Delta ▇▇▇▇▇, Inc.
As Issuer
Delta ▇▇▇▇▇ Marketing, Inc.,
As Guarantor
$150,000,000
SERIES A AND SERIES B
9_% SENIOR NOTES DUE 2007
INDENTURE
Dated as of August 25, ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
As Trustee
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture
Section
310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.10
(c) N.A.
311 (a) 7.11
(b) 7.11
(c) N.A.
312 (a) 2.05
(b) 11.03
(c) 11.03
313 (a) 7.06
(b)(2) 7.07
(c) 7.06;11.02
(d) 7.06
314 (a) 4.03;11.02
(c)(1) 11.04
(c)(2) 11.04
(c)(3) N.A.
(e) 11.05
(f) N.A.
315 (a) 7.01
(b) 7.05,11.02
(c) 7.01
(d) 7.01
(e) 6.11
316 (a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 2.12
317 (a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318 (a) 11.01
(b) N.A.
(c) 11.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the
Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions 1
Section 1.02. Other Definitions 13
Section 1.03. Incorporation by Reference of
Trust Indenture Act 13
Section 1.04. Rules of Construction 14
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating 14
Section 2.02. Execution and Authentication 15
Section 2.03. Registrar and Paying Agent 15
Section 2.04. Paying Agent to Hold Money in
Trust 16
Section 2.05. Holder Lists 16
Section 2.06. Transfer and Exchange 16
Section 2.07. Replacement Notes 21
Section 2.08. Outstanding Notes 22
Section 2.09. Treasury Notes 22
Section 2.10. Temporary Notes 22
Section 2.11. Cancellation 22
Section 2.12. Defaulted Interest 23
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee 23
Section 3.02. Selection of Notes to Be Re
deemed 23
Section 3.03. Notice of Redemption 24
Section 3.04. Effect of Notice of Redemption 24
Section 3.05. Deposit of Redemption Price 25
Section 3.06. Notes Redeemed in Part 25
Section 3.07. Optional Redemption 25
Section 3.08. Mandatory Redemption 26
Section 3.09. Offer to Purchase by
Application of Excess Proceeds 26
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes 27
Section 4.02. Maintenance of Office or Agency 28
Section 4.03. Reports 28
Section 4.04. Compliance Certificate 29
Section 4.05. Taxes 29
Section 4.06. Stay, Extension and Usury Laws 29
Section 4.07. Restricted Payments 30
Section 4.08. Dividend and Other Payment
Restrictions Affecting
Subsidiaries 31
Section 4.09. Incurrence of Indebtedness and
Issuance of Preferred Stock 32
Section 4.10. Asset Sales 33
Section 4.11. Transactions with Affiliates 34
Section 4.12. Liens 35
Section 4.13. Sale and Leaseback Transactions 35
Section 4.14. Corporate Existence 36
Section 4.15. Offer to Repurchase Upon Change
of Control 36
Section 4.16. Limitation on Issuances and
Sales of Capital Stock of
Wholly-Owned Subsidiaries 37
Section 4.17. Payments for Consent 37
Section 4.18. Limitation on Investment
Company Status 38
Section 4.19. Additional Subsidiary Guarantees 38
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale
of Assets 38
Section 5.02. Successor Corporation Substituted 39
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default 39
Section 6.02. Acceleration 41
Section 6.03. Other Remedies 41
Section 6.04. Waiver of Past Defaults 42
Section 6.05. Control by Majority 42
Section 6.06. Limitation on Suits 42
Section 6.07. Rights of Holders of Notes to
Receive Payment 43
Section 6.08. Collection Suit by Trustee 43
Section 6.09. Trustee May File Proofs of
Claim 43
Section 6.10. Priorities 43
Section 6.11. Undertaking for Costs 44
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee 44
Section 7.02. Rights of Trustee 45
Section 7.03. Individual Rights of Trustee 46
Section 7.04. Trustee's Disclaimer 46
Section 7.05. Notice of Defaults 47
Section 7.06. Reports by Trustee to Holders
of the Notes 47
Section 7.07. Compensation and Indemnity 47
Section 7.08. Replacement of Trustee 48
Section 7.09. Successor Trustee by Merger, etc. 49
Section 7.10. Eligibility; Disqualification 49
Section 7.11. Preferential Collection of
Claims Against Company 49
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defasance
or Covenant Defeasance 49
Section 8.02. Legal Defeasance and Discharge 50
Section 8.03. Covenant Defeasance 50
Section 8.04. Conditions to Legal or Covenant
Defeasance 50
Section 8.05. Deposited Money and Government
Securities to be Held in Trust;
Other Miscellaneous Provisions. 52
Section 8.06 Repayment to Company 52
Section 8.07. Reinstatement 53
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of
Notes 53
Section 9.02. With Consent of Holders of Notes 54
Section 9.03. Compliance with Trust Indenture
Act 55
Section 9.04. Revocation and Effect of Consents 55
Section 9.05. Notation on or Exchange of Notes 55
Section 9.06. Trustee to Sign Amendments, etc 55
ARTICLE 10
SUBSIDIARY GUARANTEES
Section 10.01. Subsidiary Guarantees 56
Section 10.02. Execution and Delivery of
Subsidiary Guarantees 57
Section 10.03. Guarantors May Consolidate,
etc., on Certain Terms 57
Section 10.04. Releases Following Sale of
Assets 58
Section 10.05. Limitation on Guarantor Liability 58
Section 10.06. "Trustee" to Include Paying Agent 59
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls 59
Section 11.02. Notices 59
Section 11.03. Communication by Holders of
Notes with Other Holders of Notes 60
Section 11.04. Certificate and Opinion as to
Conditions Precedent 60
Section 11.05. Statements Required in Certificate
or Opinion 61
Section 11.06. Rules by Trustee and Agents 61
Section 11.07. No Personal Liability of
Directors, Officers, Employees or
Stockholders 61
Section 11.08. Governing Law 61
Section 11.09. No Adverse Interpretation of
Other Agreements 61
Section 11.10. Successors 61
Section 11.11. Severability 61
Section 11.12. Counterpart Originals 62
Section 11.13. Table of Contents, Headings, etc 62
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF SUBSIDIARY GUARANTEE
INDENTURE dated as of August 25, 1997 among Delta ▇▇▇▇▇, Inc., a
Delaware corporation (the "Company"), Delta ▇▇▇▇▇ Marketing,
Inc., a Delaware corporation (together with all other Persons who
execute a Subsidiary Guarantee pursuant to the terms of this
Indenture, the "Guarantors") and The Bank of New York, as trustee
(the "Trustee").
The Company, the Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the 9_% Series A Senior Notes
due 2007 (the "Series A Notes") and the 9_% Series B Senior Notes
due 2007 (the "Series B Notes" and, together with the Series A
Notes, the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"accreted value" means, with respect to discount
Indebtedness, as of any date of determination prior to the end of
the "discount" or "zero coupon" period for such discount
Indebtedness, the sum of (a) the initial offering price of such
Indebtedness and (b) that portion of the excess of the principal
amount at maturity of such Indebtedness over such initial
offering price as shall have been accreted thereon from the date
of issuance of such discount Indebtedness through the date of
determination.
"Acquired Debt" means, with respect to any specified
Person, (i) Indebtedness of any other Person existing at the
time such other Person is merged with or into or became a
Subsidiary of such specified Person which was not incurred in
connection with, or in contemplation of, such other Person
merging with or into or becoming a Subsidiary of such specified
Person, and (ii) Indebtedness secured by a Lien encumbering any
asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided that, for
purposes of Section 4.11, beneficial ownership of 10% or more of
the voting securities of a Person shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer
or exchange of or for beneficial interests in any Global Note,
the rules and procedures of the Depository that apply to such
transfer or exchange.
"Approved Lender" means (i) any domestic commercial bank
having capital and surplus in excess of $100.0 million and a
▇▇▇▇▇ Bank Watch Rating of "B" or better and (ii) any bank whose
short term commercial paper rating by Standard & Poor's Ratings
Services is A-1 or better or whose short term commercial paper
rating by ▇▇▇▇▇'▇ Investors Service is P-1 or better.
"Asset Sale" means the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way
of a sale and leaseback and the receipt of proceeds of insurance
(excluding business interruption insurance)) paid on account of
the loss of or damage to any asset and awards of compensation for
any asset taken by condemnation, eminent domain or similar
proceeding, but excluding the granting of any Lien, in each case,
in one or a series of related transactions (a) that have a fair
market value in excess of $1,000,000 or (b) yield Net Proceeds in
excess of $1,000,000. Notwithstanding the foregoing, the term
"Asset Sale" shall not include (i) any sale, lease, conveyance or
other disposition that constitutes a Restricted Payment or an
Investment permitted to be made under the Indenture, (ii) any
transaction governed by Section 5.01, (iii) the sale or lease of
equipment, inventory, accounts receivable or other assets in the
ordinary course of business, (iv) the transfer of assets by the
Company to a Wholly-Owned Subsidiary of the Company (other than a
Receivables Subsidiary) or by a Wholly-Owned Subsidiary of the
Company (other than a Receivables Subsidiary) to the Company or
another Wholly-Owned Subsidiary of the Company (other than a
Receivables Subsidiary), (v) the sale or other disposition of
cash or Cash Equivalents, or (vi) the sale of accounts
receivables and related assets customarily transferred in an
asset securitization transaction involving accounts receivable to
a Receivables Subsidiary or by a Receivables Subsidiary, in each
case, in connection with a Qualified Receivables Transaction.
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present
value (discounted at the rate of interest implicit in such
transaction, determined in accordance with GAAP) of the
obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback
transaction (including any period for which such lease has been
extended or may, at the option of the lessor, be extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar
or successor federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors or other
governing body charged with the ultimate management of any
Person, or any duly authorized committee thereof.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability
in respect of a capital lease that would at such time be required
to be capitalized on a balance sheet in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation,
corporate stock, (ii) in the case of an association or business
entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of corporate stock, (iii)
in the case of a partnership, partnership interests (whether
general or limited) and (iv) any other interest or participation
that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing
Person.
"Cash Equivalents" means (i) United States dollars,
(ii) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality thereof (provided, that the full faith and credit
of the United States is pledged in support thereof) having
maturities of not more than twelve months from the date of
acquisition, (iii) time deposits and certificates of deposit
(United States dollar, eurodollar or fully hedged into United
States Dollars if denominated in a currency other than United
States Dollars) with maturities of twelve months or less from the
date of acquisition, in each case with an Approved Lender, and
(iv) commercial paper issued by any Approved Lender (or by the
corporate parent of such Approved Lender) or any variable rate
note issued or guaranteed by a corporation organized under the
laws of the United States, any state thereof, the District of
Columbia or any territory thereof and rated A-2 or better by
Standard & Poor's Investors Services or P-2 or better by ▇▇▇▇▇'▇
Investor Services, in each case maturing within six months after
the date of acquisition.
"Change of Control" means the occurrence of any of the
following: (i) the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially
all of the assets of the Company and its Subsidiaries taken as a
whole to any "person" (as such term is used in Section 13(d)(3)
of the Exchange Act) other than the Principals, (ii) the adoption
of a plan relating to the liquidation or dissolution of the
Company or Delta Woodside Industries, Inc., (iii) the
consummation of any transaction (including, without limitation,
any merger or consolidation) the result of which is that any
"person" (as defined above), other than the Principals, becomes
the "beneficial owner" (as such term is defined in Rule 13d-3 and
Rule 13d-5 under the Exchange Act), directly or indirectly, of
more than 50% of the Voting Stock of Delta Woodside Industries,
Inc., (iv) the first day on which a majority of the members of
the Board of Directors of the Company or Delta Woodside
Industries, Inc. are not Continuing Directors or (v) the first
day on which the Company ceases to be a Subsidiary of Delta
Woodside Industries, Inc. For purposes of this definition, any
transfer of an equity interest of an entity that was formed for
the purpose of acquiring Voting Stock of the Company shall be
deemed to be a transfer of such portion of such Voting Stock as
corresponds to the portion of the equity of such entity that has
been so transferred.
"Consolidated Cash Flow" means, with respect to any Person
for any period, the Consolidated Net Income of such Person for
such period plus (i) an amount equal to any extraordinary loss
plus any net loss realized in connection with an Asset Sale (to
the extent such losses were deducted in computing such
Consolidated Net Income), plus (ii) provision for taxes based on
income or profits of such Person and its Subsidiaries for such
period, to the extent that such provision for taxes was included
in computing such Consolidated Net Income, plus (iii)
consolidated interest expense of such Person and its Subsidiaries
for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of
original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings,
and net payments (if any) pursuant to Hedging Obligations), to
the extent that any such expense was deducted in computing such
Consolidated Net Income, plus (iv) depreciation, amortization
(including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in
a prior period) and other non-cash charges (excluding any such
non-cash charge to the extent that it represents an accrual of or
reserve for cash charges in any future period or amortization of
a prepaid cash expense that was paid in a prior period) of such
Person and its Subsidiaries for such period to the extent that
such depreciation, amortization and other non-cash charges were
deducted in computing such Consolidated Net Income minus (v) non-
cash items of such Person and its Subsidiaries increasing
Consolidated Net Income for such period, in each case, on a
consolidated basis and determined in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes on the
income or profits of, and the depreciation and amortization and
other non-cash charges of, a Subsidiary of the referent Person
shall be added to Consolidated Net Income to compute Consolidated
Cash Flow only to the extent (and in same proportion) that the
Net Income of such Subsidiary was included in calculating the
Consolidated Net Income of such Person and only if a
corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Subsidiary
without prior governmental approval (that has not been obtained),
and without direct or indirect restriction pursuant to the terms
of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations
applicable to that Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person
for any period, the aggregate of the Net Income of such Person
and its Subsidiaries for such period, on a consolidated basis,
determined in accordance with GAAP; provided that (i) the Net
Income (but not loss) of any Person that is not a Subsidiary or
that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly-
Owned Subsidiary thereof that is a Guarantor, (ii) the Net Income
of any Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by
that Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by
operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary or its
stockholders, shall be excluded, (iii) the Net Income of any
Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded
and (iv) the cumulative effect of a change in accounting
principles shall be excluded.
"Consolidated Net Worth" means, with respect to any Person
as of any date, the sum of (i) the consolidated equity of the
common stockholders of such Person and its consolidated
Subsidiaries as of such date plus (ii) the respective amounts
reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified
Stock) that by its terms is not entitled to the payment of
dividends unless such dividends may be declared and paid only out
of net earnings, but only to the extent of any cash received by
such Person upon issuance of such preferred stock, less (a) all
write-ups (other than write-ups resulting from foreign currency
translations and write-ups of tangible assets of a going concern
business made within 12 months after the acquisition of such
business) subsequent to the date of the Indenture in the book
value of any asset owned by such Person or a consolidated
Subsidiary of such Person, (b) all investments as of such date in
unconsolidated Subsidiaries and in Persons that are not
Subsidiaries (except, in each case, Permitted Investments), and
(c) all unamortized debt discount and expense and unamortized
deferred charges as of such date, all of the foregoing determined
in accordance with GAAP.
"Continuing Directors" means, as of any date of
determination, any member of the Board of Directors who (i) was a
member of such Board of Directors on the date of the Indenture or
(ii) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such
nomination or election.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 11.02 or such other
address as to which the Trustee may give notice to the Company.
"Default" means any event that is or with the passage of
time or the giving of notice or both would be an Event of
Default.
"Definitive Note" means a certificated Note registered in
the name of the Holder thereof and issued in accordance with this
Indenture, substantially in the form of Exhibit A hereto, except
that such Note shall not have the information called for by
footnotes 1 and 2 thereof.
