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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 9, 2010
Hanesbrands Inc.
(Exact name of registrant as specified in its charter)
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Maryland
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001-32891
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20-3552316 |
(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer Identification
No.) |
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1000 East Hanes Mill Road
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27105 |
Winston-Salem, NC
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(Zip Code) |
(Address of principal executive |
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offices) |
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Registrants telephone number, including area code: (336) 519-8080
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
TABLE OF CONTENTS
Item 1.01. Entry into a Material Definitive Agreement
Issuance of Senior Notes due 2020
On November 9, 2010, Hanesbrands Inc. (the Company) completed the sale of $1.0 billion
in aggregate principal amount of 6.375% senior notes due 2020 (the Notes), at par. The Company
received net proceeds, after deducting initial purchasers discounts and estimated offering
expenses, of approximately $979 million. The Company used the net proceeds from the Notes offering
to repay a portion of the borrowings outstanding under its existing senior secured credit facility,
as well as to pay fees and expenses related to these transactions.
The Notes were offered and sold pursuant to a purchase agreement, dated November 4, 2010 (the
Purchase Agreement), between the Company and certain subsidiaries of the Company
(the Subsidiary Guarantors) and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays
Capital Inc., HSBC Securities (USA) Inc., J.P. Morgan Securities LLC and Goldman, Sachs & Co. as
representatives of the several initial purchasers named therein (collectively, the Initial
Purchasers), for resale to qualified institutional buyers under Rule 144A and to persons outside
the United States under Regulation S of the Securities Act of 1933, as amended (the Securities
Act).
Pursuant to the terms of the registration rights agreement dated November 9, 2010 (the
Registration Rights Agreement) among the Company, the Subsidiary Guarantors, and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Barclays Capital Inc., HSBC Securities (USA) Inc., J.P. Morgan
Securities LLC and Goldman, Sachs & Co., as representatives of the Initial Purchasers, the Company
has agreed to offer to exchange substantially identical senior notes that have been registered
under the Securities Act, as amended, for the Notes, or, in certain circumstances, to register
resales of the Notes.
The Notes were issued pursuant to an indenture, dated as of August 1, 2008 (the Base
Indenture), among the Company, the subsidiary guarantors party thereto and Branch Banking and
Trust Company as trustee (the Trustee), as amended and supplemented by the Fourth Supplemental
Indenture (the Supplemental Indenture and with the Base Indenture, the Indenture) thereto,
dated November 9, 2010, among the Company, the Subsidiary Guarantors and the Trustee. The
Supplemental Indenture provides, among other things, that the Notes will be senior unsecured
obligations of the Company. Interest is payable on the Notes on each December 15 and June 15,
commencing June 15, 2011. The Company may redeem some or all of the Notes at any time prior to
December 15, 2015 at a price equal to 100% of the principal amount of the Notes redeemed plus an
applicable premium described in the Indenture. On or after December 15, 2015, the Company may
redeem some or all of the Notes at redemption prices set forth in the Supplemental Indenture. In
addition, at any time prior to December 15, 2013, the Company
may redeem, with the net cash proceeds of certain equity offerings, up to 35% of the aggregate
principal amount of the Notes at a redemption price of 106.375% of the principal amount of the
Notes redeemed.
The Companys payment obligations under the Notes are fully and unconditionally
guaranteed by substantially all of its current domestic subsidiaries (subject to certain
exceptions) and by certain of its future restricted subsidiaries.
The terms of the Indenture, among other things, limit the ability of the Company and its
restricted subsidiaries to incur additional debt and issue preferred stock; make certain
investments, pay dividends or distributions on its capital stock or make other restricted payments;
sell assets, including capital stock of its restricted subsidiaries; restrict dividends or other
payments by restricted subsidiaries; create liens that secure debt; enter into transactions with
affiliates; and merge or consolidate with other entities.
Subject to certain exceptions, in the event of a change of control of the Company (as defined
in the Indenture), the Company will be required to give the holders of the Notes an opportunity to
sell their Notes to the Company at a price equal to 101% of the principal amount of the Notes, plus
accrued and unpaid interest and applicable Special Interest (as defined in the Indenture) to the
date of repurchase.
The Indenture contains customary events of default which include (subject in certain cases to
customary grace and cure periods), among others, nonpayment of principal or interest; breach of
other
agreements in the Indenture; failure to pay certain other indebtedness; failure to pay certain
final judgments; failure of certain guarantees to be enforceable; and certain events of bankruptcy
or insolvency.
The Notes were issued in a
transaction exempt from registration under the Securities Act and all state securities laws. Therefore, the Notes may not be offered or sold in the United States
absent registration or an applicable exemption from the registration requirements of the Securities
Act and any applicable state securities laws. This Form 8-K and the attached press release do not
constitute an offer to sell any securities or a solicitation of an offer to purchase any
securities.
The Purchase Agreement, the Indenture, the form of Notes and the Registration Rights Agreement
are filed as Exhibits 1.1, 4.1, 4.2, 4.3 and 10.1 to this Current Report on Form 8-K and are
incorporated herein by reference. The above descriptions of the material terms of the Purchase
Agreement, Indenture, Notes and Registration Rights Agreement are qualified in their entirety by
reference to such exhibits.
The Initial Purchasers and certain of their affiliates have provided from time to time, and
may provide in the future, investment and commercial banking and financial advisory services to the
Company and its affiliates in the ordinary course of business, for which they have received and may
continue to receive customary fees and commissions. In particular, affiliates of some of the
Initial Purchasers act as lenders under the Companys senior secured credit facility. JPMorgan
Chase Bank, N.A., an affiliate of J.P. Morgan Securities LLC, acts as administrative agent,
collateral agent and lender under the Companys senior secured credit facility and certain of the
other Initial Purchasers and/or their affiliates act as agents and/or lenders thereunder. In
addition, HSBC Securities (USA) Inc. and PNC Capital Markets LLC and/or certain of their affiliates
act as agents and purchasers under the Companys accounts receivable securitization facility.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant
The disclosures under Item 1.01 of this Current Report on Form 8-K are incorporated herein by
reference to Item 1.01 above.
Item 8.01. Other Events
On November 1, 2010, the Company, the Subsidiary Guarantors and the Trustee executed
supplemental indentures adding GearCo, Inc. and its subsidiaries to the indentures governing the
Companys 8.000% senior notes due 2016 (the 2016 Notes) and the Companys floating rate notes due
2014 (the 2014 Notes). The supplemental indentures to the
indentures governing the 2016 Notes and the 2014 Notes are
furnished as Exhibits 4.4 and 4.5 to this Current Report on Form 8-K and are incorporated herein by
reference.
On November 9, 2010, the Company issued a press release announcing completion of the closing
of the Notes offering. A copy of the press release is furnished as Exhibit 99.1 to this Current
Report on Form 8-K and is incorporated herein by reference.
Statements in this Current Report on Form 8-K that are not statements of historical fact are
forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. These forward-looking statements are made only
as of the date of this report and are based on the Companys current intent, beliefs, plans and
expectations. They involve risks and uncertainties that could cause actual future results,
performance or developments to differ materially from those described in or implied by such
forward-looking statements. These risks and uncertainties include the risks identified from time to
time in the Companys most recent Securities and Exchange Commission reports, including the 2009
Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K,
registration statements, press releases and other communications. The Company undertakes no
obligation to update or revise forward-looking statements to reflect changed assumptions, the
occurrence of unanticipated events or changes to future operating results over time, other than as
required by law.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
Exhibit Number
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1.1
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Purchase Agreement, dated November 4, 2010 between Hanesbrands Inc., the subsidiary
guarantors party thereto and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays
Capital Inc., HSBC Securities (USA) Inc., J.P. Morgan Securities LLC and Goldman, Sachs &
Co., as representatives of the Initial Purchasers. |
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4.1
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Indenture, dated August 1, 2008 (the Indenture), between Hanesbrands Inc. and Branch
Banking and Trust Company (incorporated by reference to Exhibit 4.3 to the Registrants
Registration Statement on Form S-3 (File No. 333-152733)
filed August 1, 2008). |
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4.2
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Fourth Supplemental Indenture, dated November 9, 2010, among Hanesbrands Inc., the subsidiary
guarantors and Branch Banking and Trust Company, related to the Indenture. |
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4.3
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Form of 6.375% Senior Note due 2020 (incorporated by reference to Exhibit 4.2 filed herewith). |
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4.4
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Third Supplemental Indenture, dated November 1, 2010, between Hanesbrands Inc., the
subsidiary guarantors and Branch Banking and Trust Company, related to the Indenture. |
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4.5
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Second Supplemental Indenture, dated November 1, 2010, between Hanesbrands Inc., the
subsidiary guarantors and Branch Banking and Trust Company, related to the Indenture, dated
December 14, 2006, between Hanesbrands Inc., the subsidiary guarantors and Branch Banking and
Trust Company. |
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10.1
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Registration Rights Agreement, dated November 9, 2010, among Hanesbrands Inc., the guarantors
named therein and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc.,
HSBC Securities (USA) Inc., J.P. Morgan Securities LLC and Goldman, Sachs & Co., as
representatives of the Initial Purchasers. |
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99.1
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Press release dated November 9, 2010. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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November 9, 2010 |
HANESBRANDS INC.
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By: |
/s/ E. Lee Wyatt Jr.
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E. Lee Wyatt Jr. |
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Executive Vice President, Chief
Financial Officer |
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Exhibit Table
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1.1
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Purchase Agreement, dated November 4, 2010 between Hanesbrands Inc., the subsidiary
guarantors party thereto and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays
Capital Inc., HSBC Securities (USA) Inc., J.P. Morgan Securities LLC and Goldman, Sachs &
Co., as representatives of the Initial Purchasers. |
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4.1
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Indenture, dated August 1, 2008 (the Indenture), between Hanesbrands Inc. and Branch
Banking and Trust Company (incorporated by reference to Exhibit 4.3 to the Registrants
Registration Statement on Form S-3 (File No. 333-152733)
filed August 1, 2008). |
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4.2
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Fourth Supplemental Indenture, dated November 9, 2010, among Hanesbrands Inc., the subsidiary
guarantors and Branch Banking and Trust Company, related to the Indenture. |
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4.3
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Form of 6.375% Senior Note due 2020 (incorporated by reference to Exhibit 4.2 filed herewith). |
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4.4
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Third Supplemental Indenture, dated November 1, 2010, between Hanesbrands Inc., the
subsidiary guarantors and Branch Banking and Trust Company, related to the Indenture. |
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4.5
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Second Supplemental Indenture, dated November 1, 2010, between Hanesbrands Inc., the
subsidiary guarantors and Branch Banking and Trust Company, related to the Indenture, dated
December 14, 2006, between Hanesbrands Inc., the subsidiary guarantors and Branch Banking and
Trust Company. |
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10.1
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Registration Rights Agreement, dated November 9, 2010, among Hanesbrands Inc., the guarantors
named therein and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc.,
HSBC Securities (USA) Inc., J.P. Morgan Securities LLC and Goldman, Sachs & Co., as
representatives of the Initial Purchasers. |
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99.1
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Press release dated November 9, 2010. |
exv1w1
Exhibit 1.1
EXECUTION VERSION
$1,000,000,000
HANESBRANDS INC.
6.375% Senior Notes due 2020
Purchase Agreement
November 4, 2010
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Barclays Capital Inc.
HSBC Securities (USA) Inc.
J.P. Morgan Securities LLC
Goldman, Sachs & Co.
As Representatives of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
Hanesbrands Inc., a Maryland corporation (the Company), proposes to issue and sell to the
several Initial Purchasers listed in Schedule 1 hereto (the Initial Purchasers), for whom you are
acting as representatives (the Representatives), $1,000,000,000 principal amount of its 6.375%
Senior Notes due 2020 (the Securities). The Securities will be issued pursuant to an Indenture
dated as of August 1, 2008 (the Base Indenture), as supplemented by a Supplemental Indenture (the
Supplemental Indenture) dated as of November 9, 2010 (the Base Indenture, as supplemented by the
Supplemental Indenture, being called the Indenture) among the Company, the guarantors listed in
Schedule 2 hereto (the Guarantors) and Branch Banking and Trust Company, as trustee (the
Trustee), and will be guaranteed on an unsecured senior basis by each of the Guarantors (the
Guarantees). The Indenture is unlimited in aggregate principal amount, although the issuance of
Securities in this offering is limited to $1,000,000,000. The Company may issue an unlimited
principal amount of additional securities having identical terms and conditions as the Securities
(the Additional Securities). Any Additional Securities will be part of the same series of the
Securities that the Company is currently offering and holders of any Additional Securities will
vote on all matters with holders of the Securities.
The holders of the Securities will be entitled to the benefits of a registration rights
agreement, to be dated as of the Closing Date (as defined herein) (the Registration Rights
Agreement), among the Company, the Guarantors and the Initial Purchasers, pursuant to which the
Company and the Guarantors may be required to file with the Commission (as defined below), under
the circumstances set forth therein, (i) a registration statement under the Securities Act (as
defined below) relating to another series of debt securities of the Company with terms
substantially identical to the Securities (the Exchange Securities) to be offered in exchange for
the Securities (the Exchange Offer) and (ii) a shelf registration statement pursuant to Rule 415
of the Securities Act relating to the resale by certain holders of the Notes, and in each case, to
use its reasonable best efforts to cause such registration statements to be declared effective.
