EXHIBIT 4.1
DELTA ▇▇▇▇▇, INC.
As Issuer
DELTA ▇▇▇▇▇ MARKETING, INC.,
As Guarantor
$150,000,000
SERIES A AND SERIES B
9 5/8% 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 Redeemed 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 Defeasance 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 5/8%
Series A Senior Notes due 2007 (the "Series A Notes") and
the 9 5/8% 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
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONSSECTION 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 DEFINITIONSSECTION 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 CONSTRUCTIONSECTION 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 ARTICLE 2 THE NOTES
SECTION 2.01. FORM AND DATINGSECTION 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 AUTHENTICATIONSECTION 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 AGENTSECTION 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
TRUSTSECTION 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 LISTSSECTION 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 EXCHANGESECTION 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 NOTESSECTION 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 NOTESSECTION 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 NOTESSECTION 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. CANCELLATIONSECTION 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 INTERESTSECTION 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 ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEESECTION 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 REDEEMEDSECTION
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 REDEMPTIONSECTION 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 REDEMPTIONSECTION
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 PRICESECTION 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 PARTSECTION 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 REDEMPTIONSECTION 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 REDEMPTIONSECTION 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
PROCEEDSSECTION
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 ARTICLE 4 COVENANTS
SECTION 4.01. PAYMENT OF NOTESSECTION 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
designated 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 AGENCYSECTION
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. REPORTSSECTION 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 CERTIFICATESECTION 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. TAXESSECTION 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 LAWSSECTION 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 PAYMENTSSECTION 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
SUBSIDIARIESSECTION 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
STOCKSECTION 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 SALESSECTION 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
longterm 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 AFFILIATESSECTION 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. LIENSSECTION 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 TRANSACTIONSSECTION
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 EXISTENCESECTION 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
CONTROLSECTION 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 SUBSIDIARIESSECTION 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 CONSENTSECTION 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
STATUSSECTION 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 GUARANTEESSECTION
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 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 DEFAULTSECTION 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 DEFAULTSSECTION 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 avail-
able 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 SUITSSECTION 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 statements and the correctness of
the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the
requirements of this Indenture. However, the Trustee
shall examine the certificates
and opinions to determine whether or not they conform to
the requirements of this
Indenture.
(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 Inden-
ture 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 DEFEASANCEE.
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.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. REINSTATEMENTSECTION.
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 ACTSECTION
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 LAWSECTION 11.08.
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 Subsidiaries or of any
other Person. Any such
indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 11.10. SUCCESSORSSECTION 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 ORIGINALSSECTION 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
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President, Chief Financial Officer
and Treasurer
DELTA ▇▇▇▇▇ MARKETING, INC.
By
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President, Chief Financial Officer
and Treasurer
THE BANK OF NEW YORK,
as Trustee
By
[Name]
[Title]
EXHIBIT A
(Face of Note)
CUSIP/CINS ____________
9 5/8% [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 5/8% [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.]
[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.
This paragragh should be included only if the Note is issued in global
form.
1. INTEREST. Delta ▇▇▇▇▇, Inc., a Delaware corporation
(the "Company"),
promises to pay interest on the principal amount of this
Note at 9 5/8% 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
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:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee of Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
This scedule should be included only if the Note is issued in global form.
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF NOTES
Re: 9 5/8% 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]