"Depository" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified
in Section 2.03 as the Depository with respect to the Notes,
until a successor shall have been appointed and become such
pursuant to the applicable provision of this Indenture, and,
thereafter, "Depository" shall mean or include such successor.
"Disqualified Stock" means any Capital Stock that, 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, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the Holder thereof, in whole or in part, on or
prior to the date that is 91 days after the date on which the
Notes mature.
"Eligible Inventory" means, as of any date of
determination, all inventory of the Company and its Subsidiaries,
wherever located, valued in accordance with GAAP and reflected on
the most recent balance sheet of the Company prior to such date
of determination for which financial statements of the Company
are available.
"Eligible Receivables" means, as of any date of
determination, all accounts receivable of the Company and its
Subsidiaries (including amounts denominated as due from factor)
arising out of the sale of inventory or manufacturing services in
the ordinary course of business, valued in accordance with GAAP
and reflected on the most recent balance sheet of the Company
prior to such date of determination for which financial
statements of the Company are available.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding
any debt security that is convertible into, or exchangeable for,
Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Exchange Offer" has the meaning set forth in the
Registration Rights Agreement.
"Fixed Charges" means, with respect to any Person for any
period, the sum of (i) the consolidated interest expense of such
Person and its Subsidiaries for such period, whether paid or
accrued (including, without limitation, amortization of original
issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings,
and net payments (if any) pursuant to Hedging Obligations, but
excluding amortization of deferred financing charges incurred in
connection with the Refinancing) and (ii) the consolidated
interest expense of such Person and its Subsidiaries that was
capitalized during such period, and (iii) any interest expense on
Indebtedness of another Person that is guaranteed by such Person
or one of its Subsidiaries or secured by a Lien on assets of such
Person or one of its Subsidiaries (whether or not such guarantee
or Lien is called upon) and (iv) the product of (a) all cash
dividend payments (and non-cash dividend payments in the case of
a Person that is a Subsidiary), other than dividends paid to
such Person or a Wholly-Owned Subsidiary of such Person, on any
series of preferred stock of such Person, times (b) a fraction,
the numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local
statutory tax rate of such Person, expressed as a decimal, in
each case, on a consolidated basis and in accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any
Person for any period, the ratio of the Consolidated Cash Flow of
such Person for such period to the Fixed Charges of such Person
for such period. In the event that the Company or any of its
Subsidiaries incurs, assumes, guarantees or redeems or otherwise
repays any Indebtedness (other than revolving credit borrowings)
or issues or redeems preferred stock subsequent to the
commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the date on which the
event for which the calculation of the Fixed Charge Coverage
Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to
such incurrence, assumption, guarantee, redemption or repayment
of Indebtedness, or such issuance or redemption of preferred
stock, as if the same had occurred at the beginning of the
applicable four-quarter reference period. In addition, for
purposes of making the computation referred to above, (i)
acquisitions that have been made by the Company or any of its
Subsidiaries, including through mergers or consolidations and
including any related financing transactions, during the four-
quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the four-quarter reference period,
and Consolidated Cash Flow for such reference period shall be
calculated on such pro forma basis without giving effect to
clause (iii) of the proviso set forth in the definition of
Consolidated Net Income, and (ii) the Consolidated Cash Flow
attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, and (iii) the
Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded, but
only to the extent that the obligations giving rise to such Fixed
Charges shall not be obligations of the referent Person or any of
its Subsidiaries following the Calculation Date.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of
the accounting profession which are in effect on the date of the
Indenture.
"Global Note" means the global note in the form of Exhibit
A hereto bearing the Private Placement Legend and deposited with
and registered in the name of the Depository or its nominee that
will be issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Rule 144A.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the
payment of which guarantee or obligations the full faith and
credit of the United States is pledged.
"guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of
business), direct or indirect, in any manner (including, without
limitation, letters of credit and reimbursement agreements in
respect thereof), of all or any part of any Indebtedness.
"Guarantor" means each of (i) Delta ▇▇▇▇▇ Marketing, Inc.
and (ii) any other subsidiary that executes a Subsidiary
Guarantee in accordance with the provisions of the Indenture, and
their respective successors and assigns.
"Hedging Obligations" means, with respect to any Person,
the obligations of such Person under (i) interest rate swap
agreements, interest rate cap agreements and interest rate collar
agreements and (ii) other agreements or arrangements designed to
protect such Person against fluctuations in interest rates, the
value of foreign currencies and the value of commodities
purchased by the Company or any of its Subsidiaries in the
ordinary course of business.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in
respect of borrowed money or evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's
acceptances or representing Capital Lease Obligations or the
balance deferred and unpaid of the purchase price of any property
or representing any Hedging Obligations, except any such balance
that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters
of credit and Hedging Obligations) would appear as a liability
upon a balance sheet of such Person prepared in accordance with
GAAP, as well as all indebtedness of others secured by a Lien on
any asset of such Person (whether or not such indebtedness is
assumed by such Person) and, to the extent not otherwise
included, the guarantee by such Person of any Indebtedness of any
other Person and the Attributable Debt of such Person relating to
any sale and leaseback transaction.
"Indenture" means this Indenture, as amended or
supplemented from time to time.
"Indirect Participant" means a Person who holds a
beneficial interest in a Global Note through a Participant.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including
Affiliates) in the forms of direct or indirect loans (including
guarantees of Indebtedness or other obligations), advances or
capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of
business), or purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities, together
with all items that are or would be classified as investments on
a balance sheet prepared in accordance with GAAP; provided that
an acquisition of assets, Equity Interests or other securities by
the Company or a Subsidiary of the Company for consideration
consisting of common equity securities or preferred stock (not
constituting Disqualified Stock) of the Company shall not be
deemed to be an Investment.
"Legal Holiday" means a Saturday, a Sunday or a day on
which banking institutions in the City of New York or at a place
of payment are authorized by law, regulation or executive order
to remain closed. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any
kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law (including any
conditional sale or other title retention agreement, any capital
lease and any other preferential arrangement that has
substantially the same practical effect as a security interest in
any asset).
"Liquidated Damages" means, at any time, all liquidated
damages then owing pursuant to Section 5 of the Registration
Rights Agreement.
"Net Income" means, with respect to any Person, the net
income (loss) of such Person, determined in accordance with GAAP
and before any reduction in respect of preferred stock dividends,
excluding, however, (i) any gain (but not loss), together with
any related provision for taxes on such gain (but not loss),
realized in connection with (a) any Asset Sale (including,
without limitation, dispositions pursuant to sale and leaseback
transactions) or (b) the disposition of any securities by such
Person or any of its Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Subsidiaries and
(ii) any extraordinary or nonrecurring gain (but not loss),
together with any related provision for taxes on such
extraordinary or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received
by the Company or any of its Subsidiaries in respect of any Asset
Sale (including, without limitation, any cash received upon the
sale or other disposition of any non-cash consideration received
in any Asset Sale), net of the direct costs relating to such
Asset Sale (including, without limitation, legal, accounting and
investment banking fees, and sales commissions), any relocation
expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements), and any
reserve for adjustment in respect of the sale price of such asset
or assets established in accordance with GAAP.
"New Credit Facility" means that certain Credit Agreement,
dated as of the date of the Indenture, by and among the Company
and NationsBank, N.A., as administrative agent, and BNY Financial
Corporation, as collateral agent, including any related notes,
guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as amended,
modified, renewed, refunded, replaced or refinanced from time to
time.
"Note Custodian" means the Trustee, as custodian with
respect to the Notes in global form, or any successor entity
thereto.
"Obligations" means any principal, interest, penalties,
fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any
Indebtedness.
"Offering" means the Offering of the Notes by the Company.
"Officer" means, with respect to any Person, the Chairman
of the Board, the Chief Executive Officer, the President, the
Chief Operating Officer, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary
or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on
behalf of the Company by two Officers of the Company, one of whom
must be the principal executive officer, a vice chairman, the
principal financial officer, the treasurer or the principal
accounting officer of the Company, that meets the requirements of
Section 11.05.
"Opinion of Counsel" means an opinion from legal counsel
who is reasonably acceptable to the Trustee, that meets the
requirements of Section 11.05. The counsel may be an employee of
or counsel to the Company or any Subsidiary of the Company.
"Participant" means, with respect to DTC, a Person who has
an account with DTC.
"Permitted Investments" means any Investments (i) made in
the Company, a Wholly-Owned Subsidiary of the Company (other than
a Receivables Subsidiary) or any other entity that (a) is engaged
in the same or a similar line of business as the Company or any
of its Subsidiaries was engaged in as of the date of the
Indenture or any reasonable extensions or expansions thereof and
(b) as a result of such Investment becomes a Wholly-Owned
Subsidiary of the Company (other than a Receivables Subsidiary);
(ii) made as a result of the receipt of non-cash consideration
from an Asset Sale that was made pursuant to and in compliance
with Sections 3.09 and 4.10, (iii) outstanding as of the date of
the Indenture; (iv) made in cash or Cash Equivalents; or (v) by
the Company or a Wholly-Owned Subsidiary of the Company in a
Receivables Subsidiary or any Investment by a Receivables
Subsidiary in any other Person or assets, in each case, in
connection with a Qualified Receivables Transaction; provided
that any Investment in any such Person is in the form of a
Purchase Money Note, any equity interest or interests in accounts
receivable generated by the Company or a Subsidiary of the
Company and transferred to any Person in connection with a
Qualified Receivables Transaction or any such Person owning such
accounts receivable.
"Permitted Liens" means (i) Liens existing on the date of
the Indenture; (ii) Liens to secure the performance of the Notes
and the Subsidiary Guarantees; (iii) Liens in favor of the
Company; (iv) Liens to secure Indebtedness (including Capital
Lease Obligations) permitted by clause (iii) of the second
paragraph of Section 4.09 covering only those assets acquired,
constructed or improved with such Indebtedness; provided that
such Liens do not extend to any assets of the Company or its
Subsidiaries other than such acquired, constructed or improved
assets; (v) Liens on property securing Acquired Debt existing at
the time of acquisition of such property by the Company or any
Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such acquisition and do
not extend to any assets of the Company or its Subsidiaries other
than the acquired property; (vi) Liens on property of a Person
securing Acquired Debt existing at the time such Person is merged
into or consolidated with the Company or any Subsidiary of the
Company or otherwise becomes a Subsidiary of the Company;
provided that such Liens were in existence prior to the
contemplation of such merger or consolidation or acquisition and
do not extend to any assets other than those of the Person merged
into, consolidated or otherwise acquired; (vii) Liens on (x) the
accounts receivable and inventory (and related property) (and
proceeds thereof) of the Company or any Subsidiary of the Company
and (y) Capital Stock of the Company's Subsidiaries, in each
case, to secure Indebtedness incurred under the New Credit
Facility; (viii) Liens on assets of a Receivables Subsidiary
securing Indebtedness incurred in connection with a Qualified
Receivables Transaction, provided that such Indebtedness was
incurred in connection with such Qualified Receivables
Transaction; (ix) Liens to secure Permitted Refinancing Debt
incurred to refinance the Indebtedness referred to in the
preceding clauses (i), (iv), (v), (vi) and (vii); provided that
such Liens do not extend to any assets other than those specified
in clauses (i), (iv), (v), (vi) and (vii); (x) Liens to secure
the performance of statutory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature incurred
in the ordinary course of business; (xi) Liens for taxes,
assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently
concluded; provided, that any reserve or other appropriate
provision as shall be required in conformity with GAAP shall have
been made therefor; (xii) Liens incurred or deposits made to
secure the performance of tenders, bids, leases, statutory
obligations, surety and appeal bonds, government contracts,
performance and return of money bonds and other obligations of a
like nature, in each case incurred in the ordinary course of
business (exclusive of obligations for the payment of borrowed
money); (xiii) Liens encumbering customary initial deposits and
margin deposits, and other Liens incurred in the ordinary course
of business that are within the general parameters customary in
the industry, in each case securing Indebtedness under Hedging
Obligations; and (xiv) easements, right-of-ways, municipal and
zoning ordinances and similar charges, encumbrances, title
defects or other irregularities that do not materially interfere
with the ordinary course of business of the Company and its
Subsidiaries.
"Permitted Refinancing Debt" means any Indebtedness of the
Company or any of its Subsidiaries issued in exchange for, or the
Net Proceeds of which are used to extend, refinance, renew,
replace, defease or refund, other Indebtedness of the Company or
any of its Subsidiaries (other than Indebtedness described in
clauses (i), (v), (vi), (vii) and (viii) of the second paragraph
of Section 4.09); provided that: (i) the principal amount (or
accreted value, if applicable) of such Permitted Refinancing Debt
does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of reasonable
expenses incurred in connection therewith); (ii) such Permitted
Refinancing Debt has a final maturity date not earlier than the
final maturity date of, and 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 Permitted Refinancing Debt 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 Subsidiary who is the
obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership,
unincorporated organization, trust, joint venture, or a
governmental agency or political subdivision thereof.
"Principals" means E. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, any spouse or lineal descendant of either of them, and
any Related Party of any such Person.
"Private Placement Legend" means the legend set forth in
Section 2.06(g)(i) to be placed on all Notes issued under this
Indenture except as otherwise permitted by the provisions of this
Indenture.
"Purchase Money Note" means a promissory note evidencing a
line of credit, which may be irrevocable, from, or evidencing
other Indebtedness owed to, the Company or any Subsidiary of the
Company in connection with a Qualified Receivables Transaction,
which note shall be repaid from cash available to the maker of
such note, other than amounts required to be established as
reserves pursuant to agreements, amounts paid to investors in
respect of interest, principal and other amounts owing to such
investors and amounts paid in connection with the purchase of
newly generated receivables.
"Qualified Receivables Transaction" means any transaction
or series of transactions that may be entered into by the Company
or any Subsidiary of the Company pursuant to which the Company or
any Subsidiary of the Company may sell, convey or otherwise
transfer to (a) a Receivables Subsidiary (in the case of a
transfer by the Company or any Subsidiary of the Company) and (b)
any other Person (in the case of a transfer by a Receivables
Subsidiary), or may grant a security interest in, any accounts
receivable (whether now existing or arising in the future) of the
Company or any Subsidiary of the Company, and any asset related
thereto including, without limitation, all collateral securing
such accounts receivable, all contracts and all guarantees or
other obligations in respect of such accounts receivable,
proceeds of such accounts receivable and other assets which are
customarily transferred or in respect of which security interests
are customarily granted in connection with asset securitization
transactions involving accounts receivable.
"Receivables Subsidiary" means a Wholly-Owned Subsidiary of
the Company (other than a Subsidiary Guarantor) which engages in
no activities other than in connection with the financing of
accounts receivable and which is designated by the Board of
Directors of the Company (as provided below) as a Receivables
Subsidiary (a) no portion of the Indebtedness or any other
Obligations (contingent or otherwise) of which (i) is guaranteed
by the Company or any other Subsidiary of the Company (excluding
guarantees of Obligations (other than the principal of, and
interest on, Indebtedness)) pursuant to Standard Securitization
Undertakings, (ii) is recourse to or obligates the Company or any
other Subsidiary of the Company in any way other than pursuant to
Standard Securitization Undertakings or (iii) subjects any
property or asset of the Company or any other Subsidiary of the
Company, directly or indirectly, contingently or otherwise, to
the satisfaction thereof, other than pursuant to Standard
Securitization Undertakings, (b) with which neither the Company
nor any other Subsidiary of the Company has any material
contract, agreement, arrangement or understanding (except in
connection with a Purchase Money Note or Qualified Receivables
Transaction) other than on terms no less favorable to the Company
or such other Subsidiary of the Company than those that might be
obtained at the time from persons that are not Affiliates of the
Company, other than fees payable in the ordinary course of
business in connection with servicing accounts receivable, and
(c) to which neither the Company nor any other Subsidiary of the
Company has any obligation to maintain or preserve such entity's
financial condition or cause such entity to achieve certain
levels of operating results. Any such designation by the Board
of Directors of the Company shall be evidenced to the Trustee by
filing with the Trustee a certified copy of the resolution of the
Board of Directors of the Company giving effect to such
designation and an Officers' Certificate certifying, to the best
of such officer's knowledge and belief after consulting with
counsel, that such designation complied with the foregoing
conditions.