All references herein to the Exchange Securities and the Exchange Offer are only applicable if the
Company and the Guarantors are in fact required to consummate the Exchange Offer pursuant to the
terms of the Registration Rights Agreement.
The Company understands that the Initial Purchasers propose to make an offering of the
Securities on the terms and in the manner set forth herein and in the Pricing Disclosure Package
(as defined below) and agrees that the Initial Purchasers may resell, subject to the conditions set
forth herein, all or a portion of the Securities to purchasers (the Subsequent Purchasers) on the
terms set forth in the Pricing Disclosure Package (the first time
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when sales of the Securities are made is referred to as the Time of Sale). The Securities
are to be offered and sold to or through the Initial Purchasers without being registered with the
Securities and Exchange Commission (the Commission) under the Securities Act of 1933 (as amended,
the Securities Act, which term, as used herein, includes the rules and regulations of the
Commission promulgated thereunder), in reliance upon exemptions therefrom. Pursuant to the terms
of the Securities and the Indenture, investors who acquire Securities shall be deemed to have
agreed that Securities may only be resold or otherwise transferred, after the date hereof, if such
Securities are registered for sale under the Securities Act or if an exemption from the
registration requirements of the Securities Act is available (including the exemptions afforded by
Rule 144A under the Securities Act (Rule 144A) or Regulation S under the Securities Act
(Regulation S)).
The Company has prepared and delivered to each Initial Purchaser copies of a Preliminary
Offering Memorandum, dated November 4, 2010 (the Preliminary Offering Memorandum), and has
prepared and delivered to each Initial Purchaser copies of a Pricing Term Sheet, dated November 4,
2010 (the Pricing Supplement), describing the terms of the Securities, each for use by such
Initial Purchaser in connection with its solicitation of offers to purchase the Securities. The
Preliminary Offering Memorandum and the Pricing Supplement are herein referred to as the Pricing
Disclosure Package. Promptly after this Agreement is executed and delivered, the Company will
prepare and deliver to each Initial Purchaser a final offering memorandum dated the date hereof
(the Final Offering Memorandum).
All references herein to the terms Pricing Disclosure Package and Final Offering
Memorandum shall be deemed to mean and include all information filed under the Securities Exchange
Act of 1934 (as amended, the Exchange Act, which term, as used herein, includes the rules and
regulations of the Commission promulgated thereunder) prior to the Time of Sale and incorporated by
reference in the Pricing Disclosure Package (including the Preliminary Offering Memorandum) or the
Final Offering Memorandum (as the case may be), and all references herein to the terms amend,
amendment or supplement with respect to the Final Offering Memorandum shall be deemed to mean
and include all information filed under the Exchange Act after the Time of Sale and incorporated by
reference in the Final Offering Memorandum.
The Company hereby confirms its agreements with the Initial Purchasers as follows:
1. Purchase of the Securities by the Initial Purchasers
(a) The Company agrees to issue and sell the Securities to the several Initial Purchasers as
provided in this Agreement, and each Initial Purchaser, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase from the Company the respective principal amount
of Securities set forth opposite such Initial Purchasers name in Schedule 1 hereto at a price
equal to 98% of the principal amount thereof plus accrued interest, if any, from November 9, 2010
to the Closing Date (as defined below). The Company will not be obligated to deliver any of the
Securities except upon payment for all the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend to make a private placement
of the Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representatives is advisable, and initially to offer the Securities on the terms set forth in the
Final Offering Memorandum. The Company acknowledges and agrees that the Initial Purchasers may
offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such
affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser.
(c) Payment for and delivery of the Securities will be made at the offices of Latham &
Watkins LLP, 885 Third Avenue, New York, New York 10022 at 10:00 A.M., New York City time, on
November 9, 2010, or at such other time or place on the same or such other date, not later than
the fifth business day thereafter, as the Representatives and the Company may agree upon in
writing. The time and date of such payment and delivery is referred to herein as the Closing
Date.
(d) Payment for the Securities shall be made by wire transfer in immediately available funds
to the account(s) specified by the Company to the Representatives against delivery to the
Trustee, as custodian for The
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Depository Trust Company, for the account of the Initial Purchasers, of one or more global
notes representing the Securities (collectively, the Global Note), with any transfer taxes
payable in connection with the sale of the Securities duly paid by the Company. The Global Note
will be made available for inspection by the Representatives not later than 12:00 P.M., New York
City time, on the business day prior to the Closing Date.
(e) The Company and the Guarantors acknowledge and agree that the Initial Purchasers are
acting solely in the capacity of an arms length contractual counterparty to the Company and the
Guarantors with respect to the offering of Securities contemplated hereby (including in
connection with determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally,
neither the Representatives nor any other Initial Purchaser is advising the Company, the
Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters
in any jurisdiction. The Company and the Guarantors shall consult with their own advisors
concerning such matters and shall be responsible for making their own independent investigation
and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no
responsibility or liability to the Company or the Guarantors with respect thereto. Any review by
the Initial Purchasers of the Company, the Guarantors, the transactions contemplated hereby or
other matters relating to such transactions will be performed solely for the benefit of the
Initial Purchasers and shall not be on behalf of the Company or the Guarantors. The Company
agrees that it will not claim that the Initial Purchasers, or any of them, has rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to the Company, in
connection with such transaction or the process leading thereto.
(f) Each Initial Purchaser severally and not jointly represents and warrants to, and agrees
with, the Company that:
(i) it will offer and sell Securities only to (a) persons who it reasonably believes are
qualified institutional buyers within the meaning of Rule 144A (Qualified Institutional
Buyers) in transactions meeting the requirements of Rule 144A or (b) upon the terms and
conditions set forth in Annex B to this Agreement;
(ii) it is an institutional accredited investor within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act; and
(iii) it will not offer or sell Securities by, any form of general solicitation or general
advertising, including but not limited to the methods described in Rule 502(c) under the
Securities Act.
2. Representations and Warranties of the Company and the Guarantors. Each of the
Company and the Guarantors, jointly and severally, hereby represents and warrants to each Initial
Purchaser that, as of the date hereof and as of the Closing Date (references in this Section 2 to
the Offering Memorandum are to (x) the Pricing Disclosure Package in the case of representations
and warranties made as of the date hereof and (y) the Final Offering Memorandum in the case of
representations and warranties made as of the Closing Date):
(a) No Registration Required. Subject to compliance by the Initial Purchasers with the
representations and warranties set forth in Section 1(f) hereof and with the procedures set forth
in Section 5 hereof, it is not necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchasers and to each Subsequent Purchaser in the manner contemplated
by this Agreement and the Offering Memorandum to register the Securities under the Securities Act
or, until such time as the Exchange Securities are issued pursuant to an effective registration
statement, to qualify the Indenture under the Trust Indenture Act of 1939 (the Trust Indenture
Act, which term, as used herein, includes the rules and regulations of the Commission
promulgated thereunder).
(b) No Integration of Offerings or General Solicitation. None of the Company, its
affiliates (as such term is defined in Rule 501 under the Securities Act) (each, an Affiliate),
or any person acting on its or any of their behalf (other than the Initial Purchasers, as to whom
the Company makes no representation or warranty) has, directly or indirectly, solicited any offer
to buy or offered to sell, or will, directly or indirectly, solicit any offer to buy or offer to
sell, in the United States or to any United States citizen or resident, any security which is or
would be integrated with the sale of the Securities in a manner that would require the Securities
to be
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registered under the Securities Act. None of the Company, its Affiliates, or any person
acting on its or any of their behalf (other than the Initial Purchasers, as to whom the Company
makes no representation or warranty) has engaged or will engage, in connection with the offering
of the Securities, in any form of general solicitation or general advertising within the meaning
of Rule 502 under the Securities Act. With respect to those Securities sold in reliance upon
Regulation S, (i) none of the Company, its Affiliates or any person acting on its or their behalf
(other than the Initial Purchasers, as to whom the Company makes no representation or warranty)
has engaged or will engage in any directed selling efforts within the meaning of Regulation S and
(ii) each of the Company and its Affiliates and any person acting on its or their behalf (other
than the Initial Purchasers, as to whom the Company makes no representation or warranty) has
complied and will comply with the offering restrictions set forth in Regulation S.
(c) Eligibility for Resale under Rule 144A. The Securities satisfy the requirements set
forth in Rule 144A(d)(3) under the Securities Act and will not be, at the Closing Date, of the
same class as securities listed on a national securities exchange registered under Section 6 of
the Exchange Act or quoted in a U.S. automated interdealer quotation system.
(d) The Pricing Disclosure Package and Offering Memorandum. Neither the Pricing Disclosure
Package, as of the Time of Sale, nor the Final Offering Memorandum, as of its date or (as amended
or supplemented in accordance with Section 3(b), as applicable) as of the Closing Date, contains
or represents an untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that this representation, warranty and agreement shall not apply
to statements in or omissions from the Pricing Disclosure Package, the Final Offering Memorandum
or any amendment or supplement thereto made in reliance upon and in conformity with information
furnished to the Company in writing by any Initial Purchaser through the Representatives
expressly for use in the Pricing Disclosure Package, the Final Offering Memorandum or amendment
or supplement thereto, as the case may be. The Pricing Disclosure Package contains, and the
Final Offering Memorandum will contain, all the information specified in, and meeting the
requirements of, Rule 144A. The Company has not distributed and will not distribute, prior to
the later of the Closing Date and the completion of the Initial Purchasers distribution of the
Securities, any offering material in connection with the offering and sale of the Securities
other than the Pricing Disclosure Package and the Final Offering Memorandum.
(e) Company Additional Written Communications. The Company has not prepared, made, used,
authorized, approved or distributed and will not prepare, make, use, authorize, approve or
distribute any written communication that constitutes an offer to sell or solicitation of an
offer to buy the Securities other than (i) the Pricing Disclosure Package, (ii) the Final
Offering Memorandum and (iii) any electronic road show or other written communications, in each
case used in accordance with Section 3(a). Each such communication by the Company or its agents
and representatives pursuant to clause (iii) of the preceding sentence (each, a Company
Additional Written Communication), when taken together with the Pricing Disclosure Package, did
not as of the Time of Sale, and at the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided that this
representation and warranty shall not apply to statements in or omissions from each such Company
Additional Written Communication made in reliance upon and in conformity with information
furnished to the Company in writing by any Initial Purchaser through the Representatives
expressly for use in any Company Additional Written Communication.
(f) Incorporated Documents. The documents incorporated or deemed to be incorporated by
reference in the Offering Memorandum at the time they were or hereafter are filed with the
Commission (collectively, the Incorporated Documents) complied and will comply in all material
respects with the requirements of the Exchange Act. Each such Incorporated Document, when taken
together with the Pricing Disclosure Package, did not as of the Time of Sale, and at the Closing
Date will not, contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(g) The Purchase Agreement. This Agreement has been duly authorized, executed and delivered
by the Company and the Guarantors.
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(h) The Registration Rights Agreement. The Registration Rights Agreement has been duly
authorized and, on the Closing Date, will have been duly executed and delivered by, and will
constitute a valid and binding agreement of, the Company and the Guarantors, enforceable against
the Company and the Guarantors, in accordance with its terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general equitable principles
and except as rights to indemnification may be limited by applicable law.
(i) Authorization of the Securities, the Guarantees and the Exchange Securities. The
Securities to be purchased by the Initial Purchasers from the Company will on the Closing Date be
in the form contemplated by the Indenture, have been duly authorized for issuance and sale
pursuant to this Agreement and the Indenture and, at the Closing Date, will have been duly
executed by the Company and, when authenticated in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and remedies of creditors or
by general equitable principles and will be entitled to the benefits of the Indenture. The
Exchange Securities have been duly and validly authorized for issuance by the Company, and when
issued and authenticated in accordance with the terms of the Indenture, the Registration Rights
Agreement and the Exchange Offer, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to
or affecting enforcement of the rights and remedies of creditors or by general principles of
equity and will be entitled to the benefits of the Indenture. The Guarantees of the Notes on the
Closing Date and the Guarantees of the Exchange Notes when issued will be in the respective forms
contemplated by the Indenture and have been duly authorized for issuance pursuant to this
Agreement and the Indenture; the Guarantees of the Notes, at the Closing Date, will have been
duly executed by each of the Guarantors and, when the Notes have been authenticated in the manner
provided for in the Indenture and issued and delivered against payment of the purchase price
therefor, the Guarantees of the Notes will constitute valid and binding agreements of the
Guarantors; and, when the Exchange Notes have been authenticated in the manner provided for in
the Indenture and issued and delivered in accordance with the Registration Rights Agreement, the
Guarantees of the Exchange Notes will constitute valid and binding agreements of the Guarantors,
in each case, enforceable against the Guarantors in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors or by general
equitable principles and will be entitled to the benefits of the Indenture.
(j) Authorization of the Indenture. The Indenture has been duly authorized by the Company
and the Guarantors and, at the Closing Date, will have been duly executed and delivered by the
Company and the Guarantors and will constitute a valid and binding agreement of the Company and
the Guarantors, enforceable against the Company and the Guarantors in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and remedies of creditors or
by general equitable principles.
