, 8
P
P&G, 18
pay its Note Guarantee, 88
pay the Notes, 79
PAYING AGENT, 18, 32
PAYMENT BLOCKAGE PERIOD, 18, 79
PERMITTED HOLDERS, 18
PERMITTED INDEBTEDNESS, 18
PERMITTED INVESTMENT, 20
PERMITTED LIENS, 21
person, 5
PERSON, 23
PLAN, 23
POST-PETITION INTEREST, 23
PREFERRED STOCK, 23
PRINCIPAL, 23
PROPERTY, 23
PUBLIC EQUITY OFFERING, 23
PUBLIC MARKET, 23
Q
QUALIFIED CAPITAL STOCK, 24
R
RECORD DATE, 24
REDEMPTION DATE, 24
REDEMPTION PRICE, 24
REFINANCE, 24
REFINANCING INDEBTEDNESS, 24
REGISTRAR, 24, 32
RELATED BUSINESS, 25
REPRESENTATIVE, 25
RESTRICTED PAYMENT, 25
RESTRICTED SUBSIDIARY, 25
Revocation, 56
S
S&P, 5
SALE AND LEASEBACK TRANSACTION, 25
SEC, 25
SECONDARY SECURITIES, 25
Secondary Securities, 36, 5, 4
SECURITIES ACT, 26
SENIOR CREDIT FACILITIES, 26
SENIOR INDEBTEDNESS, 26
SENIOR SUBORDINATED INDEBTEDNESS, 27
SIGNIFICANT SUBSIDIARY, 27
SPECIAL RECORD DATE, 27
STATED MATURITY, 27
STOCK PURCHASE LOAN, 27
SUBORDINATED OBLIGATION, 27
SUBORDINATED REORGANIZATION SECURITIES, 27, 79
SUBSIDIARY, 27
Surviving Entity, 58
SURVIVING ENTITY, 27
T
TIA, 28
Transaction Date, 28
TRUST OFFICER, 28
Trustee, 1, 28, 4, 3
U
under common control with, 2
UNIFORM COMMERCIAL CODE, 28
UNITED STATES, 28
UNRESTRICTED SUBSIDIARY, 28, 56
US, 28
US GOVERNMENT OBLIGATIONS, 28
ii
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V
VOTING STOCK, 28
W
WEIGHTED AVERAGE LIFE TO MATURITY, 28
WHOLLY-OWNED RESTRICTED SUBSIDIARY, 28
iii
<PAGE>
This INDENTURE dated as of January 28, 2000, is made by and among
PARAGON TRADE BRANDS, INC., a Delaware corporation (the "Company"), PTB
INTERNATIONAL, INC., a Delaware corporation, PTB ACQUISITION SUB, INC., a
Delaware corporation and PTB HOLDINGS, INC., an Ohio corporation (the "Note
Guarantors") AND NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION (the "Trustee").
RECITALS
Pursuant to the Plan, the Company has duly authorized the creation and
issue of its 11.25% Senior Subordinated Notes Due 2005, and the Company has duly
authorized the execution and delivery of this Indenture.
Each of the Note Guarantors has duly authorized the execution and
delivery of this Indenture to provide a Guarantee of the Notes and of certain of
the obligations of the Company hereunder.
All things necessary to make the Notes, when executed by the Company
and authenticated and delivered by the Trustee hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid instrument of the Company and each of the Note Guarantors, in accordance
with their respective terms, have been done.
In consideration of the foregoing and the acceptance of the Notes by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows.
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
"ACQUIRED INDEBTEDNESS" means, with respect to any Person, (i) any
Indebtedness or Disqualified Stock of any other Person existing at the time such
Person is merged with or into or becomes a Restricted Subsidiary of such
specified Person, including, without limitation, Indebtedness Incurred in
connection with, or in contemplation of, such other Person merging with or into
or becoming a Restricted Subsidiary of such specified Person, and (ii)
indebtedness secured by a Lien encumbering any asset acquired by such specified
Person, and in either case for purposes of this Indenture shall be deemed to be
Incurred by such specified Person at the time such other Person is merged with
or into or becomes a Restricted Subsidiary of such specified Person or at the
time such asset is acquired by such specified Person, as the case may be.
"ADDITIONAL GUARANTEE" has the meaning assigned to it in Section 11.07.
"ADDITIONAL GUARANTOR" has the meaning assigned to it in Section 11.07.
<PAGE>
"AFFILIATE" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person and shall include, with respect to the
Company, all Foreign Joint Ventures. For the purposes of this definition,
"control" (including with correlative meaning, the terms "controlling,"
"controlled by" and "under common control with") when used with respect to any
Person, means (i) 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 or (ii) the beneficial ownership of 10% or
more of the total voting power of the Voting Stock (on a fully diluted basis) of
such Person.
"AFFILIATE TRANSACTION" has the meaning assigned to it in Section 4.12.
"AGENT MEMBERS" has the meaning assigned to it in Section 2.05(a).
"ASSET SALE" means any direct or indirect sale, issuance, conveyance,
transfer, assignment or other transfer for value by the Company or any of its
Restricted Subsidiaries (including any Sale and Leaseback Transaction) to any
Person other than the Company or a Restricted Subsidiary (including a Person
that is or will become a Restricted Subsidiary immediately after such sale,
issuance, conveyance, transfer, assignment or other transfer for value) of:
(i) any Capital Stock of any Restricted Subsidiary; or,
(ii) any other property or assets (whether tangible or intangible) of
the Company or any Restricted Subsidiary other than in the ordinary
course of business; or
(iii) any deemed Asset Sale specified in Section 4.11(c);
PROVIDED, HOWEVER, that Asset Sale shall not include:
(a) any disposition of Cash Equivalents, receivables or inventory in
the ordinary course of business consistent with past practices of the
Company or any of its Restricted Subsidiaries or the lease or sublease
of any real or personal property in the ordinary course of business,
(b) exchanges of properties or assets for other properties or assets
(other than cash, Cash Equivalents, notes, Capital Stock or other
equity interests); PROVIDED, that the property or assets so acquired
(1) are used in a Related Business and (2) have a Fair Market Value at
least equal to the Fair Market Value of the assets or properties being
exchanged (as evidenced by a resolution of the Company's Board of
Directors);
(c) exchanges of properties or assets for the Capital Stock of a
Person; PROVIDED, that the property or assets of the Person the Capital
Stock of which is so acquired (1) are used in a Related Business and
(2) have a Fair Market Value at least equal to the Fair Market Value of
the assets or properties being exchanged
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(as evidenced by a resolution of the Company's Board of Directors) and
(3) the Investment in such Capital Stock is permitted by Section 4.09;
(d) for purposes of Section 4.11 only, a disposition which complies
with Section 4.09;
(e) dispositions of Capital Stock or other assets (whether in a
single transaction or a series of related transactions) for which the
consideration received is $500,000 or less;
(f) dispositions of Capital Stock or other assets the aggregate value
of which does not exceed $10,000,000 less the aggregate value of all
other dispositions of Capital Stock or other assets made subsequent to
the Issue Date pursuant to this clause (f);
(g) the sale, conveyance, disposition or other transfer of all or
substantially all of the assets of the Company and its Restricted
Subsidiaries as permitted under Section 5.01;
(h) any sale of Capital Stock in, or Indebtedness or other securities
of an Unrestricted Subsidiary; and
(i) any sale of the Company's or a Restricted Subsidiary's equity in
a Foreign Joint Venture or a New Joint Venture concurrently with the
acquisition of such equity interest under the terms of any of the
Foreign Investment Agreements or otherwise.
"ASSET SALE OFFER" has the meaning assigned to it in Section 4.11.
"ASSET SALE OFFER AMOUNT" has the meaning assigned to it in Section
4.11.
"BANKRUPTCY LAW" means Title 11, United States Code, or any other
applicable federal, state, or foreign bankruptcy, insolvency or similar law as
now or hereafter constituted.
"BLOCKAGE NOTICE" has the meaning assigned to it in Section 10.03.
"BOARD OF DIRECTORS" means, as the context requires, the Board of
Directors of the Company or the applicable Restricted Subsidiary, as the case
may be, or any committee thereof duly authorized to act on behalf of such Board.
"BOARD RESOLUTION" means a duly adopted resolution of the Board of
Directors in full force and effect at the time of determination and certified as
such by the Secretary or Assistant Secretary of the Company or a Restricted
Subsidiary, as the case may be.
"BUSINESS ACQUISITION" means (i) an Investment by the Company or any of
its Restricted Subsidiaries in any other Person pursuant to which such Person
shall become a
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Restricted Subsidiary or shall be merged into or consolidated with the Company
or any of its Restricted Subsidiaries or (ii) an acquisition by the Company or
any of its Restricted Subsidiaries of the property and assets of any Person
other than the Company or any of its Restricted Subsidiaries that constitute
substantially all of the assets of such Person or of any division, brand,
business unit or line of business of such Person.
"BUSINESS DAY" means any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the States of Georgia or New York or
is a day on which banking institutions located in those States are authorized or
required by law or other governmental action to close.
"BUSINESS DISPOSITION" means any sale, transfer or other disposition
(including by way of merger or consolidation) in one transaction or a series of
related transactions by the Company or any of its Restricted Subsidiaries to any
Person other than the Company or any of its Restricted Subsidiaries of (i) all
or substantially all of the Capital Stock of any Restricted Subsidiary or (ii)
all or substantially all of the assets of any Restricted Subsidiary or of any
division, brand, business unit or line of business of the Company or any
Restricted Subsidiary.
"CAPITALIZED LEASE OBLIGATION" means, as to any Person, the obligations
of such Person under a lease that are required to be capitalized and accounted
for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP;
PROVIDED, the term "Capitalized Lease Obligation" shall include Property subject
to a Sale and Leaseback Transaction only if such Sale and Leaseback Transaction
occurs within 90 days of the acquisition of the such Property.
"CAPITAL STOCK" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) the equity of such Person, including any
Preferred Stock, but excluding any debt securities convertible into such equity.
"CASH FLOW" means for any period the Company's Consolidated EBITDA for
such period, LESS any Capital Expenditures of the Company and its Restricted
Subsidiaries for such period.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally Guaranteed by the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States or any
political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time
of acquisition, having the highest rating obtainable from either Standard &
Poor's Rating Group ("S&P") or Moody's Investors Service, Inc. ("Moody's");
(iii) commercial paper maturing no more than one year from the date of
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creation thereof and, at the time of acquisition, having the highest rating
obtainable from either S&P or Moody's; and (iv) certificates of deposit or
bankers' acceptances maturing within one year from the date of acquisition
thereof issued by any commercial bank organized under the laws of the United
States or any state thereof or the District of Columbia that (a) is at least
"adequately capitalized" (as defined in the regulations of its primary Federal
banking regulator) and (b) has Tier 1 capital (as defined in such regulations)
of not less than $100,000,000; (v) shares of any money market mutual fund that
(a) has its assets invested continuously in the types of investments referred to
in clauses (i) and (ii) above, (b) has net assets of not less than $500,000,000,
and (c) has the highest rating obtainable from either S&P or Moody's; and (vi)
repurchase agreements with respect to, and which are fully secured by a
perfected security interest in, obligations of a type described in clause (i) or
clause (ii) above and are with any commercial bank described in clause (iv)
above.
"CERTIFICATED NOTES" has the meaning assigned to it in Section 2.01.
"CHANGE OF CONTROL" means the occurrence of one or more of the
following events:
(i) (A) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act), other than one or more Permitted
Holders, is or becomes the beneficial owner (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that for purposes of this
clause (i) such person shall be deemed to have "beneficial ownership"
of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 50.0% of the total voting
power of the Voting Stock of the Company;
(ii) the Company consolidates with, or merges with or into,
another Person (other than the Company or a Wholly Owned Restricted
Subsidiary) or the Company or any of its Restricted Subsidiaries sells,
conveys, assigns, transfers, leases or otherwise disposes of all or
substantially all of the assets of the Company and its Restricted
Subsidiaries (determined on a consolidated basis for the Company and
its Restricted Subsidiaries) to any Person (other than the Company or
any Wholly Owned Restricted Subsidiary), other than any such
transaction where immediately after such transaction the Person or
Persons that "beneficially owned" (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) immediately prior to such transaction, directly or
indirectly, a majority of the total voting power of the then
outstanding Voting Stock of the Company, taken as a whole,
"beneficially owns" (as so determined), directly or indirectly, a
majority of the total voting power of the then outstanding Voting Stock
of the surviving or transferee Person.
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(iii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
(together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the
Company was approved by a vote of 66 2/3% of the directors of the
Company 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 then in office; or
(iv) the Company is liquidated or dissolves or adopts a plan
of liquidation or dissolution other than in connection with a
transaction which complies with the provisions described under Article
V.
"CHANGE OF CONTROL OFFER" has the meaning assigned to it in Section
4.14.
"CHANGE OF CONTROL PAYMENT DATE" has the meaning assigned to it in
Section 4.14.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMODITY HEDGING AGREEMENTS" means agreements which protect against
losses by the Company as a result of upward or downward movements in the market
price of commodities, entered into in the ordinary course of business and not
for speculative purposes.
"COMPANY" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
"COMPANY ORDER" means a written order signed in the name of the Company
by (i) the Chairman of the Board, Chief Executive Officer, President, Chief
Operating Officer, Chief Financial Officer or any Vice President of the Company
and (ii) the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"CONSOLIDATED COVERAGE RATIO" means, as of any date of determination,
the ratio of the aggregate amount of Consolidated EBITDA for the Four Quarter
Period to Consolidated Fixed Charges for such Four Quarter Period. In addition
to and without limitation of the foregoing, for purposes of this definition,
"Consolidated EBITDA" and "Consolidated Fixed Charges" shall be calculated after
giving effect on a PRO FORMA basis for the period of such calculation to
(i) the Incurrence or repayment of any Indebtedness of the Company or
any of its Restricted Subsidiaries (and the application of the proceeds
thereof), including the Incurrence of any Indebtedness (and the
application of the proceeds thereof) giving rise to the need to make
such determination, occurring during or after such Four Quarter Period
and on or prior to such date of determination, as if such
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Incurrence or repayment, as the case may be (and the application of
the proceeds thereof), occurred on the first day of such Four Quarter
Period; PROVIDED, HOWEVER, that for purposes of this clause (i), the
amount of Indebtedness under any revolving credit facility of the
Senior Credit Facilities shall be deemed to be the average daily amount
outstanding during such Four Quarter Period; and
(ii) any Business Dispositions or Business Acquisitions (including any
Business Acquisition giving rise to the need to make such determination
as a result of the Company or one of its Restricted Subsidiaries
(including any Person who becomes a Restricted Subsidiary as a result
of the Business Acquisition) Incurring Acquired Indebtedness) occurring
during the Four Quarter Period or at any time subsequent to the last
day of the Four Quarter Period and on or prior to such date of
determination, as if such Business Disposition or Business Acquisition
(including the Incurrence of any Acquired Indebtedness in connection
with a Business Acquisition) occurred on the first day of the Four
Quarter Period. In giving PRO FORMA effect to any Business Acquisitions
and Business Dispositions, the following shall be given PRO FORMA
effect:
* any Net Cost Savings of such Business Acquisition; and
* any Consolidated EBITDA (provided that such PRO FORMA
Consolidated EBITDA shall be calculated in a manner
consistent with the exclusions in the definition of
"Consolidated Net Income" but without giving effect to
clause (c) of the definition of Consolidated Net Income)
attributable to the assets which are the subject of the
Business Disposition or Business Acquisition during the
Four Quarter Period
If the Company or any of its Restricted Subsidiaries directly or indirectly
Guarantees Indebtedness of a third Person, the preceding clauses (i) and (ii)
shall give effect to the Incurrence of such Guaranteed Indebtedness as if the
Company or such Restricted Subsidiary, as the case may be, had directly Incurred
or otherwise assumed such Guaranteed Indebtedness. Furthermore, in calculating
"Consolidated Fixed Charges" for purposes of determining the denominator (but
not the numerator) of this "Consolidated Coverage Ratio," (i) interest on
outstanding Indebtedness determined on a fluctuating basis as of the Transaction
Date and which will continue to be so determined thereafter shall be deemed to
have accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; (ii) if interest on any
Indebtedness actually Incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the
Four Quarter Period; and (iii) notwithstanding clause (i) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Rate or Currency Protection
Agreements shall be deemed to accrue at the rate per annum resulting after
giving effect to the operation of such agreements.
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<PAGE>
"CONSOLIDATED EBITDA" means, with respect to the Company, for any
period, (a) the sum (without duplication) of (i) Consolidated Net Income and
(ii) to the extent Consolidated Net Income has been reduced thereby, (A) all
income taxes of the Company and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses or taxes attributable to
sales or dispositions outside the ordinary course of business); (B) Consolidated
Interest Expense; (C) Consolidated Non-Cash Charges; and (D) Extraordinary
Expenses less (b) any non-cash items increasing Consolidated Net Income for such
period, all as determined on a consolidated basis for the Company and its
Restricted Subsidiaries in accordance with GAAP.
"CONSOLIDATED FIXED CHARGES" means, with respect to the Company for any
period, the sum, without duplication, of (a) Consolidated Interest Expense
(including any premium or penalty paid in connection with redeeming or retiring
Indebtedness of the Company and its Restricted Subsidiaries prior to the stated
maturity thereof pursuant to the agreements governing such Indebtedness), plus
(b) the product of (i) the amount of all dividend payments on any series of
Preferred Stock of the Company (other than dividends paid in Capital Stock that
is not Disqualified Stock) paid, accrued or scheduled to be paid or accrued
during such period times and (ii) a fraction, the numerator of which is one and
the denominator of which is one minus the then-current effective consolidated
federal, state and local income tax rate of the Company, expressed as a decimal.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the sum of,
without duplication: (i) the aggregate of all cash and non-cash interest expense
(minus amortization or write-off of deferred financing costs included in cash or
non-cash interest expense) of the Company and its Restricted Subsidiaries for
such period determined on a consolidated basis in accordance with GAAP,
including, without limitation, (a) any amortization of debt discount, (b) the
net costs under Interest Rate or Currency Protection Agreements, (c) all
capitalized interest and (d) the interest portion of any deferred payment
obligation; and (ii) the interest component of Capitalized Lease Obligations
paid, accrued and/or scheduled to be paid or accrued by the Company and its
Restricted Subsidiaries during such period as determined on a consolidated basis
in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the aggregate net
income (or loss) of the Company and its Restricted Subsidiaries for such period
on a consolidated basis, determined in accordance with GAAP; PROVIDED, that
principal payments received by the Company with respect to Indebtedness owed to
the Company by Affiliates thereof shall be included in Consolidated Net Income
only if (i) such Indebtedness remains an asset on the consolidated balance sheet
of the Company in accordance with GAAP as consistently applied and (ii) the
principal amount of such Indebtedness outstanding after such principal payment
is greater than twice the aggregate amount of all principal payments received by
the Company with respect to such Indebtedness in the 12 preceding calendar
months; PROVIDED, FURTHER, that there shall be excluded from Consolidated Net
Income (a) after-tax gains and losses from Asset Sales or abandonment or
reserves relating thereto, (b) items classified as extraordinary,
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<PAGE>
nonrecurring or unusual gains, losses or charges, and the related tax effects,
each determined in accordance with GAAP, (c) the net income of any Person
acquired in a "pooling of interests" transaction accrued prior to the date it
becomes a Restricted Subsidiary of the Company or is merged or consolidated with
the Company or any Restricted Subsidiary of the Company, (d) the net income (but
not loss) of any Restricted Subsidiary of the Company to the extent that the
declaration of dividends or similar distributions by that Restricted Subsidiary
of that income is restricted by a contract, operation of law or otherwise, (e)
the net income of any Person, other than a Restricted Subsidiary of the Company,
except (without duplication) to the extent of cash dividends or distributions
paid to the Company or to a Wholly-Owned Restricted Subsidiary of the Company by
such Person, (f) any restoration to income of any contingency reserve, except to
the extent that provision for such reserve was made out of Consolidated Net
Income accrued at any time after the Issue Date, (g) income or loss attributable
to discontinued operations (including, without limitation, operations disposed
of during such period whether or not such operations were classified as
discontinued), and (h) in the case of a successor to the Company by
consolidation or merger or as a transferee of the Company's assets, any earnings
of the successor corporation prior to such consolidation, merger or transfer of
assets.
"CONSOLIDATED NON-CASH CHARGES" means with respect to the Company, for
any period, the aggregate depreciation, amortization and other non-cash expenses
of the Company and its Restricted Subsidiaries reducing Consolidated Net Income
of the Company for such period, determined on a consolidated basis in accordance
with GAAP (including any such charges constituting an extraordinary item or loss
or any such charge which requires an accrual of or a reserve for cash charges
for any future period).
"CONSOLIDATED REVENUES" means for any period the consolidated revenues
of the Company and its Restricted Subsidiaries, as determined in accordance with
GAAP.
"CORPORATE NATIONAL TRUST OFFICE" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
principally administered, which office is, at the date of execution of this
Indenture, Sixth and Marquette, N9303-120, Minneapolis, Minnesota 55479.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning set forth in Section 2.11 hereof.
"DEPOSITARY" means The Depository Trust Company, its nominees, and
their respective successors.
"DESIGNATED SENIOR INDEBTEDNESS" means, in respect of the Company,
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(i) the Obligations in respect of the Senior Credit Facilities and
(ii) any other Senior Indebtedness of the Company which, in each case,
at the date of determination, has an aggregate principal amount
outstanding of, or under which, at the date of determination, the
holders of such Senior Indebtedness are committed to lend up to, at
least $50,000,000 and is specifically designated by the Company or in
such Indebtedness as "Designated Senior Indebtedness" and,
in respect of any Note Guarantor, any Guarantee by such Note Guarantor of
Designated Senior Indebtedness of the Company.
"DISQUALIFIED STOCK" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or upon the happening of any event
(i) matures or is mandatorily redeemable pursuant to a sinking fund obligation
or otherwise, (ii) is convertible or exchangeable for Indebtedness or
Disqualified Stock or (iii) is redeemable at the option of the holder thereof,
in whole or in part, in each case on or prior to the first anniversary of the
Stated Maturity of the Notes; PROVIDED, however, that any Capital Stock that
would not constitute Disqualified Stock but for provisions thereof giving
holders thereof the right to require such Person to repurchase or redeem such
Capital Stock upon the occurrence of a Business Disposition or Change of Control
occurring prior to the first anniversary of the Stated Maturity of the Notes
shall not constitute Disqualified Stock if the "business disposition" or "change
of control" provisions applicable to such Capital Stock are not more favorable
to the holders of such Capital Stock than the provisions described under Section
4.11 and Section 4.14.
"DOMESTIC RESTRICTED SUBSIDIARY" means any direct or indirect
Restricted Subsidiary of the Company that is organized under the laws of the
United States, any state thereof or the District of Columbia.
"EVENT OF DEFAULT" has the meaning assigned to it in Section 6.01.
"EXCESS PROCEEDS" has the meaning assigned to it in Section 4.11.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXTRAORDINARY EXPENSES" shall have the meaning assigned to such term
by GAAP.
"FAIR MARKET VALUE" means, with respect to any asset, the price (after
taking into account any liabilities relating to such assets) which could be
negotiated in an arm's-length free market transaction, for cash, between a
willing seller and a willing and able buyer, neither of which is under any
compulsion to complete the transaction. The Fair Market Value of any such asset
or assets shall be determined conclusively by the Board of Directors of the
Company acting in good faith, and shall be evidenced by a Board Resolution.
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"FOREIGN INVESTMENT AGREEMENTS" means (i) that certain Pledge Agreement
dated as of January 26, 1996 by and among PTB International, Inc., International
Disposable Products Investments, Ltd. and Danielson Trust Company; (ii) that
certain Investment Agreement dated January 26, 1996 by and among Mr. Gilberto
Marin Quintero, Grupo P.I. Mabe, S.A. de C.V., the Company. and PTB
International, Inc.; (iii) that certain Put and Call Option Agreement for Grupo
Mabe Shares dated as of January 26, 1996 between Mr. Gilberto Marin Quintero,
the Company, PTB International, Inc. and Grupo P.I. Mabe, S.A. de C.V.; (iv)
that certain Joint Venture Agreement dated January 26, 1996 by and between Mr.
Gilberto Marin Quintero, the Company, PTB International, Inc. and Paragon-Mabesa
International, S.A. de C.V.; (v) that certain Shareholder Agreement dated August
26, 1997 by and between PTB International, Inc. and Euro American 2000 Trust;
(vi) that certain Shareholders Agreement of Serenity S.A. dated August 26, 1997
by and among Stronger Corporation S.A., Cerro Moteado S.A., PTB International,
Inc., Euro American 2000 Trust, Mr. Mario Walter Garcia and Mr. Juan Carlos
Marshall; (vii) that certain Irrevocable Call Option Agreement dated as of
November 6, 1996 by and between International Disposable Products Investments,
Ltd. (now, Hortela Investiments, S.A. by reason of merger), PTB International,
Inc., Juliette Research S.A. and the Company; (viii) that certain Facility
Financing Side Letter dated January 26, 1996 by and among Mr. Gilberto Marin
Quintero, PTB International, Inc. and the Company; (ix) Articles of Association
of Goodbaby paragon Hygienic Products Co. Ltd.; (x) that certain Joint Venture
Contract dated September 30, 1997 among Goodbaby Group Co., the Company and
First Shanghai Investments Ltd.; (xi) that certain Technology License Agreement
dated January 26, 1996 by and between Grupo P.I. Mabe, S.A. de C.V. and the
Company; (xii) that certain Technology License Agreement dated January 26, 1996
by and between Paragon-Mabesa International, S.A. de C.V. and the Company;
(xiii) that certain Transfer of Technology and Licensing Contract dated on or
about September 30, 1997 by and between the Company and Goodbaby Paragon
Hygienic Products Co. Ltd.; (xiv) that certain Product Supply and Services
Agreement dated January 26, 1996 by and between Paragon-Mabesa International,
S.A. de C.V. and the Company, as amended by First Amendment to Product Supply
and Services Agreement dated March 14, 1997; (xv) those certain Purchase Loan
and Security Agreements by and between Paragon-Mabesa International, S.A. de
C.V. and the Company; (xvi) that certain Agreement as to Contingent Labor
Liability regarding the facility in Tijuana; and (xvii) any other document,
instrument or agreement relating to any of the foregoing, in each case, as the
same may be amended, restated, replaced, supplemented or otherwise modified from
time to time.
"FOREIGN JOINT VENTURE" means Grupo P.I. Mabe S.A. de C.V., a Mexican
corporation, Paragon-Mabesa International, S.A. de C.V., a Mexican corporation,
Stronger Corporation S.A., a Uruguayan corporation, MPC Produtos para Higiene,
Ltda., a Brazilian company, Goodbaby Paragon Hygienic Products Co. Ltd., a
company formed under the laws of the People's Republic of China and Serenity
S.A., an Argentine corporation.
"FOREIGN SUBSIDIARY" means, with respect to any Person, any direct or
indirect Subsidiary of such Person that is organized under the laws of any
jurisdiction outside the
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United States, any state thereof or the District of Columbia but shall not
include any Foreign Joint Venture or New Joint Venture.
"FOUR QUARTER PERIOD" means, with respect to the determination of
Consolidated Coverage Ratio and Consolidated Revenues, (a) for all periods prior
to the time financial statements of the Company and its Restricted Subsidiaries
are available for four full fiscal quarters after the Issue Date, the period
from the Issue Date to the end of the latest fiscal quarter for which financial
statements are available ending prior to the Transaction Date and (b) for all
other periods, the four most recent full fiscal quarters for which financial
statements are available ending prior to the Transaction Date; PROVIDED, that
for the purposes of this definition of "Four Quarter Period", the period from
the Issue Date through March 26, 2000 shall be treated as if such period were a
full fiscal quarter.
"GAAP" means generally accepted accounting principles in the United
States as in effect as of the Issue Date, including those set forth (i) in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants, (ii) in statements and pronouncements
of the Financial Accounting Standards Board, (iii) in such other statements by
such other entity as approved by a significant segment of the accounting
profession, and (iv) in the published rules and regulations of the Commission
governing the inclusion of financial statements (including PRO FORMA financial
statements) in periodic reports required to be filed pursuant to Section 13 of
the Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the
Commission.
"GLOBAL NOTE" has the meaning assigned to it in Section 2.01.
"GUARANTEE" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any Person and any obligation, direct or indirect, contingent or otherwise,
of such Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation of such Person
(whether arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services, to take-or-pay or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Indebtedness
or other obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part); PROVIDED, HOWEVER, that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"HOLDER" or "NOTEHOLDER" means the Person in whose name a Note is
registered on the Registrar's books.