"Registration Rights Agreement" means the Registration
Rights Agreement, dated as of the date of this Indenture, by and
among the Company, the Guarantor and the other parties named on
the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"Related Party" with respect to any Principal means (A) any
controlling stockholder or majority owned Subsidiary of such
Principal or (B) any trust, corporation, partnership or other
entity, the beneficiaries, stockholders, partners, owners or
Persons beneficially holding a 51% or more controlling interest
of which consist of such Principal and/or such other Persons
referred to in the immediately preceding clause (A).
"Responsible Officer," when used with respect to the
Trustee, means any officer within the Corporate Trust
Administration department of the Trustee (or any successor group
of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity
with the particular subject.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Standard Securitization Undertakings" means
representations, warranties, covenants and indemnities entered
into by the Company or any Subsidiary of the Company which are
reasonably customary in an accounts receivable transaction.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on
which such payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness,
and shall not include any contingent obligations to repay, redeem
or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock
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
such Person and/or one or more of the other Subsidiaries of that
Person (or a combination thereof) and (ii) any partnership (a)
the sole general partner or the managing general partner of which
is such Person or a Subsidiary of such Person or (b) the only
general partners of which are such Person and/or one or more
Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantee" means the guarantee of the Notes by
each of the Guarantors pursuant to Article 10 hereof and in the
form of Subsidiary Guarantee attached hereto as Exhibit C and any
additional guarantee of the Notes to be executed by any
Subsidiary pursuant to Section 4.19.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
77aaa-77bbbb) as in effect on the date on which this Indenture
is qualified under the TIA.
"Transfer Restricted Securities" means securities that bear
or are required to bear the legend set forth in Section 2.06(g).
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor
serving hereunder.
"Unrestricted Global Note" means one or more global Notes
that do not and are not required to bear the Private Placement
Legend and are deposited with and registered in the name of the
Depository or its nominee.
"Unrestricted Definitive Note" means one or more Definitive
Notes that do not and are not required to bear the Private
Placement Legend.
"Voting Stock" of any Person as of any date means the
Capital Stock of such Person that is at the time entitled to vote
in the election of the Board of Directors of such Person.
"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 products obtained by multiplying (a)
the amount of each then remaining installment, sinking fund,
serial maturity or other required payments of principal,
including payment 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 Subsidiary" of any Person means a Subsidiary
of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying
shares) shall at the time be owned by such Person or by one or
more Wholly-Owned Subsidiaries of such Person or by such Person
and one or more Wholly-Owned Subsidiaries of such Person.
Section 1.02. Other Definitions.
Defined in
Term Section
"Affiliate Transaction" 4.11
"Asset Sale Offer" 3.09
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.03
"DTC" 2.03
"Event of Default" 6.01
"Excess Proceeds" 4.10
"incur" 4.09
"insolvent" 10.05
"Legal Defeasance" 8.02
"Offer Amount" 3.09
"Offer Period" 3.09
"Paying Agent" 2.03
"Payment Default" 6.01
"Permitted Debt" 4.09
"Purchase Date" 3.09
"Registrar" 2.03
"Restricted Payments" 4.07
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of
this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined
by SEC rule under the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and
transactions;
(6) references to sections of or rules under the
Securities Act shall be deemed to include substitute,
replacement of successor sections or rules adopted by the SEC
from time to time; and
(7) masculine pronouns include the feminine and neutral
genders.
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The
Notes may be issued in the form of Definitive Notes or Global
Notes, as specified by the Company. The Notes may have
notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of $1,000
and integral multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this
Indenture and the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and
be controlling.
Notes issued in global form shall be substantially in the
form of Exhibit A attached hereto (including the text referred to
in footnote 1 and 2 thereto). Notes issued in definitive form
shall be substantially in the form of Exhibit A attached hereto
(but without including the text referred to in footnote 1 and 2
thereto). Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the
Trustee or the Note Custodian, at the direction of the Trustee,
in accordance with instructions given by the Holder thereof as
required by Section 2.06.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Notes for the Company by manual
or facsimile signature.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall
nevertheless be valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive
evidence that the Note has been authenticated under this
Indenture.
The Trustee shall, upon a written order of the Company
signed by two Officers, authenticate Notes for original issue up
to the aggregate principal amount stated in paragraph 4 of the
Notes. Notes to be so issued shall be either Definitive Notes or
Global Notes, as specified by the Company in such order. The
aggregate principal amount of Notes outstanding at any time may
not exceed such amount except as provided in Section 2.07.
The Trustee may appoint an authenticating agent acceptable
to the Company to authenticate Notes. An authenticating agent
may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes
may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep
a register of the Notes and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any
co-registrar and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with
respect to the Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in
trust for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal, premium or
Liquidated Damages, if any, or interest on the Notes, and will
notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the
Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If
the Company or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company,
the Trustee shall serve as Paying Agent for the Notes.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of all Holders and shall otherwise comply
with TIA 312(a). If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least seven Business Days
before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of
such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes and the Company shall otherwise
comply with TIA 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes. When
Definitive Notes are presented by a Holder to the Registrar with
a request:
(x) to register the transfer of the
Definitive Notes; or
(y) to exchange such Definitive Notes for an
equal principal amount of Definitive Notes of other
authorized denominations,
the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met;
provided, however, that the Definitive Notes presented or
surrendered for register of transfer or exchange:
(i) shall be duly endorsed or
accompanied by a written instruction of transfer
in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly
authorized in writing; and
(ii) in the case of a Definitive Note
that is a Transfer Restricted Security, such
request shall be accompanied by the following
additional information and documents, as
applicable:
(A) if such Transfer Restricted
Security is being delivered to the Registrar by
a Holder for registration in the name of such
Holder, without transfer, a certification to
that effect from such Holder (in substantially
the form of Exhibit B hereto); or
(B) if such Transfer Restricted
Security is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A
under the Securities Act) in accordance with
Rule 144A under the Securities Act or pursuant
to an exemption from registration in accordance
with Rule 144 or Rule 904 under the Securities
Act or pursuant to an effective registration
statement under the Securities Act, a
certification to that effect from such Holder
(in substantially the form of Exhibit B
hereto); or
(C) if such Transfer Restricted
Security is being transferred in reliance on
another exemption from the registration
requirements of the Securities Act, a
certification to that effect from such Holder
(in substantially the form of Exhibit B hereto)
and an Opinion of Counsel from such Holder or
the transferee reasonably acceptable to the
Company and to the Registrar to the effect that
such transfer is in compliance with the
Securities Act and applicable state securities
laws.
(b) Transfer of a Definitive Note for a Beneficial
Interest in a Global Note. A Definitive Note may not be
exchanged for a beneficial interest in a Global Note except upon
satisfaction of the requirements set forth below. Upon receipt
by the Trustee of a Definitive Note, duly endorsed or accompanied
by appropriate instruments of transfer, in form satisfactory to
the Trustee, together with:
(i) if such Definitive Note is a Transfer
Restricted Security, a certification from the Holder
thereof (in substantially the form of Exhibit B hereto)
to the effect that such Definitive Note is being
transferred by such Holder to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities
Act) in accordance with Rule 144A under the Securities
Act; and
(ii) whether or not such Definitive Note is a
Transfer Restricted Security, written instructions from
the Holder thereof directing the Trustee to make, or to
direct the Note Custodian to make, an endorsement on the
Global Note to reflect an increase in the aggregate
principal amount of the Notes represented by the Global
Note,
in which case the Trustee shall cancel such Definitive Note in
accordance with Section 2.11 and cause, or direct the Note
Custodian to cause, in accordance with the standing instructions
and procedures existing between the Depository and the Note
Custodian, the aggregate principal amount of Notes represented by
the Global Note to be increased accordingly. If no Global Notes
are then outstanding, the Company shall issue and, upon receipt
of an authentication order in accordance with Section 2.02, the
Trustee shall authenticate a new Global Note in the appropriate
principal amount.
(c) Transfer and Exchange of Global Notes. The transfer
and exchange of Global Notes or beneficial interests therein
shall be effected through the Depository, in accordance with this
Indenture and the procedures of the Depository therefor, which
shall include restrictions on transfer comparable to those set
forth herein to the extent required by the Securities Act.
(d) Transfer of a Beneficial Interest in a Global
Note for a Definitive Note.
(i) Any Person having a beneficial interest
in a Global Note may upon request to the Trustee
exchange such beneficial interest for a Definitive
Note. Upon receipt by the Trustee of written
instructions or such other form of instructions as is
customary for the Depository, from the Depository or
its nominee on behalf of any Person having a
beneficial interest in a Global Note, and, in the
case of a Transfer Restricted Security, the following
additional information and documents (all of which
may be submitted by facsimile):
(A) if such beneficial interest
is being transferred to the Person designated
by the Depository as being the beneficial
owner, a certification to that effect from such
Person (in substantially the form of Exhibit B
hereto); or
(B) if such beneficial interest
is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A
under the Securities Act) in accordance with
Rule 144A under the Securities Act or pursuant
to an exemption from registration in accordance
with Rule 144 or Rule 904 under the Securities
Act or pursuant to an effective registration
statement under the Securities Act, a
certification to that effect from the
transferor (in substantially the form of
Exhibit B hereto); or
(C) if such beneficial interest
is being transferred in reliance on another
exemption from the registration requirements of
the Securities Act, a certification to that
effect from the transferor (in substantially
the form of Exhibit B hereto) and an Opinion of
Counsel from the transferee or transferor
reasonably acceptable to the Company and to the
Registrar to the effect that such transfer is
in compliance with the Securities Act and
applicable state securities laws,
in which case the Trustee or the Note
Custodian, at the direction of the Trustee, shall, in
accordance with the standing instructions and
procedures existing between the Depository and the
Note Custodian, cause the aggregate principal amount
of Global Notes to be reduced accordingly and,
following such reduction, the Company shall execute
and, upon receipt of an authentication order in
accordance with Section 2.02, the Trustee shall
authenticate and deliver to the transferee a
Definitive Note in the appropriate principal amount.
(ii) Definitive Notes issued in exchange for a
beneficial interest in a Global Note pursuant to this
Section 2.06(d) shall be registered in such names and
in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect
Participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Definitive
Notes to the Persons in whose names such Notes are so
registered.
(e) Restrictions on Transfer and Exchange of Global
Notes. Notwithstanding any other provision of this Indenture
(other than the provisions set forth in subsection (f) of this
Section 2.06), a Global Note may not be transferred as a whole
except by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of
the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Authentication of Definitive Notes in Absence
of Depository. If at any time:
(i) the Depository for the Notes notifies the
Company that the Depository is unwilling or unable to
continue as Depository for the Global Notes and a
successor Depository for the Global Notes is not
appointed by the Company within 90 days after
delivery of such notice; or
(ii) the Company, at its sole discretion,
notifies the Trustee in writing that it elects to
cause the issuance of Definitive Notes under this
Indenture,
then the Company shall execute, and the Trustee shall, upon
receipt of an authentication order in accordance with Section
2.02, authenticate and deliver, Definitive Notes in an aggregate
principal amount equal to the principal amount of the Global
Notes in exchange for such Global Notes.
(g) Legends. The following legend shall appear on the
face of all Global Notes and Definitive Notes issued under this
Indenture unless specifically stated otherwise in the applicable
provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by
subparagraphs (ii) and (iii) below, each Global
Note and each Definitive Note (and all Notes
issued in exchange therefor or substitution
thereof) shall bear the legend in substantially
the following form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS NOTE
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
IN ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (SUBJECT TO
DELIVERY OF SUCH EVIDENCE, IF ANY, REQUIRED UNDER THE
INDENTURE PURSUANT TO WHICH THIS NOTE IS ISSUED) AND IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER JURISDICTION."
(ii) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer
Restricted Security represented by a Global Note)
pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under
the Securities Act:
(A) in the case of any Transfer
Restricted Security that is a Definitive Note, the
Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a
Definitive Note that does not bear the legend set
forth in (i) above and rescind any restriction on
the transfer of such Transfer Restricted Security;
and
(B) in the case of any Transfer
Restricted Security represented by a Global Note,
such Transfer Restricted Security shall not be
required to bear the legend set forth in (i)
above, but shall continue to be subject to the
provisions of Section 2.06(c); provided, however,
that with respect to any request for an exchange
of a Transfer Restricted Security that is
represented by a Global Note for a Definitive Note
that does not bear the legend set forth in (i)
above, which request is made in reliance upon Rule
144, the Holder thereof shall certify in writing
to the Registrar that such request is being made
pursuant to Rule 144 (such certification to be
substantially in the form of Exhibit B hereto).
(iii) Notwithstanding the foregoing, upon
consummation of the Exchange Offer, the Company shall
issue and, upon receipt of an authentication order in
accordance with Section 2.02, the Trustee shall
authenticate Series B Notes in exchange for Series A
Notes accepted for exchange in the Exchange Offer,
which Series B Notes shall not bear the legend set
forth in (i) above, and the Registrar shall rescind
any restriction on the transfer of such Notes, in
each case unless the Holder of such Series A Notes is
either (A) a broker-dealer, (B) a Person
participating in the distribution of the Series A
Notes or (C) a Person who is an affiliate (as defined
in Rule 144A) of the Company.
(h) Cancellation and/or Adjustment of Global Notes. At
such time as all beneficial interests in Global Notes have been
exchanged for Definitive Notes, redeemed, repurchased or
cancelled, all Global Notes shall be returned to or retained and
cancelled by the Trustee in accordance with Section 2.11. At any
time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for Definitive Notes, redeemed,
repurchased or cancelled, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and
an endorsement shall be made on such Global Note, by the Trustee
or the Note Custodian, at the direction of the Trustee, to
reflect such reduction.
(i) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of
transfers and exchanges, the Company shall execute
and the Trustee shall authenticate Definitive
Notes and Global Notes at the Registrar's request.
(ii) No service charge shall be made to
a Holder for any registration of transfer or
exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or
similar governmental charge payable in connection
therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange
or transfer pursuant to Sections 3.07, 4.10, 4.15
and 9.05 hereto).
(iii) The Registrar shall not be
required to register the transfer of or exchange
any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note
being redeemed in part.
(iv) All Definitive Notes and Global
Notes issued upon any registration of transfer or
exchange of Definitive Notes or Global Notes shall
be the valid obligations of the Company,
evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Definitive
Notes or Global Notes surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required:
(A) to issue, to register the
transfer of or to exchange Notes during a
period beginning at the opening of business 15
days before the day of any selection of Notes
for redemption under Section 3.02 and ending at
the close of business on the day of selection;
or
(B) to register the transfer of
or to exchange any Note so selected for
redemption in whole or in part, except the
unredeemed portion of any Note being redeemed
in part; or
(C) to register the transfer of
or to exchange a Note between a record date and
the next succeeding interest payment date.