(k) Description of the Securities and the Indenture. The Securities, the Exchange
Securities and the Indenture will conform in all material respects to the respective statements
relating thereto contained in the Offering Memorandum.
(l) Financial Statements. The financial statements and the related notes thereto of the
Company and its consolidated subsidiaries included or incorporated by reference in the Offering
Memorandum comply in all material respects with the applicable requirements of the Securities Act
and the Exchange Act, as applicable, and present fairly in all material respects the financial
position of the Company and its subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted accounting principles applied
on a consistent basis throughout the periods covered thereby, and the supporting schedules, if
any, included or incorporated by reference in the Offering Memorandum present fairly the
information required to be stated therein; and the other financial information included or
incorporated by reference in the Offering Memorandum
6
has been derived from the accounting records of the Company and its subsidiaries and
presents fairly the information shown thereby.
(m) No Material Adverse Change. Since the date of the most recent financial statements of
the Company included or incorporated by reference in the Offering Memorandum, (i) there has not
been any change in the capital stock (except as a result of exercises of outstanding stock
options, vesting of restricted stock units and transactions pursuant to the Companys employee
stock purchase plan, not to exceed 50,000 shares of common stock of the Company in the aggregate)
or long-term debt of the Company or any of its subsidiaries (except for a borrowing of $227.0
million under the revolving credit facility to fund the GearCo. Inc. acquisition and ordinary
course borrowings under the revolving credit facility contained in the Companys existing senior
secured credit facility (the Senior Secured Credit Facility) and the accounts receivable
securitization facility), or any dividend or distribution of any kind declared, set aside for
payment, paid or made by the Company on any class of capital stock, or any material adverse
change, or any development involving a prospective material adverse change, in or affecting the
business, properties, management, financial position, results of operations or prospects of the
Company and its subsidiaries taken as a whole; (ii) neither the Company nor any of its
subsidiaries has entered into any transaction or agreement that is material to the Company and
its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent,
that is material to the Company and its subsidiaries taken as a whole; and (iii) neither the
Company nor any of its subsidiaries has sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by insurance, or
from any labor disturbance or dispute or any action, order or decree of any court or arbitrator
or governmental or regulatory authority, except in each case as otherwise disclosed in the
Offering Memorandum.
(n) Organization and Good Standing. The Company and each of its subsidiaries have been duly
organized and are validly existing and in good standing under the laws of their respective
jurisdictions of organization, are duly qualified to do business and are in good standing in each
jurisdiction in which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and authority necessary to
own or hold their respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified, in good standing or have such power or authority
would not, individually or in the aggregate, have a material adverse effect on the business,
properties, management, financial position, results of operations or prospects of the Company and
its subsidiaries taken as a whole or on the performance by the Company or the Guarantors of their
obligations under the Securities and the Guarantees, respectively (a Material Adverse Effect).
The Company does not own or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Exhibit 21 to the Annual Report on Form 10-K
for the fiscal year ended January 3, 2010, other than Hanesbrands International (Thailand) Ltd.,
a company formed under the laws of Thailand and EPLD Temporary Corp., a Delaware corporation,
each of which was formed after January 3, 2010, and Yoctogenix (Proprietary) Limited, a company
formed under the laws of South Africa, GearCo, Inc., a Delaware corporation, GFSI Holdings, Inc.,
a Delaware corporation, GFSI, Inc., a Delaware corporation, CC Products, Inc., a Delaware
corporation, Event 1, Inc., a Kansas corporation, GFSI Southwest, S. de R.L. de C.V., a company
formed under the laws of Mexico, and GFSI Canada Company, a company formed under the laws of
Canada, each of which was acquired by the Company after January 3, 2010 and its subsidiaries.
(o) Capitalization. The Company has an authorized capitalization as set forth in the
Offering Memorandum under the heading Capitalization and all the outstanding shares of capital
stock or other equity interests of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable (except, in the case of any foreign
subsidiary, for directors qualifying shares and shares held by other persons to satisfy
applicable legal requirements, as could not reasonably be expected to result in a Material
Adverse Effect) and are owned directly or indirectly by the Company, free and clear of any lien,
charge, encumbrance, security interest, restriction on voting or transfer or any other claim of
any third party other than liens, encumbrances or other restrictions pursuant to the Senior
Secured Credit Facility or any lien, encumbrance or other restrictions with respect to any
foreign subsidiary which would not reasonably be expected, individually or in aggregate, to
result in a Material Adverse Effect. For the purpose of this Agreement, subsidiary means, with
respect to any person, any corporation, association or other business entity of which more than
50% of the voting power of the outstanding voting stock is owned, directly or indirectly, by such
person and one or more other subsidiaries of such person.
7
(p) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute such a default,
in the due performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of its subsidiaries is
subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation
of any court or arbitrator or governmental or regulatory authority, except, in the case of
clauses (ii) and (iii) above, for any such default or violation that would not, individually or
in the aggregate, have a Material Adverse Effect.
(q) No Conflicts. The execution, delivery and performance by the Company and each of the
Guarantors of each of the Indenture and the Registration Rights Agreement (collectively, the
Transaction Documents), the issuance and sale of the Securities (including the Guarantees) and
the Exchange Securities, and compliance by the Company and each of the Guarantors with the terms
thereof and the consummation of the transactions contemplated by the Transaction Documents will
not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to,
any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws
or similar organizational documents of the Company or any of its subsidiaries or (iii) result in
the violation of any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach, violation or default that would not, individually or
in the aggregate, have a Material Adverse Effect.
(r) No Consents Required. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company and each of the Guarantors of
each of the Transaction Documents to which it is a party, the issuance and sale of the Securities
(including the Guarantees) and compliance by the Company and each of the Guarantors with the
terms thereof and the consummation of the transactions contemplated by the Transaction Documents,
except for the registration of the Securities under the Securities Act, the qualification of the
Indenture under the Trust Indenture Act and such consents, approvals, authorizations, orders and
registrations or qualifications as may be required under applicable state securities laws in
connection with the purchase and distribution of the Securities by the Initial Purchasers.
(s) Legal Proceedings. Except as described in the Offering Memorandum, there are no legal,
governmental or regulatory investigations, actions, suits or proceedings pending to which the
Company or any of its subsidiaries is or may be a party or to which any property of the Company
or any of its subsidiaries is or may be the subject that, individually or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, could reasonably be expected to
have a Material Adverse Effect; no such investigations, actions, suits or proceedings are
threatened or, to the best knowledge of the Company, contemplated by any governmental or
regulatory authority or threatened by others; and there are no current or pending legal,
governmental or regulatory actions, suits or proceedings that are required under the Securities
Act to be described in the Offering Memorandum that are not so described in the Offering
Memorandum.
(t) Independent Accountants. PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its subsidiaries, is an independent registered public
accounting firm with respect to the Company and its subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Company Accounting Oversight Board (United
States) and as required by the Securities Act.
(u) Title to Real and Personal Property. The Company and its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of
real and personal property that are material to the respective businesses of the Company and its
subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and
imperfections of title except those that (i) do not materially interfere with the use made and
proposed to be made of such property by the Company and its
8
subsidiaries, (ii) exist pursuant to the Senior Secured Credit Facility; or (iii) could not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(v) Title to Intellectual Property. Except as could not reasonably be expected,
individually or in aggregate, to have a Material Adverse Effect, the Company and its subsidiaries
own or possess adequate rights to use all patents, patent applications, trademarks, service
marks, trade names, trade secrets, trademark registrations, service mark registrations,
copyrights, licenses and know-how necessary for the conduct of their respective businesses; and
the conduct of their respective businesses will not conflict with any such rights of others,
except those that (i) exist pursuant to the Senior Secured Credit Facility or (ii) could not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. The
Company and its subsidiaries have not received any notice of any claim of infringement of or
conflict with any such rights of others and the Companys or its subsidiaries intellectual
property rights are not being infringed by third parties.
(w) No Undisclosed Relationships. No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries, on the other,
that is required by the Securities Act to be described in the Offering Memorandum and that is not
so described.
(x) Investment Company Act. Neither the Company nor any of its subsidiaries is and, after
giving effect to the offering and sale of the Securities and the application of the proceeds
thereof as described in the Offering Memorandum, none of them will be, an investment company or
an entity controlled by an investment company within the meaning of the Investment Company
Act of 1940, as amended, and the rules and regulations of the Commission thereunder
(collectively, Investment Company Act).
(y) Taxes. The Company and its subsidiaries have paid all federal, state, local and foreign
taxes (except for any such taxes that are currently being contested in good faith and with
respect to which adequate reserves have been established in accordance with generally accepted
accounting principles) and filed all tax returns required to be paid or filed through the date
hereof, except in any case in which the failure so to pay such taxes or file such returns would
not reasonably be expected to have a Material Adverse Effect; and except as otherwise disclosed
in the Offering Memorandum, there is no tax deficiency that has been, or could reasonably be
expected to be, asserted against the Company or any of its subsidiaries or any of their
respective properties or assets.
(z) Licenses and Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in the Offering Memorandum, except where the
failure to possess or make the same would not, individually or in the aggregate, have a Material
Adverse Effect (any such license, certificate, permit or authorization, a Material License);
and except as described in the Offering Memorandum, neither the Company nor any of its
subsidiaries has received notice of any revocation or modification of any Material License or has
any reason to believe that any Material License will not be renewed in the ordinary course.
(aa) No Labor Disputes. No labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company and each of the Guarantors, is
contemplated or threatened and neither the Company nor any Guarantor is aware of any existing or
imminent labor disturbance by, or dispute with, the employees of any of the Companys or the
Companys subsidiaries principal suppliers, contractors or customers, except as would not
reasonably be expected to have a Material Adverse Effect.
(bb) Compliance With Environmental Laws. (i) The Company and its subsidiaries (x) are, and
at all prior times were, in compliance with any and all applicable federal, state, local and
foreign laws, rules, regulations, requirements, decisions and orders relating to the protection
of human health or safety, the environment, natural resources, hazardous or toxic substances or
wastes, pollutants or contaminants (collectively, Environmental Laws); (y) have received and
are in compliance with all permits, licenses, certificates or other authorizations or approvals
required of them under applicable Environmental Laws to conduct their respective businesses; and
(z) have not received notice of any actual or potential liability under or relating to any
9
Environmental Laws, including for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants, and have no
knowledge of any event or condition that would reasonably be expected to result in any such
notice, and (ii) there are no costs or liabilities associated with Environmental Laws of or
relating to the Company or its subsidiaries, except in the case of each of (i) and (ii) above,
for any such failure to comply, or failure to receive required permits, licenses or approvals, or
cost or liability, as would not, individually or in the aggregate, have a Material Adverse
Effect; and (iii) except as described in the Offering Memorandum, (x) there are no proceedings
that are pending, or that are known to be contemplated, against the Company or any of its
subsidiaries under any Environmental Laws in which a governmental entity is also a party, other
than such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000
or more will be imposed, (y) the Company and its subsidiaries are not aware of any issues
regarding compliance with Environmental Laws, or liabilities or other obligations under
Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or
contaminants, that could reasonably be expected to have a material effect on the capital
expenditures, earnings or competitive position of the Company and its subsidiaries, and (z) none
of the Company and its subsidiaries anticipates material capital expenditures relating to any
Environmental Laws.
(cc) Compliance With ERISA. Except as described in the Offering Memorandum or as would not
reasonably be expected, individually or in aggregate, to have a Material Adverse Effect, (i) each
employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (ERISA), for which the Company or any member of its
Controlled Group (defined as any organization which is a member of a controlled group of
corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended
(the Code)) would have any liability (each, a Plan) has been maintained in compliance with
its terms and the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Code; (ii) no prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any
Plan excluding transactions effected pursuant to a statutory or administrative exemption or
transactions that have previously been corrected in accordance with applicable correction
procedures; (iii) for each Plan that is subject to the funding rules of Section 412 of the Code
or Section 302 of ERISA, no accumulated funding deficiency as defined in Section 412 of the
Code, whether or not waived, has occurred or is reasonably expected to occur; (iv) to the best
knowledge of the Company, no reportable event (within the meaning of Section 4043(c) of ERISA)
has occurred for which notice to the PBGC either has been waived or has been provided; and
(v) neither the Company nor any member of the Controlled Group has incurred, nor reasonably
expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or
premiums to the PBGC, in the ordinary course and without default or pursuant to the agreement
with the PBGC dated September 8, 2009) in respect of a Plan (including a multiemployer plan,
within the meaning of Section 4001(a)(3) of ERISA).
(dd) Disclosure Controls. The Company and its subsidiaries, on a consolidated basis,
maintain an effective system of disclosure controls and procedures (as defined in Rule
13a-15(e) of the Exchange Act) that is designed to ensure that information required to be
disclosed by the Company in reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the Commissions rules
and forms, including controls and procedures designed to ensure that such information is
accumulated and communicated to the Companys management as appropriate to allow timely decisions
regarding required disclosure. The Company and its subsidiaries have carried out evaluations of
the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the
Exchange Act.