"INCUR" means issue, assume, Guarantee, incur or otherwise become
liable for; PROVIDED, HOWEVER, that any Indebtedness or Disqualified Capital
Stock of a Person existing at the time such Person becomes a Restricted
Subsidiary (whether by
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merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred
by such Subsidiary at the time it becomes a Restricted Subsidiary, and PROVIDED
FURTHER, HOWEVER, the term "incur" may be modified by Section 1.02 hereof. The
term "Incurrence" when used as a noun shall have a correlative meaning.
"INDEBTEDNESS" means, with respect to any Person, without duplication,
on any date of determination, the principal amount (or if less, the accreted
value) of all indebtedness, obligations and liabilities of such Person
(i) for borrowed money;
(ii) evidenced by bonds, debentures, notes or other similar
instruments;
(iii) Capitalized Lease Obligations;
(iv) notes payable and drafts accepted representing extensions
of credit, whether or not representing obligations for borrowed money,
of such Person;
(v) any indebtedness, obligation or liability of such Person
owed for all or any part of the deferred purchase price of property or
services (excluding any such obligations Incurred under ERISA), which
purchase price is (a) due more than six months (or a longer period of
up to one year, if such terms are available from suppliers in the
ordinary course of business) from the date of Incurrence of the
obligation in respect thereof or (b) evidenced by a note or similar
written instrument;
(vi) Guarantees of such Person in respect of Indebtedness
referred to in clauses (i) through (v) above and clause (vii) below;
(vii) all indebtedness of any other Person of the type
referred to in clauses (i) through (vi) above which is secured by any
Lien on any property or asset of such Person regardless of whether the
indebtedness secured thereby shall have been assumed by such Person or
is nonrecourse to the credit of such Person, the amount of such
indebtedness being the lesser of the Fair Market Value of such property
or asset or the principal amount of the indebtedness so secured;
(viii) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transaction, and
(ix) all Disqualified Stock issued by such Person with the
amount of Indebtedness represented by such Disqualified Stock being
equal to the greater of its voluntary or involuntary liquidation
preference and its maximum fixed repurchase price, but excluding
accrued dividends, if any. For purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of
such Disqualified Stock as if such Disqualified Stock were purchased on
any date on which Indebtedness shall be required to be determined
pursuant to this
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Indenture, and if such price is based upon, or measured by, the Fair
Market Value of such Disqualified Stock, such Fair Market Value to be
determined reasonably and in good faith by the board of directors of
the issuer of such Disqualified Stock.
"INDENTURE" means this Indenture as amended or supplemented from time
to time.
"INSOLVENCY OR LIQUIDATION PROCEEDING" means (i) 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 its assets, or (ii) any liquidation, dissolution or other winding up
of the Company, whether voluntary or involuntary or whether or not involving
insolvency or bankruptcy, or (iii) any assignment for the benefit of creditors
or any other marshaling of assets or liabilities of the Company.
"INTEREST PAYMENT DATE" means each semiannual Interest Payment Date on
August 1 and February 1 of each year, commencing August 1, 2000, in respect of
the Notes. The "First Interest Payment Date" shall mean August 1, 2000. The
"Second Interest Payment Date" shall mean February 1, 2001. The "Third Interest
Payment Date" shall mean August 1, 2001. The "Fourth Interest Payment Date"
shall mean February 1, 2002.
"INTEREST RATE OR CURRENCY PROTECTION AGREEMENT" of any Person means
any interest rate protection agreement (including, without limitation, interest
rate swaps, caps, floors, collars, derivative instruments and similar
agreements), and/or other types of interest hedging agreements and any currency
protection agreement (including foreign exchange contracts, currency swap
agreements or other currency hedging arrangements) in support of the Company's
business and not of a speculative nature.
"INVESTMENT" in any Person means any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are,
in conformity with GAAP, recorded as accounts receivable on the balance sheet of
such Person) or other extensions of credit (including by way of Guarantee or
similar arrangement) 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 or acquisition of Capital Stock,
indebtedness or other similar instruments issued by such Person. For purposes of
the definition of "Unrestricted Subsidiary," the definition of "Restricted
Payment" and the covenant described in Section 4.09, (i) "Investment" shall
include the portion (proportionate to the Company's equity interest in such
Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of the
Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary; PROVIDED, HOWEVER, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary equal to an amount (if
positive) equal to (x) the Company's "Investment" in such Unrestricted
Subsidiary at the time of such redesignation as a Restricted Subsidiary less
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(y) the portion (proportionate to the Company's equity interest in such
Unrestricted Subsidiary) of the Fair Market Value of the net assets of such
Unrestricted Subsidiary at the time of such redesignation as a Restricted
Subsidiary; and (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair Market Value at the time of such
transfer, in each case as determined in good faith by the Board of Directors.
"ISSUE DATE" means the date on which the Notes are originally issued.
"JOINT VENTURE" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form, and with
respect to which the Company and its Restricted Subsidiaries own less than a
majority of the aggregate voting power of all classes of the Capital Stock.
"KC" means Kimberly-Clark Corporation.
"LEGAL HOLIDAY" has the meaning assigned to it in Section 13.08.
"LIEN" means any mortgage, pledge, assignment, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement, any lease in the nature thereof and any agreement to
give any security interest) and any option, trust or other preferential
arrangement having the practical effect of any of the foregoing.
"MABESA OPTION" means that certain Irrevocable Call Option Agreement
dated as of November 6, 1996 by and between International Disposable Products
Investments, ltd. (now Hortela Investimentos, S.A. by reason of merger), PTB
International, Inc., Juliette Research S.A. and the Company.
"NET AVAILABLE CASH" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents, including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents received by the Company or any of its Restricted Subsidiaries from
such Asset Sale, net of (a) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions), (b) taxes paid or payable after
taking into account any reduction in consolidated tax liability due to available
tax credits or deductions and any tax sharing arrangements, (c) repayment of
Indebtedness that is required to be repaid in connection with such Asset Sale,
(d) appropriate amounts to be provided by the Company or any Restricted
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against
any liabilities associated with such Asset Sale and retained by the Company or
any Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale.
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"NET CASH PROCEEDS" with respect to any issuance or sale of Capital
Stock, means, without duplication, the proceeds of such issuance or sale in the
form of cash or Cash Equivalents net of amounts specified in Section
4.09(a)(3)(B), attorneys' fees, accountants' fees, underwriters' or placement
agents' fees, discounts or commissions and brokerage, consultant and other fees
actually Incurred in connection with such issuance or sale and net of taxes paid
or payable as a result thereof; PROVIDED, HOWEVER, in no event shall Net Cash
Proceeds be less than zero.
"NET COST SAVINGS" means the PRO FORMA effect of net cost savings
resulting from a Business Acquisition (regardless of whether such cost savings
could then be reflected in PRO FORMA financial statements under GAAP, Regulation
S-X promulgated by the SEC or any other regulation or policy or the SEC) that
the Company reasonably determines are probable based upon specifically
identified actions that it has determined to take (net of any reduction in
Consolidated EBITDA as a result of the Business Acquisition and such cost
savings that the Company reasonably determines is probable); PROVIDED, that the
Company's chief financial officer shall have certified in an Officer's
Certificate delivered to the Trustee the specific actions to be taken, the cost
savings to be achieved from each such action, that such savings have reasonably
been determined to be probable, and the amount, if any, of any reduction in
Consolidated EBITDA as a result thereof or of the Business Acquisition
reasonably determined to be probable, and such certificate shall be accompanied
by a Board Resolution specifically approving such cost savings and authorizing
such certification to be delivered to the Trustee.
"NEW JOINT VENTURE" means a Joint Venture in which the Company or a
Restricted Subsidiary invests after the Issue Date.
"NON-US PERSON" means any Person who is not a "US Person," as defined
in Rule 902 under the Securities Act.
"NOTE CUSTODIAN" means, with respect to each Global Note, the custodian
with respect to such Global Note, the custodian with respect to such Global Note
(as appointed by the Depositary), or any successor Person thereto, and shall
initially be the Trustee.
"NOTE GUARANTEE" means the Guarantee of the Notes by each Note
Guarantor under Article XI hereof.
"NOTE GUARANTOR" means PTB International, Inc., a Delaware corporation,
PTB Acquisition Sub, Inc., a Delaware corporation, and PTB Holdings, Inc., an
Ohio corporation and each Additional Guarantor.
"NOTE REGISTER" has the meaning assigned to it in Section 2.03.
"NOTES" means the 11.25% Senior Subordinated Notes Due 2005, including
any Secondary Securities issued as interest thereon, in each case, issued under
this Indenture, as the same may be amended or modified from time to time in
accordance with the terms hereof.
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"NOTICE OF DEFAULT" has the meaning assigned to it in Section 6.01.
"OBLIGATIONS" means, with respect to any Indebtedness, any principal,
interest (including, without limitation, Post-Petition Interest), penalties,
fees, indemnifications, reimbursements, including damages, and other liabilities
payable under the documentation governing such Indebtedness.
"OFFICER" means the Chairman of the Board, the President, Chief
Financial Officer, the Treasurer or the Secretary of the Company or any
Restricted Subsidiary, as the case may be.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company.
"P&G" means The Procter & Gamble Company.
"PAYING AGENT" has the meaning assigned to it in Section 2.03.
"PAYMENT BLOCKAGE PERIOD" has the meaning assigned to it in Section
10.03.
"PERMITTED HOLDERS" means (i) P&G; (ii) KC; (iii) Wellspring Capital
Management L.L.C.; (iv) Co-Investment Partners, L.P.; (v) Ontario Teachers
Pension Plan Board; (vi) partnerships, corporations or limited liability
companies which control or are controlled by the Persons described in clauses
(i) through (v) above; and (vii) any direct and indirect general partner, member
or shareholder (the "Transferee") of any of the Persons described in clauses (i)
through (vi) above (the "Transferor"), but each such Transferee shall be a
Permitted Holder only with respect to the Capital Stock of the Company held by
such Transferee that was transferred to it by a Transferor.
"PERMITTED INDEBTEDNESS" means, without duplication, each of the
following:
(i) Indebtedness in respect of the Notes outstanding hereunder from
time to time and the Note Guarantees in respect thereof;
(ii) Guarantees by any Note Guarantor of Indebtedness of the Company
(permitted under Section 4.08 hereof) other than the Notes; PROVIDED, HOWEVER,
that if any such Guarantee is of Subordinated Obligations, then the Note
Guarantee of such Note Guarantor shall be senior to such Note Guarantor's
guarantee of such Subordinated Obligations;
(iii) Indebtedness Incurred pursuant to the Senior Credit Facilities
in an aggregate principal amount outstanding (at the time of Incurrence)
not to exceed the greater of (A) $75 million (less the amount of any permanent
prepayments of Indebtedness made with the Net Available Cash of an Asset Sale
pursuant to subsection
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(a)(2)(A) of Section 4.11) and (B) 25% of Consolidated Revenues for the most
recent Four Quarter Period;
(iv) other Indebtedness of the Company and its Restricted Subsidiaries
outstanding on the Issue Date, reduced by the amount of any scheduled
amortization payments or mandatory prepayments when actually paid or permanent
reductions thereto;
(v) Interest Rate or Currency Protection Agreements or Commodity
Hedging Agreements entered into in the ordinary course of business or in
connection with the Senior Credit Facilities and not for speculative purposes;
PROVIDED, (i) the notional principal amount of such Interest Rate or Currency
Protection Agreements or Commodity Hedging Agreements does not exceed the amount
of Indebtedness hedged and (ii) such Interest Rate or Currency Protection
Agreements or Commodity Hedging Agreements do not increase the amount of
Indebtedness outstanding except as a result of fluctuations of the currency or
interest or commodity markets;
(vi) Indebtedness of any Restricted Subsidiary which was not Incurred
in violation of Section 4.09 AND which is owed to and held by the Company or
any Note Guarantor for so long as such Indebtedness is held by the Company or
such Note Guarantor; in each case subject to no Lien securing Indebtedness other
than Liens Incurred in compliance with Section 4.15; provided, however, that if
as of any date any Person other than the Company or any Note Guarantor holds any
such Indebtedness or holds a Lien in respect of such Indebtedness securing
Indebtedness other than Permitted Liens, such date shall be deemed the
Incurrence of Indebtedness not constituting Permitted Indebtedness by the issuer
of such Indebtedness;
(vii) Indebtedness of the Company which was not Incurred in violation
of Section 4.09 and which is owed to and held by any Note Guarantor that is
unsecured and subordinated in right of payment to the payment and performance
of the Company's obligations under any Senior Indebtedness, the Indenture, the
Notes and the Note Guarantees and subject to no Lien securing Indebtedness other
than Liens Incurred in compliance with Section 4.15; provided, however,
that if as of any date any Person other than any Note Guarantor owns or holds
any such Indebtedness or any Person other than any Note Guarantor holds a Lien
in respect of such Indebtedness securing Indebtedness other than Permitted
Liens, such date shall be deemed the Incurrence of Indebtedness not constituting
Permitted Indebtedness by the Company;
(viii) Indebtedness of the Company or any of its Restricted
Subsidiaries arising from the honoring by a bank or other financial institution
of a check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary course of
business; provided, however, that such Indebtedness is extinguished within
two business days of Incurrence;
(ix) Refinancing Indebtedness in respect of Indebtedness (other than
Permitted Indebtedness) Incurred pursuant to Section 4.08 or Indebtedness
Incurred pursuant to clause (i) or (iv) of this definition of Permitted
Indebtedness;
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(x) Indebtedness of the Company and its Restricted Subsidiaries in an
aggregate principal amount not to exceed $20,000,000 at any one time
outstanding for Capitalized Lease Obligations or for purposes of financing the
purchase price or construction cost of equipment, fixtures or similar property;
(xi) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, incurred in connection with the
disposition of any business, assets, or Restricted Subsidiary, other than
guarantees of Indebtedness incurred by any Person acquiring all or any portion
of such business, assets or Restricted Subsidiary for the purpose of financing
such acquisition; provided, that the maximum aggregate liability in respect of
all such Indebtedness shall at no time exceed the gross proceeds actually
received by the Company and the Restricted Subsidiary in connection with
such disposition; and
(xii) Indebtedness of the Company and its Restricted Subsidiaries
which, when taken together with all other Indebtedness incurred under this
clause (xii) and still outstanding, will not to exceed $10,000,000.
"PERMITTED INVESTMENT" means any of the following:
(i) Investments existing on the Issue Date, together with any
extension, modification or renewal of any such Investments (but not additional
advances, contributions or other investments of cash or property or other
increases thereof, other than as a result of the accrual or accretion of
interest or original issue discount or payment-in-kind pursuant to the terms of
such Investment as of the Issue Date);
(ii) Investments by the Company or any Restricted Subsidiary in any
Person that is or will become immediately after such Investment a Restricted
Subsidiary and a Note Guarantor or that will merge or consolidate into the
Company or a Restricted Subsidiary that is also a Note Guarantor;
(iii) Investments in the Company by any Restricted Subsidiary; PROVIDED
that any Indebtedness evidencing such Investment is unsecured and subordinated,
pursuant to a written agreement, to the Company's obligations under the Notes
and this Indenture;
(iv) Investments in cash and Cash Equivalents;
(iv) Loans or advances to employees in the ordinary course of business
in accordance with the past practices of the Company or its Restricted
Subsidiaries, but in any event not to exceed $2,000,000 in the aggregate
outstanding at any one time;
(v) Stock Purchase Loans;
(vi) loans made by the Company to certain employees to pay taxes
arising from the granting of stock to such employees in connection with
confirmation of the Plan;
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(viii) Interest Rate or Currency Protection Agreements and Commodity
Hedging Agreements entered into in the ordinary course of the Company's or its
Restricted Subsidiaries' businesses and otherwise in compliance with this
Indenture; PROVIDED, (i) the notional principal amount of such Interest Rate or
Currency Protection Agreements or Commodity Hedging Agreements does not exceed
the amount of Indebtedness hedged and (ii) such Interest Rate or Currency
Protection Agreements or Commodity Hedging Agreements do not increase the amount
of Indebtedness outstanding except as a result of fluctuations of the currency
or interest or commodity markets;
(ix) Investments in securities of trade creditors or customers received
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers;
(x) Consideration other than cash and Cash Equivalents received by the
Company or its Restricted Subsidiaries in connection with an Asset Sale made in
compliance with Section 4.11;
(xi) Investments as contemplated by the Foreign Investment Agreements
as in effect on the Issue Date;
(xii) Investments in New Joint Ventures approved by a majority of the
independent members of the Board of Directors; PROVIDED such New Joint Venture
is or will be engaged in a Related Business;
(xiii) Investments in Foreign Subsidiaries in an aggregate amount at
any time outstanding not to exceed $10,000,000; or
(xiv) Other Investments not to exceed $10,000,000 at any one time
outstanding.
"PERMITTED LIENS" means any of the following:
(i) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent or being
contested in good faith, if such reserve or other appropriate provision, if any,
as shall be required by GAAP shall have been made in respect thereof;
(ii) Liens Incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security, including any Lien securing letters of credit issued in the
ordinary course of business consistent with past practice in connection
therewith, or to secure the performance of tenders, statutory obligations surety
and appeal bonds, bids, leases, government performance and return-of-money bonds
and other similar obligations (exclusive of obligations for the payment of
borrowed money);
(iii) judgment liens not giving rise to an Event of Default so long as
such Lien is adequately bonded and any appropriate legal proceedings which may
have been duly
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initiated for the review of such judgment shall not have been
finally terminated or the period within which such proceedings may be initiated
shall not have expired;
(iv) any interest or title of a lessor under any Capitalized Lease
Obligation; provided, however, that such Liens do not extend to any property
which is not leased property subject to such Capitalized Lease Obligation;
(v) purchase money Liens to finance property of the Company or a
Restricted Subsidiary acquired in the ordinary course of business; provided,
however, that (A) the related purchase money Indebtedness shall not exceed the
cost of such property and shall not be secured by any property of the Company or
any Restricted Subsidiary other than the property so acquired and (B) the Lien
securing such Indebtedness shall be created within 90 days of such acquisition;
(vi) Liens upon specific items of inventory or other goods and proceeds
of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods;
(vii) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(viii) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the Company
or a Restricted Subsidiary, including rights of offset and set-off relating to
such deposits;
(ix) Liens securing Interest Rate or Currency Protection Agreements and
Commodity Hedging Agreements that relate to Indebtedness that is Incurred in
accordance with the covenant described under Section 4.08;
(x) Liens existing on the Issue Date (including Liens securing the
Senior Credit Facilities) and Liens to secure any Refinancing Indebtedness which
is Incurred to Refinance any Indebtedness which has been secured by a Lien
permitted under the covenant described under Section 4.15 and which Indebtedness
has been Incurred in accordance with the covenant described under Section 4.08;
provided, however, that such new Liens (A) are not materially less favorable to
the Holders of Notes and are not materially more favorable to the lienholders
with respect to such Liens than the Liens in respect of the Indebtedness being
Refinanced and (B) do not extend to any property or assets other than the
property or assets securing the Indebtedness Refinanced by such Refinancing
Indebtedness;
(xi) Easements, rights-of-way zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of the Company or any
of its Subsidiaries;
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(xii) Liens securing Acquired Indebtedness Incurred in accordance with
Section 4.08; provided, however, that (A) such Liens secured such Acquired
Indebtedness at the time of and prior to the Incurrence by the Company or a
Restricted Subsidiary of such Acquired Indebtedness and were not granted in
connection with, or in anticipation of the Incurrence by the Company or a
Restricted Subsidiary of such Acquired Indebtedness and (B) such Liens do not
extend to or cover any property of the Company or any Restricted Subsidiary
other than the property that secured the Acquired Indebtedness prior to the time
such Indebtedness became Acquired Indebtedness of the Company or a Restricted
Subsidiary and are no more favorable to the lienholders than the Liens securing
the Acquired Indebtedness prior to the Incurrence of such Acquired Indebtedness
by the Company or a Restricted Subsidiary; and
(xiii) Liens securing other Indebtedness not in excess of $5,000,000 at
any one time outstanding.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
"PLAN" means the modified Second Amended Plan of Reorganization
confirmed in connection with IN RE Paragon Trade Brands, Inc., Case No. 98-60390
pending in the United States Bankruptcy Court, Northern District of Georgia,
Atlanta Division.
"POST-PETITION INTEREST" means all interest accrued or accruing after
the commencement of any Insolvency or Liquidation Proceeding (and interest that
would accrue but for the commencement of any Insolvency or Liquidation
Proceeding) in accordance with and at the contract rate (including, without
limitation, any rate applicable upon default) specified in the agreement or
instrument creating, evidencing or governing any Indebtedness, whether or not,
pursuant to applicable law or otherwise, the claim for such interest is allowed
as a claim in such Insolvency or Liquidation Proceeding.
"PREFERRED STOCK" means, as applied to the Capital Stock of any
corporation, Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"PRINCIPAL" of a Note means the principal of the Note plus the premium,
if any, payable on the Note which is due or overdue or is to become due at the
relevant time.
"PROPERTY" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed,
tangible or intangible.
"PUBLIC EQUITY OFFERING" means an underwritten primary public offering
of any class of common stock of the Company pursuant to an effective
registration statement under the Securities Act.
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"PUBLIC MARKET" means any time after (i) a Public Equity Offering of
the Company has been consummated and (ii) at least 10% of the total issued and
outstanding common stock of the Company has been distributed by means of an
effective registration statement under the Securities Act or sales pursuant to
Rule 144 under the Securities Act.
"QUALIFIED CAPITAL STOCK" means any Capital Stock that is not
Disqualified Stock.
"RECORD DATE" means, for the interest payable on any Interest Payment
Date, the date specified in Section 2.11 hereof.
"REDEMPTION DATE" means, when used with respect to any Note or part
thereof to be redeemed hereunder, the date fixed for redemption of such Notes
pursuant to the terms of the Notes and this Indenture.
"REDEMPTION PRICE" means, when used with respect to any Note or part
thereof to be redeemed hereunder, the price fixed for redemption of such Note
pursuant to the terms of the Notes and this Indenture, plus accrued and unpaid
interest thereon, if any, to the Redemption Date.
"REFINANCE" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"REFINANCING INDEBTEDNESS" means any Indebtedness of the Company or any
of its Restricted Subsidiaries issued in exchange for, or the net proceeds of
which are used substantially concurrently to extend, Refinance, renew, replace,
defease or refund other Indebtedness of the Company or any of its Restricted
Subsidiaries; PROVIDED that: (i) the principal amount of such Refinancing
Indebtedness does not exceed the principal amount of the Indebtedness so
extended, Refinanced, renewed, replaced, defeased or refunded (plus the amount
of reasonable expenses Incurred in connection therewith); (ii) such Refinancing
Indebtedness has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended,
Refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, Refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes, such Refinancing Indebtedness has
a final maturity date later than the final maturity date of, and is subordinated
in right of payment to, the Notes on terms at least as favorable to the Holders
of Notes as those contained in the documentation governing the Indebtedness
being extended, Refinanced, renewed, replaced, defeased or refunded; and (iv)
such Indebtedness is Incurred either by the Company or by the Restricted
Subsidiary of the Company that is the obligor on the Indebtedness being
extended, Refinanced, renewed, replaced, defeased or refunded.
"REGISTRAR" has the meaning assigned to it in Section 2.03.
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"RELATED BUSINESS" means the businesses of the Company and the
Restricted Subsidiaries on the Issue Date and any business related, ancillary or
complementary to the businesses of the Company and the Restricted Subsidiaries
on the Issue Date.
"REPRESENTATIVE" means any trustee, agent or representative (if any)
for an issue of Senior Indebtedness of the Company.
"RESTRICTED PAYMENT" with respect to any Person means (i) the
declaration or payment of any dividends or any other distributions in respect of
its Capital Stock (including any payment in connection with any merger or
consolidation involving such Person) or similar payment to the direct or
indirect holders of its Capital Stock (other than dividends or distributions
payable solely in its Capital Stock (other than Disqualified Stock) and
dividends or distributions payable solely to the Company or a Wholly-Owned
Restricted Subsidiary, and other than pro rata dividends or other distributions
made by a Restricted Subsidiary that is not a Wholly-Owned Restricted Subsidiary
to minority stockholders (or owners of an equivalent interest in the case of a
Subsidiary that is an entity other than a corporation)), (ii) the purchase,
redemption or other acquisition or retirement for value of any Capital Stock of
the Company or any Restricted Subsidiary held by any Person (other than the
Company or a Wholly-Owned Restricted Subsidiary), or any warrants, rights or
options to acquire shares of any class of such Capital Stock, (iii) the
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment of any Subordinated Obligations (other than the purchase,
repurchase or other acquisition of Subordinated Obligations purchased in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of acquisition) or
(iv) the making of any Investment in any Person (other than a Permitted
Investment).
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company that is not
an Unrestricted Subsidiary.
"SALE AND LEASEBACK TRANSACTION" means any direct or indirect
arrangement with any Person or to which any such Person is a party providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Issue Date or
later acquired, which has been or is to be sold or transferred by the Company
or such Restricted Subsidiary to such Person or to any other Person by whom
funds have been or are to be advanced on the security of such Property.
"SEC" means the Securities and Exchange Commission.
"SECONDARY SECURITIES" has the meaning set forth in Section 2.11.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
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"SENIOR CREDIT FACILITIES" means the Credit Agreement dated as of
January 28, 2000 among the Company, the Lenders party thereto and Citicorp USA,
Inc., as administrative agent, together with the other Loan Documents (as
defined therein), as such agreements may be amended (including any amendment and
restatement thereof), supplemented or otherwise modified from time to time,
including any agreement extending the maturity of, refinancing, replacing or
otherwise restructuring (including adding Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
"SENIOR INDEBTEDNESS" means with respect to any Person, (i) all
Obligations in respect of the Senior Credit Facilities and (ii) all Obligations
in respect of other Indebtedness, whether outstanding on the Issue Date or
thereafter Incurred; PROVIDED, HOWEVER, that Senior Indebtedness shall not
include (1) any obligation of such Person to any Subsidiary of such Person, (2)
any liability for Federal, state, local or other taxes owed or owing by such
Person, (3) any accounts payable or other similar liability to trade creditors
(including Guarantees thereof or instruments evidencing such liabilities), (4)
any Indebtedness of such Person (and any accrued and unpaid interest in respect
thereof) which is subordinate or junior in any respect to any other Indebtedness
or other obligation of such Person, (5) that portion of any Indebtedness which
at the time of Incurrence is Incurred in violation of Section 4.08 or (6) any
Indebtedness that by the terms of the instrument creating or evidencing the same
or by which the same is assumed or affirmed, is not expressly designated as
Senior Indebtedness. Notwithstanding the foregoing, Senior Indebtedness shall
not include any Acquired Indebtedness whose maturity was shortened to a date
prior to the Stated Maturity of the Notes
(i) with the consent of the holders of such Acquired Indebtedness
(other than consent obtained in connection with the restructuring or
bankruptcy of the obligor of such Indebtedness), and
(ii) in connection with or in anticipation of the Incurrence of such
Acquired Indebtedness by the Company or Restricted Subsidiary.
To the extent any payment of Senior Indebtedness is declared to be fraudulent or
preferential, set aside or required to be paid to a trustee, receiver or other
similar party under any bankruptcy, insolvency, receivership or similar law,
then if such payment is recovered by, or paid over to, such trustee, receiver of
similar party, the Senior Indebtedness or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if payment had not
occurred.
"SENIOR SUBORDINATED INDEBTEDNESS" means, with respect to the Company,
the Notes and, with respect to any Note Guarantor, such Note Guarantor's Note
Guarantee and any other Indebtedness of the Company or such Note Guarantor that
specifically provides that such Indebtedness is to rank PARI PASSU in right of
payment with the Notes or such Note Guarantee, as the case may be, and is not
subordinated by its terms in right
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of payment to any Indebtedness or other obligation of the Company or such Note
Guarantor which is not Senior Indebtedness.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"SPECIAL RECORD DATE" means a date fixed by the Trustee pursuant to
Section 2.11 for the payment of Defaulted Interest.
"STATED MATURITY" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"STOCK PURCHASE LOAN" means a loan made by the Company or a Restricted
Subsidiary to one of its employees, agents or directors, the proceeds of which
are used to purchase Capital Stock of the Company and the repayment of which is
secured by a pledge of such Capital Stock.
"SUBORDINATED OBLIGATION" means any Indebtedness of the Company or a
Restricted Subsidiary of the Company (whether outstanding on the Issue Date or
thereafter Incurred) which is subordinate or junior in right of payment to the
Notes or the Note Guarantees pursuant to a written agreement to that effect.