(vi) Prior to due presentment for the
registration of a transfer of any Note, the
Trustee, any Agent and the Company may deem and
treat the Person in whose name any Note is
registered as the absolute owner of such Note for
the purpose of receiving payment of principal of
and interest on such Notes, and neither the
Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
(vii) The Trustee shall authenticate
Definitive Notes and Global Notes in accordance
with the provisions of Section 2.02.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Note, the Company shall
issue and the Trustee, upon the written order of the Company
signed by two Officers of the Company, shall authenticate a
replacement Note and cancel the Note with respect to which the
replacement Note is issued if the Trustee's requirements are met.
If required by the Trustee or the Company, an indemnity bond must
be supplied by the Holder that is sufficient in the judgment of
the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of
them may suffer if a Note is replaced. The Company may charge
for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly
issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it,
those delivered to it for cancellation, those reductions in the
interest in a Global Note effected by the Trustee in accordance
with the provisions hereof, and those described in this Section
as not outstanding. Except as set forth in Section 2.09, 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 receives proof satisfactory
to it that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid
under Section 4.01, it ceases to be outstanding and interest on
it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary
or an Affiliate of any thereof) holds, on a redemption date or
maturity date, money sufficient to pay Notes payable on that
date, then on and after that date such Notes shall be deemed to
be no longer outstanding and shall cease to accrue interest.
Section 2.09. Treasury Notes.
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 Person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Company, shall be disregarded,
except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or
consent, only Notes that a Trustee knows are so owned shall be so
disregarded.
Section 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Notes
upon a written order of the Company signed by two Officers of the
Company. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable
delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee
for cancellation. The Registrar and 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 all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall return
such cancelled Notes to the Company. Certification of the
destruction of all cancelled Notes shall be delivered to the
Company. The Company may not issue new Notes to replace Notes
that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the
Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special
record date, in each case at the rate provided in the Notes and
in Section 4.01. The Company shall notify the Trustee in writing
of the amount of defaulted interest proposed to be paid on each
Note and the date of the proposed payment. The Company shall
fix or cause to be fixed each such special record date and
payment date, provided that no such special record date shall be
less than 10 days prior to the related payment date for such
defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company,
the Trustee in the name and at the expense of the Company) shall
mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of
such interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.07, it shall furnish
to the Trustee, at least 45 days but not more than 60 days before
a redemption date, an Officers' Certificate setting forth (a) the
clause of this Indenture pursuant to which the redemption shall
occur, (b) the redemption date, (c) the principal amount of Notes
to be redeemed, (d) the redemption price and (e) the CUSIP
numbers of the Notes to be redeemed.
Section 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any
time, the Trustee shall select the Notes to be redeemed among the
Holders of the Notes in compliance with the requirements of the
principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro
rata basis, by lot or in accordance with any other method the
Trustee considers fair and appropriate. In the event of partial
redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor
more than 60 days prior to the redemption date by the Trustee
from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to
be redeemed. Notes and portions of Notes selected shall be in
amounts of $1,000 or whole multiples of $1,000; except that if
all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a
multiple of $1,000, shall be redeemed. Except as provided in the
preceding sentence, provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes
called for redemption.
Section 3.03. Notice of Redemption.
Subject to the provisions of Section 3.09, at least 30 days
but not more than 60 days before a redemption date, the Company
shall mail or cause to be mailed, by first class mail, a notice
of redemption to each Holder whose Notes are to be redeemed at
its registered address.
The notice shall identify the Notes to be redeemed,
including CUSIP numbers, and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that,
after the redemption date upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed
portion shall be issued upon cancellation of the original
Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption
ceases to accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption
are being redeemed; and
(h) 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 its expense; provided,
however, that the Company shall have delivered to the Trustee, at
least 45 days prior to the redemption date, an Officers'
Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as
provided in the preceding paragraph (except information with
respect to the selection of Notes to be redeemed, which
information will be determined by the Trustee under Section
3.02).
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with
Section 3.03, Notes called for redemption become irrevocably due
and payable on the redemption date at the redemption price. A
notice of redemption may not be conditional.
Section 3.05. Deposit of Redemption Price.
Before 10:00 a.m. (New York Time) on the redemption date,
the Company shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of and accrued
interest on all Notes to be redeemed on that date. The Trustee
or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption
price of, and accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the
preceding paragraph, on and after the redemption date, interest
shall cease to accrue on the Notes or the portions of Notes
called for redemption. If a Note is redeemed on or after an
interest record date but on or prior to the related interest
payment date, then on such payment date any accrued and unpaid
interest shall be paid to the Person in whose name such Note was
registered at the close of business on such record date. If any
Note called for redemption shall not be so paid upon surrender
for redemption because of the failure of the Company to comply
with the preceding paragraph, interest shall be paid on the
unpaid principal, from the redemption date until such principal
is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the
Notes and in Section 4.01.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the
Company shall issue and, upon the Company's written request, the
Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) The Company shall not have the option to redeem the
Notes pursuant to this Section 3.07 prior to September 1, 2002.
Thereafter the Notes shall be subject to redemption at the option
of the Company, in whole or in part, upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month
period beginning on September 1 of the years indicated below:
Year Percentage
2002 104.8125%
2003 103.2083%
2004 101.6041%
2005 and thereafter 100.0000%
(b) Any redemption pursuant to this Section 3.07 shall be
made pursuant to the provisions of Section 3.01 through 3.06.
Section 3.08. Mandatory Redemption.
Except as set forth under Sections 4.10 and 4.15, the
Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
Section 3.09. Offer to Purchase by Application of Excess
Proceeds.
In the event that, pursuant to Section 4.10, the Company
shall be required to commence an offer to all Holders to purchase
Notes (an "Asset Sale Offer"), it shall follow the procedures
specified below.
The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to
the extent that a longer period is required by applicable law
(the "Offer Period"). No later than five Business Days after the
termination of the Offer Period (the "Purchase Date"), the
Company shall purchase the principal amount of Notes required to
be purchased pursuant to Section 4.10 (the "Offer Amount") or, if
less than the Offer Amount has been tendered, all Notes tendered
in response to the Asset Sale Offer. Payment for any Notes so
purchased shall be made in the same manner as interest payments
are made.
If the Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued
and unpaid interest shall be paid to the Person in whose name a
Note is registered at the close of business on such record date,
and no additional interest shall be payable to Holders who tender
Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company
shall send, by first class mail, a notice to the Trustee and each
of the Holders, with a copy to the Trustee. The notice shall
contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Asset Sale Offer. The
Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant
to this Section 3.09 and Section 4.10 and the length of time
the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the
Purchase Date;
(c) that any Note not tendered or accepted for payment
shall continue to accrue interest;
(d) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest after the Purchase
Date;
(e) that Holders electing to have a Note purchased
pursuant to an Asset Sale Offer may only elect to have all of
such Note purchased and may not elect to have only a portion
of such Note purchased;
(f) that Holders electing to have a Note purchased
pursuant to any Asset Sale Offer shall be required to
surrender the Note, with the form entitled "Option of Holder
to Elect Purchase" on the reverse of the Note completed, or
transfer by book-entry transfer, to the Company, a depository,
if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the
Purchase Date;
(g) that Holders shall be entitled to withdraw their
election if the Company, the depository or the Paying Agent,
as the case may be, receives, not later than the expiration of
the Offer Period, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have
such Note purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company
shall select the Notes to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the
Company so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in
part shall be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the
extent necessary, the Offer Amount of Notes or portions thereof
tendered pursuant to the Asset Sale Offer, or if less than the
Offer Amount has been tendered, all Notes tendered, and shall
deliver to the Trustee an Officers' Certificate stating that such
Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.09. The
Company, the Depository or the Paying Agent, as the case may be,
shall promptly (but in any case not later than five days after
the Purchase Date) mail or deliver to each tendering Holder an
amount equal to the purchase price of the Notes tendered by such
Holder and accepted by the Company for purchase, and the Company
shall promptly issue a new Note, and the Trustee, upon written
request from the Company shall authenticate and mail or deliver
such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so
accepted shall be promptly mailed or delivered by the Company to
the Holder thereof. The Company shall publicly announce the
results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09,
any purchase pursuant to this Section 3.09 shall be made pursuant
to the provisions of Sections 3.01 through 3.06.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in
the manner provided in the Notes. Principal, premium, if any,
and interest shall be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money
deposited by the Company in immediately available funds and desig
nated for and sufficient to pay all principal, premium, if any,
and interest then due. The Company shall pay all Liquidated
Damages, if any, in the same manner on the dates and in the
amounts set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it
shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages (without regard to any applicable
grace period) at the same rate to the extent lawful.
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 (which may be an office of
the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be
served. 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.
The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented
or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough
of Manhattan, the City of New York for such purposes. The
Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location
of any such other office or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in
accordance with Section 2.03.
Section 4.03. Reports.
(a) Whether or not required by the rules and regulations
of the SEC, so long as any Notes are outstanding, the Company
shall furnish to the Holders of Notes (i) all quarterly and
annual financial information (excluding schedules) that would be
required to be contained in a filing with the SEC on Forms 10-Q
and 10-K (excluding exhibits) if the Company were required to
file such Forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report thereon by
the Company's independent certified public accountants, (ii) all
current reports that would be required to be filed with the SEC
on Form 8-K if the Company were required to file such reports
(excluding exhibits) and (iii) any other reports (excluding
exhibits) that may by specified in Sections 13 and 15(d) of the
Exchange Act that would be required to be filed with the SEC, if
the Company were required to file such reports. In addition,
whether or not required by the rules and regulations of the SEC,
the Company shall file a copy of all such information (including
exhibits) and reports (including exhibits) with the SEC for
public availability (unless the SEC will not accept such a
filing) and make such information available to securities
analysts and prospective investors upon request.
(b) For so long as any Notes remain outstanding, to
furnish to the Holders and to securities analysts and prospective
investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90
days after the end of each fiscal year, an Officers' Certificate
stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under
the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that
to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect
thereto) and that to the best of his or her knowledge no event
has occurred and remains in existence by reason of which payments
on account of the principal of or interest, if any, on the Notes
is prohibited or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take
with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public
Accountants, the year-end financial statements delivered pursuant
to Section 4.03(a) above shall be accompanied by a written
statement of the Company's independent certified public
accountants (who shall be a firm of established national
reputation) that in making the examination necessary for opining
upon such financial statements, nothing has come to their
attention that would lead them to believe that the Company has
violated any provisions of Article 4 or Article 5 hereof as it
relates to accounting matters or, if any such violation has
occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect
thereto.
Section 4.05. Taxes.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are contested
in good faith and by appropriate proceedings or where the failure
to effect such payment is not adverse in any material respect to
the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company and each Guarantor covenants (to the extent
that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and
the Company and each Guarantor (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it shall not, by resort to
any such law, 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 has been
enacted.
Section 4.07. Restricted Payments.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly: (i) declare or pay any
dividend or make any other payment or distribution of any kind or
character on account of the Equity Interests of the Company or
any of its Subsidiaries (including, without limitation, any
payment in connection with any merger or consolidation involving
the Company or any of its Subsidiaries) or to the direct or
indirect holders of the Equity Interests of the Company or any of
its Subsidiaries in their capacity as such, except (a) dividends
or distributions payable solely in Equity Interests (other than
Disqualified Stock) of the Company or (b) dividends or
distributions payable to the Company or any Wholly-Owned
Subsidiary of the Company; (ii) purchase, redeem or otherwise
acquire or retire for value any Equity Interests of the Company,
any Subsidiary of the Company or any direct or indirect parent of
the Company, except any such Equity Interests owned by the
Company or any Wholly-Owned Subsidiary of the Company; (iii) make
any principal payment on, or purchase, redeem, defease or
otherwise acquire or retire for value, any Indebtedness that is
subordinated to the Notes prior to the Stated Maturity of such
Indebtedness; or (iv) make any Restricted Investment (all such
payments and other actions set forth in clauses (i) through (iv)
above being collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted
Payment:
(a) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur
at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09; and
(c) such Restricted Payment, together with the aggregate
of all other Restricted Payments declared or made by the
Company and its Subsidiaries after the date of this Indenture
(excluding Restricted Payments permitted by clauses (ii),
(iii), (iv) and (v) of the next succeeding paragraph), is less
than the sum of (1) $12.5 million, plus (2) 50% of the
Consolidated Net Income of the Company for the period (taken
as one accounting period) from the beginning of the fiscal
quarter commencing June 29, 1997 to the end of the Company's
most recently ended fiscal quarter for which internal
financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for
such period is a deficit, less 100% of such deficit), plus (3)
100% of the aggregate cash portion of the Net Proceeds
received by the Company from a contribution to its common
equity capital or the issue or sale since the date of this
Indenture of Equity Interests of the Company or of debt
securities of the Company that have been converted into such
Equity Interests (other than Equity Interests (or convertible
debt securities) sold to a Subsidiary of the Company and other
than Disqualified Stock or debt securities that have been
converted into Disqualified Stock), plus (4) to the extent
that any Restricted Investment that was made after the date of
this Indenture is sold for cash or otherwise liquidated or
repaid for cash, the lesser of (A) the cash return of capital
with respect to such Restricted Investment (less the cost of
disposition, if any) and (B) the initial amount of such
Restricted Investment.
The foregoing provisions shall not prohibit (i) the payment
of any dividend within 60 days after the date of declaration
thereof, if at said date of declaration such payment would have
complied with the provisions of this Indenture; (ii) the making
of any Restricted Investment in exchange for, or out of the
proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of Equity Interests of the Company
(other than any Disqualified Stock); provided that the amount of
any such net cash proceeds that are utilized for any such
Restricted Investment, redemption, repurchase, retirement or
other acquisition shall be excluded from clause (3) of the
preceding paragraph (c); (iii) the redemption, repurchase,
retirement or other acquisition of any Equity Interests of the
Company in exchange for, or out of the proceeds of, the
substantially concurrent sale (other than to a Subsidiary of the
Company) of other Equity Interests of the Company (other than
Disqualified Stock); provided that any net cash proceeds that are
utilized for such redemption, repurchase, retirement or other
acquisition, and any Net Income resulting therefrom, shall be
excluded from clauses (3) and (2) of the preceding paragraph (c)
respectively; (iv) the defeasance, redemption, repayment or
repurchase of subordinated Indebtedness in exchange for, or out
of the net cash proceeds from, an incurrence of Permitted
Refinancing Debt or the substantially concurrent sale (other than
to a Subsidiary of the Company) of Equity Interests of the
Company (other than Disqualified Stock); provided that the amount
of any such net cash proceeds that are utilized for any such
redemption, repayment, repurchase, retirement or other
acquisition shall be excluded from clause (3) of the preceding
paragraph (c); and (v) the repayment by the Company on the date
of this Indenture of up to $219.0 million in aggregate principal
amount of Indebtedness owed by the Company to Delta Woodside
Industries, Inc. or any Subsidiary thereof; provided, that upon
such repayment, all remaining Indebtedness owed by the Company to
Delta Woodside Industries, Inc. or any Subsidiary thereof shall
be contributed to the Company's capital and thereby cancelled.
The amount of all Restricted Payments (other than cash)
shall be the fair market value (evidenced by a resolution of the
Board of Directors set forth in an Officers' Certificate
delivered to the Trustee) on the date of the Restricted Payment
of the asset(s) proposed to be transferred by the Company or such
Subsidiary, as the case may be, pursuant to the Restricted
Payment. Not later than the date of making any Restricted
Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by
this Section 4.07 were computed, which calculations may be based
upon the Company's latest available financial statements.