(ee) Accounting Controls. The Company and its subsidiaries, on a consolidated basis,
maintain systems of internal control over financial reporting (as defined in Rule 13a-15(f) of
the Exchange Act) that comply with the requirements of the Exchange Act and have been designed
by, or under the supervision of, their respective principal executive and principal financial
officers, or persons performing similar functions, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles, including, but not limited
to internal accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with managements general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with managements general or specific
authorization; and (iv) the recorded accountability for assets is compared with the existing
assets at
10
reasonable intervals and appropriate action is taken with respect to any differences. Except
as disclosed in the Offering Memorandum, there are no material weaknesses in the Companys
internal controls, on a consolidated basis.
(ff) Insurance. The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; the Company and its
subsidiaries are in compliance with the terms of such policies and instruments in all material
respects; and there are no material claims by the Company or any of its subsidiaries under any
such policy or instrument as to which any insurance company is denying liability or defending
under a reservation of rights clause.
(gg) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company and each of the Guarantors, any director, officer, agent, employee or
other person associated with or acting on behalf of the Company or any of its subsidiaries has
(i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(hh) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the Money Laundering Laws)
and no action, suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(ii) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the
knowledge of the Company, any director, officer, agent, employee or Affiliate of the Company or
any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (OFAC); and the Company will not
directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or
other person or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(jj) Solvency. On and immediately after the Closing Date, the Company (after giving effect
to the issuance of the Securities and the other transactions related thereto as described in the
Offering Memorandum) will be Solvent. As used in this paragraph, the term Solvent means, with
respect to a particular date, that on such date (i) the present fair market value (or present
fair saleable value) of the assets of the Company is not less than the total amount required to
pay the liabilities of the Company on its total existing debts and liabilities (including
contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize
upon its assets and pay its debts and other liabilities, contingent obligations and commitments
as they mature and become due in the normal course of business; (iii) assuming consummation of
the issuance of the Securities as contemplated by this Agreement, the Company is not incurring
debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the
Company is not engaged in any business or transaction, and does not propose to engage in any
business or transaction, for which its property would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in which the Company is
engaged; and (v) the Company is not a defendant in any civil action that would result in a
judgment that the Company is or would become unable to satisfy.
(kk) No Restrictions on Subsidiaries. No subsidiary of the Company is currently prohibited,
directly or indirectly from paying any dividends to the Company, from making any other
distribution on such subsidiarys capital stock, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring any of such subsidiarys
properties or assets to the Company or any other subsidiary of the Company,
11
except for restrictions permitted under the indenture governing the Companys existing
floating rate Senior Notes due 2014 and fixed rate Senior Notes due 2016.
(ll) No Brokers Fees. Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would give
rise to a valid claim against the Company or any of its subsidiaries or any Initial Purchaser for
a brokerage commission, finders fee or like payment in connection with the offering and sale of
the Securities.
(mm) No Stabilization. The Company has not taken, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Securities.
(nn) Margin Rules. Neither the issuance, sale and delivery of the Securities nor the
application of the proceeds thereof by the Company as described in the Offering Memorandum will
violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other
regulation of such Board of Governors.
(oo) Forward-Looking Statements. No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the Offering
Memorandum has been made or reaffirmed without a reasonable basis or has been disclosed other
than in good faith.
(pp) Statistical and Market Data. Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related data included in the
Offering Memorandum is not based on or derived from sources that are reliable and accurate in all
material respects.
(qq) Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any
of the Companys directors or officers, in their capacities as such, to comply with any provision
of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith (the Sarbanes-Oxley Act), including Section 402 related to loans and Sections 302 and
906 related to certifications.
3. Further Agreements of the Company and the Guarantors. The Company and each of the
Guarantors jointly and severally covenant and agree with each Initial Purchaser that:
(a) Preparation of Final Offering Memorandum; Initial Purchasers Review of Proposed
Amendments and Supplements and Company Additional Written Communications. As promptly as
practicable following the Time of Sale, the Company will prepare and deliver to the Initial
Purchasers the Final Offering Memorandum, which shall consist of the Preliminary Offering
Memorandum as modified only by the information contained in the Pricing Supplement. The Company
will not amend or supplement the Preliminary Offering Memorandum or the Pricing Supplement.
Before making, preparing, using, authorizing, approving or distributing any Company Additional
Written Communication, the Company will furnish to Merrill Lynch, Pierce, Fenner & Smith
Incorporated a copy of such written communication for review and will not make, prepare, use,
authorize, approve or distribute any such written communication to which Merrill Lynch, Pierce,
Fenner & Smith Incorporated promptly and reasonably objects.
(b) Amendments and Supplements to the Final Offering Memorandum and Other Securities Act
Matters. If at any time prior to the Closing Date (i) any event shall occur or condition shall
exist as a result of which any of the Pricing Disclosure Package as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading or (ii) it is necessary to amend or supplement any of the Pricing
Disclosure Package to comply with law, the Company will promptly notify the Initial Purchasers
thereof and forthwith prepare and (subject to Section 3(a) hereof) furnish to the Initial
Purchasers such amendments or supplements to any of the Pricing Disclosure Package as may be
necessary so that the statements in any of the Pricing Disclosure Package as so amended or
supplemented will not, in the light of the circumstances under which they were made, be
misleading or so that any of the Pricing Disclosure Package will comply with all applicable law.
12
(c) Following the consummation of the Exchange Offer or the effectiveness of an applicable
shelf registration statement and for so long as the Securities are outstanding, if, in the
judgment of Merrill Lynch, Pierce, Fenner & Smith Incorporated, the Initial Purchasers or any of
their affiliates (as such term is defined in the Securities Act) are required to deliver a
prospectus in connection with sales of, or market-making activities with respect to, the
Securities, the Company and the Guarantors agree to periodically amend the applicable
registration statement so that the information contained therein complies with the requirements
of Section 10 of the Securities Act, to amend the applicable registration statement or supplement
the related prospectus or the documents incorporated therein when necessary to reflect any
material changes in the information provided therein so that the registration statement and the
prospectus will not contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances
existing as of the date the prospectus is so delivered, not misleading and to provide the Initial
Purchasers with copies of each amendment or supplement filed and such other documents as the
Initial Purchasers may reasonably request.
The Company hereby expressly acknowledges that the indemnification and contribution provisions of
Section 6 hereof are specifically applicable and relate to each offering memorandum, registration
statement, prospectus, amendment or supplement referred to in this Section 3.
(d) Blue Sky Compliance. The Company will qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably
request and will continue such qualifications in effect so long as required for distribution of
the Securities; provided that the Company shall not be required to (i) qualify as a
foreign corporation or other entity or as a dealer in securities in any such jurisdiction where
it would not otherwise be required to so qualify, (ii) file any general consent to service of
process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if
it is not otherwise so subject.
(e) The Depositary. The Company will cooperate with the Initial Purchasers and use its best
efforts to permit the Securities to be eligible for clearance and settlement through the
facilities of the Depositary.
(f) Additional Issuer Information. At any time when the Company is not subject to Section
13 or 15 of the Exchange Act, for the benefit of holders and beneficial owners from time to time
of the Securities, the Company shall furnish, at its expense, upon request, to holders and
beneficial owners of Securities and prospective purchasers of Securities information (Additional
Issuer Information) satisfying the requirements of Rule 144A(d).
(g) Clear Market. During the period from the date hereof through and including the date
that is 90 days after the date hereof, the Company will not, without the prior written consent of
Merrill Lynch, Pierce, Fenner & Smith Incorporated, offer, sell, contract to sell, pledge or
otherwise dispose of any debt securities issued or guaranteed by the Company and having a tenor
of more than one year.
(h) Use of Proceeds. The Company will apply the net proceeds from the sale of the
Securities as described in the Offering Memorandum under the heading Use of Proceeds.
(i) No Stabilization. The Company will not take, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Securities.
(j) No Integration. The Company agrees that it will not and will cause its Affiliates not
to make any offer or sale of securities of the Company of any class if, as a result of the
doctrine of integration referred to in Rule 502 under the Securities Act, such offer or sale
would render invalid (for the purpose of (i) the sale of the Securities by the Company to the
Initial Purchasers, (ii) the resale of the Securities by the Initial Purchasers to Subsequent
Purchasers or (iii) the resale of the Securities by such Subsequent Purchasers to others) the
exemption from the registration requirements of the Securities Act provided by Section 4(2)
thereof or by Rule 144A or by Regulation S thereunder or otherwise.
13
(k) No General Solicitation or Directed Selling Efforts. The Company agrees that it will
not and will not permit any of its Affiliates or any other person acting on its or their behalf
(other than the Initial Purchasers, as to which no covenant is given) to (i) solicit offers for,
or offer or sell, the Securities by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed
selling efforts with respect to the Securities within the meaning of Regulation S, and the
Company will and will cause all such persons to comply with the offering restrictions requirement
of Regulation S with respect to the Securities.
(l) No Restricted Resales. During the one year period after the date of this Agreement, the
Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the
Securities Act) to resell any of the Notes that have been reacquired by any of them.
(m) Legended Securities. Each certificate for a Security will bear the legend contained in
Notice to Investors in the Preliminary Offering Memorandum for the time period and upon the
other terms stated in the Preliminary Offering Memorandum.
Merrill Lynch, Pierce, Fenner & Smith Incorporated, may, in its sole discretion, waive in
writing the performance by the Company or any Guarantor of any one or more of the foregoing
covenants or extend the time for their performance.
4. Conditions of Initial Purchasers Obligations. The obligation of each Initial
Purchaser to purchase Securities on the Closing Date as provided herein is subject to the
performance by the Company and each of the Guarantors of their respective covenants and other
obligations hereunder and to the following additional conditions:
(a) Representations and Warranties. The representations and warranties of the Company and
each of the Guarantors contained herein shall be true and correct on the date hereof and on and
as of the Closing Date; and the statements of the Company and each of the Guarantors and their
respective officers made in any certificates delivered pursuant to this Agreement shall be true
and correct on and as of the Closing Date.
(b) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution
and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the
Securities or any other debt securities or preferred stock of or guaranteed by the Company or any
of its subsidiaries by any nationally recognized statistical rating organization, as such term
is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act and (ii) no
such organization shall have publicly announced that it has under surveillance or review, or has
changed its outlook with respect to, its rating of the Securities or of any other debt securities
or preferred stock of or guaranteed by the Company or any of its subsidiaries (other than an
announcement with positive implications of a possible upgrading).
(c) No Material Adverse Change. No event or condition of a type described in Section 2(m)
hereof shall have occurred or shall exist, which event or condition is not described in the
Pricing Disclosure Package (excluding any amendment or supplement thereto) and the Offering
Memorandum (excluding any amendment or supplement thereto) and the effect of which in the
judgment of the Representatives makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Securities on the terms and in the manner contemplated by this
Agreement, the Pricing Disclosure Package and the Offering Memorandum.
(d) Officers Certificate. The Representatives shall have received on and as of the Closing
Date a certificate of an executive officer of the Company and of each Guarantor who has specific
knowledge of the Companys or such Guarantors financial matters and is satisfactory to the
Representatives (i) confirming that such officer has carefully reviewed the Pricing Disclosure
Package and the Offering Memorandum and, to the knowledge of such officer, the representations
set forth in Sections 3(c) or 3(d) hereof are true and correct, (ii) confirming that the other
representations and warranties of the Company and the Guarantors in this Agreement are true and
correct and that the Company and the Guarantors have complied with all agreements and satisfied
all conditions on their part to be performed or satisfied hereunder at or prior to the Closing
Date and (iii) to the effect set forth in paragraphs (a) and (b) above.
14
(e) Comfort Letters. On the date of this Agreement and on the Closing Date,
PricewaterhouseCoopers LLP shall have furnished to the Representatives, at the request of the
Company, letters, dated the respective dates of delivery thereof and addressed to the Initial
Purchasers, in form and substance reasonably satisfactory to the Representatives, containing
statements and information of the type customarily included in accountants comfort letters to
Initial Purchasers with respect to the financial statements and certain financial information
contained and incorporated by reference in the Registration Statement, the Time of Sale
Information and the Offering Memorandum; provided that the letter delivered on the
Closing Date shall use a cut-off date no more than three business days prior to the Closing
Date.
(f) Opinions & Certificate of Counsel for the Company. Each of (i) Kirkland & Ellis LLP,
counsel for the Company, (ii) Hogan & Hartson LLP, special Colorado counsel for the Company, and
(iii) Venable LLP, special Maryland counsel for the Company, shall have furnished to the
Representatives, at the request of the Company, their respective written opinions, dated the
Closing Date and addressed to the Initial Purchasers, in form and substance reasonably
satisfactory to the Representatives, to the effect set forth in Annex A-1, A-2 and A-3 hereto,
respectively. Joia M. Johnson, General Counsel of the Company, shall have furnished to the
Representatives a certificate to the effect set forth in Annex A-4 hereto.
(g) Opinion and 10b-5 Statement of Counsel for the Initial Purchasers. The Representatives
shall have received on and as of the Closing Date an opinion and 10b-5 statement of Latham &
Watkins LLP, counsel for the Initial Purchasers, with respect to such matters as the
Representatives may reasonably request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon such matters.
(h) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or
sale of the Securities or the issuance of the Guarantees; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the Closing Date,
prevent the issuance or sale of the Securities or the issuance of the Guarantees.