"SUBORDINATED REORGANIZATION SECURITIES" has the meaning assigned to it
in Section 10.02.
"SUBSIDIARY" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of outstanding shares of Capital Stock or other interests
(including partnership interests) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i) such
Person, (ii) such Person and one or more Subsidiaries of such Person or (iii)
one or more Subsidiaries of such Person.
"SURVIVING ENTITY " has the meaning assigned to it in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 USC Section 77aaa-
77bbbb) as in effect on the date of this Indenture.
"TRANSACTION DATE" means the date of the transaction giving rise to the
need to calculate the Consolidated Coverage Ratio or Consolidated Revenues.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor
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"TRUST OFFICER" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"UNIFORM COMMERCIAL CODE" means the New York Uniform Commercial Code as
in effect from time to time.
"UNRESTRICTED SUBSIDIARY" has the meaning assigned to it in Section
4.16.
"US" or "UNITED STATES" means the United States of America.
"US GOVERNMENT OBLIGATIONS" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States
(including any agency or instrumentality thereof) for the payment of which the
full faith and credit of the United States is pledged and which are not callable
at the issuer's option.
"VOTING STOCK" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the product obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payments at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" means a Restricted Subsidiary all
the Capital Stock of which (other than directors' qualifying shares and shares
held by other Persons to the extent such shares are required by applicable law
to be held by a Person other than the Company or a Restricted Subsidiary) is
owned by the Company or one or more Wholly-Owned Restricted Subsidiaries.
SECTION 1.01 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
This Indenture is subject to the mandatory provisions of the TIA which
are incorporated by reference in and made a part of this Indenture. The
following TIA terms have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Notes; "indenture security holder"
means a Noteholder; "indenture to be qualified" means this Indenture; "indenture
trustee" or "institutional trustee" means the Trustee.
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"OBLIGOR" on the indenture securities means the Company and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.02 RULES OF CONSTRUCTION
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(7) the principal amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof that would be shown
on a balance sheet of the issuer dated such date prepared in accordance with
GAAP and accretion of principal on such security shall be deemed to be the
Incurrence of Indebtedness; and
(8) all references to the date the Notes were originally issued shall
refer to Issue Date.
ARTICLE II. THE NOTES
SECTION 2.01 FORM AND DATING
(a) The Notes and the certificate of authentication of the Trustee
thereon shall be substantially in the form of Exhibit A or Exhibit B hereto, as
applicable, which are hereby incorporated in and expressly made a part of this
Indenture.
(b) The Notes may have such letters, numbers or other marks of
identification and such legends and endorsements, stamped, printed, lithographed
or engraved thereon, (i) as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, (ii) as may be required to
comply with this Indenture, any law or any rule of any securities exchange on
which the Notes may be listed and (iii) as may be
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necessary to conform to customary usage. Each Note shall be dated the date of
its authentication by the Trustee. The Notes shall be issued only in fully
registered form, without coupons, in denominations of $1.00 and integral
multiples thereof. Definitive Notes shall be typed, printed, lithographed or
engraved or produced by any combination of such methods or produced in any other
manner permitted by the rules of any securities exchange on which such Notes may
be listed, all as determined by the officers of the Company executing such
Notes, as evidenced by their execution of such Notes.
(c) Notes shall be issued initially in the form of a single, permanent
global note in definitive, fully registered form, without coupons, substantially
in the form and bearing the legends set forth in Exhibit A hereto (the "Global
Note").
Upon issuance, such Global Note shall be registered in the name of the
Depositary or its nominee, duly executed by the Company and authenticated by the
Trustee as hereinafter provided and deposited on behalf of the purchasers of the
Notes represented thereby with the Trustee at its Corporate National Trust
Office, as custodian for the Depositary. Owners of beneficial interests in the
Global Note shall be entitled to receive physical delivery of a note in
definitive, fully registered form, without coupons, substantially in the form,
and bearing the legends, set forth in Exhibit B hereto ("Certificated Notes")
only upon the occurrence of the events specified in clauses (i) through (iii) of
Section 2.06(a). Upon issuance, any such Certificated Note shall be duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. Any Certificated Note may be exchanged for a beneficial interest in
the Global Note.
SECTION 2.02 EXECUTION AND AUTHENTICATION
The Notes shall be issued in one series, except to the extent a
separate series of Notes may be issued under Section 2.11(b). The aggregate
principal amount of Notes outstanding at any time shall not exceed $182,000,000
except as provided in Section 2.07 and Section 2.11 hereof. The Notes shall be
executed on behalf of the Company by its Chief Executive Officer, President,
Chief Operating Officer, Chief Financial Officer, Treasurer or any Vice
President, and shall be attested by the Company's Secretary or one of its
Assistant Secretaries, in each case by manual or facsimile signature.
The Notes shall be authenticated by manual signature of an authorized
signatory of the Trustee and shall not be valid for any purpose unless so
authenticated.
In case any officer of the Company whose signature shall have been
placed upon any of the Notes shall cease to be such officer of the Company
before authentication of such Notes by the Trustee and the issuance and delivery
thereof, such Notes may, nevertheless, be authenticated by the Trustee and
issued and delivered with the same force and effect as though such Person had
not ceased to be such an officer of the Company.
The Trustee shall, upon receipt of a Company Order requesting such
action, authenticate Notes, excluding Secondary Securities, for original issue
up to the aggregate
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<PAGE>
principal amount not to exceed $146,000,000 outstanding at any given time,
except for any Secondary Securities that may be issued pursuant to Section 2.11
and except as provided in Section 2.07 or Section 2.08. Such Company Order shall
specify the amount of Notes to be authenticated and the date on which the Notes
are to be authenticated and shall further provide instructions concerning
registration, amounts for each Holder and delivery. Upon the occurrence of any
event specified in Section 2.06(a) hereof, the Company shall execute and the
Trustee shall authenticate and make available for delivery to each beneficial
owner identified by the Depositary, in exchange for such beneficial owner's
interest in the Global Note or Certificated Notes representing Notes theretofore
represented by the Global Note.
A Note shall not be valid or entitled to any benefits under this
Indenture or obligatory for any purpose unless executed by the Company and
authenticated by the manual signature of one of the authorized signatories of
the Trustee as provided herein. Such signature upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered under this Indenture and is entitled to the benefits of this
Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate the Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. Any authenticating agent of the
Trustee shall have the same rights hereunder as any Registrar or Paying Agent.
Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Note to the Trustee for cancellation as
provided in Section 2.10 together with a written statement (which need not be
accompanied by an Opinion of Counsel) stating that such Note has never been
issued and sold by the Company, for all purposes of this Indenture such Note
shall be deemed never to have been authenticated and delivered hereunder and
shall not be entitled to the benefits of this Indenture.
SECTION 2.03 REGISTRAR AND PAYING AGENT
The Company shall maintain, pursuant to Section 4.02 hereof, an office
or agency where the Notes may be presented for registration of transfer or for
exchange (the "Registrar"), an office or agency where Notes may be presented for
payment (the "Paying Agent") and an office or agency where notices and demands
to or upon the Company in respect of the Notes and this Indenture may be served.
The Company shall cause to be kept at such office a register (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 entitled to be registered or transferred as provided herein.
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The Trustee, at its Corporate National Trust Office, is initially
appointed Registrar for the purpose of registering Notes and transfers of Notes
as herein provided. The Company may, upon written notice to the Trustee, change
the designation of the Trustee as Registrar and appoint another Person to act as
Registrar for purposes of this Indenture. If any Person other than the Trustee
acts as Registrar, the Trustee shall have the right at any time, upon reasonable
notice, to inspect or examine the Note Register and to make such inquiries of
the Registrar as the Trustee shall in its discretion deem necessary or desirable
in performing its duties hereunder.
The Company shall enter into an appropriate agency agreement with any
Person designated by the Company as Registrar or Paying Agent that is not a
party to this Indenture, which agreement shall incorporate the provisions of the
TIA and shall implement the provisions of this Indenture that relate to such
Registrar or Paying Agent. Prior to the designation of any such Person, the
Company shall, by written notice (which notice shall include the name and
address of such Person), inform the Trustee of such designation. The Trustee, at
its Corporate National Trust Office, is initially appointed Paying Agent under
this Indenture. If the Company fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such. Subject to Section 2.06(a) hereof, upon surrender
for registration of transfer of any Note at an office or agency of the Company
designated for such purpose, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, in the name of the designated
transferee or transferees, one or more new Notes of any authorized denomination
or denominations, of like tenor and aggregate principal amount, all as requested
by the transferor.
Every Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company, the Trustee or the Registrar) be
duly endorsed, or be accompanied by a duly executed instrument of transfer in
form satisfactory to the Company, the Trustee and the Registrar, by the Holder
thereof or such Holder's attorney duly authorized in writing.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
On or prior to each due date of the principal, premium, if any, or any
payment of interest with respect to any Note, the Company shall deposit with the
Paying Agent a sum or, in compliance with Section 2.11, Secondary Securities,
sufficient to pay such principal, premium, if any, or interest when so becoming
due.
The Company shall require each Paying Agent (other than the Trustee) to
agree in writing that such Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money or Secondary Securities, held by such Paying
Agent for the payment of principal, premium, if any, or interest with respect to
the Notes, shall notify the Trustee of any default by the Company in making any
such payment and at any time during the continuance of any such default, upon
the written request of the Trustee, shall forthwith pay to the Trustee all sums
held in trust by such Paying Agent.
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The Company at any time may require a Paying Agent to pay all money or
Secondary Securities held by it to the Trustee and to account for any funds or
Secondary Securities disbursed by such Paying Agent. Upon complying with this
Section 2.04, the Paying Agent shall have no further liability for the money or
Secondary Securities delivered to the Trustee.
SECTION 2.05 GLOBAL NOTES.
(a) The Global Note shall initially be registered in the name of the
Depositary or its nominee and be delivered to the Note Custodian. So long as a
Global Note is registered in the name of the Depositary or its nominee, members
of, or participants in, the Depositary ("Agent Members") shall have no rights
under this Indenture with respect to the Global Note held on their behalf by the
Depositary or the Trustee as its custodian, and the Depositary may be treated by
the Company, the Note Guarantors, the Trustee and any agent of the Company, the
Note Guarantors or the Trustee as the absolute owner of such Global Note for all
purposes. Notwithstanding the foregoing, nothing herein shall (i) prevent the
Company, the Note Guarantors, the Trustee or any agent of the Company, the Note
Guarantors or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or (ii) impair, as
between the Depositary and its Agent Members, the operation of customary
practices governing the exercise of the rights of a Holder.
(b) The Holder of a Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests in such Global Note through Agent Members, to take any action which a
Holder is entitled to take under this Indenture or the Notes.
(c) Whenever, as a result of an optional redemption of Notes by the
Company, a Change of Control Offer, an Asset Sale Offer or an exchange for
Certificated Notes pursuant to the provisions of Section 2.06(a) hereof, a
Global Note is redeemed, repurchased or exchanged in part, such Global Note
shall be surrendered by the Holder thereof to the Trustee who shall cause an
adjustment to be made to Schedule A thereof so that the principal amount of such
Global Note will be equal to the portion of such Global Note not redeemed,
repurchased or exchanged and shall thereafter return such Global Note to such
Holder, PROVIDED that each such Global Note shall be in a principal amount of
$1.00 or an integral multiple thereof.
SECTION 2.06 TRANSFER AND EXCHANGE.
(a) The Global Note shall be exchanged by the Company for one or more
Certificated Notes if (i) the Depositary has notified the Company that it is
unwilling or unable to continue as, or ceases to be, a clearing agency
registered under Section 17A of the Exchange Act and a successor to the
Depositary registered as a clearing agency under Section 17A of the Exchange Act
is not able to be appointed by the Company within 90 calendar days, or (ii) the
Depositary is at any time unwilling or unable to continue as Depositary and a
successor to the Depositary is not able to be appointed by the Company
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within 90 calendar days, or (iii) the Company, at its option, notifies the
Trustee in writing that it elects to cause the issuance of Notes in the form of
Certificated Notes. If an Event of Default occurs and is continuing, the Company
shall, at the request of the Holder thereof, exchange all or part of the Global
Note for one or more Certificated Notes; PROVIDED that the principal amount of
each of such Certificated Note and such Global Note, after such exchange, shall
be $1.00 or an integral multiple thereof. Whenever a Global Note is exchanged as
a whole for one or more Certificated Notes it shall be surrendered by the Holder
thereof to the Trustee for cancellation. Whenever a Global Note is exchanged in
part for one or more Certificated Notes it shall be surrendered by the Holder
thereof to the Trustee and the Trustee shall make the appropriate notations
thereon pursuant to Section 2.05(c) hereof. All Certificated Notes issued in
exchange for a Global Note or any portion thereof shall be registered in such
names, and delivered, as the Depositary shall instruct the Trustee.
(b) A Holder may transfer a Note only upon the surrender of such Note
for registration of transfer. No such transfer shall be effected until, and the
transferee shall succeed to the rights of a Holder only upon, final acceptance
and registration of the transfer in the Note Register by the Registrar. When
Notes are presented to the Registrar with a request to register the transfer of,
or to exchange, such Notes, the Registrar shall register the transfer or make
such exchange as requested if its requirements for such transactions and any
applicable requirements hereunder are satisfied. To permit registrations of
transfers and exchanges of Certificated Notes issued in accordance with Section
2.06(a), the Company shall execute and the Trustee shall authenticate and
deliver Certificated Notes at the Registrar's request.
(c) The Company shall not be required to make and the Registrar need
not register the transfer or exchange of Certificated Notes or portions thereof
selected for redemption (except, in the case of a Certificated Note to be
redeemed in part, the portion of such Note not to be redeemed) or any
Certificated Notes for a period of 15 calendar days before a selection of Notes
to be redeemed.
(d) 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 of Notes.
(e) All Notes issued upon any registration of transfer or exchange
pursuant to the terms of this Indenture will evidence the same debt and will be
entitled to the same benefits under this Indenture as the Notes surrendered for
such registration of transfer or exchange.
(f) Any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book-entry system maintained by such Holder (or its
agent), and that ownership of a beneficial interest in the Notes represented
thereby shall be required to be reflected in book-entry form Transfers of a
Global Note shall be limited to transfers in whole and not
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in part, to the Depositary, its successors, and their respective nominees.
Interests of beneficial owners in a Global Note shall be transferred which
complies with the rules and procedures of the Depositary (or its successors).
SECTION 2.07 REPLACEMENT NOTES
If a mutilated Note is surrendered to the Registrar or if the Holder of
a Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note if the
requirements of Section 8-405 of the Uniform Commercial Code are met and the
Holder satisfies any other reasonable requirements of the Trustee. If required
by the Trustee or the Company, such Holder shall furnish an indemnity bond
sufficient in the judgment of the Company and the Trustee to protect the
Company, the Trustee, the Paying Agent, the Registrar and any co-registrar from
any loss which any of them may suffer if a Note is replaced. The Company and the
Trustee may charge the Holder for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company.
SECTION 2.08 OUTSTANDING NOTES
Notes outstanding at any time are all Notes, including Secondary
Securities, authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a Redemption Date or maturity date money sufficient to pay
all principal, premium, if any, and interest payable on that date with respect
to the Notes (or portions thereof) to be redeemed or maturing, as the case
may be, and the Paying Agent is not prohibited from paying such money to the
Noteholders on that date pursuant to the terms of this Indenture, then on and
after that date such Notes (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.09 TEMPORARY NOTES
Until definitive Notes are ready for delivery, the Company may prepare and
the Trustee shall authenticate and deliver temporary Notes. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive
Notes and deliver them in exchange for temporary Notes.
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SECTION 2.10 CANCELLATION
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel and destroy (subject to the record
retention requirements of the Exchange Act) any Notes surrendered for
registration of transfer, exchange, payment or cancellation and deliver a
certificate of such destruction to the Company. The Company may not issue new
Notes to replace Notes it has redeemed, paid or delivered to the Trustee for
cancellation.
SECTION 2.11 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
(a) The Notes shall bear interest at 11.25% per annum from the Issue
Date or from the most recent Interest Payment Date to which interest has been
paid or provided for. If the Company's Cash Flow for a period specified below is
less than the amount specified for such period in the table below, then the
Company may on the Interest Payment Date set opposite such period, at the
Company's option and in its sole discretion, pay interest in additional Notes
("Secondary Securities") in lieu of the payment in whole or in part of interest
in cash on the Notes; PROVIDED, HOWEVER, that the Company may at its option pay
cash in lieu of issuing Secondary Securities in any denominations of less than
$1.00.
<TABLE>
<CAPTION>
- ------------------------------------- ----------------------------------- -----------------------------------
PERIOD SPECIFIED CASH FLOWAMOUNT INTEREST PAYMENT DATE
- ------------------------------------- ----------------------------------- -----------------------------------
<S> <C> <C>
Issue Date--June 25, 2000 $10,742,000 First Interest Payment Date
- ------------------------------------- ----------------------------------- -----------------------------------
June 26, 2000--December 31, 2000 $16,930,000 Second Interest Payment Date
- ------------------------------------- ----------------------------------- -----------------------------------
January 1, 2001--July 1, 2001 $18,016,000 Third Interest Payment Date
- ------------------------------------- ----------------------------------- -----------------------------------
July 2, 2001--December 30, 2001 $20,253,000 Fourth Interest Payment Date
- ------------------------------------- ----------------------------------- -----------------------------------
</TABLE>
Any such Secondary Securities shall be governed by this Indenture and shall be
subject to the same terms (including Stated Maturity and rates of interest from
time to time payable thereon (but not including the issuance date)) on all other
Notes. Except as otherwise allowed by the foregoing, interest shall be paid in
cash.
(b) The Company shall give written notice to the Trustee of the amount
of interest to be paid in Secondary Securities not less than five Business Days
prior to the applicable Interest Payment Date, and the Trustee or an
authenticating agent (upon written order of the Company signed by an Authorized
Representatives of the Company given not less than five nor more than 45 days
prior to such Interest Payment Date) shall authenticate for original issue (pro
rata to each Holder of any Notes on the applicable Record Date) Secondary
Securities in an aggregate principal amount equal to the amount
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of cash interest not paid on such Interest Payment Date. Each issuance of
Secondary Securities in lieu of the payment of interest in cash on the
Securities shall be made pro rata with respect to the outstanding Notes, and the
Company shall have the right to aggregate amounts of interest payable in the
form of Secondary Securities to a Holder of outstanding Notes and issue to such
holder a single Secondary Security in payment thereof. Secondary Securities may
be denominated a separate series if the Company deems it necessary to do so in
order to comply with any law or other applicable regulation or requirement, with
appropriate distinguishing designations.
(c) Interest on any Note which is payable, and is paid, whether in cash
or Secondary Securities, or duly provided for, on any Interest Payment Date
shall be paid to the Person in whose name such Note is registered at the close
of business on the Record Date for such interest payment, which shall be the
January 15 or July 15 (whether or not a Business Day) immediately preceding such
Interest Payment Date.
(d) Any interest on any Note which is payable, but is not paid, either
in Secondary Securities or cash, or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease to be payable to
the registered Holder on the relevant Record Date, and, except as hereinafter
provided, such Defaulted Interest, and any interest payable on such Defaulted
Interest, shall be paid by the Company, at its election, as provided in clause
(e)(i) or (e)(ii) below:
(e) (i) The Company may elect to make payment of any Defaulted
Interest, and any interest payable on such Defaulted Interest, to the Persons in
whose names the 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 the Notes 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 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 provided in this Section 2.11(e)(i). Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 calendar days and not less than 10
calendar days prior to the date of the proposed payment and not less than 10
calendar 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 sent, first-class mail, postage prepaid, to each Holder at such
Holder's address as it appears in the Note Register, not less than 10 calendar
days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names
the Notes are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (ii); or
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(ii) The Company may make payment of any Defaulted Interest, and any
interest payable on such Defaulted Interest, on the Notes in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the 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 (ii), such manner of payment shall be deemed
practicable by the Trustee.
(f) Subject to the foregoing provisions of this Section 2.11, 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 2.12 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 as a convenience to Holders; PROVIDED, HOWEVER, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the 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.
SECTION 2.13 TRANSFERS, ETC
Each Holder of a Note agrees to indemnify the Company and the Trustee
against any liability that may result from the transfer, exchange or assignment
by such Holder of such Holder's Note in violation of any provision of this
Indenture and/or applicable US Federal or state securities law.
ARTICLE III. REDEMPTION
SECTION 3.01 REDEMPTION OF NOTES; NOTICES TO TRUSTEE
(a) Except as set forth in clause (b) of this Section 3.01, the Notes
are not redeemable at the option of the Company prior to February 1, 2003.
Thereafter, the Notes may be redeemed at the option of the Company, in whole or
in part, upon at least 30 calendar days' but not more than 60 calendar days'
prior notice, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest thereon, if any, to
the applicable Redemption Date (subject to the right of each Holder of record on
the relevant Record Date to receive interest due on the relevant Interest
Payment Date), if redeemed during the twelve-month period beginning February 1
of the years indicated below:
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YEAR PERCENTAGE
---- ----------
2003 5.6250%
2004 2.8125%
(b) At any time and from time to time prior to February 1, 2003 the
Company, at its option, may redeem in the aggregate up to 35.0% of the original
principal amount of the Notes with the Net Cash Proceeds of one or more Public
Equity Offerings following which there is a Public Market, at a redemption price
(expressed as a percentage of principal amount) of 111.25% of the aggregate
principal amount so redeemed, plus accrued and unpaid interest thereon to the
redemption date (subject to the right of Holders of record on the relevant
Record Date to receive interest due on the relevant Interest Payment Date);
PROVIDED, HOWEVER, that at least 65.0% of the original principal amount of the
Notes must remain outstanding after each such redemption; and PROVIDED, FURTHER,
that each such redemption shall occur within 60 days of the date of closing of
the related Public Equity Offering.
(c) If the Company elects to redeem Notes pursuant to clause (a) or (b)
of this Section 3.01, the Company shall notify the Trustee in writing of the
Redemption Date and the principal amount of Notes to be redeemed.
(d) The Company shall give each notice to the Trustee provided for in
Section 3.01(c) not less than 30 days nor more than 60 days before the
Redemption Date unless the Trustee consents to a shorter period. Such notice
shall be accompanied by an Officers' Certificate and an Opinion of Counsel from
the Company to the effect that such redemption will comply with the conditions
herein.
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED
If fewer than all the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed pro rata or by lot or by a method that complies
with applicable legal and securities exchange requirements, if any, and that the
Trustee considers fair and appropriate and which complies with methods generally
used at the time of selection by fiduciaries in similar circumstances. The
Trustee shall make the selection from outstanding Notes not previously called
for redemption. The Trustee may select for redemption portions of the principal
of Notes that have denominations larger than $1.00. Notes and portions of them
the Trustee selects shall be in amounts of $1.00 or a whole multiple of $1.00.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption. The Trustee shall notify the
Company promptly of the Notes or portions of Notes to be redeemed.
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SECTION 3.03 NOTICE OF REDEMPTION
At least 20 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first-class mail, postage
prepaid, to each Holder of Notes to be redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(5) if any Global Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date, the Global Note, with a notation on Schedule A thereof adjusting the
principal amount thereof to be equal to the unredeemed portion, will be returned
to the Holder thereof;
(6) if any Certificated Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the Redemption
Date, a new Certificated Note or Certificated Notes in principal amount equal to
the unredeemed portion will be issued;
(7) if fewer than all the outstanding Notes are to be redeemed, the
identification and principal amounts of the particular Notes to be redeemed;
(8) that, unless the Company defaults in making such redemption payment
or the Paying Agent is prohibited from making such payment pursuant to the terms
of this Indenture, interest on Notes (or portion thereof) called for redemption
ceases to accrue on and after the Redemption Date; and
(9) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section 3.03.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed, Notes called for redemption become
due and payable on the Redemption Date and at the Redemption Price stated in the
notice. Upon surrender to the Paying Agent, such Notes shall be paid at the
Redemption Price
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stated in the notice, plus accrued interest to the Redemption Date. Failure to
give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE
On or prior to the Redemption Date, the Company shall deposit with the
Paying Agent (or, if the Company or a domestically incorporated Wholly-Owned
Subsidiary is the Paying Agent, shall segregate and hold in trust) money in
immediately available funds, sufficient to pay the Redemption Price of and
accrued interest on all Notes to be redeemed on that date other than Notes or
portions of Notes called for redemption which have been delivered by the Company
to the Trustee for cancellation.
So long as the Company complies with the preceding paragraph and the
other provisions of this Article I, interest on the Notes or portions thereof to
be redeemed on the applicable Redemption Date shall cease to accrue from and
after such date and such Notes or portions thereof shall be deemed not to be
entitled to any benefit under this Indenture except to receive payment of the
Redemption Price on the Redemption Date (subject to the right of each Holder of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date). If any Note called for redemption shall not be so paid
upon surrender for redemption, then, from the Redemption Date until such
Redemption Price is paid, interest shall be paid on the unpaid principal and
premium and, to the extent permitted by law, on any accrued but unpaid interest
thereon, in each case at the rate prescribed therefor by such Notes.
SECTION 3.06 NOTES REDEEMED IN PART
Upon surrender of a Note that is redeemed in part, the Company shall
execute and the Trustee shall authenticate for the Holder of the Note being
surrendered (at the Company's expense) a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
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ARTICLE IV. COVENANTS
SECTION 4.01 PAYMENT OF NOTES
The Company shall promptly pay the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the Notes and
in this Indenture. Principal, premium, if any, and interest shall be considered
paid on the date due if on such date the Trustee or the Paying Agent holds in
accordance with this Indenture money or, to the extent permitted by Section
2.11, Secondary Securities, sufficient to pay all principal, premium, if any,
and interest then due and the Trustee or the Paying Agent, as the case may be,
is not prohibited from paying such money or Secondary Securities, as the case
may be, to the Noteholders on that date pursuant to the terms of this Indenture.
To the extent lawful, the Company shall pay interest on overdue
principal, overdue premium and Defaulted Interest (without regard to any
applicable grace period) at the interest rate borne on the Notes. The Company's
obligation pursuant to the previous sentence shall apply whether such overdue
amount is due at its maturity, as a result of the Company's obligations pursuant
to Section 3.05, Section 4.11 or Section 4.14 hereof, or otherwise.
All payments not made in Secondary Securities with respect to a Global
Note or a Certificated Note (including principal, premium, if any, and interest)
the Holders of which have given wire transfer instructions to the Company, will
be required to be made by wire transfer of immediately available funds to the
account or (in the case of a Global Note) accounts specified by the Holders
thereof or, if no such account is specified, by sending via first-class mail,
postage prepaid, a check to each such Holders' registered address.
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY
The Company shall maintain in the Borough of Manhattan, The City of New
York, an office or agency where Notes may be presented or surrendered for
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, which office shall be initially the Corporate
Trust Office. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee its agent to
receive all presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Notes may
be presented or surrendered for any or all of such purposes, and may from time
to time rescind such
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designations; PROVIDED, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
The City of New York for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation and any change in the location of
any such other office or agency. The Company hereby designates the Corporate
Trust Office of the Trustee as one such office or agency of the Company in
accordance with Section 2.03 hereof.
SECTION 4.03 MONEY FOR THE NOTE PAYMENTS TO BE HELD IN TRUST
If the Company, any Subsidiary of the Company or any of their
respective Affiliates shall at any time act as Paying Agent with respect to the
Notes, such Paying Agent shall, on or before each due date of the principal of,
premium, if any, or interest on any of the Notes, segregate and hold in trust
for the benefit of the Persons entitled thereto money, or if such interest
payment is to be made in Secondary Securities in accordance with the terms
hereof, Secondary Securities sufficient to pay interest so becoming due until
such money shall be paid (or in the case of Secondary Securities, issued) to
such Persons or otherwise disposed of as herein provided, and shall promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to the Notes, it shall, prior to 10:00 am New York City time on each due date
of the principal of, premium, if any, or interest on any of the Notes, deposit
with a Paying Agent a sum or if such interest payment is to be made in
Secondary Securities in accordance with the terms hereof, Secondary Securities
sufficient to pay the principal, premium, if any, or interest so becoming due,
such sum or Secondary Securities 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 Paying Agent shall promptly notify the Trustee
of the Company's action or failure so to act.