Section 4.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any encumbrance or
restriction of any kind on the ability of any Subsidiary to (i)
pay dividends or make any other distributions to the Company or
any of its Subsidiaries on its Capital Stock or with respect to
any other interest or participation in, or measured by, its
profits; (ii) pay any Indebtedness or other obligation owed to
the Company or any of its Subsidiaries; (iii) make loans or
advances to the Company or any of its Subsidiaries; (iv) sell,
lease or transfer any of its properties or assets to the Company
or any of its Subsidiaries; or (v) guarantee the obligations of
the Company evidenced by the Notes or any renewals, refinancings,
exchanges, refundings or extensions thereof, except for such
encumbrances or restrictions existing under or by reason of (a)
applicable law, (b) any instrument governing Indebtedness or
Capital Stock of a Person or any property or other asset acquired
by the Company or any of its Subsidiaries as in effect at the
time of such acquisition (except to the extent such Indebtedness
was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable
to any Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person, so
acquired, (c) customary non-assignment provisions in leases
entered into in the ordinary course of business and consistent
with past practices, (d) purchase money obligations for property
acquired in the ordinary course of business that impose
restrictions of the nature described in clause (iv) above on the
property so acquired, (e) Permitted Refinancing Debt; provided
that the restrictions contained in the agreements governing such
Permitted Refinancing Debt are no more restrictive than those
contained in the agreements governing the Indebtedness being
refinanced, or (f) any Purchase Money Note, or other Indebtedness
or contractual requirements incurred with respect to a Qualified
Receivables Transaction relating to a Receivables Subsidiary.
Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively,
"incur") any Indebtedness (including Acquired Debt) and the
Company shall not issue any Disqualified Stock and shall not
permit any of its Subsidiaries to issue any shares of preferred
stock; provided, however, that the Company may incur Indebtedness
(including Acquired Debt) or issue shares of Disqualified Stock
and a Guarantor may incur Acquired Debt, in each case if (i) the
Fixed Charge Coverage Ratio for the Company's most recently ended
four full fiscal quarters (taken as one accounting period) for
which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is
incurred or such Disqualified Stock is issued would have been at
least 2.0 to 1, determined on a pro forma basis (including a pro
forma application of the Net Proceeds therefrom), as if the
additional Indebtedness had been incurred, or the Disqualified
Stock had been issued, as the case may be, at the beginning of
such four-quarter period and (ii) no Default or Event of Default
has occurred and is continuing or would occur as a consequence
thereof;
The foregoing provisions shall not apply to the incurrence
of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Company and/or its Subsidiaries
of Indebtedness under the New Credit Facility in an aggregate
principal amount at any time outstanding (with letters of credit
being deemed to have a principal amount equal to the maximum
potential liability of the Company and its Subsidiaries
thereunder) not to exceed the greater of (x) $100.0 million and
(y) the sum of 85% of Eligible Receivables and 60% of Eligible
Inventory, less in each case the aggregate amount of all Net
Proceeds of Asset Sales applied to permanently reduce the
outstanding amount of such Indebtedness and the lending
commitments with respect thereto pursuant to Section 4.10;
(ii) the incurrence by the Company of Indebtedness
represented by the Notes and the incurrence by the Guarantors of
Indebtedness represented by the Subsidiary Guarantees;
(iii) the incurrence by the Company or any of its
Subsidiaries of Indebtedness represented by Capital Lease
Obligations (whether or not incurred pursuant to sale and
leaseback transactions), mortgage financing or purchase money
obligations, in each case incurred for the purpose of financing
all or any part of the purchase price or cost of construction or
improvement of property, plant or equipment used in the business
of the Company or such Subsidiary, in an aggregate principal
amount not to exceed $5.0 million at any time outstanding;
(iv) the incurrence by the Company or any of its
Subsidiaries of Permitted Refinancing Debt;
(v) the incurrence by the Company or any of its Wholly-
Owned Subsidiaries (other than a Receivables Subsidiary) of
intercompany Indebtedness between or among the Company and any of
its Wholly-Owned Subsidiaries (other than a Receivables
Subsidiary) or between or among any of the Company's Wholly-Owned
Subsidiaries (other than a Receivables Subsidiary); provided,
however, that (a) if the Company is the obligor on such
Indebtedness, such Indebtedness is unsecured and expressly
subordinate to the payment in full of all Obligations with
respect to the Notes and (b)(1) any subsequent issuance or
transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a
Wholly-Owned Subsidiary (other than a Receivables Subsidiary) and
(2) any sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Wholly-Owned
Subsidiary (other than a Receivables Subsidiary) shall be deemed,
in each case, to constitute an incurrence of such Indebtedness by
the Company or such Subsidiary, as the case may be;
(vi) the incurrence by the Company of Hedging Obligations
that are incurred for the purpose of fixing or hedging interest
rate risk with respect to any floating rate Indebtedness that is
permitted by the terms of this Indenture to be incurred;
(vii) Indebtedness of a Receivables Subsidiary that is not
recourse to the Company or any other Subsidiary of the Company
(other than Standard Securitization Undertakings) incurred in
connection with a Qualified Receivables Transaction; and
(viii) the incurrence by the Company and its Subsidiaries
of Indebtedness (in addition to Indebtedness permitted by any
other clause of this paragraph) in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding not to
exceed $10.0 million.
Section 4.10. Asset Sales.
The Company shall not, and shall not permit any of its
Subsidiaries to, consummate an Asset Sale unless (i) the Company
(or the Subsidiary, as the case may be) receives consideration at
the time of such Asset Sale at least equal to the fair market
value (evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee) of
the assets sold or otherwise disposed of and (ii) at least 75%
(100% in the case of lease payments) of the consideration
therefor received by the Company or such Subsidiary is in the
form of cash or Cash Equivalents; provided that the amount of
(a) any liabilities (as shown on the Company's, or such
Subsidiary's, most recent balance sheet) of the Company or any
Subsidiary (other than contingent liabilities and liabilities
that are by their terms subordinated to the Notes or any
guarantee thereof) that are assumed by the transferee of any such
assets pursuant to a customary novation agreement that releases
the Company or such Subsidiary from further liability and (b) any
notes or other obligations received by the Company or any such
Subsidiary from such transferee that are immediately converted by
the Company or such Subsidiary into cash (to the extent of the
cash received), shall be deemed to be cash for purposes of this
provision.
Within 365 days after the receipt of any Net Proceeds from
an Asset Sale, the Company may apply such Net Proceeds, at its
option, to (i) permanently reduce Indebtedness under the New
Credit Facility; provided that such permanent reduction is
accompanied by a corresponding reduction in the lending
commitments under the New Credit Facility, (ii) acquire another
business or other long-term assets, in each case, in, or used or
useful in, the same or a similar line of business as the Company
or any of its Subsidiaries was engaged in on the date of this
Indenture or any reasonable extension or expansion thereof
(including the Capital Stock of another Person engaged in such
business; provided such other Person is, or immediately after and
giving effect to such acquisition shall become, a Wholly-Owned
Subsidiary of the Company (other than a Receivables Subsidiary)),
or (iii) reimburse the Company or any of its Subsidiaries for
expenditures made, and costs incurred, to repair, rebuild,
replace or restore property subject to loss, damage or taking to
the extent that the Net Proceeds consist of insurance or
condemnation or similar proceeds received on account of such
loss, damage or taking. Pending the final application of any
such Net Proceeds, the Company may temporarily reduce revolving
Indebtedness under the New Credit Facility or otherwise invest
such Net Proceeds in cash or Cash Equivalents. Any Net Proceeds
from Asset Sales that are not applied as provided in the first
sentence of this paragraph shall be deemed to constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds
$5.0 million, the Company shall be required to make an Asset Sale
Offer to purchase the maximum principal amount (that is an
integral multiple of $1,000) of Notes that may be purchased out
of the Excess Proceeds, at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the
date of purchase, in accordance with the procedures set forth in
Article 3 hereof. To the extent that the aggregate amount of
Notes tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company (or such Subsidiary) may use any
remaining Excess Proceeds for general corporate purposes. 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 (with such
adjustments as may be deemed appropriate by the Company so that
only Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased). Upon completion of such offer to
purchase, the amount of Excess Proceeds shall be reset at zero.
Notwithstanding the foregoing, the Company and its
Subsidiaries shall be permitted to consummate one or more Asset
Sales with respect to assets or properties with an aggregate fair
market value (evidenced by a resolution of the Board of Directors
set forth in an Officers' Certificate delivered to the Trustee)
not in excess of $5.0 million with respect to all such Asset
Sales made subsequent to the date of this Indenture without
complying with the provisions of the preceding paragraphs.
Section 4.11. Transactions with Affiliates.
The Company shall not, and shall not permit any of its
Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or
amend any contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate (each of the
foregoing, an "Affiliate Transaction"), unless (i) such Affiliate
Transaction is on terms that are no less favorable to the Company
or the relevant Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such
Subsidiary with an unrelated Person and (ii) (a) with respect to
any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $1.0
million the Company delivers to the Trustee a resolution of the
Board of Directors (including a majority of the disinterested
directors, if any) set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause
(i) above and that such Affiliate Transaction has been approved
by a majority of the disinterested members, if any, of the Board
of Directors or (b) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $5.0 million the Company delivers to
the Trustee an opinion as to the fairness to the Holders of such
Affiliate Transaction from a financial point of view issued by an
investment banking firm of national standing; provided that (1)
any employment agreement entered into by the Company or any of
its Subsidiaries in the ordinary course of business and
consistent with the past practice of the Company or such
Subsidiary, (2) transactions between or among the Company and/or
its Wholly-Owned Subsidiaries (other than a Receivables
Subsidiary), (3) Restricted Payments (other than Investments)
that are permitted by Section 4.07, (4) any payment by the
Company for management services pursuant to the Management
Services Agreement, dated as of August 1, 1997, by and among
Delta Woodside Industries, Inc. and the Company as such
Management Services Agreement is in effect on the date of this
Indenture, (5) any payment by the Company pursuant to the Tax
Sharing Agreement, dated as of August 1, 1997, by and among Delta
Woodside Industries, Inc. and the Company as such Tax Sharing
Agreement is in effect on the date of this Indenture, (6) sales
of goods and manufacturing services in the ordinary course of
business and otherwise in compliance with the terms of this
Indenture which are, in the reasonable determination of the Board
of Directors of the Company, for fair market value and on terms
at least as favorable to the Company and its Subsidiaries as
might have been obtained at such time from an unaffiliated party
and (7) sales of accounts receivable and other related assets
customarily transferred in an asset securitization transaction
involving accounts receivable to a Receivables Subsidiary, and
any agreement related thereto, in a Qualified Receivables
Transaction, in each case shall not be deemed Affiliate
Transactions.
Section 4.12. Liens.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or
suffer to exist any Lien securing Indebtedness on any asset
(including Capital Stock of any Subsidiary of the Company) now
owned or hereafter acquired, or any income or profits therefrom,
or assign or convey any right to receive income therefrom, except
Permitted Liens unless all payments due under this Indenture and
the Notes are secured on an equal and ratable basis with the
Indebtedness so secured until such time as such is no longer
secured by a Lien; provided that if such Indebtedness is by its
terms expressly subordinated to the Notes or any Subsidiary
Guarantee the Lien securing such Indebtedness shall be
subordinate and junior to the Lien securing the Notes and the
Subsidiary Guarantees with the same relative priority as such
subordinate or junior Indebtedness shall have with respect to the
Notes and the Subsidiary Guarantees.
Section 4.13. Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its
Subsidiaries to, enter into any sale and leaseback transaction;
provided that the Company or any Subsidiary may enter into a sale
and leaseback transaction if (i) the Company or such Subsidiary
could have (a) incurred Indebtedness in an amount equal to the
Attributable Debt relating to such sale and leaseback transaction
pursuant to Section 4.09 and (b) incurred a Lien to secure such
Indebtedness pursuant to Section 4.12, (ii) the Net Proceeds of
such sale and leaseback transaction are at least equal to the
fair market value (as determined in good faith by the Board of
Directors and set forth in an Officers' Certificate delivered to
the Trustee) of the property that is the subject of such sale and
leaseback transaction and (iii) the transfer of assets in such
sale and leaseback transaction is permitted by, and the Company
or the Subsidiary, as the case may be, applies the proceeds of
such transaction in compliance with Sections 3.09 and 4.10.
Section 4.14. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause
to be done all things necessary to preserve and keep in full
force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Subsidiaries, in
accordance with the respective organizational documents (as the
same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses
and franchises of the Company and its Subsidiaries; provided,
however, that the Company shall not be required to preserve any
such right, license or franchise, or the corporate, partnership
or other existence of any of its Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company
and its Subsidiaries, taken as a whole, and that the loss thereof
is not adverse in any material respect to the Holders of the
Notes.
Section 4.15. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, each
Holder of Notes shall have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of such Holder's Notes pursuant to the offer
described below (the "Change of Control Offer") at an offer price
in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the date of purchase (the "Change of Control
Payment"). Within ten days following any Change of Control, the
Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control
and offering to repurchase Notes on the date specified in such
notice, which date shall be no earlier than 30 days and no later
than 60 days from the date such notice is mailed (the "Change of
Control Payment Date"). Such notice, which shall govern the
terms of the Change of Control offer, shall state: (i) that the
Change of Control Offer is being made pursuant to this Section
4.15 and that all Notes tendered will be accepted for payment;
(ii) the purchase price and the purchase date; (iii) that any
Note not tendered will continue to accrue interest; (iv) that,
unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the
Change of Control Payment Date; (v) that Holders electing to have
any Notes purchased pursuant to a Change of Control Offer will be
required to surrender the Notes, with the form entitled "Option
of Holder to Elect Purchase" on the reverse of the Notes
completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the third Business Day
preceding the Change of Control Payment Date; (vi) that Holders
will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of Notes delivered
for purchase, and a statement that such Holder is withdrawing his
election to have the Notes purchased; and (vii) that Holders
whose Notes are being purchased only in part will be issued new
Notes equal in principal amount to the unpurchased portion of the
Notes surrendered, which unpurchased portion must be equal to
$1,000 in principal amount or an integral multiple thereof. The
Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable
in connection with the repurchase of the Notes as a result of a
Change of Control.
(b) On the Change of Control Payment Date, the Company
will, to the extent lawful, (i) accept for payment all Notes or
portions thereof properly tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent an amount equal
to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (iii) deliver or cause to be
delivered to the Trustee the Notes so accepted together with an
Officers' Certificate stating the aggregate principal amount of
Notes or portions thereof being purchased by the Company. The
Paying Agent shall promptly mail to each Holder of Notes so
tendered the Change of Control Payment for such Notes, and the
Trustee shall promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes
surrendered, if any; provided that each such new Note shall be in
a principal amount of $1,000 or an integral multiple thereof.
The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of
Control Payment Date.
(c) The Company shall not be required to make a Change of
Control Offer upon a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise
in compliance with the requirements set forth in this Indenture
applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.
Section 4.16. Limitation on Issuances and Sales of Capital Stock
of Wholly-Owned Subsidiaries.
The Company (i) shall not, and shall not permit any
Subsidiary of the Company to, transfer, convey, sell, lease or
otherwise dispose of any Capital Stock of any Subsidiary of the
Company to any Person (other than the Company or a Wholly-Owned
Subsidiary of the Company (other than a Receivables Subsidiary)),
unless (a) such transfer, conveyance, sale, lease or other
disposition is of all the Capital Stock of such Subsidiary and
(b) the aggregate cash portion of the Net Proceeds from such
transfer, conveyance, sale, lease or other disposition is applied
in accordance with Sections 3.09 and 4.10, and (ii) shall not
permit any Subsidiary of the Company to issue any of its Equity
Interests (other than (1), if necessary, shares of its Capital
Stock constituting directors' qualifying shares or (2) shares of
Capital Stock issued prior to the time such Person became a
Subsidiary of the Company; provided that such Capital Stock was
not issued in anticipation of such transaction) to any Person
other than to the Company or a Wholly-Owned Subsidiary of the
Company (other than a Receivables Subsidiary).