(i) Good Standing. The Representatives shall have received on and as of the Closing Date
satisfactory evidence of the good standing of the Company and the Guarantors in their respective
jurisdictions of organization and their good standing in such other jurisdictions as the
Representatives may reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate governmental authorities of such jurisdictions.
(j) Indenture; Registration Rights Agreement. The Company and the Guarantors shall have
executed and delivered the Indenture, in form and substance reasonably satisfactory to the
Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. The
Company and the Guarantors shall have executed and delivered the Registration Rights Agreement,
in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial
Purchasers shall have received such executed counterparts.
(k) Additional Documents. On or prior to the Closing Date, the Company and the Guarantors
shall have furnished to the Representatives such further certificates and documents as the
Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement
shall be deemed to be in compliance with the provisions hereof only if they are in form and
substance reasonably satisfactory to counsel for the Initial Purchasers.
5. Offer, Sale and Resale Procedures. Each of the Initial Purchasers, on the one
hand, and the Company and each of the Guarantors, on the other hand, hereby agree to observe the
following procedures in connection with the offer and sale of the Securities:
15
(a) Offers and sales of the Securities will be made only by the Initial Purchasers or
Affiliates thereof qualified to do so in the jurisdictions in which such offers or sales are
made. Each such offer or sale shall only be made to persons whom the offeror or seller
reasonably believes to be Qualified Institutional Buyers or non-U.S. persons outside the United
States to whom the offeror or seller reasonably believes offers and sales of the Securities may
be made in reliance upon Regulation S upon the terms and conditions set forth in Annex B hereto,
which Annex B is hereby expressly made a part hereof.
(b) No general solicitation or general advertising (within the meaning of Rule 502 under the
Securities Act) will be used in the United States in connection with the offering of the
Securities.
(c) Upon original issuance by the Company, and until such time as the same is no longer
required under the applicable requirements of the Securities Act, the Securities (and all
securities issued in exchange therefor or in substitution thereof, other than the Exchange
Securities) shall bear the following legend:
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
SECURITIES ACT), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF
THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED STATES TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER
THE SECURITIES ACT, (b) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF APPLICABLE) OR (d) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE,
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN
BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144
FOR RESALE OF THE SECURITY EVIDENCED HEREBY.
6. Indemnification and Contribution.
16
(a) Indemnification of the Initial Purchasers. The Company and each of the Guarantors
jointly and severally agree to indemnify and hold harmless each Initial Purchaser, its
affiliates, directors and officers and each person, if any, who controls such Initial Purchaser
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities (including, without limitation,
legal fees and other expenses incurred in connection with any suit, action or proceeding or any
claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or
are based upon, upon any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Offering Memorandum, the Pricing Supplement, any Company Additional
Written Communication or the Final Offering Memorandum (or any amendment or supplement thereto),
or the omission or alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
in each case except insofar as such losses, claims, damages or liabilities arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Initial Purchaser furnished
to the Company in writing by such Initial Purchaser through the Representatives expressly for use
therein.
(b) Indemnification of the Company and the Guarantors. Each Initial Purchaser agrees,
severally and not jointly, to indemnify and hold harmless the Company, each of the Guarantors,
each of their respective directors, their respective officers who signed the Registration
Statement and each person, if any, who controls the Company or any of the Guarantors within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent
as the indemnity set forth in paragraph (a) above, but only with respect to any and all losses,
claims, damages or liabilities (or actions and proceedings in respect thereof) that arise out of,
or are based upon, any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with any information relating to such Initial Purchaser
furnished to the Company in writing by such Initial Purchaser through the Representatives
expressly for use in the Preliminary Offering Memorandum, the Pricing Supplement, any Company
Additional Written Communication or the Final Offering Memorandum (or any amendment or supplement
thereto), it being understood and agreed that the only such information consists of the
following: the statements in set forth in the ninth and tenth paragraphs under the caption Plan
of Distribution in the Preliminary Offering Memorandum and the Final Offering Memorandum.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above,
such person (the Indemnified Person) shall promptly notify the person against whom such
indemnification may be sought (the Indemnifying Person) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may
have under this Section 6 except to the extent that it has been materially prejudiced (through
the forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this Section 6. If any
such proceeding shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified
Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others
entitled to indemnification pursuant to Section 6 that the Indemnifying Party may designate in
such proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and
expenses of counsel related to such proceeding, as incurred. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory
to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that
there may be legal defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including
any impleaded parties) include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood and agreed that the Indemnifying
Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm for any Initial Purchaser, its
affiliates, directors and officers and any control persons of such Initial Purchaser shall be
designated in writing by Merrill
17
Lynch, Pierce, Fenner & Smith Incorporated and any such separate firm for the Company, the
Guarantors, their respective directors, their respective officers who signed the Registration
Statement and any control persons of the Company shall be designated in writing by the Company.
The Indemnifying Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30 days after
receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not
have reimbursed the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person,
from all liability on claims that are the subject matter of such proceeding and (y) does not
include any statement as to or any admission of fault, culpability or a failure to act by or on
behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) (i)
in such proportion as is appropriate to reflect the relative benefits received by the Company and
the Guarantors on the one hand and the Initial Purchasers on the other from the offering of the
Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) but also the relative fault of the Company and the Guarantors on the one hand and the
Initial Purchasers on the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the Initial
Purchasers on the other shall be deemed to be in the same respective proportions as the net
proceeds (before deducting expenses) received by the Company from the sale of the Securities and
the total initial purchaser discounts and commissions received by the Initial Purchasers on the
other in connection therewith, in each case as set forth in the table on the cover of the
Offering Memorandum, bear to the aggregate offering price of the Securities. The relative fault
of the Company and the Guarantors on the one hand and the Initial Purchasers on the other shall
be determined by reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or any Guarantor or by the Initial Purchasers and the
parties relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) Limitation on Liability. The Company, the Guarantors and the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Initial Purchasers were treated as
one entity for such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid or payable by
an Indemnified Person as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, in no event shall an Initial Purchaser be
required to contribute any amount in excess of the amount by which the total initial purchaser
discounts and commissions received by such Initial Purchaser with respect to the offering of the
Securities exceeds the amount of any damages that such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Initial Purchasers
18
obligations to contribute pursuant to this Section 6 are several in proportion to their
respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to any Indemnified
Person at law or in equity.
7. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
8. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date (i) trading generally shall have been suspended or materially limited
on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities
issued or guaranteed by the Company shall have been suspended on any exchange or in any over the
counter market; (iii) a general moratorium on commercial banking activities shall have been
declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak
or escalation of hostilities or any change in financial markets or any material disruption in
securities settlement and clearance services or any calamity or crisis, either within or outside
the United States, that, in the judgment of the Representatives, is material and adverse and makes
it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on
the terms and in the manner contemplated by this Agreement and the Offering Memorandum.
9. Defaulting Initial Purchaser
(a) If, on the Closing Date, any Initial Purchaser defaults on its obligation to purchase
the Securities that it has agreed to purchase hereunder, the non- defaulting Initial Purchasers
may in their discretion arrange for the purchase of such Securities by other persons satisfactory
to the Company on the terms contained in this Agreement. If, within 36 hours after any such
default by any Initial Purchaser, the non-defaulting Initial Purchasers do not arrange for the
purchase of such Securities, then the Company shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Initial Purchasers to
purchase such Securities on such terms. If other persons become obligated or agree to purchase
the Securities of a defaulting Initial Purchaser, either the non defaulting Initial Purchasers or
the Company may postpone the Closing Date for up to five full business days in order to effect
any changes that in the opinion of counsel for the Company or counsel for the Initial Purchasers
may be necessary in the Offering Memorandum or in any other document or arrangement, and the
Company agrees to promptly prepare any amendment or supplement to the Offering Memorandum that
effects any such changes. As used in this Agreement, the term Initial Purchaser includes, for
all purposes of this Agreement unless the context otherwise requires, any person not listed in
Schedule 1 hereto that, pursuant to this Section 9, purchases Securities that a defaulting
Initial Purchaser agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and
the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities
that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all
the Securities, then the Company shall have the right to require each non-defaulting Initial
Purchaser to purchase the principal amount of Securities that such Initial Purchaser agreed to
purchase hereunder plus such Initial Purchasers pro rata share (based on the
principal amount of Securities that such Initial Purchaser agreed to purchase hereunder) of the
Securities of such defaulting Initial Purchaser or Initial Purchasers for which such arrangements
have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Initial Purchaser or Initial Purchasers by the non-defaulting Initial Purchasers and
the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities
that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Securities, or if the Company shall not exercise the right described in paragraph (b) above, then
this Agreement shall terminate without liability on the part of the non-defaulting Initial
Purchasers. Any termination of this Agreement pursuant to this Section 9 shall be without
liability on the part of the Company, except that the Company will continue to be liable for the
payment of
19
expenses as set forth in Section 10 hereof and except that the provisions of Section 6
hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Initial Purchaser of any liability
it may have to the Company or any non-defaulting Initial Purchaser for damages caused by its
default.
10. Payment of Expenses
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company and each of the Guarantors jointly and severally agree to
pay or cause to be paid all costs and expenses incident to the performance of their respective
obligations hereunder, including without limitation, (i) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Securities and any taxes payable in that
connection; (ii) the costs incident to the preparation and printing of the Preliminary Offering
Memorandum, the Pricing Disclosure Package, any Company Additional Written Communication and the
Offering Memorandum (including all exhibits, amendments and supplements thereto) and the
distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction
Documents; (iv) the fees and expenses of the Companys and the Guarantors counsel and the
Companys independent accountants; (v) the fees and expenses incurred in connection with the
registration or qualification and determination of eligibility for investment of the Securities
under the laws of such jurisdictions as the Representatives may designate and the preparation,
printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of
counsel for the Initial Purchasers subject to a maximum amount of $15,000); (vi) any fees charged
by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any
paying agent (including related fees and expenses of any counsel to such parties); (viii) all
expenses and application fees incurred in connection with any filing with, and clearance of the
offering by, FINRA; and (ix) all expenses incurred by the Company (but not the Initial
Purchasers) in connection with any road show presentation to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 8, (ii) the Company for any
reason fails to tender the Securities for delivery to the Initial Purchasers or (iii) the Initial
Purchasers decline to purchase the Securities for any reason permitted under this Agreement, the
Company agrees to reimburse the Initial Purchasers for all out-of-pocket costs and expenses
(including the reasonable fees and expenses of their counsel) reasonably incurred by the Initial
Purchasers in connection with this Agreement and the offering contemplated hereby.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to herein, and the affiliates of each Initial
Purchaser referred to in Section 6 hereof. Nothing in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of Securities from any
Initial Purchaser shall be deemed to be a successor merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company, the Guarantors and the Initial Purchasers contained in
this Agreement or made by or on behalf of the Company, the Guarantors or the Initial Purchasers
pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery
of and payment for the Securities and shall remain in full force and effect, regardless of any
termination of this Agreement or any investigation made by or on behalf of the Company or the
Initial Purchasers.
13. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term affiliate has the meaning set forth in Rule 405 under the Securities
Act; (b) the term business day means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term subsidiary has the meaning set forth in
Rule 405 under the Securities Act.
14. Miscellaneous
20
(a) Authority of the Representatives. Any action by the Initial Purchasers hereunder may be
taken by the Representatives on behalf of the Initial Purchasers, and any such action taken by
the Representatives shall be binding upon the Initial Purchasers.
(b) Notices. All notices and other communications hereunder shall be in writing and shall
be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Initial Purchasers shall be given to the Representatives c/o
Merrill Lynch, Pierce, Fenner & Smith Incorporated, One Bryant Park, New York, New York 10036
(fax: (646) 855-5958); Attention: Jami L. Friedman. Notices to the Company shall be given to it
at Hanesbrands Inc., 1000 East Hanes Mill Road, Winston-Salem, North Carolina 27105 (fax:
(336) 714-3638), Attention: Joia M. Johnson, General Counsel, with a copy to Gerald T. Nowak,
P.C., Kirkland & Ellis LLP, 300 North LaSalle Street, Chicago, IL 60654 (fax: (312) 862-2200).
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor
any consent or approval to any departure therefrom, shall in any event be effective unless the
same shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are
not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
(g) USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)), the Initial Purchasers are required to obtain,
verify and record information that identifies their respective clients, including the Company,
which information may include the name and address of their respective clients, as well as other
information that will allow the Initial Purchasers to properly identify their respective clients.
21
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below
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GEARCO, INC.
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By: |
/s/ Richard D. Moss
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Name: |
Richard D. Moss |
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Title: |
Vice President Treasurer |
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On behalf of each of the Guaranteeing Subsidiaries below:
GFSI HOLDINGS, INC.
GFSI, INC.
CC PRODUCTS, INC.
EVENT 1, INC.
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By: |
/s/ Richard D. Moss
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Name: |
Richard D. Moss |
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Title: |
Vice President and Treasurer |
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HANESBRANDS INC.
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By: |
/s/ Richard D. Moss
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Name: |
Richard D. Moss |
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Title: |
Senior Vice President and Treasurer |
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On behalf of each of the Guarantors listed below:
BA INTERNATIONAL, L.L.C.
CARIBESOCK, INC.
CARIBETEX, INC.
CASA INTERNATIONAL, LLC
CEIBENA DEL, INC.