SECTION 4.04 CORPORATE EXISTENCE
Subject to the provisions of Article V and Section 4.11 hereof, the
Company shall 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 of its Restricted Subsidiaries; PROVIDED,
that the Company and any such Restricted Subsidiary shall not be required to
preserve the corporate existence of any such Subsidiary or any such right or
franchise if the Board shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 4.05 MAINTENANCE OF PROPERTY
The Company shall cause all Property used or useful in the conduct of
its business or the business of any of its Restricted Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall
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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, that nothing in this Section
4.05 shall prevent the Company from discontinuing the operation or maintenance
of any of such Property if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business or the business of any of its
Subsidiaries and not disadvantageous in any material respect to the Holders.
SECTION 4.06 PAYMENT OF TAXES AND OTHER CLAIMS
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or Property of the Company or any of
its Subsidiaries and (b) all material lawful claims for labor, materials and
supplies which, if unpaid, might by law become a Lien upon the Property of the
Company or any of its Subsidiaries; provided 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 and for which adequate
reserves in accordance with GAAP or other appropriate provision has been made.
SECTION 4.07 SEC REPORTS
Notwithstanding that the Company may not be required to remain subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company shall:
(1) file with the Commission and provide the Trustee and Noteholders
with such annual reports and such information, documents and other reports as
are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a
US corporation subject to such Sections, such information, documents and other
reports to be so filed and provided at the times specified for the filing of
such information, documents and reports under such Sections;
(2) file with the Commission and provide the Trustee, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of the Notes, within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided in
TIA Section 313(c), such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission; and
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PROVIDED, 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, 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 4.08 LIMITATION ON INDEBTEDNESS
The Company shall not, and shall not permit any Restricted Subsidiary
to, Incur, directly or indirectly, any Indebtedness (including without
limitation, any Acquired Indebtedness) other than Permitted Indebtedness.
Notwithstanding the foregoing, in addition to Permitted Indebtedness, the
Company or any Restricted Subsidiary may Incur Indebtedness (including, without
limitation, Acquired Indebtedness) if (i) no Default or Event of Default shall
have occurred and be continuing on the date of the proposed Incurrence thereof
or would result as a consequence of such proposed Incurrence and (ii) at the
time of and immediately after giving PRO FORMA effect to such proposed
Incurrence and the application of the proceeds thereof, the Consolidated
Coverage Ratio is at least 2.0 to 1.0. For purposes of determining compliance
with, and the outstanding principal amount of any particular Indebtedness
Incurred pursuant to and in compliance with, this covenant, the amount of
Indebtedness issued at a price that is less than the principal amount thereof
will be equal to the amount of the liability in respect thereof determined in
accordance with GAAP.
SECTION 4.09 LIMITATION ON RESTRICTED PAYMENTS
(a) The Company shall not, and shall not permit any Restricted
Subsidiary, directly or indirectly, to make a Restricted Payment if at the time
of such Restricted Payment or immediately after giving PRO FORMA effect thereto:
(1) a Default or Event of Default shall have occurred and be continuing
(or would result therefrom);
(2) the Company or such Restricted Subsidiary is not able to Incur,
after giving PRO FORMA effect to such Restricted Payment, an additional $1.00 of
Indebtedness pursuant to the second sentence of Section 4.08; or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments since the Issue Date would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued on a cumulative basis
during the period (treated as one accounting period) beginning on the
first day of the fiscal quarter beginning immediately following the
Issue Date to the end of the most recent fiscal quarter for which
consolidated financial information of the Company is available (or, in
case such Consolidated Net Income shall be a deficit, minus 100% of
such deficit);
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(B) the aggregate Net Cash Proceeds received by the Company from the
issuance or sale of, or as a capital contribution in respect of, its
Capital Stock (other than Disqualified Stock) subsequent to the Issue
Date (other than an issuance or sale to a Subsidiary of the Company and
other than an issuance or sale to an employee stock ownership plan or
to a trust established by the Company or any of its Subsidiaries for
the benefit of their employees); PROVIDED, HOWEVER, that in determining
Net Cash Proceeds for purposes of this clause (B), there shall be
deducted therefrom an amount equal to the amount, if any, of such Net
Cash Proceeds used by the Company or a Restricted Subsidiary after the
Issue Date to exercise the Mabesa Option;
(C) the amount by which Indebtedness of the Company is reduced on the
Company's balance sheet upon the conversion or exchange (other than by
a Subsidiary of the Company) subsequent to the Issue Date of any
Indebtedness of the Company convertible or exchangeable for Capital
Stock (other than Disqualified Stock) of the Company (less the amount
of any cash, or the fair value of any other property, distributed by
the Company upon such conversion or exchange);
(D) without duplication of any amounts included in clause (A) above or
clause (E) below, in the case of the disposition or repayment of, or
the receipt by the Company or any Restricted Subsidiary of any
dividends or distributions from, any Investment constituting a
Restricted Payment made after the Issue Date, an amount equal to the
lesser of the amount of such Investment and the amount received by the
Company or any Restricted Subsidiary upon such disposition, repayment,
dividend or distribution;
(E) without duplication of any amounts included in clause (D) above, in
the event the Company or any Restricted Subsidiary makes any Investment
in a Person that, as a result of or in connection with such Investment,
becomes a Restricted Subsidiary, an amount equal to the Company's or
any Restricted Subsidiary's existing Investment in such Person that was
previously treated as a Restricted Payment; and
(F) so long as the Designation thereof was treated as a Restricted
Payment made after the Issue Date, with respect to any Unrestricted
Subsidiary that has been redesignated as a Restricted Subsidiary after
the Issue Date in accordance with Section 4.16, an amount equal to the
Company's Investment in such Unrestricted Subsidiary (provided that
such amount shall not in any case exceed the Designation Amount with
respect to such Restricted Subsidiary upon its Designation);
PROVIDED, HOWEVER, prior to the second anniversary of the Issue Date, Restricted
Payments (other than Investments) permitted only by virtue of the provisions of
this clause (3) may not be made if interest on the Notes has been paid in
Secondary Securities as provided in Section 2.11.
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(b) The provisions of the foregoing subsection (a) shall not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration of such dividend if the dividend would have been permitted on the
date of declaration;
(2) if no Default or Event of Default shall have occurred and be
continuing, the acquisition of any shares of Capital Stock of the Company or any
warrants, rights or options to purchase or acquire shares of Capital Stock of
the Company,
(A) solely in exchange for shares of Qualified Capital Stock of the
Company or any warrants, rights or options to purchase or acquire
shares of Qualified Capital Stock of the Company or
(B) through the application of the net proceeds of a substantially
concurrent sale for cash (other than to a Restricted Subsidiary of the
Company) of shares of Qualified Capital Stock of the Company or any
warrants, rights or options to purchase or acquire shares of Qualified
Capital Stock of the Company; PROVIDED, HOWEVER, that the value of any
such Qualified Capital Stock or warrants, rights and options issued in
exchange for such acquired capital stock, warrants, rights or options
and any such net cash proceeds shall be excluded from clause (3)(B) of
subsection (a) above (and were not included therein at any time);
(3) if no Default or Event of Default shall have occurred and be
continuing, the voluntary prepayment, purchase, defeasance, redemption or other
acquisition or retirement for value of any Subordinated Obligations
(A) solely in exchange for shares of Capital Stock of the Company or
any warrants, rights or options to purchase or acquire shares of
Capital Stock of the Company; PROVIDED, HOWEVER, that if such Capital
Stock is, or such warrants, rights or options to purchase such Capital
Stock are convertible into or exchangeable at the option of the holder
thereof for, Disqualified Stock, then such Disqualified Stock shall not
(i) by its terms, or upon the happening of any event, mature or be
mandatorily redeemable pursuant to a sinking fund obligation or
otherwise, or be redeemable at the option of the holder thereof, in any
case, on or prior to the final maturity of the Indebtedness permitted
to be prepaid, purchased, defeased, redeemed or acquired pursuant to
this clause (3) and (ii) have a Weighted Average Life to Maturity less
than the Indebtedness permitted to be prepaid, purchased, defeased,
redeemed or acquired pursuant to this clause (3) or
(B) in exchange for Refinancing Indebtedness or through the application
of net proceeds of a substantially concurrent sale for cash (other than
to a Restricted Subsidiary of the Company) of (A) shares of Qualified
Capital Stock of the Company or any warrants, rights or options to
purchase or acquire shares of Qualified Capital Stock of the Company or
(B) Refinancing Indebtedness; and PROVIDED, FURTHER, that the value of
such Qualified Capital Stock or warrants, rights or options issued in
exchange for such Subordinated Obligations and any
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such net cash proceeds shall be excluded from clause (3)(B) of
subsection (a) above (and were not included therein at any time); or
(C) in exchange for, or out of the proceeds of the substantially
concurrent sale of, Indebtedness of the Company which is permitted to
be Incurred under Section 4.08;
(4) the repurchase, redemption or other acquisition or retirement for
value of
(A) any Capital Stock (or interests under any stock appreciation rights
plan) of the Company held by any member of the Company's management
pursuant to any management equity subscription agreement or stock
option agreement in effect as of the date of this Indenture or entered
into thereafter with members of the management of any Person acquired
after the Issue Date in connection with the acquisition of such Person
or
(B) Capital Stock of the Company held by employees, former employees,
directors or former directors pursuant to the terms of agreements
(including employment agreements) approved by the Board of Directors;
PROVIDED, HOWEVER, that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Capital Stock (or interests
under any stock appreciation rights plan) set forth in subclauses (A)
and (B) of this clause (4) shall not exceed $1,000,000 in any
twelve-month period and no Default or Event of Default shall have
occurred and be continuing immediately after any such transaction.
In determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date under Section 4.09(a)(3), amounts expended pursuant
to clauses (1) (without duplication for the declaration of the relevant
dividend) of this Section 4.09(b) shall be included in such calculation and
amounts expended pursuant to clauses (2), (3) and (4) of this Section 4.09(b)
shall not be included in such calculation.
SECTION 4.10 LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM RESTRICTED
SUBSIDIARIES
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to
(a) pay dividends or make any other distributions on or in respect of
its Capital Stock to the Company or any other Restricted Subsidiary or pay any
Indebtedness owed to the Company or any other Restricted Subsidiary;
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(b) make loans or advances to, or guarantee any Indebtedness or other
obligations of, or make any Investment in, the Company or any other Restricted
Subsidiary; or
(c) transfer any of its property or assets to the Company or any other
Restricted Subsidiary,
except for such encumbrances or restrictions existing under or by reason of:
(1) applicable law;
(2) this Indenture;
(3) the Senior Credit Facilities as in effect on the Issue Date, and
any amendments, refinancings, replacements or restatements thereof;
PROVIDED, HOWEVER, that any such amendment, refinancing, replacement or
restatement is not materially more restrictive with respect to such
encumbrances or restrictions than those in existence on the Issue Date;
(4) customary non-assignment provisions of any contract and customary
provisions restricting assignment or subletting in any lease governing
a leasehold interest of any Restricted Subsidiary, or any customary
restriction on the ability of a Restricted Subsidiary to dividend,
distribute or otherwise transfer any asset which secures purchase money
Indebtedness of such Restricted Subsidiary;
(5) any instrument governing Acquired Indebtedness, which encumbrance
or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person or the properties or assets
of the Person so acquired;
(6) restrictions with respect to a Restricted Subsidiary of the Company
imposed pursuant to a binding agreement which has been entered into for
the sale or disposition of Capital Stock or assets of such Subsidiary;
provided, however, that such restrictions apply solely to the Capital
Stock or assets of such Restricted Subsidiary which are being sold;
(7) customary restrictions imposed on the transfer of copyrighted or
patented materials;
(8) secured Indebtedness otherwise permitted to be incurred pursuant to
Section 4.08 and Section 4.15, which encumbrance or restriction is not
applicable to any property or assets other than the property or assets
subject to the Lien securing such Indebtedness; or
(9) an agreement governing Indebtedness Incurred to Refinance the
Indebtedness issued, assumed or Incurred pursuant to an agreement
referred to in clause (3), (5) or (8) above; provided, however, that
such refinancing agreement is not materially more restrictive with
respect to such encumbrances or restrictions than
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those contained in the agreement referred to in such clause (3), (5)
or (8) as determined by the Board of Directors in their reasonable good
faith judgment.
SECTION 4.11 LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Sale unless:
(1) the Company or such Restricted Subsidiary (x) receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the assets subject to such Asset Sale (which Fair Market Value shall be
determined by the Board of Directors for any transaction (or series of
transactions) involving consideration in excess of $15,000,000) and (y) the
consideration received consists of cash, Cash Equivalents or other non-cash
consideration, the Fair Market Value of which and basis of valuation is set
forth in an Officer's Certificate; PROVIDED, HOWEVER, if at least 75% of the
consideration received by the Company or such Restricted Subsidiary in
connection with an Asset Sale is in the form of cash or Cash Equivalents, no
such Officer's Certificate shall be required; and PROVIDED FURTHER, HOWEVER,
that any securities, notes or other obligations received by the Company or a
Restricted Subsidiary from such transfers that are converted within 90 days of
receipt thereof by the Company or such Restricted Subsidiary into cash or Cash
Equivalents (to the extent so received), shall be deemed to be cash or Cash
Equivalents for purposes of this provision AND that the amount of any
Indebtedness of the Company or such Restricted Subsidiary (other than
Subordinated Obligations) that is actually assumed by the transferee in such
Asset Sale and from which the Company or such Restricted Subsidiary is fully and
unconditionally released shall be deemed to be cash for purposes of determining
the percentage of cash consideration received by the Company or such Restricted
Subsidiary;
(2) an amount equal to 100% of the Net Available Cash from such Asset
Sale is applied by the Company (or such Restricted Subsidiary, as the case may
be) at its election within 270 days from the date of such Asset Sale:
(A) to prepay or repay Senior Indebtedness and permanently reduce the
commitments, if any, with respect thereto; or
(B) (i) to make an investment in properties or assets that replace the
properties or assets that were the subject of such Asset Sale or in
properties or assets that will be used in a Related Business or (ii) to
acquire the Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock;
PROVIDED that such Person is, at the time it becomes a Restricted
Subsidiary, engaged in a Related Business; PROVIDED FURTHER that, in
the case of items (i) and (ii), the Company may elect to deem such an
investment or acquisition made within 180 days prior to such Asset Sale
to have been made with Net Available Cash resulting from such Asset
Sale.
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In determining whether an investment or acquisition of the type
referred to in (i) and (ii) above was made within the applicable time
limits, such investment or acquisition shall be deemed to have been
made, at the election of the Company, either on the date the Company or
Restricted Subsidiary actually made the investment or acquisition OR
the date the Company or Restricted Subsidiary executed a binding
commitment to consummate such investment or acquisition and the closing
of such investment or acquisition occurs within 90 days of the date
such commitment is executed.
(b) Any Net Available Cash not applied as provided in clause (2) of
paragraph (a) above will be deemed to constitute "Excess Proceeds". When the
aggregate amount of Excess Proceeds exceeds $10 million, the Company will be
required to make an offer to all Holders (an "Asset Sale Offer") to purchase, on
a pro rata basis, the principal amount of Notes equal in amount to the Excess
Proceeds (and not just the amount thereof that exceeds $10 million) (the "Asset
Sale Offer Amount"), at a purchase price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest thereon to the
date of purchase (subject to the right of each Holder of record on the relevant
Record Date to receive interest due on the relevant Interest Payment Date), in
accordance with the procedures set forth in this Indenture, and in accordance
with the following standards:
(1) If the aggregate principal amount of Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes to be purchased on a pro rata basis, based on
the principal amount of Notes tendered, with such adjustments as may be
deemed appropriate by the Trustee, so that only Notes in denominations
of $1.00 or integral multiples thereof shall be purchased.
(2) If the aggregate principal amount of Notes tendered
pursuant to such Asset Sale Offer is less than the Excess Proceeds, the
Company may use any remaining Excess Proceeds following the completion
of the Asset Sale Offer for general corporate purposes (subject to the
other provisions of this Indenture).
Upon completion of an Asset Sale Offer, the amount of Excess Proceeds then
required to be otherwise applied in accordance with this covenant shall be reset
to zero, subject to any subsequent Asset Sale.
(c) In the event of the transfer of substantially all (but not all) of
the property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under Section 5.01 below, the
successor shall be deemed to have sold the properties and assets of the Company
and its Subsidiaries not so transferred for purposes of this covenant, and shall
comply with the provisions of this covenant with respect to such deemed sale as
if it were an Asset Sale. In addition, the Fair Market Value of such properties
and assets of Company or its Subsidiaries deemed to be sold shall be deemed to
be Net Available Cash for purposes of this covenant.
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(d) If at any time any non-cash consideration received by the Company
or any Subsidiary in connection with any Asset Sale is converted into or sold or
otherwise disposed of for cash, then such conversion or disposition shall be
deemed to constitute an Asset Sale hereunder and the Net Available Cash thereof
shall be applied in accordance with this covenant.
(e) Each Asset Sale Offer will be mailed to the record Holders as shown
on the register of Holders within 30 days following the date the amount of
Excess Proceeds exceeded $10 million, with a copy to the Trustee, and shall
comply with the procedures set forth herein. Upon receiving notice of the Asset
Sale Offer, Holders may elect to tender their Notes in whole or in part in
integral multiples of $1.00 in exchange for cash. To the extent Holders of Notes
and holders of other Senior Subordinated Indebtedness, if any, which are or is
the subject of an Asset Sale Offer properly tender Notes or such other Senior
Subordinated Indebtedness in an aggregate amount exceeding the amount of
unapplied Excess Proceeds, Notes of tendering Holders and such other Senior
Subordinated Indebtedness of tendering holders will be purchased on a PRO RATA
basis (based on amounts tendered).
(f) Upon surrender and cancellation of a Certificated Note that is
purchased in part, the Company shall promptly issue and the Trustee shall
authenticate and deliver to the surrendering Holder of such Certificated Note, a
new Certificated Note equal in principal amount to the unpurchased portion of
such surrendered Certificated Note; PROVIDED that each such new Certificated
Note shall be in a principal amount of $1.00 or an integral multiple thereof.
(g) Upon surrender of a Global Note that is purchased in part, the
Paying Agent shall forward such Global Note to the Trustee who shall make a
notation on Schedule A thereof to reduce the principal amount of such Global
Note, as provided in Section 2.05(c) hereof.
(h) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.11. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section 4.11 by virtue thereof.
SECTION 4.12 LIMITATION ON AFFILIATE TRANSACTIONS
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, enter into or permit to exist any transaction (including the
purchase, sale, lease or exchange of any property, employee compensation
arrangements or the rendering of any service) with any Affiliate of the Company
(an "Affiliate Transaction") unless the terms thereof:
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(i) are no less favorable to the Company or such Restricted
Subsidiary than those that could be obtained at the time of such
transaction in arm's-length dealings with a Person who is not such an
Affiliate;
(ii) if such Affiliate Transaction involves an amount in
excess of $1,000,000, (A) are set forth in writing and (B) have been
approved by a majority of the disinterested members of the Board of
Directors; and.
(iii) if such Affiliate Transaction involves an amount in
excess of $5,000,000 (other than such an Affiliate Transaction
involving a Foreign Joint Venture or a New Joint Venture), have been
determined by a nationally recognized investment banking or accounting
firm having experience in such matters to be fair, from a financial
point of view, to the Company and its Restricted Subsidiaries.
(b) The provisions of the foregoing paragraph (a) shall not prohibit:
(i) any Restricted Payment permitted to be paid pursuant to
Section 4.09;
(ii) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans or
similar employee benefit plans or arrangements approved by the Board of
Directors;
(iii) the grant of stock options or similar rights to
employees and directors of the Company pursuant to plans approved by
the Board of Directors;
(iv) loans or advances to employees in the ordinary course of
business in accordance with the past practices of the Company or its
Restricted Subsidiaries, but in any event not to exceed $2,000,000 in
the aggregate outstanding at any one time;
(v) Stock Purchase Loans or loans made by the Company to
certain employees to pay taxes arising from the granting of stock to
such employees in connection with confirmation of the Plan;
(vi) reasonable fees and compensation paid to, and any
indemnity provided on behalf of, officers, directors, employees,
consultants or agents of the Company or any Restricted Subsidiary as
determined in good faith by the Company's Board of Directors;
(vii) any Affiliate Transaction (v) between the Company and a
Restricted Subsidiary; (w) between Restricted Subsidiaries; (x) between
the Company or a Restricted Subsidiary and a Foreign Joint Venture; (y)
involving payments made pursuant to or contemplated by a Foreign
Investment Agreement (as in effect on the Issue Date); or (z) between
the Company or a Restricted Subsidiary, on the one hand, and P&G or KC,
on the other, relating to technology licenses;
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PROVIDED that, no Affiliate of the Company other than a Restricted
Subsidiary owns any Capital Stock in or otherwise has a material
financial interest in any such Restricted Subsidiary or Joint Venture,
as the case may be;
(viii) any transactions undertaken pursuant to any contractual
obligations or rights in existence on the Issue Date (as in effect on
the Issue Date); and
(ix) the entering into by the Company and any of its
consolidated Restricted Subsidiaries of a tax sharing or similar
arrangement.
SECTION 4.13 LIMITATION ON THE SALE OR ISSUANCE OF CAPITAL STOCK OF
RESTRICTED SUBSIDIARIES
The Company will not sell or otherwise dispose of any shares of Capital
Stock of a Restricted Subsidiary, and will not cause or permit any Restricted
Subsidiary, directly or indirectly, to issue or sell or otherwise dispose of any
shares of its Capital Stock, except
(i) to the Company or a Wholly Owned Restricted Subsidiary;
(ii) the sale of 100% of the shares of the Capital Stock of any
Restricted Subsidiary owned by the Company or any Restricted Subsidiary effected
in compliance with either Section 4.11 or Section 5.01 hereof;
(iii) in the case of Restricted Subsidiaries other than Wholly Owned
Restricted Subsidiaries, issuance of Capital Stock on a PRO RATA basis to all
shareholders of such Restricted Subsidiary (or on less than a PRO rata basis to
any such minority holder if such minority holder does not acquire its PRO RATA
amount); and
(iv) the sale of Capital Stock of a Restricted Subsidiary or issuance
by a Restricted Subsidiary of Capital Stock if following such sale or issuance,
(x) such Restricted Subsidiary is no longer a Subsidiary, (y) the Company's
continuing Investment in such former Restricted Subsidiary is in compliance with
Section 4.09 and (z) any sale of Capital Stock by the Company or such Restricted
Subsidiary is made in compliance with Section 4.11.
SECTION 4.14 CHANGE OF CONTROL
(a) Upon the occurrence of a Change of Control, each Holder
will have the right to require that the Company purchase all or a portion (in
integral multiples of $1.00) of such Holder's Notes pursuant to the offer
described in this Section 4.14 (the "Change of Control Offer"), at a purchase
price equal to 101% of the principal amount thereof plus accrued and unpaid
interest thereon to the date of purchase (subject to the right of Holders of
record on a record date to receive interest due on the related interest payment
date that is on or prior to such date of purchase). Not later than 30 days
following the date upon which the Change of Control occurred, the Company must
send,
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by first-class mail, a notice to each Holder, with a copy to the Trustee, which
notice shall govern the terms of the Change of Control Offer. Such notice shall
state, among other things, the purchase date, which must be no earlier than 30
days nor later than 60 days from the date such notice is mailed, other than as
may be required by law (the "Change of Control Payment Date"). Holders electing
to have a Note purchased pursuant to a Change of Control Offer will be required
to surrender the Note, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the third
business day prior to the Change of Control Payment Date.
(b) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act of 1934, as amended (the "Exchange Act") and any
other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the purchase of Notes pursuant to
a Change of Control Offer. To the extent that the provisions of any securities
laws or regulations conflict with this Section 4.14, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section 4.14 by virtue thereof.
SECTION 4.15 LIMITATION ON LIENS
Except for (A) Liens securing Indebtedness Incurred under the Senior
Credit Facilities and (B) Permitted Liens, the Company will not, and will not
cause or permit any of its Restricted Subsidiaries to, directly or indirectly,
Incur any Liens of any kind against or upon any of their respective properties
or assets, whether owned on the Issue Date or acquired after the Issue Date, or
any proceeds therefrom, to secure any Indebtedness unless contemporaneously
therewith effective provision is made, (i) in the case of the Company to secure
the Notes and all other amounts due hereunder and (ii) in the case of a Note
Guarantor, to secure such Note Guarantor's Note Guarantee and all other amounts
due hereunder, in each case, equally and ratably with such Indebtedness (or, in
the event that such Indebtedness is subordinated in right of payment to the
Notes or such Note Guarantee, prior to such Indebtedness) with a Lien on the
same properties and assets securing such Indebtedness for so long as such
Indebtedness is secured by such Lien.
SECTION 4.16 DESIGNATION OF UNRESTRICTED SUBSIDIARIES
(a) The Company may designate after the Issue Date any Subsidiary of
the Company as an "Unrestricted Subsidiary" (a "Designation") only if:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation;
(ii) at the time of and after giving effect to such
Designation, the Company could Incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to Section 4.08; and
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(iii) the Company would be permitted to make an Investment at
the time of Designation (assuming the effectiveness of such Designation
and treating such Designation as an Investment at such time) pursuant
to Section 4.09(a) in an amount (the "Designation Amount") equal to the
amount of the Company's Investment in such Subsidiary on such date.
Neither the Company nor any Restricted Subsidiary shall at any time (x) provide
credit support for, subject any of its property or assets (other than the
Capital Stock of any Unrestricted Subsidiary) to the satisfaction, or guarantee
of, any Indebtedness of any Unrestricted Subsidiary (including any undertaking,
agreement or instrument evidencing such Indebtedness) unless such credit support
or guarantee constitutes an Investment permitted pursuant to Section 4.09, (y)
be directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any Indebtedness which
provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity upon the occurrence of a default
with respect to any Indebtedness of any Unrestricted Subsidiary, except for any
non-recourse guarantee given solely to support the pledge by the Company or any
Restricted Subsidiary of the Capital Stock of any Unrestricted Subsidiary. For
purposes of the foregoing, the Designation of a Subsidiary of the Company as an
Unrestricted Subsidiary shall be deemed to include the Designation of all of the
Subsidiaries of such Subsidiary.
(b) The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") only if:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of and after giving effect to such Revocation;
and
(ii) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Revocation would, if
Incurred at such time, have been permitted to be Incurred for all
purposes of this Indenture.
(c) All Designations and Revocations must be evidenced by resolutions
of the Board of Directors, delivered to the Trustee certifying compliance with
the foregoing provisions.
SECTION 4.17 LIMITATION ON LAYERED INDEBTEDNESS
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, Incur any Indebtedness that is
subordinate in right of payment to any other Indebtedness, unless such
Indebtedness is subordinate in right of payment to, or ranks pari passu with,
the Notes or, in the case of Restricted Subsidiaries that are Note Guarantors,
such Indebtedness is subordinate in right of payment to, or ranks pari passu
with, the Note Guarantees of such Note Guarantors.
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(b) The Note Guarantors will not, directly or indirectly, Guarantee any
Indebtedness of the Company that is subordinate in right of payment to any other
Indebtedness of the Company unless such Guarantee is subordinate in right of
payment to, or ranks pari passu with, the Note Guarantees of such Note
Guarantors.
SECTION 4.18 COMPLIANCE CERTIFICATE
The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company an Officers' Certificate stating that in the
course of the performance by the signers of their duties as Officers of the
Company they would normally have knowledge of any Default and whether or not the
signers know of any Default that occurred during such period. If they do, the
certificate shall describe the Default, its status and what action the Company
is taking or proposes to take with respect thereto. The Company also shall
comply with TIA Section 314(a)(4).
SECTION 4.19 WAIVER OF STAY, EXTENSION OR USURY LAWS
The Company and each of the Note Guarantors will not at any time, to
the extent that they may lawfully not do so, insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive the
Company or the Note Guarantors from paying all or any portion of the principal
of or premium, if any, or interest on the Notes as contemplated herein, wherever
enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Indenture; and, to the extent that they may
lawfully do so, the Company and the Note Guarantors hereby expressly waive
all benefit or advantage of any such law and expressly agree that they
not hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.20 INVESTMENT COMPANY ACT
None of the Company or its Subsidiaries shall become an investment
company subject to registration under the Investment Company Act of 1940, as
amended.