Section 4.17. Payments for Consent.
Neither the Company nor any of its Subsidiaries shall,
directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to
any Holder of any Notes 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 or is paid to all Holders of the Notes that consent, waive
or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
Section 4.18. Limitation on Investment Company Status.
The Company and its Subsidiaries shall not take any action,
or otherwise permit to exist any circumstance, that would require
the Company to register as an "investment company" under the
Investment Company Act of 1940, as amended.
Section 4.19. Additional Subsidiary Guarantees.
If the Company or any of its Subsidiaries shall acquire or
create another Subsidiary after the date of this Indenture (other
than a Receivables Subsidiary that does not guarantee or
otherwise provide credit support (pursuant to a security interest
or otherwise) in respect of any Indebtedness of the Company or
any Subsidiary Guarantor), then such newly acquired or created
Subsidiary shall execute a Subsidiary Guarantee and deliver an
opinion of counsel, in accordance with the terms of this
Indenture.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
The Company shall not, and shall not permit any of its
Subsidiaries to, consolidate or merge with or into, or sell,
assign, transfer, lease, convey or otherwise dispose of all or
substantially all of the properties or assets of the Company and
its Subsidiaries (determined on a consolidated basis for the
Company and its Subsidiaries taken as a whole) in one or more
related transactions, to another Person unless: (i) either (a)
the Company, in the case of a transaction involving the Company,
or a Subsidiary which is a party to the transaction, in the case
of a transaction involving a Subsidiary of the Company, is the
surviving corporation or (b) in the case of a transaction
involving the Company, the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which
such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is a corporation organized or
existing under the laws of the United States, any state thereof
or the District of Columbia and expressly assumes all of the
obligations of the Company under the Notes and this Indenture
pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee; (ii) immediately after such
transaction no Default or Event of Default exists; (iii) in the
case of a transaction involving the Company (except in the case
of a merger of the Company with or into a Wholly-Owned Subsidiary
of the Company (other than a Receivables Subsidiary)), the Person
formed by or surviving any such consolidation or merger (if other
than the Company), or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made, (a)
shall have a Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net Worth
of the Company immediately preceding the transaction and (b)
will, at the time of such transaction and after giving pro forma
effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first paragraph
of Section 4.09; (iv) if, as a result of any such transaction,
property or assets of the Company or any Subsidiary of the
Company would become subject to a Lien securing Indebtedness not
excepted from Section 4.12, the Company or its successor, as the
case may be, shall have otherwise complied with such Section
4.12; and (v) the Company shall have delivered to the Trustee an
Officers' Certificate and, except in the case of a merger of a
Subsidiary of the Company into the Company or into a Wholly-Owned
Subsidiary of the Company, an opinion of counsel, each stating
that such consolidation, merger, conveyance, lease or disposition
and any supplemental indenture with respect thereto, comply with
all of the terms of this Section 5.01 and that all conditions
precedent provided for in this Section 5.01 relating to such
transaction, or series of transactions, have been complied with.
For the purposes of the foregoing, the transfer (by sale,
lease, assignment or otherwise, in a single transaction or series
of transactions) of all or substantially all of the properties or
assets of one or more Subsidiaries of the Company, the Capital
Stock of which constitutes all or substantially all of the
properties or assets of the Company, shall be deemed to be the
transfer of all or substantially all of the properties and assets
of the Company.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or
substantially all of the assets of the Company in accordance with
Section 5.01, the successor corporation formed by such
consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so
that from and after the date of such consolidation, merger, sale,
lease, conveyance or other disposition, the provisions of this
Indenture referring to the "Company" shall refer instead to the
successor corporation and not to the Company), and may exercise
every right and power of the Company under this Indenture with
the same effect as if such successor Person had been named as the
Company herein; provided, however, that the predecessor Company
shall not be relieved from the obligation to pay the principal of
and interest on the Notes except in the case of a sale of all or
substantially all of the Company's assets that meets the
requirements of Section 5.01.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
Each of the following constitutes an "Event of Default:"
(i) default for 30 days in the payment when due of
interest on, or Liquidated Damages with respect to, the
Notes;
(ii) default in payment when due of the principal of or
premium, if any, on the Notes;
(iii) failure by the Company to comply with the
provisions of Sections 3.09, 4.07, 4.09, 4.10, 4.15, 4.16
and 5.01;
(iv) failure by the Company for 30 days after notice
from the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding to
comply with any of its other agreements in this Indenture
or the Notes;
(v) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by
the Company or any of its Subsidiaries (or the payment of
which is guaranteed by the Company or any of its
Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the date of this Indenture,
which default:
(a) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness at its
final Stated Maturity (a "Payment Default"), or
(b) results in the acceleration of such
Indebtedness prior to its express maturity and, in each
case, the principal amount of which Indebtedness,
together with the principal amount of any other unpaid
Indebtedness under which there has been a Payment
Default or the express maturity of which has been so
accelerated, aggregates $5.0 million or more;
(vi) failure by the Company or any of its Subsidiaries
to pay final judgments (other than judgments fully covered
by insurance) aggregating in excess of $5.0 million, which
judgments are not paid, discharged or stayed for a period
of 45 days;
(vii) the Company or any of its Subsidiaries pursuant to
or within the meaning of Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief
against it in an involuntary case,
(c) consents to the appointment of a
custodian of it or for all or substantially all of
its property,
(d) makes a general assignment for the benefit
of its creditors, or
(e) generally is not paying its debts as they become
due; or
(viii) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(a) is for relief against the Company or any of
its Subsidiaries in an involuntary case;
(b) appoints a custodian of the Company or any
of its Subsidiaries or for all or substantially all of
the property of the Company or any of its Subsidiaries;
or
(c) orders the liquidation of the Company or any
of its Subsidiaries;
and the order or decree remains unstayed and in effect
for 60 consecutive days; or
(ix) the Subsidiary Guarantee of any Guarantor is held
in judicial proceedings to be unenforceable or invalid or
ceases for any reason to be in full force and effect (other
than in accordance with the terms of this Indenture) or any
Guarantor or any Person acting on behalf of any Guarantor
denies or disaffirms such Guarantor's obligations under its
Subsidiary Guarantee (other than by reason of a release of
such Guarantor from its Subsidiary Guarantee in accordance
with the terms of this Indenture).
The Holders of a majority in aggregate principal amount of
the Notes then outstanding by notice to the Trustee may on behalf
of the Holders of all of the Notes waive any existing Default or
Event of Default and its consequences under this Indenture except
a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Notes.
Section 6.02. Acceleration.
If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the
then outstanding Notes may declare all the Notes to be due and
payable immediately. Notwithstanding the foregoing, in the case
of an Event of Default arising under clauses (vii) and (viii) of
Section 6.01, with respect to the Company or any Subsidiary, all
outstanding Notes shall become due and payable without further
action or notice. Holders of the Notes may not enforce this
Indenture or the Notes except as provided in this Indenture.
Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or premium, if any, or
interest or Liquidated Damages, if any) if it determines that
withholding notice is in their interest.
In the case of any Event of Default occurring by reason of
any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding payment of
the premium that the Company would have had to pay if the Company
then had elected to redeem the Notes pursuant to the optional
redemption provisions of this Indenture, an equivalent premium
shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Notes. If
an Event of Default occurs prior to September 1, 2002 by reason
of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding the
prohibition on redemption of the Notes prior to September 1,
2002, then the premium specified below shall also become
immediately due and payable to the extent permitted by law upon
the acceleration of the Notes during the twelve-month period
ending immediately prior to September 1 of the years indicated
below.
Year Percentage
1997 114.4377%
1998 112.8335%
1999 111.2293%
2000 109.6251%
2001 108.0209%
2002 106.4167%
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of
principal, premium, if any, and 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 Holder of
a Note 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. All remedies
are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal
amount of the then outstanding Notes by notice to the Trustee may
on behalf of the Holders of all of the Notes waive an existing
Default or Event of Default and its consequences hereunder,
except a continuing Default or Event of Default in the payment of
the principal of, or interest on, the Notes (including in
connection with an offer to purchase) (provided, however, that
the Holders of a majority in aggregate principal amount of the
then outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted
from such acceleration). Upon any such waiver, such Default
shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of
conducting any proceeding for exercising any remedy available to
the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes
or that may involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of
the then outstanding Notes make a written request to the
Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and,
if requested, provide to the Trustee indemnity satisfactory to
the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within
60 days after receipt of the request and the offer and, if
requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a majority
in principal amount of the then outstanding Notes do not give
the Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or
priority over another Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal,
premium, if any, and Liquidated Damages, if any, and interest on
the Note, on or after the respective due dates expressed in the
Note (including in connection with an offer to purchase), 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.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(i) or (ii)
occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of,
premium, if any, and Liquidated Damages, if any, and interest
remaining unpaid on the Notes and interest on overdue principal
and, to the extent lawful, interest and such further amount as
shall be sufficient to cover the reasonable costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders of the
Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive
and distribute any money or other property payable or deliverable
on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07. To the extent that the payment of
any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 out of the estate in any such
proceeding, shall be denied for any reason, payment of the same
shall be secured by a Lien on, and shall be paid out of, any and
all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorgan
ization or arrangement or otherwise. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent
to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for
amounts due under Section 7.07, including payment of all
compensation, expense and liabilities reasonably incurred, and
all advances made, by the Trustee and, the reasonable costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on
the Notes for principal, premium, if any, and Liquidated Damages,
if any, and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Notes
for principal, premium, if any, and Liquidated Damages, if any,
and interest, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a 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 does
not apply to a suit by the Trustee, a suit by a Holder of a Note
pursuant to Section 6.07, or a suit by Holders of more than 10%
in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in its exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and the
Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the state
ments 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.
(c) The Trustee may not be relieved from liabilities for
its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) 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) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), and (c) of this
Section 7.01.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability.
The Trustee shall be under no obligation to exercise any of its
rights and powers under this Indenture at the request of any
Holders, unless such Holders shall have offered to the Trustee
security and indemnity satisfactory to it against any loss,
liability or expense.
(f) 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. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document
reasonably believed by it to be genuine and to have been signed
or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel or
both. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection
from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of
any agent appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be
authorized or within the rights or powers conferred upon it by
this Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the
Company shall be sufficient if signed by an Officer of the
Company.
(f) 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 unless such Holders
shall have offered to the Trustee security and indemnity
satisfactory to it against any loss, liability or expenses that
might be incurred by it in compliance with such request or
direction.
(g) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of Indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent at the sole
cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.
(h) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(i) The Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Indenture.
(j) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof unless written notice of any
event which is in fact such a default is received by the Trustee
at the Corporate Trust Office of this Trustee and such notice
references the Notes and this Indenture.
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 or any Affiliate of the Company with the same rights
it would have if it were not Trustee. However, in the event that
the Trustee acquires any conflicting interest it must eliminate
such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections
7.10 and 7.11.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture
or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes or any money paid to the Company
or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application
of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital
herein or any statement in the Notes or any other document in
connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to
Holders of Notes a notice of the Default or Event of Default
within 90 days after it occurs. Except in the case of a Default
or Event of Default in payment of principal of, premium, if any,
or interest on, any Note, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests
of the Holders of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes
remain outstanding, the Trustee shall mail to the Holders of the
Notes a brief report dated as of such reporting date that
complies with TIA 313(a) (but if no event described in TIA
313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also
shall comply with TIA 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with
the SEC and each stock exchange on which the Notes are listed in
accordance with TIA 313(d). The Company shall promptly notify
the Trustee when the Notes are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services
hereunder as the parties shall agree from time to time. 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 promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or
in connection with the acceptance or administration of its duties
under this Indenture, including the reasonable costs and expenses
of enforcing this Indenture against the Company (including this
Section 7.07) and defending itself against any claim (whether
asserted by the Company or any Holder or any other person) or
liability in connection with the exercise or performance of any
of its powers or duties hereunder, except to the extent any such
loss, liability or expense may be attributable to its negligence
or bad faith. 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; provided, that the Company's
obligations under this Section 7.07 shall be relieved to the
extent, and only to the extent, that such failure to notify
promptly has materially prejudiced the Company. The Company
shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The
Company shall not, in connection with any one suit or proceeding
or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of
attorneys (in addition to one local counsel) at any one time for
the Trustee. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably
withheld.
The obligations of the Company under this Section 7.07
shall survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this
Section, the Trustee shall have a Lien prior to the Notes on all
money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular Notes.
Such Lien shall survive the satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services after
an Event of Default specified in Sections 6.01(viii) or 6.01(ix)
occurs, the reasonable expenses and the compensation for the
services (including the reasonable fees and expenses of its
agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA
313(b)(2) to the extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of
a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in this
Section 7.08.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the
Company. The Holders of Notes of a majority in principal amount
of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company
may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee
under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in
principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by
the Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company, or the Holders of Notes of at least 10% in
principal amount of the then outstanding Notes may petition any
court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a
Note who has been a Holder of a Note for at least six months,
fails to comply with Section 7.10, such Holder of a Note may
petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of 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 Holders of the Notes. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the
successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in
Section 7.07. Notwithstanding 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, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the
United States of America or of any state thereof that is
authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at
least $100.0 million as set forth in its most recent published
annual report of condition.
This Indenture shall always have a Trustee who satisfies
the requirements of TIA 310(a)(1), (2) and (5). The Trustee is
subject to TIA 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA 311(a), excluding any
creditor relationship listed in TIA 311(b). A Trustee who has
resigned or been removed shall be subject to TIA 311(a) to the
extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate,
at any time, elect to have either Section 8.02 or 8.03 be applied
to all outstanding Notes upon compliance with the conditions set
forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 of the
option applicable to this Section 8.02, the Company shall,
subject to the satisfaction of the conditions set forth in
Section 8.04, be deemed to have been discharged from its
obligations with respect to all outstanding Notes on the date the
conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be "outstanding" only for the purposes of
Section 8.05 and the other Sections of this Indenture referred to
in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee,
on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described
in Section 8.04, and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and
interest on such Notes when such payments are due, (b) the
Company's obligations with respect to such Notes under Article 2
and Section 4.02, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company's obligations
in connection therewith and (d) this Article 8. Subject to
compliance with this Article 8, the Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 of the
option applicable to this Section 8.03, the Company shall,
subject to the satisfaction of the conditions set forth in
Section 8.04, be released from its obligations under the
covenants contained in Sections 4.07, 4.08, 4.09, 4.10, 4.11,
4.12, 4.13, 4.15, 4.16 and 5.01 with respect to the outstanding
Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes
shall thereafter be deemed not "outstanding" for the purposes of
any direction, waiver, consent or declaration or act of Holders
(and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all
other purposes hereunder (it being understood that such Notes
shall not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly,
by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default
under Section 6.01, but, except as specified above, the remainder
of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 of the
option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04,
Sections 6.01(iii) through 6.01(vii) shall not constitute Events
of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of
either Section 8.02 or 8.03 to the outstanding Notes:
(a) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in
United States dollars, non-callable Government Securities,
or a combination thereof, in such amounts as shall be
sufficient, in the opinion of a nationally recognized firm
of independent public accountants, to pay the principal of,
premium, if any, and Liquidated Damages, if any, and
interest on the outstanding Notes on the stated date for
payment thereof or on the applicable redemption date, as
the case may be and shall specify whether the Notes are
being defeased to maturity or to a particular redemption
date;
(b) in the case of an election under Section 8.02,
the Company shall have delivered to the Trustee an Opinion
of Counsel in the United States reasonably acceptable to
the Trustee confirming that (A) the Company has received
from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this Indenture,
there has been a change in the applicable federal income
tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the
Holders of the outstanding Notes shall not recognize
income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and shall be subject to
federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such
Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03,
the Company shall have delivered to the Trustee an Opinion
of Counsel in the United States reasonably acceptable to
the Trustee confirming that the Holders of the outstanding
Notes shall not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance
and shall 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;
(d) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit
(other than a Default or Event of Default resulting from
the incurrence of Indebtedness all or a portion of the
proceeds of which shall be used to defease the Notes
pursuant to this Article 8 concurrently with such
incurrence) or insofar as Sections 6.01(vii) or 6.01(viii)
is concerned, at any time in the period ending on the 91st
day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or constitute
a default under, any material agreement or instrument
(other than this Indenture) to which the Company or any of
its Subsidiaries is a party or by which the Company or any
of its Subsidiaries is bound;
(f) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that on the
91st day following the deposit, the trust funds shall not
be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the
Trustee an Officers' 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 any
Guarantor or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company
or any Guarantor; and
(h) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance
have been complied with.