HANES MENSWEAR, LLC
HANES PUERTO RICO, INC.
HANESBRANDS DIRECT, LLC
HANESBRANDS DISTRIBUTION, INC.
HBI BRANDED APPAREL ENTERPRISES, LLC
HBI BRANDED APPAREL LIMITED, INC.
HBI INTERNATIONAL, LLC
HBI SOURCING, LLC
INNER SELF LLC
JASPER-COSTA RICA, L.L.C. PLAYTEX DORADO, LLC
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22
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PLAYTEX INDUSTRIES, INC.
SEAMLESS TEXTILES, LLC
UPCR, INC.
UPEL, INC.
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By: |
/s/ Richard D. Moss
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Name: |
Richard D. Moss |
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Title: |
Treasurer |
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23
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Accepted: November 4, 2010 |
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For itself and on behalf of the |
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several Initial Purchasers listed |
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in Schedule 1 hereto. |
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED |
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By
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/s/ Thomas M. Brown
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Authorizing Signatory |
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BARCLAYS CAPITAL INC. |
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By
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/s/ Benjamin Burton |
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Authorizing Signatory |
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HSBC SECURITIES (USA) INC. |
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By
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/s/ Diane M. Kenna |
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Authorizing Signatory |
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J.P. MORGAN SECURITIES LLC |
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By
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/s/ Joseph Stephanak |
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Authorizing Signatory |
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GOLDMAN, SACHS & CO. |
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By
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/s/ Goldman, Sachs & Co. |
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Authorizing Signatory |
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Schedule 1
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Initial Purchaser |
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Principal Amount |
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
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$ |
180,000,000 |
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Barclays Capital Inc. |
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180,000,000 |
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HSBC Securities (USA) Inc. |
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180,000,000 |
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J.P. Morgan Securities LLC |
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180,000,000 |
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Goldman, Sachs & Co. |
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70,000,000 |
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BB&T Capital Markets, a division of Scott & Stringfellow, LLC |
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35,000,000 |
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Fifth Third Securities, Inc. |
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35,000,000 |
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PNC Capital Markets LLC |
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35,000,000 |
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RBC Capital Markets, LLC |
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35,000,000 |
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Scotia Capital (USA) Inc. |
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35,000,000 |
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SunTrust Robinson Humphrey, Inc. |
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35,000,000 |
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Total |
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$ |
1,000,000,000 |
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S-1-1
Schedule 2
Guarantors
BA International, L.L.C.
Caribesock, Inc.
Caribetex, Inc.
CASA International, LLC
Ceibena Del, Inc.
Hanes Menswear, LLC
Hanes Puerto Rico, Inc.
Hanesbrands Direct, LLC
Hanesbrands Distribution, Inc.
HBI Branded Apparel Enterprises, LLC
HBI Branded Apparel Limited, Inc.
HbI International, LLC
HBI Sourcing, LLC
Inner Self LLC
Jasper-Costa Rica, L.L.C.
Playtex Dorado, LLC
Playtex Industries, Inc.
Seamless Textiles, LLC
UPCR, Inc.
UPEL, Inc.
GearCo, Inc.
GFSI Holdings, Inc.
GFSI, Inc.
CC Products, Inc.
Event 1, Inc.
S-2-1
Annex A-1
Form of Opinion of Kirkland & Ellis LLP
SEE ATTACHED.
A-1
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300 North LaSalle |
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Chicago, Illinois 60654 |
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Facsimile: |
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(312) 862-2000
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(312) 862-2200 |
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www.kirkland.com
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November 9, 2010
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Barclays Capital Inc.,
HSBC Securities (USA) Inc.,
J.P. Morgan Securities LLC and
Goldman, Sachs & Co.
and the other Initial Purchasers
named in Schedule A hereto
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, NY 10036
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Re: |
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Offering of $1,000,000,000 in aggregate principal
amount of 6.375% Senior Notes due 2020 of Hanesbrands
Inc. |
Ladies and Gentlemen:
We are issuing this letter in our capacity as special counsel for Hanesbrands Inc., a Maryland
corporation (the Company), and the Guarantors (as defined below) with respect to the matters
described herein. This letter is being delivered in response to the requirement in
Section 4(f) of the Purchase Agreement, dated November 4, 2009 (the Purchase Agreement),
among the Company, the guarantors listed on Schedule B hereto (the Guarantors) and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc., HSBC Securities (USA)
LLC and Goldman, Sachs & Co., as the representatives of the several Initial Purchasers named in
Schedule A hereto (collectively, you or the Initial Purchasers), relating to the sale
by the Company to the Initial Purchasers of $1,000,000,000 in aggregate principal amount of the
Companys 6.375% Senior Notes due 2020 (the Notes) to be issued under the Indenture, dated as of
August 1, 2008 (the Base Indenture), between the Company and Branch Banking and Trust Company, as
trustee (the Trustee), as supplemented by the Third Supplemental Indenture thereto dated as of
the date hereof among the Company, the Guarantors and the Trustee (together
with the Base Indenture, the Indenture). The Notes will be guaranteed pursuant to the guarantees
to be issued by the Guarantors on the date hereof pursuant to the terms of the Indenture (the
Guarantees and, together with the Notes, the Securities).
In connection with the preparation of this letter, we have among other things read:
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(a) |
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the Preliminary Offering Memorandum, dated November 4, 2010, covering the offer
and sale of the Notes (the Offering Memorandum), as supplemented by the pricing term
sheet dated November 4, 2010, containing, among other things, certain pricing and
other terms of the Notes (collectively, the Time of Sale Information); |
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(b) |
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the documents specifically incorporated by reference or deemed to be
incorporated by reference in the Time of Sale Information and the Offering Memorandum
(together, the Incorporated Documents); |
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(c) |
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an executed copy of the Purchase Agreement; |
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(d) |
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an executed copy of the Indenture; |
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(e) |
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an executed copy of the Registration Rights Agreement; |
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(f) |
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the executed Notes and the executed Guarantees; |
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(g) |
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certified copies of the certificates of incorporation, certificates of
formation, by-laws, limited liability company agreements or operating agreements of the
entities identified in Schedule B, as applicable (the Organizing Documents); |
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(h) |
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a certified copy of resolutions adopted by the members and the management
committee, manager, management board or boards of directors, as the case may be, of the
Company and each of the Guarantors relating to the offering, sale and issuance of the
Securities; |
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(i) |
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certificates of good standing, with respect to the Company and each of the
Guarantors, as supplemented by electronic bringdowns thereof dated the date hereof; |
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(j) |
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the certificate of Joia M. Johnson, Secretary of the Company, dated the date
hereof, including all exhibits thereto; |
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(k) |
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the certificate of Richard Moss, Treasurer of the Company, dated the date
hereof, furnished to the Initial Purchasers pursuant to Section 4(d) of the Purchase
Agreement; |
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(l) |
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copies of all certificates and other documents delivered in connection with the
sale of the Securities on the date hereof and the consummation of the other
transactions contemplated by the Purchase Agreement; |
2
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(m) |
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copies of the documents listed on Schedule C hereto; and |
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(n) |
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such other records, certificates and documents as we have deemed necessary or
appropriate in order to deliver the advice set forth herein. |
The Purchase Agreement, the Indenture, the Registration Rights Agreement and the Securities,
are collectively referred to herein as the Transaction Documents.
Subject to the assumptions, qualifications, exclusions and other limitations which are
identified in this letter, we advise you that:
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1. |
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Each of the Guarantors is a corporation or limited liability company existing
and in good standing under the relevant law of its state of incorporation or formation,
as the case may be, and as set forth on Schedule B. The Company is in good
standing under the jurisdictions set forth on Schedule D. |
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2. |
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Each of the Guarantors has full corporate power or limited liability company
power, as applicable, and authority to own, lease and operate its properties and
conduct its business as described in the Time of Sale Information and the Offering
Memorandum. |
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3. |
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The Purchase Agreement has been duly authorized, executed and delivered by each
of the Guarantors and duly executed and delivered by the Company. |
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4. |
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The Indenture has been duly authorized, executed and delivered by each of the
Guarantors and duly executed and delivered by the Company and, assuming due
authorization by the Company, and due authorization, execution and delivery by the
Trustee, the Indenture is a valid and binding obligation of the Company and each of the
Guarantors and is enforceable against the Company and each of the Guarantors in
accordance with its terms. |
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5. |
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The Notes have been duly executed and delivered by the Company and, when paid
for by the Initial Purchasers in accordance with the Purchase Agreement (assuming the
due authorization of the Indenture by the Trustee and the Company and due
authentication and delivery of the Notes by the Trustee in accordance with the
Indenture), the Notes will constitute valid and binding obligations of the Company, and
will be enforceable against the Company in accordance with their terms. |
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6. |
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The Guarantees have been duly authorized by each of the Guarantors and, when
the Notes are issued and delivered by the Company against payment therefor in
accordance with the terms of the Purchase Agreement and the Indenture, will constitute
the legal, valid and binding obligations of each of the Guarantors enforceable against
each of the Guarantors in accordance with their terms. |
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7. |
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The Registration Rights Agreement has been duly authorized, executed and
delivered by each of the Guarantors and duly executed and delivered by the |
3
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Company. Assuming the due authorization, execution and delivery by the Initial
Purchasers, the Registration Rights Agreement is a valid and binding obligation of
the Company and each of the Guarantors in accordance with its terms. |
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8. |
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The Board of Directors, Board of Managers or Sole Member, as applicable, of the
Company and each of the Guarantors has adopted by requisite vote the resolutions
necessary to authorize the execution, delivery and performance of, in the case of the
Company, the Exchange Securities and, in the case of the Guarantors, the Exchange
Guarantees. No approval by the equityholders or unit holders, as applicable, the
Company or the Guarantors is required. |
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9. |
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The statements in the Time of Sale Information and the Offering Memorandum
under the headings Description of Notes insofar as such statements purport to
summarize terms of the Securities, the Indenture or other documents referred to
therein, are correct in all material respects. |
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10. |
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The execution and delivery of the Transaction Documents by the Company and the
Guarantors and the performance by the Company and the Guarantors of their respective
obligations thereunder do not and will not result in (i) any violation of any Specified
Law, constitute a violation, or result in a breach of any statute or governmental rule
or regulation which, in our experience, is normally applicable both to general business
corporations that are not engaged in regulated business activities and to transactions
of the type contemplated by the Offering Memorandum (but without our having made any
special investigation as to other laws and provided that we express no opinion in this
paragraph with respect to (a) any laws, rules or regulations to which the Company or
the Guarantors may be subject as a result of the Initial Purchasers legal or
regulatory status or the involvement of the Initial Purchasers in such transactions,
(b) any laws, rules or regulations relating to misrepresentations or fraud or (c) the
Securities Act or the Trust Indenture Act of 1939, as amended (the Trust Indenture
Act)) or (ii) default, under any existing obligation of the Company or its
Subsidiaries under any provision of any Specified Contract (provided that we express no
opinion as to compliance with any financial test or cross-default provision in any such
Specified Contract), or (iii) conflict or violate any of the terms or provisions of the
Certificate of Incorporation or By-Laws of the Company or any of the Guarantors. |
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11. |
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No consent, waiver, approval, authorization or order of any court or
governmental authority is required for the issuance and sale by the Company of the
Notes to the Initial Purchasers and the Securities Guarantees or the consummation by
the Company or the Guarantors of the other transactions contemplated by the Transaction
Documents, except such as may be required under the Securities Act, the Trust Indenture
Act, the security or Blue Sky laws of the various states or the rules and regulations
of the Financial Industry Regulatory Authority, Inc., as to which we express no opinion
in this paragraph. |
4
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12. |
|
No registration under the Securities Act is required in connection with the
sale of the Notes to the Initial Purchasers in the manner contemplated by the Purchase
Agreement and the Offering Memorandum or in connection with the initial resale of the
Notes by the Initial Purchasers in the manner contemplated by the Purchase Agreement
and the Offering Memorandum, and the Indenture is not required to be qualified under
the Trust Indenture Act, in each case assuming (i) that the purchasers who buy such
Notes in the initial resale there of are qualified institutional buyers as defined in
Rule 144A promulgated under the Securities Act, or persons other than U.S. persons in
connection with the offers and sales made in reliance upon Regulation S under the
Securities Act, (ii) the accuracy and completeness of the representations of the
Company and the Initial Purchasers set forth in Section 2 of the Purchase Agreement
regarding, among other things, the absence of a general solicitation in connection with
the sale of such Notes to the Initial Purchasers and the initial resales thereof, and
(iii) the compliance with the procedures set forth in the Purchase Agreement by the
Initial Purchasers, the Company and the Guarantors. |
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13. |
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None of the Company or any of the Guarantors is, and after giving effect to the
application of proceeds as set forth under Use of proceeds in the Time of Sale
Information and the Offering Memorandum, will be an investment company as such term
is defined in the Investment Company Act of 1940, as amended. |
Except as described above, we have not undertaken any investigation to determine the facts
upon which the advice in this letter is based.