SECTION 4.21 FURTHER INSTRUMENTS AND ACTS
Upon request of the Trustee, the Company will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
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ARTICLE V. SUCCESSOR COMPANY
SECTION 5.01 MERGER, CONSOLIDATION AND SALE OF ASSETS
(a) The Company will not, in a single transaction or series of related
transactions, consolidate or merge with or into any Person (whether or not the
Company is the surviving Person), or sell, assign, transfer, lease, convey or
otherwise dispose of (or cause or permit any Restricted Subsidiary to sell,
assign, transfer, lease, convey or otherwise dispose of) all or substantially
all of the Company's and its Restricted Subsidiaries' properties and assets
(determined on a consolidated basis for the Company and its Restricted
Subsidiaries) to any Person unless:
(i) either (1) the Company shall be the surviving or
continuing entity or (2) the Person (if other than the Company) formed
by such consolidation or into which the Company is merged or the Person
which acquires by sale, assignment, transfer, lease, conveyance or
other disposition the properties and assets of the Company and of the
Company's Restricted Subsidiaries substantially as an entirety (the
"Surviving Entity") (x) shall be a corporation organized and validly
existing under the laws of the United States or any State thereof and
(y) shall expressly assume, by supplemental indenture (in form and
substance satisfactory to the Trustee), executed and delivered to the
Trustee, the due and punctual payment of the principal of, and premium,
if any, and interest on all of the Notes and the performance and
observance of every covenant of the Notes and this Indenture on the
part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction and
the assumption contemplated by clause (i)(2)(y) above (including giving
effect on a PRO FORMA basis to any Indebtedness, including any Acquired
Indebtedness, Incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be,
shall be able to Incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to Section 4.08;
(iii) immediately before and immediately after giving effect
to such transaction and the assumption contemplated by clause (i)(2)(y)
above (including, without limitation, giving effect on a PRO FORMA
basis to any Indebtedness, including any Acquired Indebtedness,
Incurred and any Lien granted in connection with or in respect of the
transaction), no Default or Event of Default shall have occurred or be
continuing;
(iv) each Note Guarantor (including Persons which become Note
Guarantors as a result of the transaction) shall have confirmed by
Supplemental Indenture that its Note Guarantee shall apply for such
Person's Guarantee Obligations in respect of this Indenture and the
Notes; and
(v) the Company or the Surviving Entity shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such
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consolidation, merger, sale, assignment, transfer, lease, conveyance
or other disposition and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply
with the applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such transaction
have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
The provisions of clause (ii) above shall not apply to (x) any transfer
of the properties or assets of a Restricted Subsidiary of the Company to the
Company or to a Wholly Owned Restricted Subsidiary, (y) any merger of a
Restricted Subsidiary into the Company or (z) any merger of the Company into a
Restricted Subsidiary.
Upon any consolidation, combination or merger or any transfer of all or
substantially all of the properties and assets of the Company and its Restricted
Subsidiaries in accordance with the foregoing, in which the Company is not the
continuing corporation, the successor Person formed by such consolidation or
into which the Company is merged or to which such conveyance, lease or transfer
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company hereunder and under the Notes with the same effect as
if such surviving entity had been named as such.
(b) Each Note Guarantor (other than any Note Guarantor whose Note
Guarantee is to be released in accordance with Section 11.06) will not, and the
Company will not cause or permit any Note Guarantor to, consolidate with or
merge into any Person that is not a Note Guarantor unless such Person (if such
Person is the surviving entity) assumes by supplemental indenture all of the
obligations of such Note Guarantor in respect of its Note Guarantee.
ARTICLE VI. DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT
The term "Event of Default," wherever used herein with respect to the
Notes, means any one of the following events (whatever the reason for such
event, and whether it shall be voluntary or involuntary, or be effected by
operation of law, pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
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(1) the Company defaults in any payment of interest with respect to any
Note when the same becomes due and payable, whether or not such payment shall be
prohibited by Article X, and such default continues for a period of 30 days;
(2) the Company (i) defaults in the payment of the principal of, or
premium, if any, on any Note when the same becomes due and payable at its Stated
Maturity, upon redemption, upon declaration or otherwise, whether or not such
payment shall be prohibited by Article X or (ii) fails to redeem or purchase
Notes when required pursuant to this Indenture or the Notes, whether or not such
redemption or purchase shall be prohibited by Article X;
(3) the Company fails to observe or perform any covenant, condition or
agreement on the part of the Company to be observed or performed pursuant to
Section 4.08, Section 4.09, Section 4.11, Section 4.14 and Section 5.01;
(4) the Company fails to comply with any of its other agreements or
covenants in or provisions of the Notes or this Indenture and such failure
continues for 30 days after the notice specified below;
(5) Indebtedness of the Company or any Significant Subsidiary is
accelerated by the holders thereof because of a default and the total amount of
such Indebtedness accelerated exceeds $15,000,000 or its foreign currency
equivalent at the time;
(6) any proceeding shall be instituted by or against the Company or any
Significant Subsidiary seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a custodian, receiver,
trustee or other similar official for it or for any substantial part of its
property and, in the case of any such proceedings instituted against the Company
or any Significant Subsidiary (but not instituted by it), either such
proceedings shall remain undismissed or unstayed for a period of 60 days or any
of the actions sought in such proceedings shall occur;
(7)(i) the commencement by the Company or any Significant Subsidiary of
the Company of a voluntary case or proceeding under any Bankruptcy Law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent; or (ii) the
consent by the Company or any Significant Subsidiary of the Company to the entry
of a decree or order for relief in respect of the Company or any Significant
Subsidiary of the Company in an involuntary case or proceeding under any
Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company or any Significant Subsidiary of the Company; or
(iii) the filing by the Company or any Significant Subsidiary of the Company of
a petition or answer or consent seeking reorganization or relief under any
Bankruptcy Law; or (iv) the consent by the Company or any Significant Subsidiary
of the Company to the filing of such petition or to the appointment of or taking
possession by a Custodian of the Company or any Significant Subsidiary of the
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Company or of any substantial part of the Property of the Company or any
Significant Subsidiary of the Company, or (v) the making by the Company or any
Significant Subsidiary of the Company of an assignment for the benefit of
creditors; or (vi) the admission by the Company or any Significant Subsidiary of
the Company in writing of its inability to pay its debts generally as they
become due; or (vii) the approval by stockholders of the Company or any
Significant Subsidiary of the Company of any plan or proposal for the
liquidation or dissolution of the Company or any Significant Subsidiary of the
Company; or (viii) the taking of corporate action by the Company or any
Significant Subsidiary of the Company in furtherance of any such action; or
(8) any judgment or decree for the payment of money in excess of
$15,000,000 above any applicable insurance coverage or its foreign currency
equivalent at the time is entered against the Company or any Significant
Subsidiary, remains outstanding and unstayed for a period of 60 days following
the entry of such judgment or decree; or
(9) the Note Guarantee of any Note Guarantor ceases to be in full force
and effect (other than (x) in accordance with the terms of such Note Guarantee
or (y) with respect to any Note Guarantor that is not a Significant Subsidiary,
as a result of the occurrence of an event described in clause (6) or clause (7)
above) or any Note Guarantor denies or disaffirms its obligations under its Note
Guarantee.
A Default under clause (4) is not an Event of Default until
the Trustee or the Holders of at least 25% in principal amount of the
Notes notify the Company of the Default and the Company does not cure
such Default within the time specified after receipt of such notice
Such notice must specify the Default, demand that it be remedied and
state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (3), (5) or (9) and any event which with the
giving of notice or the lapse of time would become an Event of Default under
clause (4), (6) or (8), its status and what action the Company is taking or
proposes to take with respect thereto.
SECTION 6.02 ACCELERATION
If an Event of Default (other than an Event of Default specified in
Section 6.01(6) or (7) with respect to the Company) occurs and is continuing,
the Trustee by written notice to the Company, or the Holders of at least 25% in
principal amount of the Notes by written notice to the Company and the Trustee,
may declare the principal of, premium, if any, and accrued but unpaid interest
on all the Notes to be due and payable. Upon such a declaration, such principal,
premium, if any, and interest shall be due and payable immediately. If an Event
of Default specified in Section 6.01(6) or (7) with respect to the Company
occurs, the principal of, premium, if any, and interest on all the Notes shall
automatically become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Noteholders. The Holders of a
majority in principal amount of the Notes by notice to the Trustee and the
Company may rescind an
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acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal, premium, if any, or interest that has
become due solely because of such acceleration. No such rescission shall affect
any subsequent Default or impair any right consequent thereto.
SECTION 6.03 OTHER REMEDIES
The Company covenants that if an Event of Default specified in Section
6.01(1) or Section 6.01(2) occurs the Company shall, upon demand of the Trustee,
pay to the Trustee, for the benefit of the Holders, the whole amount then due
and payable on the Notes for principal, premium, if any, and interest and, to
the extent that payment of such interest shall be legally enforceable, interest
upon the overdue principal (and premium, if any) and upon Defaulted Interest at
the rate or rates prescribed therefor in the Notes, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and all other amounts due to the
Trustee pursuant to Section 7.07 hereof.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of, premium, if any, or
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture. The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04 WAIVER OF PAST DEFAULTS
The Holders of not less than a majority in principal amount of the
Notes by notice to the Trustee may, on behalf of the Holders of all the Notes,
waive an existing Default or Event of Default and its consequences except a
continuing Default or Event of Default (i) in the payment of the principal of,
premium, if any or interest on a Note (except a payment default resulting from
an acceleration that has been rescinded) or (ii) in respect of a provision that
under Section 9.02 cannot be amended without the consent of each Noteholder
affected.
SECTION 6.05 CONTROL BY MAJORITY
The Holders of not less than a majority in principal amount of the
Notes may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or,
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subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Noteholders or would involve the Trustee in personal
liability; PROVIDED, HOWEVER, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
SECTION 6.06 LIMITATION ON SUITS
A Noteholder may not pursue any remedy with respect to this Indenture
or the Notes unless:
(1) the Holder has previously given to the Trustee written notice
stating that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the Notes have
made a written request to the Trustee to pursue the remedy 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
security or indemnity against any loss, liability or expense to be Incurred in
compliance with such request;
(4) the Trustee has not complied with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the Notes have not
given the Trustee a direction inconsistent with the request during such 60-day
period.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of, premium, if any, and interest on the
Notes held by such Holder, on or after the respective due dates expressed in the
Notes, or the Redemption Dates or purchase dates provided for therein or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder;
PROVIDED, that prior to the occurrence of any event giving rise to the
requirement that the Company make an Asset Sale Offer or Change of Control
Offer, nothing contained in this Section 6.07 shall be deemed to require the
consent of the Holders of 100% of the outstanding Notes to amend or supplement
the provisions of Section 4.11 or Section 4.14, respectively, or any other
provision of this Indenture or the Notes relating thereto.
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SECTION 6.08 COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 6.01(1) or (2) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company for the whole amount then due and owing
on the Notes for principal, premium, if any, and interest and, to the extent
that payment of such interest shall be legally enforceable, interest upon the
overdue principal (and premium, if any) and upon Defaulted Interest and the
amounts provided for in Section 7.07.
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
the Noteholders allowed in any judicial proceedings relative to the Company, any
Note Guarantor, their respective creditors or its respective property and,
unless prohibited by law or applicable regulations, may vote on behalf of the
Holders in any election of a trustee in bankruptcy or other Person performing
similar functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee. In the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and its counsel, and any
other amounts due the Trustee under Section 7.07.
SECTION 6.10 PRIORITIES
Subject to the provisions of Article X and Article XII, if the Trustee
collects any money or property pursuant to this Article VI, it shall pay out the
money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: if the Noteholders proceed against the Company
directly without the Trustee in accordance with this Indenture, to
the Noteholders for their collection costs;
THIRD: to the Noteholders for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal and interest, respectively; and
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FOURTH: to the Company or, to the extent the Trustee collects
any amount pursuant to Article XI hereof from any Note Guarantor, to
such Note Guarantor.
The Trustee may fix a Record Date and payment date for any payment
to Noteholders pursuant to this Section. At least 15 days before such Record
Date, the Company shall mail to each Noteholder and the Trustee a notice that
states the record date, the payment date and amount to be paid.
SECTION 6.11 UNDERTAKING FOR COSTS
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in principal
amount of the Notes.
SECTION 6.12 WAIVER OF STAY OR EXTENSION LAWS
The Company (to the extent it may lawfully do so) shall 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 the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE VII. TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent Person would
exercise or use under the circumstances in the conduct of such Person's own
affairs.
(b) Except during the continuance of an Event of Default:
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(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) the Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company.
(e) money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(f) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise Incur financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds to believe that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(g) every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.01 and to the provisions of the TIA.
SECTION 7.02 RIGHTS OF TRUSTEE
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
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(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on any
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers; PROVIDED, HOWEVER, that the Trustee's conduct does not constitute wilful
misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall have full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders 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.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, the Note
Guarantors or their Affiliates with the same rights it would have if it were not
Trustee. Any Paying Agent, Registrar, co-registrar or co-paying agent may do the
same with like rights. However, the Trustee must comply with Section 7.10 and
Section 7.11.
SECTION 7.04 TRUSTEE'S DISCLAIMER
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Company in this Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Trustee's certificate of authentication.
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SECTION 7.05 NOTICE OF DEFAULTS
If a Default occurs and is continuing and if it is actually known to
the Trustee, the Trustee shall mail to each Noteholder notice of the Default
within 30 days after it occurs. Except in the case of a Default in the payment
of principal of, premium, if any, or interest on any Note (including payments
pursuant to the mandatory redemption provisions of such Note, if any), the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of Noteholders.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS
As promptly as practicable after each August 1 beginning with the
August 1 following the date of this Indenture, and in any event prior to October
1 in each year, the Trustee shall mail to each Noteholder a brief report dated
as of August 1 that complies with TIA Section 313(a). The Trustee also shall
comply with TIA Section 313(b) and 313(c).
A copy of each report at the time of its mailing to Noteholders shall
be filed with the SEC and each stock exchange (if any) on which the Notes are
listed. The Company agrees to notify promptly the Trustee whenever the Notes
become listed on any stock exchange and of any delisting thereof.
SECTION 7.07 COMPENSATION AND INDEMNITY
The Company shall pay to the Trustee from time to time compensation for
its services as the Company and the Trustee shall from time to time agree in
writing. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses Incurred or made
by it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents and counsel. The Company
shall indemnify the Trustee against any and all loss, liability or expense
(including reasonable attorneys' fees) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder.
The Trustee shall notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder.
The Company shall defend the claim and the Trustee shall cooperate in
the defense of the claim; PROVIDED that the Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel if
the actual or potential defendants in, or the targets of, any such claim include
both the Trustee and the Company and the Trustee shall have reasonably concluded
that there may be legal
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defenses available to it which are different from or additional to those
available to the Company.
The Trustee will not, without the prior written consent of the Company,
settle or compromise or consent to the entry of any judgment with respect to any
claim in respect of which indemnification may be sought hereunder. The Company
need not reimburse any expense or indemnify against any loss, liability or
expense Incurred by the Trustee through the Trustee's own wilful misconduct,
negligence or bad faith.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of, premium, if any, and interest on particular Notes.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture. When the Trustee Incurs expenses after
the occurrence of a Default specified in Section 6.01(6) or (7) with respect to
the Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
SECTION 7.08 REPLACEMENT OF TRUSTEE
The Trustee may resign at any time by so notifying the Company. The
Holders of not less than a majority in principal amount of the Notes may remove
the Trustee by so notifying the Trustee and may appoint a successor Trustee. The
Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of
a majority in principal amount of the Notes and such Holders do not reasonably
promptly appoint a successor Trustee, or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Noteholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the Lien
provided for in Section 7.07.
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If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
not less than 10% in principal amount of the Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication
of any predecessor trustee, and deliver such Notes so authenticated; and in
case at that time any of the Notes shall not have been authenticated, any
successor to the Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor to the Trustee, and in all
such cases such certificates shall have the full force which it is anywhere in
the Notes or in this Indenture provided that the certificate of authentication
of the Trustee shall have.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION
The Trustee shall at all times satisfy the requirements of TIA Section
310(a). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b); PROVIDED, HOWEVER,
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
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SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 7.12 TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, be set forth in writing and shall
state any action proposed to be taken or omitted by the Trustee under this
Indenture and the date on and/or after which such action shall be taken or such
omission shall be effective. The Trustee shall not be liable for any action
taken by, or omission of, the Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than three Business Days after the date any Officer of the
Company actually receives such application, unless any such Officer shall have
consented in writing to any earlier date) unless prior to taking any such action
(or the effective date in the case of an omission), the Trustee shall have
received written instructions in response to such application specifying the
action to be taken or omitted.
SECTION 7.13 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Record Date for
interest for the Notes, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of the Notes as of such
Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished, provided, however, that, so long as the Trustee is the Registrar,
no such list shall be required to be furnished.
ARTICLE VIII. DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01 DISCHARGE OF LIABILITY ON NOTES; DEFEASANCE
(a) When (i) the Company delivers to the Trustee all outstanding Notes
(other than Notes replaced pursuant to Section 2.07) for cancellation or (ii)
all outstanding Notes have become due and payable, whether at Stated Maturity or
as a result of the mailing of a notice of redemption pursuant to Article III
hereof and the Company irrevocably deposits with the Trustee funds sufficient to
pay at Stated Maturity or upon
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redemption all outstanding Notes, including interest accrued and unpaid thereon
to Stated Maturity or such Redemption Date (other than Notes replaced pursuant
to Section 2.07), and if in either case the Company pays all other sums payable
hereunder by the Company, then this Indenture shall, subject to Section 8.01
(c), cease to be of further effect. The Trustee shall acknowledge satisfaction
and discharge of this Indenture on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Company.
(b) Subject to Section 8.01 (c) and Section 8.02, the Company at any
time may terminate:
(i) all its obligations under the Notes and this Indenture and
the Guarantee Obligations of the Note Guarantors under the Note
Guarantees, the Notes and the Indenture ("legal defeasance option")
subject to the following which shall survive until otherwise terminated
or discharged hereunder:
(A) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, premium, if any, and interest
on such Notes when payments are due from the trust referred to below;
(B) the Company's obligations with respect to such Notes under
Section 2.03, Section 2.04, Section 2.06, Section 2.07, Section 2.09,
Section 4.02, Section 4.03 and Section 4.04 hereof;
(C) RESERVED
(D) the rights, powers, trusts, duties and immunities of the
Trustee under this Indenture and the Company's obligations in
connection therewith,
(E) Article III hereof, and
(F) this Article VIII; or
(ii) its obligations under Section 4.05 through Section 4.17
and the operation of Section 6.01(3) (but only as it applies to Section
5.01(a)(iii)), Section 6.01(5), Section 6.01(6), Section 6.01(7) and
Section 6.01(8) (but, in the case of Section 6.01(6) and (7), with
respect only to Significant Subsidiaries) or contained in Section
5.01(a)(iii) ("covenant defeasance option").
The Company may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Notes may not be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Notes may not be
accelerated because of an Event of Default specified in Section 6.01(3), Section
6.01(4), and Section 6.01(9) or because of the failure of the Company to comply
with Section 5.01(a)(iii). If the Company exercise
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its legal defeasance option or its covenant defeasance option, each Note
Guarantor shall be released from all of its obligations under its Note
Guarantee.
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Section 8.04, Section 8.05 and Section 8.06 shall survive.
SECTION 8.02 CONDITIONS TO DEFEASANCE
The Company may exercise its legal defeasance option or its covenant
defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money or
US Government Obligations for the payment of principal of and interest on the
Notes to maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing its opinion that the
payments of principal and interest when due and without reinvestment on the
deposited US Government Obligations plus any deposited money without investment
will provide cash at such times and in such amounts as will be sufficient to pay
principal of, premium, if any, and interest when due on all the Notes to Stated
Maturity or redemption, as the case may be;
(3) 91 days pass after the deposit is made and during the 91-day period
no Default specified in Section 6.01(6) or (7) with respect to the Company
occurs which is continuing at the end of the period;
(4) the deposit does not result in a breach or violation of, or
constitute a default under any other agreement or instrument binding on the
Company or any of its Subsidiaries and is not prohibited by Article X;
(5) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company Act of
1940;
(6) in the case of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of this Indenture there has been a change in the
applicable Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Noteholders 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;
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(7) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Noteholders 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;
(8) the Company delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the defeasance
and discharge of the Notes as contemplated by this Article VIII have been
complied with;
(9) the Company shall have delivered to the Trustee an Officer's
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or the Note
Guarantors or with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Company, the Note Guarantors or others; and
(10) such legal defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the TIA (assuming
for the purpose of this clause (10) that all Notes are in default within the
meaning of such Act).
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article I.
SECTION 8.03 APPLICATION OF TRUST MONEY
The Trustee shall hold in trust money or US Government Obligations
deposited with it pursuant to this Article VIII. It shall apply the deposited
money and the money from US Government Obligations through the Paying Agent and
in accordance with this Indenture to the payment of principal of, premium, if
any, and interest on the Notes. Money and securities so held in trust are not
subject to Article X.
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SECTION 8.04 REPAYMENT TO COMPANY
The Trustee and the Paying Agent shall promptly turn over to the
Company upon request any excess money or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the Paying
Agent shall pay to the Company upon request any money held by them for the
payment of principal of, premium, if any, or interest that remains unclaimed for
two years, and, thereafter, Noteholders entitled to the money must look to the
Company for payment as general creditors.
SECTION 8.05 INDEMNITY FOR GOVERNMENT OBLIGATIONS
The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against deposited US Government
Obligations or the principal and interest received on such US Government
Obligations.
SECTION 8.06 REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any money or US
Government Obligations in accordance with this Article VIII by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article VIII until such time as the Trustee or Paying Agent is permitted to
apply all such money or US Government Obligations in accordance with this
Article VIII; PROVIDED, HOWEVER, that, if the Company has made any payment of
interest on or principal of any Notes because of 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 or US Government Obligations
held by the Trustee or Paying Agent.
ARTICLE IX. AMENDMENTS
SECTION 9.01 WITHOUT CONSENT OF HOLDERS
The Company and the Trustee may amend this Indenture or the Notes
without notice to or consent of any Noteholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Notes in addition to or in place of
Certificated Notes; PROVIDED, HOWEVER, that the uncertificated Notes are issued
in registered
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form for purposes of Section 163(f) of the Code or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the Code;
(4) to make any change in Article X or Article XII that would limit or
terminate the benefits available to any holder of Senior Indebtedness (or
Representatives therefor) under Article X or Article XII;
(5) to add Guarantees with respect to the Notes or to secure the Notes;
(6) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the Company;
(7) to comply with any requirements of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under the TIA;
or
(8) to make any change that does not adversely affect the rights of any
Noteholder.
An amendment under this Section 9.01 may not make any change that
adversely affects the rights under Article X or Article XII of any holder of
Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or any group or representative thereof authorized to give a
consent) consent to such change.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail to Noteholders a notice briefly describing such amendment.
The failure to give such notice to all Noteholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 9.01.
SECTION 9.02 WITH CONSENT OF HOLDERS
The Company and the Trustee may amend this Indenture or the Notes
without notice to any Noteholder but with the written consent of the Holders of
at least a majority in principal amount of the Notes then outstanding and any
past Default or compliance with any provisions may also be waived with the
consent of the Holders of not less than a majority of the principal amount of
Notes then outstanding. However, without the consent of each Noteholder
affected, an amendment may not:
(1) reduce the amount of Notes whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest on
any Note;
(3) reduce the principal of or extend the Stated Maturity of any Note;
(4) reduce the premium payable upon the redemption of any Note or
change the time at which any Note must be redeemed in accordance with Article
III;
(5) make any Note payable in money other than that stated in the Note;
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(6) make any change in Article X or Article XII that adversely affects
the rights of any Noteholder under Article X or Article XII;
(7) make any change in Section 6.04 or Section 6.07 or the second
sentence of this Section 9.02; or
(8) make any change in any Note Guarantee that would adversely affect
the Noteholders.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section 9.02 may not make any change that
adversely affects the rights under Article X or Article XII of any holder of
Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or any group or representative thereof authorized to give a
consent) consent to such change.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to Noteholders a notice briefly describing such amendment.
The failure to give such notice to all Noteholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment to this Indenture or the Notes shall comply with the
TIA as then in effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS AND WAIVERS
A consent to an amendment or a waiver by a Holder of a Note shall bind
the Holder and every subsequent Holder of that Note or portion of the Note that
evidences the same debt as the consenting Holder's Note, even if notation of the
consent or waiver is not made on the Note. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Note or
portion of the Note if the Trustee receives the notice of revocation before the
date the amendment or waiver becomes effective. After an amendment or waiver
becomes effective, it shall bind every Noteholder. An amendment or waiver
becomes effective upon the execution of such amendment or waiver by the Trustee.
The Company may, but shall not be obligated to, fix a Record Date for
the purpose of determining the Noteholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a Record Date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Noteholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent
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previously given or to take any such action, whether or not such Persons
continue to be Holders after such Record Date. No such consent shall be valid or
effective for more than 120 days after such Record Date.
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES
If an amendment changes the terms of a Note, the Trustee may require
the Holder of the Note to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Note regarding the changed terms and return it to
the Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Note shall issue and the Trustee shall authenticate
and deliver a new Note that reflects the changed terms. Failure to make the
appropriate notation or to issue a new Note shall not affect the validity of
such amendment.
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS
The Trustee shall sign any amendment authorized pursuant to this
Article IX if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but need
not sign it. In signing such amendment the Trustee shall be entitled to receive
indemnity reasonably satisfactory to it and to receive, and (subject to Section
7.01) shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that such amendment is authorized or permitted by
this Indenture and that such amendment constitutes the legal, valid and binding
obligation of the Company and each Note Guarantor, subject to customary
exceptions.
SECTION 9.07 PAYMENT FOR CONSENT
Neither the Company nor any Affiliate of the Company shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Notes unless such consideration is offered to be paid to all Holders that
so consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
ARTICLE X. SUBORDINATION OF THE NOTES
SECTION 10.01 AGREEMENT TO SUBORDINATE
The Company agrees, and each Noteholder by accepting a Note agrees,
that the Obligations in respect of the Notes and the Indenture are subordinated
in right of payment, to the extent and in the manner provided in this Article X,
to the prior payment in full in cash or Cash Equivalents of all Senior
Indebtedness of the Company and that the subordination is for the benefit of and
enforceable by the holders of such Senior
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Indebtedness. Only Obligations in respect of Senior Indebtedness will rank
senior to the Obligations in respect of the Notes and the Indenture in
accordance with the provisions set forth herein. The Notes shall in all respects
rank PARI PASSU with, or be senior to, all other Indebtedness of the Company.
All provisions of this Article X shall be subject to Section 10.02.
SECTION 10.02 LIQUIDATION, DISSOLUTION, BANKRUPTCY
Upon any Insolvency or Liquidation Proceeding:
(1) holders of Senior Indebtedness of the Company shall be entitled to
receive payment in full of such Senior Indebtedness in cash or Cash Equivalents
before Noteholders shall be entitled to receive any payment in respect of the
Obligations in respect of the Notes and the Indenture; and
(2) until such Senior Indebtedness is paid in full in cash or Cash
Equivalents, any distribution to which Noteholders would be entitled but for
this Article X shall be made to holders of such Senior Indebtedness as their
interests may appear, except that Noteholders may receive (a) securities of a
Person that are subordinated to such Senior Indebtedness to at least the same
extent as the Notes are subordinated to (A) Senior Indebtedness of the Company
and (B) any securities issued in exchange for Senior Indebtedness ("Subordinated
Reorganization Securities") and (b) payments and other distributions made from
any defeasance trust created pursuant to Section 8.01 hereof.