Section 8.05. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06, all money and non-callable
Government Securities (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the "Trustee") pursuant to
Section 8.04 in respect of the outstanding Notes shall be held in
trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the
Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium, if any, Liquidated
Damages, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash
or non-callable Government Securities deposited pursuant to
Section 8.04 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law
is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time
upon the request of the Company any money or non-callable
Government Securities held by it as provided in Section 8.04
which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.04(a)), are in excess of the
amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the
principal of, premium, if any, Liquidated Damages, if any, or
interest on any Note and remaining unclaimed for two years after
such principal, and premium, if any, Liquidated Damages, if any,
or interest has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the reasonable
expense of the Company cause to be published once, in the New
York Times and The Wall Street Journal (national edition), notice
that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance
of such money then remaining shall be repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any
United States dollars or non-callable Government Securities in
accordance with Section 8.02 or 8.03, as the case may be, by
reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture
and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 until such
time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 8.02 or 8.03, as the case
may be; provided, however, that, if the Company makes any payment
of principal of, premium, if any, Liquidated Damages, if any, or
interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the
Company, the Guarantors and the Trustee may amend or supplement
this Indenture, the Notes or the Subsidiary Guarantees without
the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(c) to provide for the assumption of the Company's or a
Guarantor's obligations to the Holders of the Notes in the
case of a merger or consolidation pursuant to Article 5
hereof;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does
not adversely affect the legal rights hereunder of any Holder
of the Notes; or
(e) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under
the TIA.
Upon the request of the Company accompanied by a resolution
of its Board of Directors authorizing the execution of any such
amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 7.02, the Trustee
shall join with the Company in the execution of any amended or
supplemental Indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities under
this Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company
and the Trustee may amend or supplement this Indenture (including
Section 3.09, 4.10 and 4.15), the Subsidiary Guarantees and the
Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes
then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or
exchange offer for the Notes), and, subject to Sections 6.04 and
6.07, any existing Default or Event of Default (other than a
Default or Event of Default in the payment of the principal of,
premium, if any, or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded)
or compliance with any provision of this Indenture, the
Subsidiary Guarantees or the Notes may be waived with the consent
of the Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with
a purchase of, or tender offer or exchange offer for the Notes).
Upon the request of the Company accompanied by a resolution
of its Board of Directors authorizing the execution of any such
amended or supplemental Indenture, and upon the filing with the
Trustee of evidence reasonably satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02, the
Trustee shall join with the Company in the execution of such
amended or supplemental Indenture unless such amended or
supplemental Indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.02 to approve the particular form of
any proposed amendment or waiver, but it shall be sufficient if
such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes
affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07, the
Holders of a majority in aggregate principal amount of the Notes
then outstanding may waive compliance in a particular instance by
the Company with any provision of this Indenture or the Notes.
However, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose
Holders must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed
maturity of any Note or alter or waive any of the
provisions with respect to the redemption or repurchase of
the Notes except as provided above with respect to Sections
3.09, 4.10 and 4.15;
(c) reduce the rate of or change the time for payment
of premium, if any, or interest, including default
interest, on any Note;
(d) waive a Default or Event of Default in the
payment of principal of or premium, if any, or interest on
the Notes (except a rescission of acceleration of the Notes
by the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes and a waiver
of the payment default that resulted from such
acceleration);
(e) make any Note payable in money other than that
stated in the Notes;
(f) make any change in the provisions of this
Indenture relating to waivers of past Defaults or the
rights of Holders of Notes to receive payments of principal
of or premium, if any, or interest on the Notes;
(g) waive a redemption payment with respect to any
Note other than a payment required by Sections 3.09, 4.10
and 4.15;
(h) release any Guarantor from any of its
obligations under its Subsidiary Guarantee or this
Indenture except in accordance with Article 10 hereof; or
(i) make any change in the foregoing amendment and
waiver provisions.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture, the
Subsidiary Guarantees or the Notes shall be set forth in an
amended or supplemental Indenture that complies with the TIA as
then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective,
a consent to it by a Holder of a Note is a continuing consent by
the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of
a Note may revoke the consent as to its Note if the Trustee
receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its
terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue
and the Trustee shall authenticate new Notes that reflect the
amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new
Note shall not affect the validity and effect of such amendment,
supplement or waiver.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental
Indenture authorized pursuant to this Article 9 if the amendment
or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Company may not
sign an amendment or supplemental Indenture until the Board of
Directors approves it. In executing any amended or supplemental
indenture, the Trustee shall be entitled 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 the
execution of such amended or supplemental indenture is authorized
or permitted by this Indenture.
ARTICLE 10
SUBSIDIARY GUARANTEES
Section 10.01. Subsidiary Guarantees.
Each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the Obligations of
the Company hereunder or thereunder, that: (a) the principal of
and interest, premium, if any, and Liquidated Damages, if any, on
the Notes shall be promptly paid in full when due, whether at
maturity, by acceleration, redemption, repurchase or otherwise,
and interest on the overdue principal of and interest, premium,
if any, and Liquidated Damages, if any, on the Notes, if lawful,
and all other Obligations of the Company to the Holders or the
Trustee hereunder or thereunder shall be promptly paid in full or
performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of
any Notes or any of such other Obligations, that same shall be
promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at Stated
Maturity, by acceleration, redemption, repurchase or otherwise.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors
shall be jointly and severally obligated to pay the same
immediately. The Guarantors hereby agree that their Obligations
hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof
or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of
a Guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right
to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenant that this
Subsidiary Guarantee shall not be discharged except by complete
performance of the Obligations contained in the Notes and this
Indenture. If any Holder of Notes or the Trustee is required by
any court or otherwise to return to the Company or Guarantors, or
any custodian, Trustee, liquidator or other similar official
acting in relation to either the Company or Guarantors, any
amount paid either to the Trustee or such Holder, this Subsidiary
Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor agrees that
it shall not be entitled to any right of subrogation in relation
to the Holders of Notes in respect of any Obligations guaranteed
hereby until payment in full of all Obligations guaranteed
hereby. Each Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the Obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the
purposes of this Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in
respect of the Obligations guaranteed hereby and (y) in the event
of any declaration of acceleration of such Obligations as
provided in Article 6 hereof, such Obligations (whether or not
due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Subsidiary Guarantee. The
Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does
not impair the rights of the Holders under the Subsidiary
Guarantees.
Section 10.02. Execution and Delivery of Subsidiary Guarantees.
To evidence its Subsidiary Guarantee set forth in
Section 10.01, each Guarantor hereby agrees that a notation of
such Subsidiary Guarantee substantially in the form of Exhibit C
(executed by the manual or facsimile signature of one of its
Officers) shall be endorsed by an Officer of such Guarantor on
each Note authenticated and delivered by the Trustee and that
this Indenture shall be executed on behalf of such Guarantor by
an Officer of such Guarantor.
Each Guarantor hereby agrees that its Subsidiary Guarantee
set forth in Section 10.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of
such Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on
the Subsidiary Guarantee no longer holds that office at the time
the Trustee authenticates the Note on which a Subsidiary
Guarantee is endorsed, the Subsidiary Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery
of the Subsidiary Guarantee set forth in this Indenture on behalf
of the Guarantors.
Section 10.03. Guarantors May Consolidate, etc., on Certain
Terms.
(a) Except as set forth in Articles 4 and 5 hereof,
nothing contained in this Indenture or in any of the Notes shall
prevent any consolidation or merger of a Guarantor with or into
the Company or another Guarantor or shall prevent any sale or
conveyance of the property of a Guarantor, as an entirety or
substantially as an entirety, to the Company or to another
Guarantor.
(b) Except as provided in Section 10.03(a) or in a
transaction referred to in Section 10.04, no Guarantor may
consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another corporation, Person or
entity whether or not affiliated with such Guarantor, or sell,
assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets to, another corporation, Person
or entity unless: (i) subject to the provisions of Section 10.04,
the Person formed by or surviving any such consolidation or
merger (if other than such Guarantor) shall assume all the
Obligations of such Guarantor pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the
Trustee, under the Notes and this Indenture; and (ii) immediately
after giving effect to such transaction, no Default or Event of
Default exists. Subject to Section 10.04, in case of any such
consolidation, merger, sale or conveyance and upon the assumption
by the successor corporation, by supplemental indenture, executed
and delivered to the Trustee and reasonably satisfactory in form
to the Trustee, of the Subsidiary Guarantee endorsed upon the
Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the
Guarantor, such successor corporation shall succeed to and be
substituted for the Guarantor with the same effect as if it had
been named herein as a Guarantor. Such successor corporation
thereupon may cause to be signed any or all of the Subsidiary
Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee. All the Subsidiary
Guarantees so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Subsidiary
Guarantees theretofore and thereafter issued in accordance with
the terms of this Indenture as though all of such Subsidiary
Guarantees had been issued at the date of the execution hereof.
Section 10.04. Releases Following Sale of Assets.
Concurrently with any sale or other disposition of assets
of any Guarantor (including, if applicable, all of the Capital
Stock of any Guarantor), any Liens in favor of the Trustee in the
assets sold thereby shall be released; provided that in the event
of an Asset Sale, the Net Proceeds from such sale or other
disposition are treated in accordance with the provisions of
Section 4.10. In the event of a sale or other disposition of all
of the assets of any Guarantor, by way of merger, consolidation
or otherwise, or a sale or other disposition of all of the
Capital Stock of any Guarantor, then such Guarantor (in the event
of a sale or other disposition, by way of such a merger,
consolidation or otherwise, of all of the Capital Stock of such
Guarantor in accordance with the provisions of this Indenture) or
the Person acquiring the property (in the event of a sale or
other disposition of all of the assets of such Guarantor), shall
be released and relieved of its Obligations under its Subsidiary
Guarantee and Section 10.03; provided that in the event of an
Asset Sale, the Net Proceeds from such sale or other disposition
are treated in accordance with the provisions of Section 4.10.
Upon delivery by the Company to the Trustee of an Officers'
Certificate and an 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 4.10, the Trustee shall execute any documents
reasonably required in order to evidence the release of any
Guarantor from its Obligations under its Subsidiary Guarantee.
Any Guarantor not released from its Obligations under its
Subsidiary Guarantee shall remain liable for the full amount of
principal of and interest and Liquidated Damages, if any, on the
Notes and for the other Obligations of any Guarantor under this
Indenture as provided in this Article 10. The release of any
Guarantor pursuant to this Section 10.04 shall be effective
whether or not such release shall be noted on any Note then
outstanding or thereafter authenticated and delivered.
Section 10.05. Limitation on Guarantor Liability.
For purposes hereof, each Guarantor's liability shall be
that amount from time to time equal to the aggregate liability of
such Guarantor thereunder, but shall be limited to the lesser of
(i) the aggregate amount of the Obligations of the Company under
the Notes and this Indenture and (ii) the amount, if any, which
would not have (A) rendered such Guarantor "insolvent" (as such
term is defined in the federal Bankruptcy Law and in the debtor
and creditor law of the State of New York) or (B) left it with
unreasonably small capital at the time its Subsidiary Guarantee
was entered into, after giving effect to the incurrence of
existing Indebtedness immediately prior to such time; provided,
that it shall be a presumption in any lawsuit or other proceeding
in which such Guarantor is a party that the amount guaranteed
pursuant to its Subsidiary Guarantee is the amount set forth in
clause (i) above unless any creditor, or representative of
creditors of such Guarantor, or debtor in possession or trustee
in bankruptcy of such Guarantor, otherwise proves in such a
lawsuit that the aggregate liability of such Guarantor is limited
to the amount set forth in clause (ii). In making any
determination as to the solvency or sufficiency of capital of a
Guarantor in accordance with the previous sentence, the right of
such Guarantor to contribution from other Guarantors and any
other rights such Guarantor may have, contractual or otherwise,
shall be taken into account.
Section 10.06. "Trustee" to Include Paying Agent.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article 10 shall in
such case (unless the context shall otherwise require) be
construed as extending to and including such Paying Agent within
its meaning as fully and for all intents and purposes as if such
Paying Agent were named in this Article 10 in place of the
Trustee.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA 318(c), the imposed
duties shall control.
Section 11.02. Notices.
Any notice or communication by the Company or the Trustee
to the others is duly given if in writing and delivered in person
or mailed by first class mail (registered or certified, return
receipt requested), telecopier or overnight air courier
guaranteeing next day delivery, to the others' address:
If to the Company or any Guarantor:
Delta ▇▇▇▇▇, Inc.
▇▇▇ ▇/▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With a copy to:
Wyche, Burgess, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
If to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
The Company or the Trustee, by notice to the others may
designate additional or different addresses for subsequent
notices or communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt
requested, or by overnight air courier guaranteeing next day
delivery to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed
to any Person described in TIA 313(c), to the extent required
by the TIA. Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency with
respect to other Holders or as to any Holder who actually
received such communication.
If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given,
whether or not the addressee receives it.
If the Company mails a notice or communication to Holders,
it shall mail a representative copy to the Trustee and each Agent
at the same time.
Section 11.03. Communication by Holders of Notes with Other
Holders of Notes.
Holders may communicate pursuant to TIA 312(b) with other
Holders 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 312(c).
Section 11.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 11.05) stating that, in
the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to
the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 11.05) stating that, in
the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.
Section 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other
than a certificate provided pursuant to TIA 314(a)(4)) shall
comply with the provisions of TIA 314(e) and shall include:
(a) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he
or she 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 satisfied;
and
(d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.
Section 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its
functions.
Section 11.07. No Personal Liability of Directors, Officers,
Employees or Stockholders.
No director, officer, employee, incorporator or stockholder
of the Company or any Guarantor, as such, shall have any
liability for any obligations of the Company or any Guarantor
under the Notes, the Subsidiary Guarantees, this Indenture or for
any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the SEC that such a
waiver is against public policy.
Section 11.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND
BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY
GUARANTEES.
Section 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidi
aries or of any other Person. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 11.10. Successors.
All agreements of the Company and each Guarantor in this
Indenture and the Notes shall bind their respective successors,
except as expressly provided otherwise herein. All agreements of
the Trustee in this Indenture shall bind its successors.
Section 11.11. 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 11.12. Counterpart 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.
Section 11.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings
of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a
part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
[signature page follows]
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
Delta ▇▇▇▇▇, Inc.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President, Chief Financial Officer
and Treasurer
Delta ▇▇▇▇▇ Marketing, Inc.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President, Chief Financial Officer
and Treasurer
The Bank of New York,
as Trustee
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title Assistant Treasurer
EXHIBIT A
(Face of Note)
CUSIP/CINS
9_% [Series A] [Series B] Senior Notes due 2007
No. $
Delta ▇▇▇▇▇, Inc.
promises to pay to or registered assigns,
the principal sum of
Dollars on September 1, 2007.