Each opinion (an enforceability opinion) in this letter that any particular contract is a
valid and binding obligation or is enforceable in accordance with its terms is subject to: (i) the
effect of bankruptcy, insolvency, fraudulent conveyance and other similar laws and judicially
developed doctrines in this area such as substantive consolidation and equitable subordination;
(ii) the effect of general principles of equity; and (iii) other commonly recognized statutory and
judicial constraints on enforceability, including statutes of limitations. General principles of
equity include but are not limited to: principles limiting the availability of specific
performance and injunctive relief; principles which limit the availability of a remedy under
certain circumstances where another remedy has been elected; principles requiring reasonableness,
good faith and fair dealing in the performance and enforcement of an agreement by the party seeking
enforcement; principles which may permit a party to cure a material failure to perform its
obligations; and principles affording equitable defenses such as waiver, laches and estoppel. It
is possible that terms in a particular contract covered by our enforceability opinion may not prove
enforceable for reasons other than those explicitly cited in this letter should an actual
enforcement action be brought, but (subject to all the exceptions, qualifications, exclusions and
other limitations contained in this letter) such unenforceability would not in our view prevent the
party entitled to enforce that contract from realizing the principal benefits purported to be
provided to that party by the terms in that contract which are covered by our enforceability
opinion. To the extent any opinion relates to the enforceability of the choice of New York law and
choice of New York forum provisions of the Transaction Documents, our opinion is rendered in
reliance upon N.Y. Gen. Oblig. Law §§ 5-1401, 5-1402 (McKinney 2001) and N.Y.
5
C.P.L.R. 327(b) (McKinney 2001) and is subject to the qualification that such enforceability
may be limited by public policy considerations.
We have assumed for purposes of this letter: each document we have reviewed for purposes of
this letter is accurate and complete, each such document that is an original is authentic, each
such document that is a copy conforms to an authentic original, and all signatures on each such
document are genuine; that each such document was duly authorized, executed and delivered (other
than with respect to the authorization by the Guarantors and execution and delivery by the Company
and the Guarantors) and each constitutes a valid and binding obligation of each party to that
document (other than the Company and the Guarantors) and that each such party (other than the
Company and the Guarantors) has satisfied all legal requirements that are applicable to such party
to the extent necessary to entitle such party to enforce such agreement; and that you have acted in
good faith and without notice of any fact which has caused you to reach any conclusion contrary to
any of the advice provided in this letter.
Whenever this letter provides advice about (or based upon) our knowledge of any particular
information or about any information which has or has not come to our attention such advice is
based entirely on the actual knowledge obtained in acting as legal counsel to the Company at the
time this letter is delivered on the date it bears by the following lawyers currently with Kirkland
& Ellis LLP (after consultation with such attorneys of the firm as we deemed appropriate) who have
represented the Company in connection with (i) the offering contemplated by the Time of Sale
Information and the Offering Memorandum and (ii) any prior offerings of securities of the Company:
Gerald T. Nowak, P.C., Theodore A. Peto, Michael Chu, and John O. Gunderson.
In preparing this letter we have relied without independent verification upon: (i) information
contained in certificates obtained from governmental authorities; (ii) factual information
represented to be true in the Purchase Agreement and other documents specifically identified at the
beginning of this letter as having been read by us; (iii) factual information provided to us by the
Company or its representatives; and (iv) factual information we have obtained from such other
sources as we have deemed appropriate. We have also, without conducting any research or
investigation with respect thereto, relied upon the opinions of: (i)Venable LLP for certain matters
of Maryland law, (ii) Hogan Lovells US LLP for certain matters of Colorado law and (iii) Foulston
Siefkin LLP for certain matters of Kansas law. We have assumed that there has been no relevant
change or development between the dates as of which the information cited in the preceding sentence
was given and the date of this letter and that the information upon which we have relied is
accurate and does not omit disclosures necessary to prevent such information from being misleading.
For purposes of numbered paragraph 1, we have relied exclusively upon certificates issued by
governmental authorities in the relevant jurisdiction and such opinion is not intended to provide
any conclusion or assurance beyond that conveyed by those certificates. We have made other
assumptions which we have deemed appropriate for this letter.
Our advice on every legal issue addressed in this letter is based exclusively on the internal
law of the State of New York, the General Corporation Law of the State of Delaware, the Limited
Liability Company Act of the State of Delaware, or the federal law of the United
6
States to the extent specifically referred to herein (the Specified Laws), and represents
our view as to how that issue would be resolved were it to be considered by the highest court in
the jurisdiction which enacted such law. In our view, New York state courts would apply New York
state law to resolve state law issues arising under the Transaction Documents. We express no view
as to what law might be applied by any other courts to resolve any issue addressed by our letter
and we express no view as to whether any relevant difference exists between the laws upon which our
advice is based and any other laws which may actually be applied to resolve issues which may arise
under the Transaction Documents. The manner in which any particular issue would be treated in any
actual court case would depend in part on facts and circumstances particular to the case and would
also depend on how the court involved chose to exercise the wide discretionary authority generally
available to it. This letter is not intended to guarantee the outcome of any legal dispute which
may arise in the future.
None of the advice contained in this letter considers or covers: (i) any state securities (or
blue sky) laws or regulations, (ii) any financial statements or supporting schedules (or any
notes to any such statements or schedules) or other financial information set forth or incorporated
by reference in (or omitted from) the Preliminary Offering Memorandum and the Offering Memorandum
or (iii) any rules and regulations of the Financial Industry Regulatory Authority, Inc. This
letter does not cover any other laws, statutes, governmental rules or regulations or decisions
which in our experience are not usually considered for or covered by opinions like those contained
in this letter or are not generally applicable to transactions of the kind covered by the Purchase
Agreement.
This letter speaks as of the time of its delivery on the date it bears. We do not assume any
obligation to provide you with any subsequent advice.
This letter is being furnished to you solely in your capacity as initial purchasers in
connection with the sale of the Securities to you pursuant to and as contemplated by the Purchase
Agreement and may only be relied upon by you in your capacity as such. Without our written
consent: (i) no person (including, without limitation, subsequent purchasers of the Securities)
other than you may rely on this letter for any purpose; (ii) this letter may not be cited or quoted
in any financial statements, prospectus, private placement memorandum or other similar document;
(iii) this letter may not be cited or quoted in any other document or communication which might
encourage reliance upon this letter by any person or for any purpose excluded by the restrictions
in this paragraph; and (iv) copies of this letter may not be furnished to anyone for purposes of
encouraging such reliance.
Sincerely,
KIRKLAND & ELLIS LLP
7
Schedule A
Initial Purchasers
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Barclays Capital Inc.
HSBC Securities (USA) Inc.
J.P. Morgan Securities LLC
Goldman, Sachs & Co.
BB&T Capital Markets, a division of Scott & Stringfellow, LLC
Fifth Third Securities Inc.
PNC Capital Markets LLC
RBC Capital Markets, LLC
Scotia Capital (USA) Inc.
SunTrust Robinson Humphrey, Inc.
Schedule B
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Jurisdiction of |
Name of Guarantor |
|
Formation/Incorporation |
BA International, L.L.C.
|
|
Delaware |
Caribesock, Inc.
|
|
Delaware |
Caribetex, Inc.
|
|
Delaware |
CASA International, LLC
|
|
Delaware |
Ceibena Del, Inc.
|
|
Delaware |
Hanes Menswear, LLC
|
|
Delaware |
Hanes Puerto Rico, Inc.
|
|
Delaware |
Hanesbrands Distribution, Inc.
|
|
Delaware |
HBI Branded Apparel Limited, Inc.
|
|
Delaware |
HBI Branded Apparel Enterprises, LLC
|
|
Delaware |
HbI International, LLC
|
|
Delaware |
HBI Sourcing, LLC
|
|
Delaware |
Inner Self LLC
|
|
Delaware |
Jasper-Costa Rica, L.L.C.
|
|
Delaware |
Playtex Dorado, LLC
|
|
Delaware |
Playtex Industries, Inc.
|
|
Delaware |
Seamless Textiles, LLC
|
|
Delaware |
UPCR, Inc.
|
|
Delaware |
UPEL, Inc.
|
|
Delaware |
GearCo, Inc.
|
|
Delaware |
GFSI Holdings, Inc.
|
|
Delaware |
GFSI, Inc.
|
|
Delaware |
CC Products, Inc.
|
|
Delaware |
Schedule C
Companys Material Contracts
1. |
|
Rights Agreement, dated as of September 1, 2006, between Hanesbrands Inc. and Computershare
Trust Company, N.A. |
|
2. |
|
Form of Rights Certificate, pursuant to the Rights Agreement, dated as of September 1, 2006,
between Hanesbrands Inc. and Computershare Trust Company, N.A. |
|
3. |
|
Master Separation Agreement, dated as of August 31, 2006, between Sara Lee Corporation and
Hanesbrands Inc. |
|
4. |
|
Tax Sharing Agreement, dated as of August 31, 2006, by and among Sara Lee Corporation and its
Affiliates and Hanesbrands Inc. and its Affiliates |
|
5. |
|
Employee Matters Agreement, dated as of August 31, 2006, between Sara Lee Corporation and
Hanesbrands Inc. |
|
6. |
|
Master Transition Services Agreement, dated as of August 31, 2006, between Sara Lee
Corporation and Hanesbrands Inc. |
|
7. |
|
Real Estate Matters Agreement, dated as of August 31, 2006, between Sara Lee Corporation and
Hanesbrands Inc. |
|
8. |
|
Indemnification and Insurance Matters Agreement, dated as of August 31, 2006, between Sara
Lee Corporation and Hanesbrands Inc. |
|
9. |
|
Intellectual Property Matters Agreement, dated as of August 31, 2006, between Sara Lee
Corporation and Hanesbrands Inc. |
|
10. |
|
Indenture, dated as of December 14, 2006, among Hanesbrands Inc., certain subsidiaries of
Hanesbrands Inc., and Branch Banking and Trust Company, as Trustee. |
|
11. |
|
Indenture, dated as of August 1, 2008, among the Hanesbrands Inc., certain subsidiaries of
Hanesbrands, Inc., and Branch Banking and Trust Company, as Trustee. |
|
12. |
|
First Supplemental Indenture, dated December 10, 2009, among Hanesbrands, Inc., certain
subsidiaries of Hanesbrands, Inc. and Branch Banking and Trust Company, as Trustee. |
|
13. |
|
Receivables Purchase Agreement dated as of November 27, 2007 among HBI Receivables LLC and
the Registrant, JPMorgan Chase Bank, N.A., HSBC Bank USA, National Association, Falcon Asset
Securitization Company LLC, Bryant Park Funding LLC, and HSBC Securities (USA) Inc., as
amended through the date of this opinion letter. |
14. |
|
Amended and Restated Credit Agreement, dated December 10, 2009, among the Company as
borrower, the various financial institutions and other persons from time to time party thereto
as lenders, Barclays Bank PLC and Goldman Sachs Credit Partners L.P., as the co-documentation
agents, Bank of America, N.A. and HSBC Securities (USA) Inc., as the co-syndication agents,
JPMorgan Chase Bank, N.A., as the administrative agent and the collateral agent, and JPMorgan
Securities Inc., Banc of America Securities LLC, HSBC Securities (USA) Inc. and Barclays
Capital, as the joint lead arrangers and joint bookrunners. |
Schedule D
Companys Jurisdictions of Good Standing
Alaska
Alabama
Arkansas
Arizona
California
Colorado
Connecticut
District of Columbia
Delaware
Florida
Georgia
Hawaii
Iowa
Idaho
Illinois
Indiana
Kansas
Kentucky
Lousiana
Massachusetts
Maryland
Maine
Michigan
Minnesota
Missouri
Mississippi
Montana
North Carolina
North Dakota
Nebraska
New Hampshire
New Jersey
New Mexico
New York
Nevada
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Virginia
Vermont
Washington
Wisconsin
West Virginia
Wyoming
Annex A-2
Form of Opinion of Hogan & Hartson LLP, Special Colorado Counsel to the Company
SEE ATTACHED.
A-2
|
|
|
|
|
Hogan Lovells US LLP |
|
|
One Tabor Center, Suite 1500 |
|
|
1200 Seventeenth Street |
|
|
Denver, CO 80202 |
|
|
T +1 303 899 7300 |
|
|
F +1 303 899 7333 |
|
|
www.hoganlovells.com |
November 9, 2010
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Barclays Capital Inc.,
HSBC Securities (USA) Inc.,
J.P. Morgan Securities Inc. and
Goldman, Sachs & Co.
As Representatives of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
We are acting as special Colorado counsel to Hanesbrands Direct, LLC, a Colorado limited
liability company (the Colorado Guarantor), in connection with the issuance and sale pursuant to
Indenture, dated as of August 1, 2008 (the Base Indenture), as supplemented by the Supplemental
Indenture, dated as of November 9, 2010 (the Supplemental Indenture, and together with the Base
Indenture, the Indenture) among Hanesbrands Inc., a Maryland corporation (the Issuer), the
Colorado Guarantor and the other guarantors named therein, and Branch Banking and Trust Company, as
trustee (the Trustee), of $1,000,000,000.00 in aggregate principal amount of the Issuers 6.375%
Senior Notes due 2020 (the Notes), guaranteed as to payment of principal, premium, if any, and
interest on the Notes on an unsecured senior basis by the Colorado Guarantor (the Colorado
Guarantee) and certain other guarantors (such guarantees together with the Colorado Guarantee, the
Guarantees), and the sale of the Notes pursuant to a Purchase Agreement, dated as of November 4,
2010 (the Agreement) among the Issuer, you (collectively with the other initial purchasers named
therein, the Initial Purchasers), the Colorado Guarantor and the other guarantors named therein
and the Offering Memorandum, dated November 4, 2010 (the Offering Memorandum). This opinion
letter is furnished to you pursuant to the requirements set forth in Section 4(f) of the Agreement
in connection with the closing thereunder on the date hereof. Capitalized terms used herein that
are defined in the Agreement shall have the meanings set forth in the Agreement, unless otherwise
defined herein.