SECTION 10.03 DEFAULT ON SENIOR INDEBTEDNESS OF THE COMPANY
The Company may not pay any amount in respect of the Obligations in
respect of the Notes and the Indenture or make any deposit pursuant to Section
8.01 and may not repurchase, redeem or defease any Notes (collectively, "pay the
Notes") (other than with Subordinated Reorganization Securities and payments and
other distributions made from any defeasance trust created pursuant to Section
8.01 hereof) if (i) any Designated Senior Indebtedness of the Company is not
paid when due or (ii) any other default on such Designated Senior Indebtedness
occurs and the maturity of such Designated Senior Indebtedness is accelerated in
accordance with its terms unless, in either case, (x) the default has been cured
or waived and any such acceleration has been rescinded or (y) such Designated
Senior Indebtedness has been paid in full in cash or Cash Equivalents; PROVIDED,
HOWEVER, that the Company may pay the Notes without regard to the foregoing if
the Company and the Trustee receive written notice approving such payment from
the Representative of such Designated Senior Indebtedness. During the
continuance of any default (other than a default described in clause (i) or (ii)
of the preceding sentence) with respect to any Designated Senior Indebtedness of
the Company pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such acceleration) or the expiration of any applicable grace periods, the
Company may not pay the Notes for a period (a "Payment Blockage Period")
commencing upon the receipt by the Company and the Trustee of written notice of
such default (a "Blockage Notice") from the Representative
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of such Designated Senior Indebtedness specifying an election to effect a
Payment Blockage Period and ending 179 days thereafter (or earlier if such
Payment Blockage Period is terminated (i) by written notice to the Trustee and
the Company from the Person or Persons who gave such Blockage Notice, (ii) by
repayment in full in cash or Cash Equivalents of such Designated Senior
Indebtedness or (iii) because the Representative of the holders of such
Designated Senior Indebtedness shall have notified the Trustee that the default
giving rise to such Blockage Notice is no longer continuing). Notwithstanding
the provisions described in the immediately preceding sentence (but subject to
the provisions contained in the first sentence of this Section 10.03), unless
the holders of such Designated Senior Indebtedness or the Representative of such
holders shall have accelerated the maturity of such Designated Senior
Indebtedness, the Company may resume payments on the Notes after such Payment
Blockage Period. A Payment Blockage Period instituted pursuant to this Section
10.03 shall also be deemed to be a Payment Blockage Period pursuant to Section
12.03 hereof. During any 360-day period, the aggregate of all Payment Blockage
Periods under this Article X and Article XII shall not exceed 179 days and there
shall be a period of at least 181 consecutive days in each consecutive 360-day
period when no Payment Blockage Period is in effect. For purposes of this
Section 10.03, no default or event of default that existed or was continuing on
the date of the commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness initiating such Payment Blockage Period shall be,
or be made, the basis of the commencement of a subsequent Payment Blockage
Period by the Representative of such Designated Senior Indebtedness, whether or
not within a period of 360 consecutive days, unless such default or event of
default shall have been cured or waived for a period of not less than 90
consecutive days. SECTION 10.04 ACCELERATION OF PAYMENT OF NOTES
If payment of the Notes is accelerated because of an Event of Default,
the Company or the Trustee shall promptly notify the holders of the Designated
Senior Indebtedness of the Company (or their Representative) of the
acceleration.
SECTION 10.05 WHEN DISTRIBUTION MUST BE PAID OVER
If, in contravention of the provisions of this Article X, the Trustee
or any Noteholder shall have received any payment or distribution before all
Senior Indebtedness is paid in full in cash or Cash Equivalents, then such
distribution shall be held in trust for the benefit of, and shall be forthwith
paid over and delivered, to the holders of Senior Indebtedness as their
interests may appear, or their Representative under the agreement pursuant to
which Senior Indebtedness may have been issued, as their respective interests
may appear, for application to the payment of Senior Indebtedness to the extent
necessary to pay all Senior Indebtedness in full.
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SECTION 10.06 SUBROGATION
After all Senior Indebtedness of the Company is paid in full in cash or
Cash Equivalents and until the Notes are paid in full, Noteholders shall be
subrogated to the rights of holders of such Senior Indebtedness to receive
distributions applicable to such Senior Indebtedness. A distribution made under
this Article X to holders of such Senior Indebtedness which otherwise would have
been made to Noteholders is not, as between the Company and Noteholders, a
payment by the Company on such Senior Indebtedness.
SECTION 10.07 RELATIVE RIGHTS
This Article X defines the relative rights of Noteholders and holders
of Senior Indebtedness of the Company. Nothing in this Indenture shall:
(1) impair, as between the Company and Noteholders, the obligation of
the Company, which is absolute and unconditional, to pay principal of, premium,
if any, and interest on the Notes in accordance with their terms; or
(2) prevent the Trustee or any Noteholder from exercising its available
remedies upon a Default, subject to the rights of holders of Senior Indebtedness
of the Company to receive distributions otherwise payable to Noteholders.
SECTION 10.08 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY
No right of any holder of Senior Indebtedness of the Company to
enforce the subordination of the Indebtedness evidenced by the Notes shall
be impaired by any act or failure to act by the Company or by its failure to
comply with this Indenture.
SECTION 10.09 RIGHTS OF TRUSTEE AND PAYING AGENT
Notwithstanding Section 10.03, the Trustee or Paying Agent may continue
to make payments on the Notes and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article X. The Company, the Registrar or co-registrar, the
Paying Agent, a Representative or a holder of Senior Indebtedness may give the
notice; PROVIDED, HOWEVER, that, if the holders of an issue of Senior
Indebtedness of the Company have a Representative, only the Representative may
give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness of the Company with the same rights it would have if it were not
the Trustee. The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in
this Article X with respect to any Senior Indebtedness of the Company which may
at any time be held by it, to the same
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extent as any other holder of such Senior Indebtedness, and nothing in Article
VII shall deprive the Trustee of any of its rights as such holder Nothing in
this Article X shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.07.
SECTION 10.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE
Whenever a distribution is to be made or a notice given to holders
of Senior Indebtedness of the Company, the distribution may be made and the
notice given to their Representative (if any).
SECTION 10.11 ARTICLE 10 NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT RIGHT TO
ACCELERATE
The failure to make a payment pursuant to the Notes by reason of
any provision in this Article X shall not be construed as preventing the
occurrence of a Default. Nothing in this Article X shall have any effect on
the right of the Noteholders or the Trustee to accelerate the maturity of the
Notes.
SECTION 10.12 TRUST MONEYS NOT SUBORDINATED
Notwithstanding anything contained herein to the contrary, payments
from money or the proceeds of US Government Obligations held in trust under
Article VIII by the Trustee for the payment of principal of, 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 X,
and none of the Noteholders shall be obligated to pay over any such amount to
the Company or any holder of Senior Indebtedness of the Company or any other
creditor of the Company.
SECTION 10.13 TRUSTEE ENTITLED TO RELY UPON ANY PAYMENT OR DISTRIBUTION
Pursuant to this Article X, the Trustee and the Noteholders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Noteholders or (iii) upon the Representative for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of such 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 X. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness of the Company to participate
in any payment or distribution pursuant to this Article X, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent
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to the rights of such Person under this Article X, 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. The
provisions of Section 7.01 and Section 7.02 shall be applicable to all actions
or omissions of actions by the Trustee pursuant to this Article X.
SECTION 10.14 TRUSTEE TO EFFECTUATE SUBORDINATION
Each Noteholder by accepting a Note authorizes and directs the Trustee
on such Noteholder's behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination between the
Noteholders and the holders of Senior Indebtedness of the Company as provided in
this Article X and appoints the Trustee as attorney-in-fact for any and all such
purposes.
SECTION 10.15 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 of the Company and shall not be liable to any
such holders, absent gross negligence or wilful misconduct, if it shall
mistakenly pay over or distribute to Noteholders or the Company or any other
Person, money or assets to which any holders of Senior Indebtedness of the
Company shall be entitled by virtue of this Article X or otherwise.
SECTION 10.16 RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION
PROVISIONS
Each Noteholder by accepting a Note acknowledges and agrees that
the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Indebtedness of
the Company, whether such Senior Indebtedness was created or acquired before
or after the issuance of the Notes, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of such Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
ARTICLE XI. NOTE GUARANTEES; RELEASE OF NOTE GUARANTEES;
ADDITIONAL NOTE GUARANTEES
SECTION 11.01 NOTE GUARANTEES
(a) Each Note Guarantor hereby unconditionally and irrevocably
Guarantees to each Holder and to the Trustee and its successors and assigns (a)
the full and punctual payment of principal of, premium, if any, and interest on
the Notes when due, whether at maturity, by acceleration, by redemption or
otherwise, and all other monetary obligations of the Company under this
Indenture and the Notes and (b) the full and punctual
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performance within applicable grace periods of all other obligations of the
Company under this Indenture and the Notes (all the foregoing being hereinafter
collectively called the "Guarantee Obligations"). Each Note Guarantor further
agrees that the Guarantee Obligations may be extended or renewed, in whole or in
part, without notice or further assent from such Note Guarantor and that such
Note Guarantor will remain bound under this Article XI notwithstanding any
extension or renewal of any Guarantee Obligation.
(b) Each Note Guarantor waives presentation to, demand of, payment from
and protest to the Company of any of the Guarantee Obligations and also waives
notice of protest for nonpayment. Each Note Guarantor waives notice of any
default under the Notes or the Guarantee Obligations. The obligations of each
Note Guarantor hereunder shall not be affected by (a) the failure of any Holder
or the Trustee to assert any claim or demand or to enforce any right or remedy
against the Company or any other Person under this Indenture, the Notes or any
other agreement or otherwise; (b) any extension or renewal of any thereof, (c)
any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Notes or any other agreement; (d) the release
of any security held by any Holder or the Trustee for the Guarantee Obligations
or any of them; (e) the failure of any Holder or Trustee to exercise any right
or remedy against any other guarantor of the Guarantee Obligations; or (f) any
change in the ownership of any Note Guarantor.
(c) Each Note Guarantor further agrees that its Note Guarantee herein
constitutes a Guarantee of payment, performance and compliance when due (and not
a Guarantee of collection) and waives any right to require that any resort be
had by any Holder or the Trustee to any security held for payment of the
Guarantee Obligations.
(d) Each Note Guarantee is, to the extent and in the manner set forth
in Article XII, subordinated and subject in right of payment to the prior
payment in full of all Senior Indebtedness of such Note Guarantor and is made
subject to such provisions of this Indenture.
(e) Except as expressly set forth in Section 8.01 (b) and Section
11.05, the Guarantee Obligations of each Note Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Guarantee Obligations or otherwise. Without limiting the
generality of the foregoing, the Guarantee Obligations of each Note Guarantor
herein shall not be discharged or impaired or otherwise affected by the failure
of any Holder or the Trustee to assert any claim or demand or to enforce any
remedy under this Indenture, the Notes or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, wilful or
otherwise, in the performance of the Guarantee Obligations, or by any other act
or thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of each Note Guarantor or would
otherwise operate as a discharge of such Note Guarantor as a matter of law or
equity.
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(f) Each Note Guarantor further agrees that its Note Guarantee herein
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of principal, premium, if any, or interest on
any Guarantee Obligation is rescinded or must otherwise be restored by any
Holder or the Trustee upon the bankruptcy or reorganization of the Company or
otherwise.
(g) In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any Note
Guarantor by virtue hereof, upon the failure of the Company to pay the principal
of, premium, if any or interest on any Guarantee Obligation when and as the same
shall become due, whether at maturity, by acceleration, by redemption or
otherwise, or to perform or comply with any other Guarantee Obligation, each
Note Guarantor hereby promises to and will, upon receipt of written demand by
the Trustee, forthwith pay, or cause to be paid, in cash of Cash Equivalents, to
the Holders or the Trustee an amount equal to the sum of (i) the unpaid amount
of such Guarantee Obligations, (ii) accrued and unpaid interest on such
Guarantee Obligations (but only to the extent not prohibited by law) and (iii)
all other monetary Guarantee Obligations of the Company to the Holders and the
Trustee.
(h) Each Note Guarantor agrees that it shall not be entitled to any
right of subrogation in respect of any Guarantee Obligations Guaranteed hereby
until payment in full in cash or Cash Equivalents of all Guarantee Obligations
and all obligations to which the Guarantee Obligations are subordinated as
provided in Article XII. Each Note Guarantor further agrees that, as between it,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the Guarantee Obligations Guaranteed hereby may be accelerated as
provided in Article VI for the purposes of such Note Guarantor's Note Guarantee
herein, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Guarantee Obligations Guaranteed hereby, and
(y) in the event of any declaration of acceleration of such Guarantee
Obligations as provided in Article VI, such Guarantee Obligations (whether or
not due and payable) shall forthwith become due and payable by such Note
Guarantor for the purposes of this Section 11.01.
(i) Each Note Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) Incurred by the Trustee or any
Holder in enforcing any rights under this Section 11.01.
SECTION 11.02 SUCCESSORS AND ASSIGNS
This Article XI shall be binding upon each Note Guarantor and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Notes shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions of this Indenture.
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SECTION 11.03 NO WAIVER
Neither a failure nor a delay on the part of either the Trustee or the
Holders in exercising any right, power or privilege under this Article XI shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise of any right, power or privilege. The
rights, remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any other rights, remedies or
benefits which either may have under this Article XI at law, in equity, by
statute or otherwise.
SECTION 11.04 MODIFICATION
No modification, amendment or waiver of any provision of this Article
XI, nor the consent to any departure by any Note Guarantor therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Trustee, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on any Note
Guarantor in any case shall entitle such Note Guarantor to any other or further
notice or demand in the same, similar or other circumstances.
SECTION 11.05 LIMITATION OF NOTE GUARANTOR'S LIABILITY
Each Note Guarantor, and by its acceptance hereof each Holder, hereby
confirms that it is the intention of all such parties that the Note Guarantee of
such Note Guarantor not constitute a fraudulent transfer or conveyance for
purposes of the Bankruptcy Law, federal and state fraudulent conveyance laws or
any similar federal, state or foreign law. To effectuate the foregoing
intention, the Holders and each Note Guarantor hereby irrevocably agrees that
the obligations of each Note Guarantor under this Article XI shall be limited to
the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Note Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Note Guarantor in
respect of the Guarantee Obligations of such other Note Guarantor under this
Article XI, result in the obligations of such Note Guarantor under its Note
Guarantee not constituting a fraudulent transfer or conveyance under applicable
federal, state or foreign law.
SECTION 11.06 RELEASE OF NOTE GUARANTEES
In the event of a sale or other disposition of all or substantially all
of the assets of any Note Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the Capital Stock of any
Note Guarantor, by way of merger, consolidation or otherwise, such Note
Guarantor (in the event of a sale or other disposition of all of the Capital
Stock of such Note Guarantor) will be released and relieved of any Guarantee
Obligations under its Note Guarantee or the Person acquiring the property (in
the event of a sale or other disposition of all or substantially all of the
assets of such Note Guarantor) will not be required to enter into a Note
Guarantee;
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PROVIDED, in each case, that (i) such transaction is carried out pursuant to and
in accordance with Section 4.11 and Section 5.01 (if applicable) hereof. Upon
delivery by the Company to the Trustee of an Officers' Certificate and Opinion
of Counsel, to the effect that such sale or other disposition was made by the
Company in accordance with the provisions of this Indenture, including without
limitation Section 4.11 and Section 5.01 (if applicable) hereof, the Trustee
shall execute any documents reasonably required in order to evidence the release
of any such Note Guarantor from its obligations under its Note Guarantee.
SECTION 11.07 ADDITIONAL NOTE GUARANTEES
In the event that any Subsidiary shall, as of or after the Issue Date,
enter into a Guarantee of the Obligations in respect of the Senior Credit
Facilities, the Company will cause such Subsidiary to execute a Guarantee (an
"Additional Guarantee") of the Company's obligations under this Indenture and
the Notes to the same extent that the Note Guarantors have Guaranteed the
Guarantee Obligations pursuant to this Article XI, it being understood that such
Additional Guarantee shall be subordinated in right of payment to Senior
Indebtedness of such Additional Guarantor including Guarantees constituting
Senior Indebtedness; PROVIDED, HOWEVER, each Subsidiary that becomes a Note
Guarantor will be automatically and unconditionally released and discharged from
its obligations under such Additional Guarantee in accordance with Section 11.06
above.
ARTICLE XII. SUBORDINATION OF THE NOTE GUARANTEES
SECTION 12.01 AGREEMENT TO SUBORDINATE
Each Note Guarantor agrees, and each Noteholder by accepting a Note
agrees, that the Guarantee Obligations of such Note Guarantor are subordinated
in right of payment, to the extent and in the manner provided in this Article
XII, to the prior payment in full in cash or Cash Equivalents of all Senior
Indebtedness of such Note Guarantor and that the subordination is for the
benefit of and enforceable by the holders of such Senior Indebtedness. Only
Obligations in respect of Senior Indebtedness of each Note Guarantor shall rank
senior to the Guarantee Obligations of such Note Guarantor in accordance with
the provisions set forth herein. The Guarantee Obligations of each Note
Guarantor shall in all respects rank PARI PASSU with, or be senior to, all other
Indebtedness of such Note Guarantor.
SECTION 12.02 LIQUIDATION, DISSOLUTION, BANKRUPTCY
Upon any Insolvency or Liquidation Proceeding:
(1) holders of Senior Indebtedness of such Note Guarantor shall be
entitled to receive payment in full of such Senior Indebtedness in cash or Cash
Equivalents before
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Noteholders shall be entitled to receive any payment pursuant to the Note
Guarantee of such Note Guarantor; and
(2) until the Senior Indebtedness of such Note Guarantor is paid in
full in cash or Cash Equivalents, any distribution to which Noteholders would be
entitled but for this Article XII shall be made to holders of such Senior
Indebtedness as their interests may appear, except that Noteholders may receive
Subordinated Reorganization Securities and payments and other distributions made
from any defeasance trust created pursuant to Section 8.01 hereof.
SECTION 12.03 DEFAULT ON SENIOR INDEBTEDNESS OF NOTE GUARANTORS
Each Note Guarantor may not make any payment pursuant to any of its
Guarantee Obligations or repurchase, redeem or otherwise retire or defease any
Notes or other Guarantee Obligations (collectively, "pay its Note Guarantee")
(other than with Subordinated Reorganization Securities and payments and other
distributions from any defeasance trust created pursuant to Section 8.01 hereof)
if (i) any Designated Senior Indebtedness of the relevant Note Guarantor is not
paid when due or (ii) any other default on Designated Senior Indebtedness of
such Note Guarantor occurs and the maturity of such Designated Senior
Indebtedness is accelerated in accordance with its terms unless, in either case,
(x) the default has been cured or waived and any such acceleration has been
rescinded or (y) such Designated Senior Indebtedness has been paid in full in
cash or Cash Equivalents; PROVIDED, HOWEVER, such Note Guarantor may pay its
Note Guarantee without regard to the foregoing if such Note Guarantor and the
Trustee receive written notice approving such payment from the Representative of
the Designated Senior Indebtedness. During the continuance of any default (other
than a default described in clause (i) or (ii) of the preceding sentence) with
respect to any Designated Senior Indebtedness of such Note Guarantor pursuant to
which the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, such Note Guarantor may not pay its
Note Guarantee for the Payment Blockage Period commencing upon the receipt by
the Trustee (with a copy to such Note Guarantor) of a Blockage Notice from the
Representative of the holders of such Designated Senior Indebtedness specifying
an election to effect a Payment Blockage Period and ending 179 days thereafter
(or earlier if such Payment Blockage Period is terminated (i) by written notice
to the Trustee and such Note Guarantor from the Person or Persons who gave such
Blockage Notice, (ii) by repayment in full in cash or Cash Equivalents of such
Designated Senior Indebtedness, or (iii) because a Representative of the holders
of such Designated Senior Indebtedness has notified the Trustee that the default
giving rise to such Blockage Notice is no longer continuing. Notwithstanding the
provisions described in the immediately preceding sentence (but subject to the
first sentence of this Section 12.03), unless the holders of such Designated
Senior Indebtedness of such Note Guarantor or the Representative of such holders
has accelerated the maturity of such Designated Senior Indebtedness, such Note
Guarantor may resume payments on its Note Guarantee after the end of such
Payment Blockage Period. A Payment Blockage Period instituted pursuant to this
Section 12.03shall also be deemed to be a Payment Blockage
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Period pursuant to Section 10.03 hereof. During any 360-day period, the
aggregate of all Payment Blockage Periods under this Article XII and Article X
with respect to any Note Guarantee shall not exceed 179 days and there shall be
a period of at least 181 consecutive days in each consecutive 360-day period
with respect to each Note Guarantee when no Payment Blockage Period is in
effect. For purposes of this Section 12.03, no default or event of default that
existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Designated Senior Indebtedness initiating
such Payment Blockage Period shall be, or be made, the basis of the commencement
of a subsequent Payment Blockage Period by the Representative of such Designated
Senior Indebtedness, whether or not within a period of 360 consecutive days,
unless such default or event of default shall have been cured or waived for a
period of not less than 90 consecutive days.
SECTION 12.04 DEMAND FOR PAYMENT
If a demand for payment is made on any Note Guarantor pursuant to
Article XI, the Trustee shall promptly notify the holders of the Designated
Senior Indebtedness (or their Representatives) of such Note Guarantor of such
demand.
SECTION 12.05 WHEN DISTRIBUTION MUST BE PAID OVER
If, in contravention of the provisions of this Article XII, the Trustee
or any Noteholder shall have received any payment or distribution before all
Senior Indebtedness of any Note Guarantor is paid in full in cash or Cash
Equivalents, then such distribution shall be held in trust for the benefit of,
and shall be forthwith paid over and delivered, to the holders of Senior
Indebtedness of such Note Guarantor, as their interests may appear, or their
Representative under the agreement pursuant to which Senior Indebtedness of such
Note Guarantor may have been issued, as their respective interests may appear,
for application to the payment of Senior Indebtedness of such Note Guarantor to
the extent necessary to pay all Senior Indebtedness of such Note Guarantor in
full.
SECTION 12.06 SUBROGATION
After all Senior Indebtedness of each Note Guarantor is paid in full in
cash or Cash Equivalents and until the Notes are paid in full, Noteholders shall
be subrogated to the rights of holders of such Senior Indebtedness to receive
distributions applicable to such Senior Indebtedness. A distribution made under
this Article XII to holders of such Senior Indebtedness which otherwise would
have been made to Noteholders is not, as between each Note Guarantor and
Noteholders, a payment by such Note Guarantor on such Senior Indebtedness.
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SECTION 12.07 RELATIVE RIGHTS
This Article XII defines the relative rights of Noteholders and holders
of Senior Indebtedness of each Note Guarantor. Nothing in this Indenture shall:
(1) impair, as between each Note Guarantor and the Noteholders, the
obligation of the such Note Guarantor, which is absolute and unconditional, to
pay its Guarantee Obligations to the extent set forth in Article XI; or
(2) prevent the Trustee or any Noteholder from exercising its available
remedies upon a default by any Note Guarantor under its Guarantee Obligations,
subject to the rights of holders of Senior Indebtedness of such Note Guarantor
to receive distributions otherwise payable to Noteholders.
SECTION 12.08 SUBORDINATION MAY NOT BE IMPAIRED BY NOTE GUARANTORS
No right of any holder of Senior Indebtedness of any Note Guarantor
to enforce the subordination of the Guarantee Obligations of such Note Guarantor
shall be impaired by any act or failure to act by such Note Guarantor or by its
failure to comply with this Indenture.
SECTION 12.09 RIGHTS OF TRUSTEE AND PAYING AGENT
Notwithstanding Section 12.03, the Trustee or Paying Agent may continue
to make payments on each Note Guarantee and shall not be charged with knowledge
of the existence of facts that would prohibit the making of any such payments
unless, not less than two Business Days prior to the date of such payment, a
Trust Officer of the Trustee receives written notice satisfactory to it that
payments may not be made under this Article XII. The Company, each Note
Guarantor, the Registrar or co-registrar, the Paying Agent, a Representative or
a holder of Senior Indebtedness of any Note Guarantor may give the notice;
PROVIDED, HOWEVER, that, if an issue of Senior Indebtedness of any Note
Guarantor has a Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. The
Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article XII with respect to any Senior Indebtedness of any Note Guarantor which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in Article VII shall deprive the Trustee of any of its
rights as such holder Nothing in this Article XII shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07.
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SECTION 12.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE
Whenever a distribution is to be made or a notice given to holders
of Senior Indebtedness of any Note Guarantor, the distribution may be made and
the notice given to their Representative (if any).
SECTION 12.11 ARTICLE 12 NOT TO PREVENT DEFAULTS UNDER THE NOTE GUARANTEES
OR LIMIT RIGHT TO DEMAND PAYMENT
The failure to make a payment pursuant to any Note Guarantee by reason
of any provision in this Article XII shall not be construed as preventing the
occurrence of a default under such Note Guarantee. Nothing in this Article XII
shall have any effect on the right of the Noteholders or the Trustee to make a
demand for payment on any Note Guarantor pursuant to Article XI.
SECTION 12.12 TRUSTEE ENTITLED TO RELY UPON ANY PAYMENT OR DISTRIBUTION
Pursuant to this Article XII, the Trustee and the Noteholders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Noteholders or (iii) upon the Representative for the holders of Senior
Indebtedness of any Note Guarantor for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of such
Senior Indebtedness and other indebtedness of such Note Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article XII. In the event that
the Trustee determines, in good faith, that evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness of such Note
Guarantor to participate in any payment or distribution pursuant to this Article
XII, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness of such Note
Guarantor held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article XII, 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. The
provisions of Section 7.01 and Section 7.02 shall be applicable to all actions
or omissions of actions by the Trustee pursuant to this Article XII.
SECTION 12.13 TRUSTEE TO EFFECTUATE SUBORDINATION
Each Noteholder by accepting a Note authorizes and directs the Trustee
on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Noteholders and the
holders of Senior
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Indebtedness of any Note Guarantor as provided in this Article XII and appoints
the Trustee as attorney-in-fact for any and all such purposes.
SECTION 12.14 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS
OF NOTE GUARANTORS
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of any Note Guarantor and shall not be liable to
any such holders, absent gross negligence or wilful misconduct, if it shall
mistakenly pay over or distribute to Noteholders or the Company or any other
Person, money or assets to which any holders of such Senior Indebtedness shall
be entitled by virtue of this Article XII or otherwise.
SECTION 12.15 RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION
PROVISIONS
Each Noteholder by accepting a Note acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement
and a consideration to each holder of any Senior Indebtedness of any Note
Guarantor, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Notes, to acquire and continue to hold, or to continue
to hold, such Senior Indebtedness and such holder of Senior Indebtedness shall
be deemed conclusively to have relied on such subordination provisions in
acquiring and continuing to hold, or in continuing to hold, such Senior
Indebtedness.
ARTICLE XIII. MISCELLANEOUS
SECTION 13.01 TRUST INDENTURE ACT CONTROLS
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by
the TIA, the required provision shall control.
SECTION 13.02 NOTICES
Any notice or communication shall be in writing and delivered in person
or mailed by first-class mail addressed as follows:
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if to the Company or any Note Guarantor:
Paragon Trade Brands, Inc.
180 Technology Parkway
Norcross, Georgia 30092
Attention: Chief Financial Officer
if to the Trustee:
Norwest Bank Minnesota, National Association
Sixth & Marquette
N9303-120
Minneapolis, Minnesota 55479
Attention: Corporate Trust Services
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications. Any
notice or communication mailed to a Noteholder shall be mailed to the Noteholder
at the Noteholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed. Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 13.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection
of TIA Section 312(c).
SECTION 13.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
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SECTION 13.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
Each certificate or opinion with respect to compliance with a covenant
or condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate are based;
(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(3) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.06 WHEN NOTES DISREGARDED
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or by any Affiliate of the Company shall be disregarded and deemed not
to be outstanding, except that, for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Notes outstanding at the time shall be considered
in any such determination.
SECTION 13.07 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR
The Trustee may make reasonable rules for action by or a meeting of
Noteholders. The Registrar and the Paying Agent may make reasonable rules for
their functions.
SECTION 13.08 LEGAL HOLIDAYS
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York or the State
of Georgia. If a payment date is a Legal Holiday, payment shall be made on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period. If a regular record date is a Legal Holiday, the
record date shall not be affected.
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SECTION 13.09 GOVERNING LAW
(a) THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE.
(b) Each of the Company and each Note Guarantor hereby (i) agrees that
any suit, action or proceeding against it arising out of or relating to this
Indenture or the Notes, as the case may be, may be instituted in any Federal or
state court sitting in The City of New York, (ii) waives, to the extent
permitted by applicable law, any objection which it may now or hereafter have to
the laying of venue of any such suit, action or proceeding, and any claim that
any suit, action or proceeding in such a court has been brought in an
inconvenient forum, (iii) irrevocably submits to the non-exclusive jurisdiction
of such courts in any suit, action or proceeding, (iv) agrees that final
judgment in any such suit, action or proceeding brought in such a court shall be
conclusive and binding upon each and may be enforced in the courts of the
jurisdiction of which each is subject, respectively, by a suit upon judgment,
(v) agrees that service of process by mail to the addressed specified in Section
13.02 hereof shall constitute personal service of such process on it in any such
suit, action or proceeding.
SECTION 13.10 NO RECOURSE AGAINST OTHERS
No director, officer, employee, incorporator or stockholder of the
Company or any Note Guarantor, as such, shall have any liability for any
obligations of the Company or such Note Guarantor under the Notes, the Note
Guarantees or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation, solely by reason of its status as
a director, officer, employee, incorporator or stockholder of the Company or
such Note Guarantor. By accepting a Note, each Holder waives and releases all
such liability (but only such liability) as part of the consideration for
issuance of such Note to such Holder.
SECTION 13.11 SUCCESSORS
All agreements of the Company and each Note Guarantor in this Indenture
and the Notes shall bind their respective successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 13.12 MULTIPLE ORIGINALS
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
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SECTION 13.13 TABLE OF CONTENTS; HEADINGS
The table of contents, cross-reference table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not intended to be considered a part hereof and shall not
modify or restrict any of the terms or provisions hereof.