Interest Payment Dates: March 1 and September 1
Record Dates: February 15, and August 15
Delta ▇▇▇▇▇, Inc.
By:
Name:
Title:
By:
Name:
Title:
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
The Bank of New York,
as Trustee
Dated: , 199
By:
Name:
Title:
(Back of Note)
9_% [Series A] [Series B] Senior Notes due 2007
[Unless and until it is exchanged in whole or in part for
Notes in definitive form, this Note may not be transferred except
as a whole by the Depository to a nominee of the Depository or by
a nominee of the Depository to the Depository or another nominee
of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"), to the issuer or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or
such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co., has an interest
herein.]/1
[Insert the Private Placement Legend, if applicable pursuant to
the provisions of the Indenture]
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless
otherwise indicated.
1. Interest. Delta ▇▇▇▇▇, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount
of this Note at 9_% per annum from and including August 25, 1997
until maturity and shall pay the Liquidated Damages, if any,
payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company shall pay interest and
Liquidated Damages, if any, semi-annually on March 1 and
September 1 of each year, or if any such day is not a Business
Day, on the next succeeding Business Day (each an "Interest
Payment Date"). Interest on the Notes shall accrue from the most
recent date to which interest has been paid or, if no interest
has been paid, from the date of issuance; provided that if there
is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the
face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment
Date; provided, further, that the first Interest Payment Date
shall be March 1, 1998. The Company shall pay interest
(including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from
time to time on demand at a rate that is 1% per annum in excess
of the rate then in effect; it shall pay interest (including post-
petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages, if any,
(without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest
shall be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment. The Company shall pay interest on
the Notes (except defaulted interest) and Liquidated Damages, if
any, to the Persons who are registered Holders of Notes at the
close of business on the February 15 or August 15 next preceding
the Interest Payment Date, even if such Notes are cancelled after
such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect
to defaulted interest. The Notes shall be payable as to
principal, premium, if any, and Liquidated Damages, if any, and
interest at the office or agency of the Company maintained for
such purpose within or without the City and State of New York,
or, at the option of the Company, payment of interest and
Liquidated Damages, if any, may be made by check mailed to the
Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately
available funds shall be required with respect to principal of
and interest, premium, if any, and Liquidated Damages, if any,
on, all Global Notes and all other Notes the Holders of which
shall have provided wire transfer instructions to the Company or
the Paying Agent. Such payment shall be in such coin or currency
of the United States of America as at the time of payment is
legal tender for payment of public and private debts
3. Paying Agent and Registrar. Initially, The Bank of New
York, the Trustee under the Indenture, shall act as Paying Agent
and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of
its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an
Indenture dated as of August 25, 1997 ("Indenture") between the
Company, the Guarantors named therein and the Trustee. 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 U.S. Code 77aaa-77bbbb). The Notes are
subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling. The Notes are general unsecured
obligations of the Company limited to $150.0 million in aggregate
principal amount, plus amounts, if any, sufficient to pay
interest, premium, if any, and Liquidated Damages, if any, on
outstanding Notes as set forth in Paragraph 2 hereof.
5. Optional Redemption.
The Company shall not have the option to redeem the Notes
pursuant to Section 3.07 of the Indenture prior to September 1,
2002. Thereafter the Notes shall be subject to redemption at the
option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on September 1 of the years
indicated below:
Year Percentage
2002 104.8125%
2003 103.2083%
2004 101.6041%
2005 and thereafter 100.0000%
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall
not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
7. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be
required to make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of each Holder's Notes at a purchase price
equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, to
the date of purchase. Within 10 days following any Change of
Control, the Company shall mail a notice to each Holder as
required by the Indenture.
(b) If the Company or a Subsidiary consummates any Asset
Sales and the aggregate amount of Excess Proceeds exceeds $5.0
million, the Company shall commence an offer to all Holders of
Notes (an "Asset Sale Offer") pursuant to Section 3.09 of the
Indenture to purchase the maximum principal amount of Notes that
may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the principal amount thereof
plus accrued and unpaid interest and Liquidated Damages, if any,
to the date of purchase, in accordance with the procedures set
forth in the Indenture. To the extent that the aggregate amount
of Notes tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Company (or such Subsidiary) may use any
remaining Excess Proceeds for general corporate purposes. 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. Holders of
Notes that are the subject of an offer to purchase shall receive
an Asset Sale Offer from the Company prior to any related
purchase date and may elect to have such Notes purchased by
completing the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes.
(c) The Company shall not be required to make a Change of
Control Offer upon a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise
in compliance with the requirements set forth in the Indenture
applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.
8. Notice of Redemption. Notice of redemption shall be
mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at
its registered address. Notes in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to
accrue on Notes or portions thereof called for redemption.
9. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the
Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, it need not exchange or register the
transfer of any Notes for a period of 15 days before a selection
of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note
may be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or
supplemented by the Company, the Guarantor and the Trustee with
the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes, and any existing default or
compliance with any provision of the Indenture or the Notes may
be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes. Without the
consent of any Holder of a Note, the Subsidiary Guarantees, the
Indenture or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's or a Guarantor's
obligations to Holders of the Notes in case of a merger or
consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of
any such Holder, or to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act.
12. Defaults and Remedies. Each of the following
constitutes an Event of Default: (i) default for 30 days in the
payment when due of interest on, or Liquidated Damages with
respect to, the Notes; (ii) default in payment when due of the
principal of or premium, if any, on the Notes; (iii) failure by
the Company to comply with its obligations under covenants and
agreements set forth in Sections 3.09, 4.07, 4.09, 4.10, 4.15,
4.16 or 5.01 of the Indenture; (iv) failure by the Company for 30
days after notice from the Trustee or the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding to
comply with any of the other covenants or agreements in the
Indenture; (v) default under any mortgage, indenture or
instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money borrowed by
the Company or any of its Subsidiaries (or the payment of which
is guaranteed by the Company or any of its Subsidiaries) whether
such Indebtedness or guarantee now exists, or is created after
the date of the Indenture, which default (a) is caused by a
failure to pay principal of or premium, if any, or interest on
such Indebtedness at its final Stated Maturity (a "Payment
Default") or (b) results in the acceleration of such Indebtedness
prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been
a Payment Default or the express maturity of which has been so
accelerated, aggregates $5.0 million or more; (vi) failure by the
Company or any of its Subsidiaries to pay final judgments (other
than judgements fully covered by insurance) aggregating in excess
of $5.0 million, which judgments are not paid, discharged or
stayed for a period of 45 days; (vii) certain events of
bankruptcy or insolvency with respect to the Company or any of
its Subsidiaries; and (viii) any Subsidiary Guarantee shall be
held in an judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect (other
than in accordance with the terms of the Indenture) or any
Guarantor, or any Person acting in behalf of any Guarantor, shall
deny or disaffirm its obligations under its Subsidiary Guarantee
(other, in either case, than by reason of a release of such
Guarantor from its Subsidiary Guarantee in accordance with the
terms of the Indenture). If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all
the Notes to be due and payable immediately. Notwithstanding the
foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, with respect to the
Company or any Subsidiary, all outstanding Notes shall become due
and payable without further action or notice. Holders of the
Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the Notes notice
of any continuing Default or Event of Default (except a Default
or Event of Default relating to the payment of principal or
interest, or premium, if any, or Liquidated Damages, if any) if
it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Notes waive any existing Default or Event
of Default and its consequences under the Indenture except a
continuing Default or Event of Default in the payment of interest
on, or the principal of, the Notes. The Company is required to
deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required, upon becoming
aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.
13. Trustee Dealings with Company. Subject to certain
conditions set forth in the Indenture, the Trustee, in its
individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer,
employee, incorporator or stockholder, of the Company or any
Guarantor, as such, shall not have any liability for any
obligations of the Company or any Guarantor under the Notes, the
Subsidiary Guarantees or the Indenture or for any claim based on,
in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases
all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
15. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
16. Abbreviations. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants
in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
17. Additional Rights of Holders of Transfer Restricted
Securities. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Transferred Restricted
Securities shall have all the rights set forth in the
Registration Rights Agreement dated as of the date of this
Indenture, between the Company, the Guarantors and the other
parties named on the signature pages thereof (the "Registration
Rights Agreement").
18. 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 the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. 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.
The Company shall furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the
Registration Rights Agreement. Requests may be made to:
Delta ▇▇▇▇▇, Inc.
▇▇▇ ▇/▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Assignment Form
To assign this Note, fill in the form below: (I) or (we)
assign and transfer this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee.
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the [Registrar], which
requirements include membership or participation in the Security
Transfer Agent Medallion Program ("Stamp") or such other
"signature guarantee program" as may be determined by the
[Registrar] in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Indenture, check
the box below:
Section 4.10 Section 4.15
If you want to elect to have only part of the Note
purchased by the Company pursuant to Section 4.15 of the
Indenture, state the amount you elect to have purchased:
$
Date: Your Signature:
(Sign exactly as your name appears on the Note)
Tax Identification No.:
Signature Guarantee.
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the [Registrar], which
requirements include membership or participation in the Security
Transfer Agent Medallion Program ("Stamp") or such other
"signature guarantee program" as may be determined by the
[Registrar] in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE/2
The following exchanges of a part of this Global Note for
an interest in another Global Note or for a Definitive Note, or
exchanges of a part of another Global Note or Definitive Note for
an interest in this Global Note, have been made:
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized
Date Principal Amount Principal Amount Note following officer of
of of this Global of this Global such decrease Trustee of Note
Exchange Note Note (or increase) Custodian
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER OF NOTES
Re: 9_% Senior Notes due 2007 of Delta ▇▇▇▇▇, Inc.
This Certificate relates to $ principal amount of
Notes held in * book-entry or * definitive form
by (the "Transferor").
The Transferor*:
has requested the Trustee by written order to deliver in
exchange for its beneficial interest in the Global Note held by
the Depository a Note or Notes in definitive, registered form of
authorized denominations in an aggregate principal amount equal
to its beneficial interest in such Global Note (or the portion
thereof indicated above); or
has requested the Trustee by written order to exchange or
register the transfer of a Note or Notes.
In connection with such request and in respect of each such
Note, the Transferor does hereby certify that Transferor is
familiar with the Indenture relating to the above captioned Notes
and as provided in Section 2.06 of such Indenture, the transfer
of this Note does not require registration under the Securities
Act (as defined below) because:*
Such Note is being acquired for the Transferor's own
account, without transfer (in satisfaction of Section
2.06(a)(ii)(A) or Section 2.06(d)(i)(A) of the Indenture).
Such Note is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act")) in
reliance on Rule 144A (in satisfaction of Section 2.06(a)(ii)(B),
Section 2.06(b)(i) or Section 2.06(d)(i) (B) of the Indenture) or
pursuant to an exemption from registration in accordance with
Rule 904 under the Securities Act (in satisfaction of Section
2.06(a)(ii)(B) or Section 2.06(d)(i)(B) of the Indenture.)
_______________
*Check applicable box.
Such Note is being transferred in accordance with Rule 144
under the Securities Act, or pursuant to an effective
registration statement under the Securities Act (in satisfaction
of Section 2.06(a)(ii)(B) or Section 2.06(d)(i)(B) of the
Indenture).
Such Note is being transferred in reliance on and in
compliance with an exemption from the registration requirements
of the Securities Act, other than Rule 144A, 144 or Rule 904
under the Securities Act. An Opinion of Counsel to the effect
that such transfer does not require registration under the
Securities Act or applicable state securities laws accompanies
this Certificate (in satisfaction of Section 2.06(a)(ii)(C) or
Section 2.06(d)(i)(C) of the Indenture).
[INSERT NAME OF TRANSFEROR]
By:
Date:
*Check applicable box.
EXHIBIT C
SUBSIDIARY GUARANTEE
Each Guarantor hereby, jointly and severally, unconditionally
guarantees to each Holder of Notes authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Indenture,
the Notes or the Obligations of the Company to the Holders or the
Trustee under the Notes or under the Indenture, that: (a) the
principal of, and premium, if any, and Liquidated Damages, if
any, and interest on the Notes shall be promptly paid in full
when due, whether at maturity, by acceleration, redemption,
repurchase or otherwise, and interest on overdue principal of and
interest and Liquidated Damages if any, on any Note, if any, if
lawful and all other Obligations of the Company to the Holders or
the Trustee under the Indenture or under the Notes shall be
promptly paid in full or performed, all in accordance with the
terms thereof; and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other Obligations,
the same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at
Stated Maturity, by acceleration, redemption, repurchase or
otherwise. Failing payment when due of any amount so guaranteed,
or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the
same immediately.
The Obligations of the Guarantors to the Holders of Notes and
to the Trustee pursuant to this Subsidiary Guarantee and the
Indenture are expressly set forth in Article 10 of the Indenture,
and reference is hereby made to such Indenture for the precise
terms of this Subsidiary Guarantee. The terms of Article 10 of
the Indenture are incorporated herein by reference.
No director, officer, employee, incorporator or stockholder,
as such, past, present or future, of each of the Guarantors shall
have any personal liability under this Subsidiary Guarantee by
reason of its status as such director, officer, employee,
incorporator or stockholder.
This is a continuing Subsidiary Guarantee and shall remain in
full force and effect and shall be binding upon each Guarantor
and its respective successors and assigns to the extent set forth
in the Indenture until full and final payment of all of the
Company's Obligations under the Notes and the Indenture and shall
inure to the benefit of the successors and assigns of the Trustee
and the Holders of Notes and, in the event of any transfer or
assignment of rights by any Holder of Notes or the Trustee, the
rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof.
In certain circumstances more fully described in the
Indenture, any Guarantor may be released from its liability under
this Subsidiary Guarantee, and any such release shall be
effective whether or not noted hereon.
This Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Note
upon which this Subsidiary Guarantee is noted shall have been
executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
For purposes hereof, each Guarantor's liability shall be that
amount from time to time equal to the aggregate liability of such
Guarantor hereunder, but shall be limited to the lesser of (i)
the aggregate amount of the Obligations of the Company under the
Notes and the Indenture and (ii) the amount, if any, which would
not have (A) rendered such Guarantor "insolvent" (as such term is
defined in the federal Bankruptcy Law and in the debtor and
creditor law of the State of New York) or (B) left it with
unreasonably small capital at the time its Subsidiary Guarantee
of the Notes was entered into, after giving effect to the
incurrence of existing Indebtedness immediately prior to such
time; provided, that it shall be a presumption in any lawsuit or
other proceeding in which such Guarantor is a party that the
amount guaranteed pursuant to its Subsidiary Guarantee is the
amount set forth in clause (i) above unless any creditor, or
representative of creditors of such Guarantor, or debtor in
possession or trustee in bankruptcy of such Guarantor, otherwise
proves in such a lawsuit that the aggregate liability of such
Guarantor is limited to the amount set forth in clause (ii). The
Indenture provides that, in making any determination as to the
solvency or sufficiency of capital of a Guarantor in accordance
with the previous sentence, the right of such Guarantor to
contribution from other Guarantors and any other rights such
Guarantor may have, contractual or otherwise, shall be taken into
account.
Capitalized terms used herein have the same meanings given in
the Indenture unless otherwise indicated.
[Guarantor]
By
[Name]
[Title]
_______________________________
1. This paragraph should be included only if the Note is issued
in global form.
2. This schedule should be included only if the Note is issued in
global form.