SECTION 13.14 SEVERABILITY
In case any provision in this Indenture or in the Notes 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 13.15 FURTHER INSTRUMENTS AND ACTS
Upon request of the Trustee, the Company and each Note Guarantor will
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of
this Indenture.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
PARAGON TRADE BRANDS, INC., as
Issuer
By: /s/ Alan J. Cyron
---------------------------
Name: ALAN J. CYRON
Title: Chief Financial Officer
PTB INTERNATIONAL, INC.
as Guarantor
By: /s/ Alan J. Cyron
---------------------------
Name: ALAN J. CYRON
Title: Chief Financial Officer
PTB ACQUISITION SUB, INC.
as Guarantor
By: /s/ Alan J. Cyron
---------------------------
Name: ALAN J. CYRON
Title: Chief Financial Officer
PTB HOLDINGS, INC., as
Issuer
By: /s/ Alan J. Cyron
---------------------------
Name: ALAN J. CYRON
Title: Chief Financial Officer
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[SIGNATURE PAGE TO INDENTURE DATED JANUARY 28, 2000
WITH PARAGON TRADE BRANDS, INC.]
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as
Trustee
By: /s/ Jane Schweiger
---------------------------
Name: JANE Y. SCHWEIGER
Title: Corporate Trust Officer
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EXHIBIT A
FORM OF GLOBAL NOTE
FACE OF GLOBAL NOTE
PARAGON TRADE BRANDS, INC. CUSIP No 69912KAA5
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO PARAGON TRADE
BRANDS, INC. OR A SUCCESSOR THEREOF OR THE REGISTRAR FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO OR SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO OR TO SUCH
OTHER ENTITY AS HAS BEEN REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF TDTC), 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.
TRANSFER OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
AND NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF INTERESTS IN THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS WHICH COMPLY WITH THE RESTRICTIONS SET FORTH
IN SECTION 2.06 OF THE INDENTURE, DATED AS OF JANUARY 28, 2000 AMONG PARAGON
TRADE BRANDS, INC., AS ISSUER, AND PTB INTERNATIONAL, INC.,PTB ACQUISITION SUB,
INC., AND PTB HOLDINGS, INC., AS GUARANTORS, AND NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, AS TRUSTEE, PURSUANT TO WHICH THIS NOTE WAS ISSUED.
A-1
<PAGE>
GLOBAL NOTE
REPRESENTING 11.25% SENIOR SUBORDINATED NOTES DUE 2005.
Paragon Trade Brands, Inc., a Delaware corporation, for value received,
hereby promises to pay to Cede & Co, or its registered assigns, the principal
sum indicated on Schedule A hereof, on February 1, 2005.
Interest Payment Dates: February 1 and August 1, commencing August 1,
2000.
Record Dates: January 15 and July 15.
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.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purposes.
IN WITNESS WHEREOF, Paragon Trade Brands, Inc. has caused this Note to
be duly executed.
PARAGON TRADE BRANDS, INC.
By:
------------------------
Name:
-------------------
Title:
------------------
Attest:
------------------------
Dated:
------------------------
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<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Norwest Bank Minnesota, National Association, as Trustee, certifies that this is
one of the Notes referred to in the Indenture.
By:
--------------------------
Authorized Signatory
A-3
<PAGE>
REVERSE SIDE OF GLOBAL NOTE
PARAGON TRADE BRANDS, INC.
GLOBAL NOTE
REPRESENTING 11.25% SENIOR SUBORDINATED NOTES DUE 2005
1. Indenture.
This Note is one of a duly authorized issue of debt securities of the
Company (as defined below) designated as its "11.25% Senior Subordinated Notes
Due 2005" (herein called the "Notes") limited in aggregate principal amount to
$182,000,000, issued under an indenture dated as of January 28, 2000 (as amended
or supplemented from time to time, the "Indenture") among the Company, as
issuer, and PTB International, Inc., PTB Acquisition Sub, Inc. and PTB Holdings,
Inc., as guarantors (collectively, the "Note Guarantors"), and Norwest Bank
Minnesota, National Association, as trustee (the "Trustee," which term includes
any successor trustee under the Indenture). 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 of 1939, as amended (15 US Code ss.ss. 77aaa-77bbbb). The
Notes are subject to all such terms, and Holders of Notes are referred to the
Indenture and such Act for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Note Guarantors,
the Trustee and each Holder and of the terms upon which the Notes are, and are
to be, authenticated and delivered. The summary of the terms of this Note
contained herein does not purport to be complete and is qualified by reference
to the Indenture. 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. All capitalized terms used in this Note
which are not defined herein shall have the meanings assigned to them in the
Indenture.
The Indenture restricts, among other things, the Company's ability to
incur additional indebtedness, pay dividends or make certain other restricted
payments, incur liens to secure PARI PASSU or subordinated indebtedness, sell
stock of Restricted Subsidiaries, apply net proceeds from certain asset sales,
merge or consolidate with any other person, sell, assign, transfer, lease,
convey or otherwise dispose of substantially all of the assets of the Company,
enter into certain transactions with affiliates or incur indebtedness that is
subordinate in right of payment to any Senior Indebtedness and senior in right
of payment to the Notes. The Indenture permits, under certain circumstances,
Restricted Subsidiaries of the Company to be deemed Unrestricted Subsidiaries
and thus not subject to the restrictions of the Indenture.
A-4
<PAGE>
2. Principal and Interest.
Paragon Trade Brands, Inc., a Delaware corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay the principal amount set
forth on Schedule A of this Note to the Holder hereof on February 1, 2005.
The Company shall pay interest at a rate of 11.25% per annum, from the
Issue Date or from the most recent Interest Payment Date thereafter to which
interest has been paid or duly provided for, semiannually in arrears on February
1 and August 1 of each year, commencing on August 1, 2000, to the Holder hereof
until the principal amount hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions provided in the Indenture, be
paid to the Person in whose name this Note (or the Note in exchange or
substitution for which this Note was issued) is registered at the close of
business on the Record Date for interest payable on such Interest Payment Date.
The Record Date for any interest payment is the close of business on January 15
or July 15, as the case may be, whether or not a Business Day, immediately
preceding the Interest Payment Date on which such interest is payable. Any such
interest not so punctually paid or duly provided for ("Defaulted Interest")
shall forthwith cease to be payable to the Holder on such Record Date and shall
be paid as provided in Section 2.11 of the Indenture Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
If the Company's Cash Flow for a period specified below is less than
the amount specified for such period in the table below, then the Company may on
the Interest Payment Date set opposite such period, at the Company's option and
in its sole discretion, pay interest in additional Notes ("Secondary
Securities") in lieu of the payment in whole or in part of interest in cash on
the Notes; PROVIDED, HOWEVER, that the Company may at its option pay cash in
lieu of issuing Secondary Securities in any denominations of less than $1.00.
<TABLE>
<CAPTION>
- ------------------------------------- ----------------------------------- -----------------------------------
PERIOD SPECIFIED CASH FLOWAMOUNT INTEREST PAYMENT DATE
- ------------------------------------- ----------------------------------- -----------------------------------
<S> <C> <C>
Issue Date--June 25, 2000 $10,742,000 First Interest Payment Date
- ------------------------------------- ----------------------------------- -----------------------------------
June 26, 2000--December 31, 2000 $16,930,000 Second Interest Payment Date
- ------------------------------------- ----------------------------------- -----------------------------------
January 1, 2001--July 1, 2001 $18,016,000 Third Interest Payment Date
- ------------------------------------- ----------------------------------- -----------------------------------
July 2, 2001--December 30, 2001 $20,253,000 Fourth Interest Payment Date
- ------------------------------------- ----------------------------------- -----------------------------------
</TABLE>
If, pursuant to this paragraph, the Company issues Secondary Securities in lieu
of cash payment, in whole or in part, of interest, it shall give notice to the
Trustee not less than five Business Days prior to the applicable Interest
Payment Date, and shall instruct the Trustee (upon written order of the Company
signed by an Officer of the Company given
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<PAGE>
not less than five nor more than 45 days prior to such Interest Payment Date) to
authenticate Secondary Securities, dated such Interest Payment Date, in a
principal amount equal to the amount of interest not paid in cash in respect of
this Security on such Interest Payment Date. Each issuance of Secondary
Securities in lieu of cash payments of interest on the Securities shall be made
PRO RATA with respect to the outstanding Securities. Any such Secondary
Securities shall be governed by the Indenture and shall be subject to the same
terms (including the maturity date and the rate of interest from time to time
payable thereon) as this Security (except, as the case may be, with respect to
the title, issuance date and aggregate principal amount). The term "Notes" shall
include the Secondary Securities that may be issued under the Indenture. Except
as otherwise allowed by the foregoing, interest shall be paid in cash.
Each payment of interest in respect of an Interest Payment Date will
include interest accrued through the day before such Interest Payment Date. If
an Interest Payment Date falls on a day that is not a Business Day, the interest
payment to be made on such Interest Payment Date will be made on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
To the extent lawful, the Company shall pay interest on overdue
principal, overdue premium and Defaulted Interest (without regard to any
applicable grace period) at the interest rate borne on this Note. The Company's
obligation pursuant to the previous sentence shall apply whether such overdue
amount is due at its maturity, as a result of the Company's obligations pursuant
to Section 3.05, Section 4.11 or Section 4.13 of the Indenture, or otherwise.
3. RESERVED.
4. Method of Payment.
The Company, through the Paying Agent, shall pay interest on this Note
to the registered Holder of this Note, as provided above. The Holder must
surrender this Note to a Paying Agent to collect principal payments. 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 all debts public and
private. Principal, premium, if any, and interest, other than such interest paid
in Secondary Securities, shall be paid by check mailed to the registered Holders
at their registered addresses; PROVIDED that all such payments with respect to
Notes the Holders of which have given wire transfer instructions to the Company
will be required to be made by wire transfer of immediately available funds to
the accounts specified by the Holders thereof. Payments of interest made in
Secondary Securities shall be made by mailing such Secondary Securities to the
registered Holders at their registered addresses.
5. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar under the
Indenture. The Company may, upon written notice to the Trustee, appoint and
change any Paying
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<PAGE>
Agent or Registrar. The Company or any of its Affiliates may act as Paying Agent
or Registrar, provided that if the Company or such Affiliate is acting as Paying
Agent, the Company or such Affiliate shall segregate all funds and Secondary
Securities held by it as Paying Agent and hold them in trust for the benefit of
the Holders or the Trustee Note Guarantees.
6. Guarantees
This Note is initially entitled to the benefits of the Note Guarantees
made by PTB International, Inc., a Delaware corporation, PTB Acquisition Sub,
Inc., a Delaware corporation, and PTB Holdings, Inc., an Ohio corporation, and
may thereafter be entitled to Note Guarantees made by other Note Guarantors for
the benefit of the Holders of Notes. Each present Note Guarantor has, and each
future Note Guarantor will, irrevocably and unconditionally, jointly and
severally, guarantee on a senior subordinated basis the punctual payment when
due, whether at Stated Maturity, by acceleration, in connection with a Change of
Control Offer, an Asset Sale Offer or redemption, or otherwise, of all
obligations of the Company under the Indenture and this Note, whether for
payment of principal of, premium, if any, or interest on the Notes, expenses,
indemnification or otherwise. A Note Guarantor shall be released from its Note
Guarantee upon the terms and subject to the conditions set forth in the
Indenture.
7. Subordination.
This Note and the Note Guarantees are subordinated in right of payment,
as set forth in the Indenture, to the prior payment in full of all existing and
future Senior Indebtedness. Each of the Company and the Note Guarantors agrees,
and each Holder by accepting a Note agrees, to the subordination provisions set
forth in the Indenture, authorizes the Trustee to give them effect and appoints
the Trustee as attorney-in-fact for such purpose.
8. Redemption.
Except as set forth in the following paragraph, the Notes are not
redeemable at the option of the Company prior to February 1, 2003. Thereafter,
the Notes will be subject to redemption at the option of the Company, in whole
or in part, on at least 30 calendar days' but not more than 60 calendar days'
prior notice, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest thereon, if any, to
the applicable Redemption Date (subject to the right of each Holder of record on
the relevant Record Date to receive interest due on the relevant Interest
Payment Date), if redeemed during the twelve-month period beginning February 1
of the years indicated below:
YEAR PERCENTAGE
---- ----------
2003 5.6250%
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<PAGE>
2004 2.8125%
In addition, at any time and from time to time prior to February 1,
2003 the Company, at its option, may redeem in the aggregate up to 35.0% of the
original principal amount of the Notes with the Net Cash Proceeds of one or more
Public Equity Offerings following which there is a Public Market, at a
redemption price (expressed as a percentage of principal amount) of 11.25% of
the aggregate principal amount so redeemed, plus accrued and unpaid interest
thereon to the redemption date (subject to the right of Holders of record on the
relevant Record Date to receive interest due on the relevant Interest Payment
Date); provided, however, that at least 65.0% of the original principal amount
of the Notes must remain outstanding after each such redemption; and provided,
further, that each such redemption shall occur within 60 days of the date of
closing of the related Public Equity Offering.
9. Notice of Redemption.
At least 20 calendar days but not more than 60 calendar days before a
Redemption Date, the Company shall deliver to the Trustee and send, by
first-class mail, postage prepaid, to Holders of Notes to be redeemed at the
addresses of such Holders as they appear in the Note Register, a notice of
redemption.
If fewer than all the Notes are to be redeemed at any time, the Trustee
shall select the Notes to be redeemed pro rata or by lot or by a method that
complies with applicable legal and securities exchange requirements, if any, and
that the Trustee considers fair and appropriate and in accordance with methods
generally used at the time of selection by fiduciaries in similar circumstances.
The Trustee shall make the selection from outstanding Notes not previously
called for redemption; provided that the Trustee may select for redemption
portions (equal to $1.00 or any integral multiple thereof) of the principal of
Notes that have denominations larger than $1.00 (Notes in denominations of $1.00
or less may be redeemed only in whole). If any Note is redeemed subsequent to a
Record Date with respect to any Interest Payment Date specified above and on or
prior to such Interest Payment Date, then any accrued interest will be paid on
such Interest Payment Date to the Holder of the Note on such Record Date. If
money in an amount sufficient to pay the Redemption Price of all Notes (or
portions thereof) to be redeemed on the Redemption Date is deposited with the
Paying Agent on or before the applicable Redemption Date and certain other
conditions are satisfied, interest on the Notes or portions thereof to be
redeemed on the applicable Redemption Date will cease to accrue.
10. Repurchase at the Option of Holders upon Change of Control.
Upon the occurrence of a Change of Control, each Holder shall have the
right in accordance with the terms hereof and the Indenture to require the
Company to purchase such Holder's Notes, in whole or in part, in a principal
amount that is an integral multiple of $1.00, pursuant to a Change of Control
Offer, at a purchase price in cash equal to
A-8
<PAGE>
101% of the principal amount of such Notes (or portions thereof) plus accrued
and unpaid interest to the Change of Control Payment Date.
Within 30 calendar days following any Change of Control, the Company
shall send, or cause to be sent, by first-class mail, postage prepaid, a notice
regarding the Change of Control Offer to each Holder with a copy to the Trustee.
The Holder of this Note may elect to have this Note or a portion hereof in an
authorized denomination purchased by completing the form entitled "Option of
Holder to Elect Purchase" appearing below and tendering this Note pursuant to
the Change of Control Offer. Unless the Company defaults in the payment of the
Change of Control Purchase Price with respect thereto, all Notes or portions
thereof accepted for payment pursuant to the Change of Control Offer will cease
to accrue interest from and after the Change of Control Payment Date.
Prior to complying with the provisions of the Indenture governing
Change of Control Offers, but in any event within 30 calendar days following a
Change of Control, the Company shall either repay all outstanding Senior
Indebtedness or obtain the requisite consents, if any, under all agreements
governing outstanding Senior Indebtedness to permit the repurchase of Notes
required by the provisions of the Indenture governing Change of Control Offers.
11. Repurchase at the Option of Holders upon Asset Sale.
If at any time the Company or any Restricted Subsidiary engages in any
Asset Sale, as a result of which the aggregate amount of Excess Proceeds exceeds
$10 million, the Company shall, within 30 calendar days of the date the amount
of Excess Proceeds exceeds $10 million, use the then-existing Excess Proceeds to
make an offer to purchase from all Holders of Notes, on a pro rata basis, Notes
in an aggregate principal amount equal in amount to the then-existing Excess
Proceeds, at a purchase price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest thereon to the to the
date of purchase by the Company pursuant to an Asset Sale Offer (subject to the
right of each Holder of record on the relevant Record Date to receive interest
due on the relevant Interest Payment Date). Upon completion of an Asset Sale
Offer (including payment of the Asset Sale Purchase Price for accepted Notes),
any surplus Excess Proceeds that were the subject of such offer shall cease to
be Excess Proceeds, and the Company may then use such amounts for general
corporate purposes.
Within 30 calendar days of the date the amount of Excess Proceeds
exceeds $10 million, the Company shall send, or cause to be sent, by first-class
mail, postage prepaid, a notice regarding the Asset Sale Offer to each Holder.
The Holder of this Note may elect to have this Note or a portion hereof in an
authorized denomination purchased by completing the form entitled "Option of
Holder to Elect Purchase" appearing below and tendering this Note pursuant to
the Asset Sale Offer. Unless the Company defaults in the payment of the Asset
Sale Purchase Price with respect thereto, all Notes or portions thereof selected
for payment pursuant to the Asset Sale Offer will cease to accrue interest
A-9
<PAGE>
from and after the to the date of purchase by the Company pursuant to an Asset
Sale Offer.
12. The Global Note.
So long as this Global Note is registered in the name of the Depositary
or its nominee, members of, or participants in, the Depositary ("Agent Members")
shall have no rights under the Indenture with respect to this Global Note held
on their behalf by the Depositary or the Trustee as its custodian, and the
Depositary may be treated by the Company, the Note Guarantors, the Trustee and
any agent of the Company, the Note Guarantors or the Trustee as the absolute
owner of this Global Note for all purposes. Notwithstanding the foregoing,
nothing herein shall (i) prevent the Company, the Note Guarantors, the Trustee
or any agent of the Company, the Note Guarantors or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or (ii) impair, as between the Depositary and its Agent Members,
the operation of customary practices governing the exercise of the rights of a
Holder.
The Holder of this Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests in this Global Note through Agent Members, to take any action which a
Holder is entitled to take under the Indenture or the Notes.
Whenever, as a result of optional redemption by the Company, a Change
of Control Offer, an Asset Sale Offer or an exchange for Certificated Notes,
this Global Note is redeemed, repurchased or exchanged in part, this Global Note
shall be surrendered by the Holder thereof to the Trustee who shall cause an
adjustment to be made to Schedule A hereof so that the principal amount of this
Global Note will be equal to the portion not redeemed, repurchased or exchanged
and shall thereafter return this Global Note to such Holder; PROVIDED that this
Global Note shall be in a principal amount of $1.00 or an integral multiple of
$1.00.
13. RESERVED.
14. Transfer and Exchange.
A Holder may transfer or as provided in the Indenture and subject to
certain limitations therein set forth. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and to
pay any taxes, fees and expenses required by law or permitted by the Indenture.
15. Denominations.
The Notes are issuable only in registered form without coupons in
denominations of $1.00 and integral multiples thereof of principal amount.
16. Discharge and Defeasance.
A-10
<PAGE>
Subject to certain conditions, the Company at any time may terminate
some or all of the obligations of the Company and the Note Guarantors under the
Notes, the Note Guarantees and the Indenture if the Company irrevocably deposits
in trust with the Trustee cash or US Government Obligations for the payment of
principal, premium, if any, interest on the Notes to redemption or maturity, as
the case may be.
17. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in principal amount of the outstanding Notes (which consent
may, but need not, be given in connection with any tender offer or exchange
offer for the Notes) and (ii) any past Default and its consequences or any
compliance with any provisions of the Indenture may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Notes. Subject to certain exceptions set forth in the Indenture,
without the consent of any Holder, the Company and the Trustee may amend the
Indenture or the Notes (i) to evidence the succession of another Person to the
Company and the assumption by such successor of the covenants of the Company
under the Indenture and contained in the Notes; (ii) to add to the covenants of
the Company, for the benefit of the Holders of all of the Notes, or to surrender
any right or power conferred on the Company under the Indenture; (iii) to
provide for uncertificated Notes in addition to or in place of Certificated
Notes; (iv) to secure the Notes; (v) to cure any ambiguity, omission, defect or
inconsistency in the Indenture, provided that such actions shall not adversely
affect the interests of the Holders of Notes in any material respect; (vi) to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; or (vii) to evidence the agreement
or acknowledgment of a Restricted Subsidiary that it is a Note Guarantor for all
purposes under the Indenture (including, without limitation, Article XII
thereof).
18. Defaults and Remedies.
Under the Indenture, Events of Default include: (i) a default for 30
days in the payment when due of interest on the Notes (whether or not prohibited
by the subordination provisions of the Indenture); (ii) a default in the payment
when due of the principal of or premium, if any, on the Notes (whether or not
prohibited by the subordination provisions of the Indenture); (iii) failure by
the Company to observe or perform certain covenants, conditions, agreements or
other provisions of the Indenture or this Note (and, in the case of certain
covenants, agreements or other provisions, such failure has continued for 30
calendar days after written notice by the Trustee or the Holders of at least 25%
in principal amount of the Notes); (iv) acceleration of Indebtedness of the
Company or any of its Significant Subsidiaries in an amount in excess of $15
million in the aggregate; (v) certain events of bankruptcy or insolvency with
respect to the Company or any of its Significant Subsidiaries; (vi) certain
undischarged judgments not covered by insurance in excess of $15 million against
the Company or any of its Significant Subsidiaries; or (vii) the Note Guarantee
of any Note Guarantor ceasing for certain reasons to be in full force and effect
(other than in
A-11
<PAGE>
accordance with the terms of the Indenture) or any Note Guarantor denying or
disaffirming its obligations under its Note Guarantee.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Notes, subject to certain
limitations, may declare all the Notes to be immediately due and payable.
Certain events of bankruptcy or insolvency shall result in the Notes being
immediately due and payable upon the occurrence of such Events of Default
without any further act of the Trustee or any Holder.
Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security Subject to certain
limitations, Holders of a majority in principal amount of the Notes may direct
the Trustee in its exercise of any trust or power under the Indenture. The
Holders of a majority in principal amount of the then outstanding Notes, by
written notice to the Trustee and the Company, may rescind any declaration of
acceleration and its consequences if the rescission would not conflict with any
judgment or decree, and if all existing Events of Default have been cured or
waived, except nonpayment of principal, interest or premium that has become due
solely because of acceleration. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
19. Individual Rights of Trustee.
Subject to certain limitations imposed by the TIA, the Trustee or any
Paying Agent or Registrar, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with the Company, the Note
Guarantors or their Affiliates with the same rights it would have if it were not
Trustee, Paying Agent or Registrar, as the case may be, under the Indenture.
20. No Recourse Against Certain Others.
No director, officer, employee, incorporator or stockholder of the
Company or any Note Guarantor, as such, shall have any liability for any
obligations of the Company or such Note Guarantor under the Notes, the Note
Guarantees or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation, solely by reason of its status as
a director, officer, employee, incorporator or stockholder of the Company or
such Note Guarantor. By accepting a Note, each Holder waives and releases all
such liability (but only such liability) as part of the consideration for
issuance of such Note to such Holder.
21. Authentication.
This Note shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the other side of this
Note.
22. Abbreviations.
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<PAGE>
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 rights of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors
Act).
23. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of Notes. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
24. Governing Law.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder upon written request and without
charge to the Holder a copy of the Indenture Requests may be made to:
Paragon Trade Brands, Inc.
180 Technology Parkway
Norcross, Georgia 30092
Attention: Chief Financial Officer
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<PAGE>
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT.
The initial principal amount at maturity of this Note shall be $146,000,000. The
following decreases/increase in the principal amount in denominations of $1.00
or integral multiples thereof at maturity of this Note have been made:
<TABLE>
<CAPTION>
Total Principal Amount Notation Decrease Increase Made by or on Date of
at in in Behalf of Maturity
Maturity Principal Principal Trustee
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
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<PAGE>
ASSIGNMENT
(To be executed by the registered Holder if such Holder desires to transfer this
Note).
FOR VALUE RECEIVED hereby sells, assigns and transfers unto
-----------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
(Please print name and address of transferee)
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE.
- --------------------------------------.
This Note, together with all right, title and interest herein, and does hereby
irrevocably constitute and appoint
------------------------------------------
Attorney to transfer this Note on the Note Register, with full power of
substitution.
Dated:
------------------
- ------------------------ --------------------------
Signature of Holder Signature Guaranteed
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Note in every particular, without alteration or
any change whatsoever.
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<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate).
_____ In connection with the Change of Control Offer made pursuant to
Section 4.13 of the Indenture, the undersigned hereby elects to have:
_____ the entire principal amount; or
_____ $________________ ($1.00 in principal amount or an integral
multiple thereof) of this Note repurchased by the Company.
The undersigned hereby directs the Trustee or Paying Agent to
_____ pay it; or
_____ pay ______________________
an amount in cash equal to 101% of the principal amount indicated in
the preceding sentence plus accrued and unpaid interest to the Change
of Control Payment Date.
_____ In connection with the Asset Sale Offer made pursuant to Section 4.10
of the Indenture, the undersigned hereby elects to have:
_____ the entire principal amount
_____ $________________ ($1.00 in principal amount or an integral
multiple thereof), of this Note repurchased by the Company.
The undersigned hereby directs the Trustee or Paying Agent to
_____ pay it; or
_____ pay _________________
an amount in cash equal to 100% of the principal amount indicated in
the preceding sentence plus accrued and unpaid interest to the to the
date of purchase by the Company pursuant to an Asset Sale Offer.
Dated: _______________.
- ------------------------ --------------------------
Signature of Holder Signature Guaranteed
NOTICE: The signature to the foregoing must correspond to the Name as written
upon the face of this Note in every particular, without alteration or any change
whatsoever.
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<PAGE>
EXHIBIT B
FORM OF CERTIFICATED NOTE.
FACE OF CERTIFICATED NOTE.
PARAGON TRADE BRANDS, INC. CUSIP No 69912KAA5.
11.25% SENIOR SUBORDINATED NOTE DUE 2005.
PARAGON TRADE BRANDS, INC., a Delaware corporation, for value received,
hereby promises to pay to __________________________, or its registered assigns,
the principal amount of ____________, on February 1, 2005.
Interest Payment Dates: February 1 and August 1, commencing August 1,
2000.
Record Dates: January 15 and July 15.
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.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purposes.
IN WITNESS WHEREOF, PARAGON TRADE BRANDS, INC. has caused this Note to
be duly executed.
PARAGON TRADE BRANDS, INC.
By:
------------------------
Name:
-------------------
Title:
------------------
Attest:
------------------------
Dated:
------------------------
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Norwest Bank Minnesota, National Association, as Trustee, certifies that this is
one of the Notes referred to in the Indenture.
By:
--------------------------
Authorized Signatory
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<PAGE>
REVERSE SIDE OF INITIAL CERTIFICATED NOTE.
PARAGON TRADE BRANDS, INC.
11.25% SENIOR SUBORDINATED NOTE DUE 2005.
1. Indenture.
This Note is one of a duly authorized issue of debt securities of the
Company (as defined below) designated as its 11.25% Senior Subordinated Notes
Due 2005" (herein called the "Notes") limited in aggregate principal amount to
$146,000,000, exclusive of any Secondary Securities, issued under an indenture
dated as of January 28, 2000 (as amended or supplemented from time to time, the
"Indenture") among the Company, as issuer, and PTB International, Inc., PTB
Acquisition Sub, Inc. and PTB Holdings, Inc., as guarantors (collectively, the
"Note Guarantors"), and Norwest Bank Minnesota, National Association, as trustee
(the "Trustee," which term includes any successor trustee under the Indenture).
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 of 1939, as amended (15
US Code ss.ss. 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders of Notes are referred to the Indenture and such Act for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Note Guarantors, the Trustee and each Holder and of the
terms upon which the Notes are, and are to be, authenticated and delivered. The
summary of the terms of this Note contained herein does not purport to be
complete and is qualified by reference to the Indenture. 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.
All capitalized terms used in this Note which are not defined herein shall have
the meanings assigned to them in the Indenture.
The Indenture restricts, among other things, the Company's ability to
incur additional indebtedness, pay dividends or make certain other restricted
payments, incur liens to secure pari passu or subordinated indebtedness, sell
stock of Restricted Subsidiaries, apply net proceeds from certain asset sales,
merge or consolidate with any other person, sell, assign, transfer, lease,
convey or otherwise dispose of substantially all of the assets of the Company,
enter into certain transactions with affiliates or incur indebtedness that is
subordinate in right of payment to any Senior Indebtedness and senior in right
of payment to the Notes. The Indenture permits, under certain circumstances,
Restricted Subsidiaries of the Company to be deemed Unrestricted Subsidiaries
and thus not subject to the restrictions of the Indenture.
2. Principal and Interest.
Paragon Trade Brands, Inc., a Delaware corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay the principal amount set
forth on Schedule A of this Note to the Holder hereof on February 1, 2005.
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The Company shall pay interest at a rate of 11.25% per annum, from the
Issue Date or from the most recent Interest Payment Date thereafter to which
interest has been paid or duly provided for, semiannually in arrears on February
1 and August 1 of each year, commencing on August 1, 2000, to the Holder hereof
until the principal amount hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions provided in the Indenture, be
paid to the Person in whose name this Note (or the Note in exchange or
substitution for which this Note was issued) is registered at the close of
business on the Record Date for interest payable on such Interest Payment Date.
The Record Date for any interest payment is the close of business on January 15
or July 15 as the case may be, whether or not a Business Day, immediately
preceding the Interest Payment Date on which such interest is payable. Any such
interest not so punctually paid or duly provided for ("Defaulted Interest")
shall forthwith cease to be payable to the Holder on such Record Date and shall
be paid as provided in Section 2.11 of the Indenture Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
If the Company's Cash Flow for a period specified below is less than
the amount specified for such period in the table below, then the Company may on
the Interest Payment Date set opposite such period, at the Company's option and
in its sole discretion, pay interest in additional Notes ("Secondary
Securities") in lieu of the payment in whole or in part of interest in cash on
the Notes; PROVIDED, HOWEVER, that the Company may at its option pay cash in
lieu of issuing Secondary Securities in any denominations of less than $1.00.
<TABLE>
<CAPTION>
- ------------------------------------- ----------------------------------- -----------------------------------
PERIOD SPECIFIED CASH FLOWAMOUNT INTEREST PAYMENT DATE
- ------------------------------------- ----------------------------------- -----------------------------------
<S> <C> <C>
Issue Date--June 25, 2000 $10,742,000 First Interest Payment Date
- ------------------------------------- ----------------------------------- -----------------------------------
June 26, 2000--December 31, 2000 $16,930,000 Second Interest Payment Date
- ------------------------------------- ----------------------------------- -----------------------------------
January 1, 2001--July 1, 2001 $18,016,000 Third Interest Payment Date
- ------------------------------------- ----------------------------------- -----------------------------------
July 2, 2001--December 30, 2001 $20,253,000 Fourth Interest Payment Date
- ------------------------------------- ----------------------------------- -----------------------------------
</TABLE>
If, pursuant to this paragraph, the Company issues Secondary Securities in lieu
of cash payment, in whole or in part, of interest, it shall give notice to the
Trustee not less than five Business Days prior to the applicable Interest
Payment Date, and shall instruct the Trustee (upon written order of the Company
signed by an Officer of the Company given not less than five nor more than 45
days prior to such Interest Payment Date) to authenticate Secondary Securities,
dated such Interest Payment Date, in a principal amount equal to the amount of
interest not paid in cash in respect of this Security on such Interest Payment
Date. Each issuance of Secondary Securities in lieu of cash payments of interest
on the Securities shall be made PRO RATA with respect to the outstanding
Securities. Any such Secondary Securities shall be governed by the Indenture and
shall be subject to the same terms (including the maturity date and the rate of
interest from time to time payable thereon) as this Security (except, as the
case may be, with respect to
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<PAGE>
the title, issuance date and aggregate principal amount). The term "Notes" shall
include the Secondary Securities that may be issued under the Indenture. Except
as otherwise allowed by the foregoing, interest shall be paid in cash.
Each payment of interest in respect of an Interest Payment Date will
include interest accrued through the day before such Interest Payment Date. If
an Interest Payment Date falls on a day that is not a Business Day, the interest
payment to be made on such Interest Payment Date will be made on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
To the extent lawful, the Company shall pay interest on overdue
principal, overdue premium and Defaulted Interest (without regard to any
applicable grace period) at the interest rate borne on this Note. The Company's
obligation pursuant to the previous sentence shall apply whether such overdue
amount is due at its maturity, as a result of the Company's obligations pursuant
to Section 3.05, Section 4.10 or Section 4.13 of the Indenture, or otherwise.
3. RESERVED.
4. Method of Payment.
The Company, through the Paying Agent, shall pay interest on this Note
to the registered Holder of this Note, as provided above. The Holder must
surrender this Note to a Paying Agent to collect principal payments. 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 all debts public and
private. Principal, premium, if any, and interest, other than such interest paid
in Secondary Securities, shall be paid by check mailed to the registered Holders
at their registered addresses; PROVIDED that all such payments with respect to
Notes the Holders of which have given wire transfer instructions to the Company
will be required to be made by wire transfer of immediately available funds to
the accounts specified by the Holders thereof. Payments of interest made in
Secondary Securities shall be made by mailing such Secondary Securities to the
registered Holders at their registered addresses.
5. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar under the
Indenture. The Company may, upon written notice to the Trustee, appoint and
change any Paying Agent or Registrar. The Company or any of its Affiliates may
act as Paying Agent or Registrar, provided that if the Company or such Affiliate
is acting as Paying Agent, the Company or such Affiliate shall segregate all
funds and Secondary Securities held by it as Paying Agent and hold them in trust
for the benefit of the Holders or the Trustee Note Guarantees.
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<PAGE>
6. Note Guarantees.
This Note is initially entitled to the benefits of the Note Guarantees
made by PTB International, Inc., a Delaware corporation, PTB Acquisition Sub,
Inc., a Delaware corporation, and PTB Holdings, Inc., an Ohio corporation, and
may thereafter be entitled to Note Guarantees made by other Note Guarantors for
the benefit of the Holders of Notes. Each present Note Guarantor has, and each
future Note Guarantor will, irrevocably and unconditionally, jointly and
severally, guarantee on a senior subordinated basis the punctual payment when
due, whether at Stated Maturity, by acceleration, in connection with a Change of
Control Offer, an Asset Sale Offer or redemption, or otherwise, of all
obligations of the Company under the Indenture and this Note, whether for
payment of principal of, premium, if any, and interest on the Notes, expenses,
indemnification or otherwise. A Note Guarantor shall be released from its Note
Guarantee upon the terms and subject to the conditions set forth in the
Indenture.
7. Subordination.
This Note and the Note Guarantees are subordinated in right of payment,
as set forth in the Indenture, to the prior payment in full of all existing and
future Senior Indebtedness. Each of the Company and the Note Guarantors agrees,
and each Holder by accepting a Note agrees, to the subordination provisions set
forth in the Indenture, authorizes the Trustee to give them effect and appoints
the Trustee as attorney-in-fact for such purpose.
8. Redemption.
Except as set forth in the following paragraph, the Notes are not
redeemable at the option of the Company prior to February 1, 2003. Thereafter,
the Notes will be subject to redemption at the option of the Company, in whole
or in part, on at least 30 calendar days' but not more than 60 calendar days'
prior notice, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest thereon, if any, to
the applicable Redemption Date (subject to the right of each Holder of record on
the relevant Record Date to receive interest due on the relevant Interest
Payment Date), if redeemed during the twelve-month period beginning February 1
of the years indicated below:
YEAR PERCENTAGE
---- ----------
2003 5.6250%
2004 2.8125%
In addition, at any time and from time to time prior to February 1,
2003 the Company, at its option, may redeem in the aggregate up to 35.0% of the
original principal
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<PAGE>
amount of the Notes with the Net Cash Proceeds of one or more Public Equity
Offerings following which there is a Public Market, at a redemption price
(expressed as a percentage of principal amount) of 111.25% of the aggregate
principal amount so redeemed, plus accrued and unpaid interest thereon to the
redemption date (subject to the right of Holders of record on the relevant
Record Date to receive interest due on the relevant Interest Payment Date);
PROVIDED, HOWEVER, that at least 65.0% of the original principal amount of the
Notes must remain outstanding after each such redemption; and provided, further,
that each such redemption shall occur within 60 days of the date of closing of
the related Public Equity Offering.
9. Notice of Redemption.
At least 20 calendar days but not more than 60 calendar days before a
Redemption Date, the Company shall deliver to the Trustee and send, by
first-class mail, postage prepaid, to Holders of Notes to be redeemed at the
addresses of such Holders as they appear in the Note Register, a notice of
redemption.
If fewer than all the Notes are to be redeemed at any time, the Trustee
shall select the Notes to be redeemed pro rata or by lot or by a method that
complies with applicable legal and securities exchange requirements, if any, and
that the Trustee considers fair and appropriate and in accordance with methods
generally used at the time of selection by fiduciaries in similar circumstances.
The Trustee shall make the selection from outstanding Notes not previously
called for redemption; provided that the Trustee may select for redemption
portions (equal to $1.00 or any integral multiple thereof) of the principal of
Notes that have denominations larger than $1.00 (Notes in denominations of $1.00
or less may be redeemed only in whole). If any Note is redeemed subsequent to a
Record Date with respect to any Interest Payment Date specified above and on or
prior to such Interest Payment Date, then any accrued interest will be paid on
such Interest Payment Date to the Holder of the Note on such Record Date. If
money in an amount sufficient to pay the Redemption Price of all Notes (or
portions thereof) to be redeemed on the Redemption Date is deposited with the
Paying Agent on or before the applicable Redemption Date and certain other
conditions are satisfied, interest on the Notes or portions thereof to be
redeemed on the applicable Redemption Date will cease to accrue.
10. Repurchase at the Option of Holders upon Change of Control.
Upon the occurrence of a Change of Control, each Holder shall have the
right in accordance with the terms hereof and the Indenture to require the
Company to purchase such Holder's Notes, in whole or in part, in a principal
amount that is an integral multiple of $1.00, pursuant to a Change of Control
Offer, at a purchase price in cash equal to 101% of the principal amount of such
Notes (or portions thereof) plus accrued and unpaid interest to the Change of
Control Payment Date.
Within 30 calendar days following any Change of Control, the Company
shall send, or cause to be sent, by first-class mail, postage prepaid, a notice
regarding the Change of Control Offer to each Holder with a copy to the Trustee.
The Holder of this Note may elect to have this Note or a portion hereof in an
authorized denomination
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<PAGE>
purchased by completing the form entitled "Option of Holder to Elect Purchase"
appearing below and tendering this Note pursuant to the Change of Control Offer.
Unless the Company defaults in the payment of the purchase price with respect
thereto, all Notes or portions thereof accepted for payment pursuant to the
Change of Control Offer will cease to accrue interest from and after the Change
of Control Payment Date.
Prior to complying with the provisions of the Indenture governing
Change of Control Offers, but in any event within 30 calendar days following a
Change of Control, the Company shall either repay all outstanding Senior
Indebtedness or obtain the requisite consents, if any, under all agreements
governing outstanding Senior Indebtedness to permit the repurchase of Notes
required by the provisions of the Indenture governing Change of Control Offers.
11. Repurchase at the Option of Holders upon Asset Sale.
If at any time the Company or any Restricted Subsidiary engages in any
Asset Sale, as a result of which the aggregate amount of Excess Proceeds exceeds
$10 million, the Company shall, within 30 calendar days of the date the amount
of Excess Proceeds exceeds $10 million, use the then-existing Excess Proceeds to
make an offer to purchase from all Holders of Notes, on a pro rata basis, Notes
in an aggregate principal amount equal in amount to the then-existing Excess
Proceeds, at a purchase price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest thereon to the date of
purchase by the Company pursuant to an Asset Sale Offer (subject to the right of
each Holder of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date). Upon completion of an Asset Sale Offer
(including payment of the Asset Sale Purchase Price for accepted Notes), any
surplus Excess Proceeds that were the subject of such offer shall cease to be
Excess Proceeds, and the Company may then use such amounts for general corporate
purposes.
Within 30 calendar days of the date the amount of Excess Proceeds
exceeds $10 million, the Company shall send, or cause to be sent, by first-class
mail, postage prepaid, a notice regarding the Asset Sale Offer to each Holder.
The Holder of this Note may elect to have this Note or a portion hereof in an
authorized denomination purchased by completing the form entitled "Option of
Holder to Elect Purchase" appearing below and tendering this Note pursuant to
the Asset Sale Offer. Unless the Company defaults in the payment of the Asset
Sale Purchase Price with respect thereto, all Notes or portions thereof selected
for payment pursuant to the Asset Sale Offer will cease to accrue interest from
and after the to the date of purchase by the Company pursuant to an Asset Sale
Offer.
12. RESERVED.
13. Transfer and Exchange.
A Holder may transfer or as provided in the Indenture and subject to
certain limitations therein set forth. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and to
pay any taxes, fees and
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<PAGE>
expenses required by law or permitted by the Indenture.
The Registrar need not register the transfer or exchange of Certificated Notes
or portions thereof selected for redemption (except, in the case of a
Certificated Note to be redeemed in part, the portion of such Certificated Note
not to be redeemed) or any Certificated Notes for a period of 15 calendar days
before a selection of Notes to be redeemed.
14. Denominations.
The Notes are issuable only in registered form without coupons in
denominations of $1.00 and integral multiples thereof of principal amount;
provided that Certificated Notes, except those issued pursuant to Section
2.06(a), shall be subject to a minimum denomination of $250,000.
15. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may terminate
some or all of the obligations of the Company and the Note Guarantors under the
Notes, the Note Guarantees and the Indenture if the Company irrevocably deposits
in trust with the Trustee cash or US Government Obligations for the payment of
principal, premium, if any, interest on the Notes to redemption or maturity, as
the case may be.
16. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in principal amount of the outstanding Notes (which consent
may, but need not, be given in connection with any tender offer or exchange
offer for the Notes) and (ii) any past Default and its consequences or any
compliance with any provisions of the Indenture may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Notes. Subject to certain exceptions set forth in the Indenture,
without the consent of any Holder, the Company and the Trustee may amend the
Indenture or the Notes (i) to evidence the succession of another Person to the
Company and the assumption by such successor of the covenants of the Company
under the Indenture and contained in the Notes; (ii) to add to the covenants of
the Company, for the benefit of the Holders of all of the Notes, or to surrender
any right or power conferred on the Company under the Indenture; (iii) to
provide for uncertificated Notes in addition to or in place of Certificated
Notes; (iv) to secure the Notes; (v) to cure any ambiguity, omission, defect or
inconsistency in the Indenture, provided that such actions shall not adversely
affect the interests of the Holders of Notes in any material respect; (vi) to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; or (vii) to evidence the agreement
or acknowledgment of a Restricted Subsidiary that it is a Note Guarantor for all
purposes under the Indenture (including, without limitation, Article XII
thereof).
17. Defaults and Remedies.
Under the Indenture, Events of Default include: (i) a default for 30
days in the payment when due of interest on the Notes (whether or not prohibited
by the
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subordination provisions of the Indenture); (ii) a default in the payment when
due of the principal of or premium, if any, on the Notes (whether or not
prohibited by the subordination provisions of the Indenture); (iii) failure by
the Company to observe or perform certain covenants, conditions, agreements or
other provisions of the Indenture or this Note (and, in the case of certain
covenants, agreements or other provisions, such failure has continued for 30
calendar days after written notice by the Trustee or the Holders of at least 25%
in principal amount of the Notes); (iv) a default in the payment of Indebtedness
acceleration of the Company or any of its Significant Subsidiaries Indebtedness
in an amount in excess of $15 million in the aggregate; (v) certain events of
bankruptcy or insolvency with respect to the Company or any of its Significant
Subsidiaries; (vi) certain undischarged judgments not covered by insurance in
excess of $15 million against the Company or any of its Significant
Subsidiaries; or (vii) the Note Guarantee of any Note Guarantor ceasing certain
reasons to be in full force and effect (other than in accordance with the terms
of the Indenture) or any Note Guarantor denying or disaffirming its obligations
under its Note Guarantee.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Notes, subject to certain
limitations, may declare all the Notes to be immediately due and payable.
Certain events of bankruptcy or insolvency shall result in the Notes being
immediately due and payable upon the occurrence of such Events of Default
without any further act of the Trustee or any Holder.
Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security Subject to certain
limitations, Holders of a majority in principal amount of the Notes may direct
the Trustee in its exercise of any trust or power under the Indenture. The
Holders of a majority in principal amount of the then outstanding Notes, by
written notice to the Trustee and the Company, may rescind any declaration of
acceleration and its consequences if the rescission would not conflict with any
judgment or decree, and if all existing Events of Default have been cured or
waived, except nonpayment of principal, interest or premium that has become due
solely because of acceleration. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
18. Individual Rights of Trustee.
Subject to certain limitations imposed by the TIA, the Trustee or any
Paying Agent or Registrar, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with the Company, the Note
Guarantors or their Affiliates with the same rights it would have if it were not
Trustee, Paying Agent or Registrar, as the case may be, under the Indenture.
19. No Recourse Against Certain Others.
No director, officer, employee, incorporator or stockholder of the
Company or any Note Guarantor, as such, shall have any liability for any
obligations of the Company
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<PAGE>
or such Note Guarantor under the Notes, the Note Guarantees or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation, solely by reason of its status as a director, officer, employee,
incorporator or stockholder of the Company or such Note Guarantor. By accepting
a Note, each Holder waives and releases all such liability (but only such
liability) as part of the consideration for issuance of such Note to such
Holder.
20. Authentication.
This Note shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the other side of this
Note.
21. 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 rights of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors
Act).
22. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of Notes. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
23. Governing Law.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder upon written request and without
charge to the Holder a copy of the Indenture Requests may be made to:
PARAGON TRADE BRANDS, INC.
180 Technology Parkway
Norcross, Georgia 30092
Attention: Chief Financial Officer
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ASSIGNMENT
(To be executed by the registered Holder if such Holder desires to transfer this
Note).
FOR VALUE RECEIVED hereby sells, assigns and transfers unto
-----------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
(Please print name and address of transferee)
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE.
- --------------------------------------.
This Note, together with all right, title and interest herein, and does hereby
irrevocably constitute and appoint
------------------------------------------
Attorney to transfer this Note on the Note Register, with full power of
substitution.
Dated:
------------------
- ------------------------ --------------------------
Signature of Holder Signature Guaranteed
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Note in every particular, without alteration or
any change whatsoever.
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<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate).
_____ In connection with the Change of Control Offer made pursuant to
Section 4.13 of the Indenture, the undersigned hereby elects to have:
_____ the entire principal amount; or
_____ $________________ ($1.00 in principal amount or an integral
multiple thereof) of this Note repurchased by the Company.
The undersigned hereby directs the Trustee or Paying Agent to
_____ pay it; or
_____ pay ______________________
an amount in cash equal to 101% of the principal amount indicated in
the preceding sentence plus accrued and unpaid interest to the Change
of Control Payment Date.
_____ In connection with the Asset Sale Offer made pursuant to Section 4.10
of the Indenture, the undersigned hereby elects to have:
_____ the entire principal amount
_____ $________________ ($1.00 in principal amount or an integral
multiple thereof), of this Note repurchased by the Company.
The undersigned hereby directs the Trustee or Paying Agent to
_____ pay it; or
_____ pay _________________
an amount in cash equal to 100% of the principal amount indicated in
the preceding sentence plus accrued and unpaid interest to the to the
date of purchase by the Company pursuant to an Asset Sale Offer.
Dated: _______________.
- ------------------------ --------------------------
Signature of Holder Signature Guaranteed
NOTICE: The signature to the foregoing must correspond to the Name as written
upon the face of this Note in every particular, without alteration or any change
whatsoever.
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PARAGON TRADE BRANDS, INC.
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Trustee
--------------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of JANUARY 28, 2000
--------------------------------------------------
Supplement to Indenture dated as of January 28, 2000
(11.25% Senior Subordinated Notes due 2005)
<PAGE>
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of January 28, 2000 ("First
Supplemental Indenture") by and between PARAGON TRADE BRANDS, INC., a Delaware
corporation (hereinafter called the "Company"), and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee under the Indenture (as hereinafter defined).
RECITALS
On January 28, 2000, the Company and the Trustee entered into
an Indenture, (hereinafter called the "Indenture;" all capitalized terms used
and not otherwise defined herein shall have the meanings set forth in the
Indenture) providing for the issuance by the Company its 11.25% Senior
Subordinated Notes due 2005.
Pursuant to Section 9.01 of the Indenture, the Company and
the Trustee desire to amend Section 3.01(a) of the Indenture to cure a defect
contained therein.
Concurrently with the execution hereof, the Company has
delivered an Officers' Certificate and has caused its counsel to deliver to the
Trustee an Opinion of Counsel.
All conditions and requirements of the Indenture necessary to
make this First Supplemental Indenture a valid, binding and legal instrument in
accordance with its terms have been performed and fulfilled by the parties
hereto and the execution and delivery thereof have been in all respects duly
authorized by the parties hereto.
For and in consideration of the mutual premises and agreements
herein contained, the Company and the Trustee covenant and agree, for the equal
and proportionate benefit of all Holders of the Notes, as follows:
SECTION 1. AMENDMENTS TO INDENTURE. Pursuant to the terms
hereof and Section 9.01 of the Indenture,
(a) the Company and the Trustee hereby amend Section 3.01(a)
of the Indenture by deleting the references to "5.6250%" and "2.8125%" contained
therein and substituting in their place "105.6250%" and "102.8125%",
respectively.
(b) the Company and the Trustee hereby amend Section 8 of
Exhibit A to the Indenture by deleting the references to "5.6250%" and "2.8125%"
contained therein and substituting in their place "105.6250%" and "102.8125%",
respectively.
(c) the Company and the Trustee hereby amend Section 8 of
Exhibit B to the Indenture by deleting the references to "5.6250%" and "2.8125%"
contained therein and substituting in their place "105.6250%" and "102.8125%",
respectively.
<PAGE>
SECTION 2. NOTATIONS ON GLOBAL NOTE. Pursuant to Section 9.05
of the Indenture, the Trustee is hereby authorized to place an appropriate
notation on the Note regarding the terms of Section 8 thereof changed pursuant
to this First Supplemental Indenture.
SECTION 3. EFFECTIVE DATE. This First Supplemental Indenture
shall be effective as of the date first above written and upon the execution and
delivery hereof by each of the parties hereto.
SECTION 4. GOVERNING LAW. This First Supplemental Indenture
shall be governed by, and construed in accordance with, the laws of the State of
New York applicable to agreements made and to be performed in said state.
SECTION 5. COUNTERPARTS. This First Supplemental Indenture may
be executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 6. EFFECT OF HEADINGS. The Section headings herein
are for convenience only and shall not affect the construction hereof.
SECTION 7. THE TRUSTEE. The Trustee shall not be responsible
in any manner whatsoever for or in respect of the validity or sufficiency of
this First Supplemental Indenture or for or in respect of the correctness of the
recitals of fact contained herein.
SECTION 8. EFFECT OF FIRST SUPPLEMENTAL INDENTURE. Except as
amended by this First Supplemental Indenture, the terms and provisions of the
Indenture shall remain in full force and effect.
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective officers hereunto
duly authorized, all as of the day and year first above written.
PARAGON TRADE BRANDS, INC.
Dated: _______________ By: /s/ Alan J. Cyron
---------------------------
Name: ALAN J. CYRON
Title: Chief Financial Officer
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as
Trustee
Dated: __________________ By: /s/ Jane Schweiger
---------------------------
Name: JANE Y. SCHWEIGER
Title: Corporate Trust Officer
Agreed and Acknowledged:
PTB HOLDINGS, INC.
Dated: _______________ By: /s/ Alan J. Cyron
---------------------------
Name: ALAN J. CYRON
Title: Chief Financial Officer
PTB INTERNATIONAL, INC.
Dated: _______________ By: /s/ Alan J. Cyron
---------------------------
Name: ALAN J. CYRON
Title: Chief Financial Officer
PTB ACQUISITION SUB, INC.
Dated: _______________ By: /s/ Alan J. Cyron
---------------------------
Name: ALAN J. CYRON
Title: Chief Financial Officer
3
[OBJECT OMITTED-COMPANY LOGO]
NEWS
FOR IMMEDIATE RELEASE
CONTACT: Kurt P. Ross
Guy B. Lawrence
K.P. ROSS, INC.
tel: (212) 308-3333
E-mail: [email protected]
PARAGON EXITS CHAPTER 11
ANNOUNCES CLOSING OF WELLSPRING TRANSACTION
NORCROSS, GA, -- January 28, 2000 - Paragon Trade Brands, Inc. (OTC Bulletin
Board: PGNFQ) announced today that it has exited Chapter 11 and that investors
led by Wellspring Capital Management LLC ("Wellspring") have purchased the
Company (the "Wellspring Transaction") in accordance with Paragon's Modified
Second Amended Plan of Reorganization (the "Plan"). The Plan was previously
confirmed by the United States Bankruptcy Court for the Northern District of
Georgia. The Plan provides for the surrender of the outstanding equity shares of
Paragon, the settlement of all outstanding claims against the Company and a
recapitalization of the Company.
Under the Plan, Wellspring purchased approximately 97% of the new common stock
of the Company for approximately $115 million cash with the balance of the new
common stock going to former shareholders, along with warrants to purchase up to
5% of the new common stock. In addition, the Company issued $146 million in
11.25% Senior Subordinated Notes due 2005 and established a $95 million
three-year, secured credit facility with Citicorp USA, Inc., as Administrative
Agent. Creditors of the Company will receive, pursuant to the Plan, a pro rata
share of the purchase price invested by Wellspring and a pro rata share of the
$146 million Senior Subordinated Notes. The Plan also provides that the
creditors and former shareholders will share in the proceeds, if any, of certain
litigation claims that will remain with the estate and be prosecuted by a
<PAGE>
Litigation Claims Representative appointed under the Plan and supported by
separate funding provided for under the Plan.
Commenting on the closing of the Wellspring Transaction and Paragon's exit from
Chapter 11, Bobby Abraham, Chief Executive Officer of Paragon, stated, "The
closing of the Wellspring Transaction and our emergence from Chapter 11 marks
the beginning of a positive new chapter for Paragon. Without the distractions of
Chapter 11, Paragon can better focus on serving the needs of its customers with
new and improved products and marketing initiatives. The solid capital structure
provided by the Wellspring Transaction will allow us to achieve our goals for
sales growth and product innovations on an accelerated basis."
Wellspring Capital Management Partner, David Mariano, further noted, "Our
investment in Paragon is consistent with our strategy of investing in companies
where there is the opportunity for substantial value creation. In line with that
strategy, we have worked closely with Paragon's financial and legal team to
create a financial structure that will allow the Company to fund all of its
product development and marketing programs while at the same time maximizing
operating efficiencies. Given the combined strengths of the recapitalized
company and the continuity of experience provided by Paragon's management we are
confident that Paragon is on the path to successful growth and profitability."
Paragon Trade Brands is the leading manufacturer of store brand infant
disposable diapers in the United States and, through its wholly owned
subsidiary, Paragon Trade Brands (Canada) Inc., is the leading marketer of store
brand infant disposable diapers in Canada. Paragon manufactures a line of
premium and economy diapers, training pants, feminine care and adult
incontinence products, which are distributed throughout the United States and
Canada, primarily through grocery and food stores, mass merchandisers, warehouse
clubs, toy stores and drug stores that market the products under their own store
brand names. Paragon has also established international joint
<PAGE>
ventures in Mexico, Argentina, Brazil and China for the sale of infant
disposable diapers and other absorbent personal care products.
Statements made in this press release, other than those concerning historical
information, should be considered forward-looking statements. Such statements
are subject to certain risks and uncertainties that could cause actual results
to differ materially from those expressed in the Company's forward-looking
statements. Factors which could affect the Company's financial results,
including, but not limited to: increased raw material prices and product costs;
new product and packaging introductions by competitors; increased price and
promotion pressure from competitors; new competitors in the market; increased
financial leverage; Year 2000 compliance issues; and patent litigation, are
described herein and in the Company's Annual Report on Form 10-K filed with the
Securities and Exchange Commission. Readers are cautioned not to place undue
reliance on the forward-looking statements contained herein, which speak only as
of the date hereof, and which are made by management pursuant to the "safe
harbor" provisions of the Private Securities Litigation Reform Act of 1995.
ALAN J. CYRON
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
PARAGON TRADE BRANDS, INC.
180 TECHNOLOGY PARKWAY
NORCROSS, GA 30092
678/969-5200