Merrill Lynch, Pierce, Fenner & Smith Incorporated et. al
November 9, 2010
Page 2
For purposes of the opinions, which are set forth in paragraphs (a) through (f) below (the
Opinions), and the other statements made in this letter, we have examined copies of the documents
listed on Schedule 1 attached hereto (the Documents). We believe the Documents provide an
appropriate basis on which to render the opinions hereinafter expressed. The Agreement, the
Indenture and the Registration Rights Agreement among the Issuer, the Colorado Guarantor, the other
guarantors named therein and the Initial Purchasers dated as of November 9, 2010 (the Registration
Rights Agreement) are hereafter referred to collectively as the Transaction Documents.
In our examination of the Transaction Documents and the other Documents, we have assumed the
genuineness of all signatures, the legal capacity of all natural persons, the accuracy and
completeness of all of the Documents, the authenticity of all originals of the Documents and the
conformity to authentic originals of all of the Documents submitted to us as copies (including
telecopies). As to all matters of fact relevant to the Opinions and other statements made herein,
we have relied on the representations and statements of fact made in the Documents, we have not
independently established the facts so relied on, and we have not made any investigation or inquiry
other than our examination of the Documents. The Opinions are given, and other statements are
made, in the context of the foregoing.
As used in this opinion letter, the phrase to our knowledge means the actual knowledge (that
is, the conscious awareness of facts or other information) of lawyers currently in the firm who
have given substantive legal attention to representation of the Colorado Guarantor.
For purposes of this opinion letter, we have assumed that (i) each party to the Transaction
Documents (other than the Colorado Guarantor) has all requisite power and authority under all
applicable laws, regulations and governing documents to execute, deliver and perform its
obligations under the Transaction Documents and each of such other parties has complied with all
legal requirements pertaining to its status as such status relates to its rights to enforce the
Transaction Documents against the Colorado Guarantor, (ii) each of such other parties has duly
authorized, executed and delivered the Transaction Documents to which it is a party, (iii) each of
such other parties is validly existing and in good standing in all necessary jurisdictions, (iv)
each of the Transaction Documents constitutes a valid and legally binding obligation of such other
parties thereto, enforceable against each of such other parties in accordance with its terms,
(v) there has been no mutual mistake of fact or misunderstanding or fraud, duress or undue
influence, in connection with the negotiation, execution or delivery of the Transaction Documents
and the conduct of all parties to the each of the Transaction Documents has complied with any
requirements of good faith, fair dealing and conscionability, and (vi) there are and have been no
agreements or understandings among the parties, written or oral, and there is and has been no usage
of trade or course of prior dealing among the parties that would, in either case, define,
supplement or qualify the terms of any of the Transaction Documents. We have also assumed the
validity and constitutionality of each relevant statute, rule, regulation and agency action covered
by this opinion letter.
For purposes of the opinions set forth in paragraphs (e) and (f) below, we have made the
further assumptions: (i) all orders, judgments, decrees, agreements and contracts would be enforced
as written; (ii) that the Issuer and Colorado Guarantor will not in the future take any
Merrill Lynch, Pierce, Fenner & Smith Incorporated et. al
November 9, 2010
Page 3
discretionary action (including a decision not to act) permitted under the Transaction Documents
that would result in a violation of law or constitute a breach or default under any order,
judgment, decree, agreement or contract; (iii) that the Issuer and the Colorado Guarantor will
obtain all permits, consents and governmental approvals required in the future, and take all
actions required, which are relevant to subsequent consummation of the transactions contemplated
under the Transaction Documents or performance of the Transaction Documents; and (iv) that all
parties to the Transaction Documents will act in accordance with, and will refrain from taking any
action that is forbidden by, the terms and conditions of the Transaction Documents.
The Opinions are based as to matters of law solely on applicable provisions of Colorado law,
as currently in effect.
Based upon, subject to and limited by the limitations and qualifications set forth in this
opinion letter, we are of the opinion that:
(a) The Colorado Guarantor is a limited liability company duly formed, validly existing and in
good standing under the laws of the State of Colorado.
(b) The Colorado Guarantor has the limited liability company power (i) to execute, deliver and
perform it obligations under the Transaction Documents and (ii) to own, lease and operate its
current properties and to conduct its business in as described in the Offering Memorandum.
(c) The Transaction Documents have been duly authorized, executed and delivered by the
Colorado Guarantor.
(d) The Colorado Guarantee has been duly authorized and executed by the Colorado Guarantor.
(e) The execution, delivery and performance on the date hereof by the Colorado Guarantor of
the Transaction Documents and the issuance and sale of the Colorado Guarantee do not violate
(i) any Colorado statute or any rule or regulation that has been issued pursuant to any Colorado
statute, (ii) the articles of organization or the limited liability company agreement of the
Colorado Guarantor, as applicable, or (iii) to our knowledge, any court or administrative order,
judgment or decree that names the Colorado Guarantor and is specifically directed to it or any of
its property.
(f) No approval or consent of, or registration or filing with any Colorado governmental agency
is required to be obtained or made by the Colorado Guarantor under the Colorado Limited Liability
Company Act, as amended, in connection with the execution, delivery and performance on the date
hereof by the Colorado Guarantor of the Transaction Documents.
In addition to the assumptions, qualifications, exceptions and limitations elsewhere set forth
in this opinion letter, our opinions expressed above are also subject to the effect of:
Merrill Lynch, Pierce, Fenner & Smith Incorporated et. al
November 9, 2010
Page 4
(i) bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting
creditors rights (including, without limitation, the effect of statutory and other law regarding
fraudulent conveyances, fraudulent transfers and preferential transfers); and (ii) the exercise of
judicial discretion and the application of principles of equity, good faith, fair dealing,
reasonableness, conscionability and materiality (regardless of whether the applicable agreements
are considered in a proceeding in equity or at law).
Nothing herein shall be construed to cause us to be considered experts within the meaning of
Section 11 of the Securities Act of 1933, as amended.
We express no opinion herein as to any other laws and regulations not specifically identified
above (and in particular, we express no opinion as to any effect that such other laws and
regulations may have on the Opinions). The opinions set forth in paragraphs (e) and (f) are based
upon a review of only those laws and regulations that, in our experience, are generally recognized
as applicable to transactions of the type contemplated in the Transaction Documents. We express no
opinion herein as to federal or state securities, antitrust, unfair competition, banking, or tax
laws or regulations or laws or regulations of any political subdivision below the state level.
We assume no obligation to advise you of any changes in the foregoing subsequent to the
delivery of this opinion letter. This opinion letter has been prepared solely for your use in
connection with the closing under the Agreement on the date hereof, and should not be quoted in
whole or in part or otherwise be referred to, and should not be filed with or furnished to any
governmental agency or other person or entity, without the prior written consent of this firm.
Very truly yours,
HOGAN LOVELLS US LLP
Merrill Lynch, Pierce, Fenner & Smith Incorporated et. al
November 9, 2010
Page 5
SCHEDULE 1
|
1. |
|
Executed copy of the Agreement. |
|
|
2. |
|
Executed copy the Registration Rights Agreement. |
|
|
3. |
|
The Offering Memorandum. |
|
|
4. |
|
A copy of the executed form of Notes. |
|
|
5. |
|
Executed copy of the Indenture. |
|
|
6. |
|
Executed copy of the Colorado Guarantee. |
|
|
7. |
|
The Articles of Organization of the Colorado Guarantor, as
certified by the Secretary of State of the State of Colorado on November 3,
2010 and certified by the Secretary of the Colorado Guarantor on the date
hereof as being complete, accurate and in effect. |
|
|
8. |
|
Certificate of Good Standing of the Colorado Guarantor issued
by the Secretary of State of the State of Colorado dated November 8, 2010. |
|
|
9. |
|
The Limited Liability Company Agreement of the Colorado
Guarantor, as certified by the Secretary of the Colorado Guarantor on the date
hereof as being complete, accurate and in effect. |
|
|
10. |
|
That certain written consents of the Board of Managers of the
Colorado Guarantor approving, among other things, the Agreement, the Indenture,
the Registration Rights Agreement and the Colorado Guarantee, dated November 4,
2010, as certified by the Secretary of the Colorado Guarantor on the date
hereof as being complete, accurate and in effect. |
|
|
11. |
|
Hogan Lovells US LLP litigation docket. |
Annex A-3
Form of Opinion of Venable LLP, Special Maryland Counsel to the Company
SEE ATTACHED.
A-3
November 9, 2010
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Barclays Capital Inc.
HSBC Securities (USA) Inc.
J.P. Morgan Securities Inc.
Goldman, Sachs & Co.,
as representatives of the several Initial Purchasers
c/o Banc of America Securities LLC,
One Bryant Park
New York, New York 10036
Branch Banking & Trust Company, as Trustee
under the Indenture referred to below
200 South College Street, 9th Floor
Charlotte, NC 28202-3214
Hanesbrands Inc.
1000 East Hanes Mill Road
Winston Salem, NC 27105
Re: Hanesbrands Inc.
Ladies and Gentlemen:
We have served as Maryland counsel to Hanesbrands Inc., a Maryland corporation (the
Company), in connection with certain matters of Maryland law arising out of the sale and issuance
by the Company to the Initial Purchasers (as defined below) of $1,000,000,000 aggregate principal
amount of Senior Notes due 2020 (the Securities) pursuant to that certain Purchase Agreement,
dated as of November 4, 2010 (the Agreement), among Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Barclays Capital Inc., HSBC Securities (USA) Inc., J.P. Morgan Securities Inc. and
Goldman, Sachs & Co., as representatives of the several purchasers named in Schedule I thereto (
together, the Initial Purchasers), the Company and the Guarantors named therein.
This opinion is being delivered to you at the request of the Company in connection with
Section 6(g) of the Agreement. Unless otherwise defined herein, capitalized terms used herein have
the meanings given to them in the Agreement. This firm did not participate in the negotiation or
drafting of the Agreement.
In connection with our representation of the Company, and as a basis for the opinion
hereinafter set forth, we have examined originals, or copies certified or otherwise
Merrill Lynch, Pierce, Fenner & Smith Incorporated, et al.
November 9, 2010
Page 2
identified to our satisfaction, of the following documents (hereinafter collectively referred
to as the Documents):
1. The Preliminary Offering Memorandum, dated November 4, 2010, and the Final Offering
Memorandum, dated November 4, 2010 (together, the Offering Memorandum), related to the offering
of the Securities;
2. The charter of the Company (the Charter), certified by the State Department of
Assessments and Taxation of Maryland (the SDAT);
3. The Bylaws of the Company (the Bylaws), certified as of the date hereof by an
officer of the Company;
4. A certificate of the SDAT as to the good standing of the Company, dated as of a
recent date;
5. The following documents (together, the Note Documents):
(a) The Agreement;
(b) The Indenture, dated as of August 1, 2008, among the Company, the guarantors named therein
and Branch Banking & Trust Company, as trustee (the Trustee), as supplemented by the Fourth
Supplemental Indenture, dated November 9, 2010, by and between the Company, the guarantors named
therein and the Trustee with respect to the Securities (as so supplemented, the Indenture);
(c) The Registration Rights Agreement, dated as of November 9, 2010, among the Company, the
Guarantors named therein and the Initial Purchasers; and
(d) The Global Note evidencing the Securities;
6. Resolutions of the Board of Directors of the Company, or a duly authorized
committee thereof, relating to, among other things, the execution and delivery by the Company of
the Note Documents and the issuance of the Securities and the Exchange Securities (as defined in
the Registration Rights Agreement), certified as of the date hereof by an officer of the Company;
7. A certificate executed by an officer of the Company, dated as of the date hereof,
relating to certain factual matters; and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, et al.
November 9, 2010
Page 3
8. Such other documents and matters as we have deemed necessary or appropriate to
express the opinion set forth below, subject to the assumptions, limitations and qualifications
stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual
or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than
the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has
duly and validly executed and delivered each of the Documents to which such party is a signatory,
and such partys obligations set forth therein are legal, valid and binding and are enforceable in
accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and content of all
Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this
opinion from the form and content of such Documents as executed and delivered. All Documents
submitted to us as certified or photostatic copies conform to the original documents. All
signatures on all Documents are genuine. All public records reviewed or relied upon by us or on
our behalf are true and complete. All representations, warranties, statements and information
contained in the Documents are true and complete. There has been no oral or written modification
of or amendment to any of the Documents, and there has been no waiver of any provision of any of
the Documents, by action or omission of the parties or otherwise.
5. The Exchange Securities, if and when issued, will have substantially identical terms as the
Securities and be issued in exchange therefor as contemplated by the Indenture, the Agreement and
the Offering Memorandum.
The phrase known to us is limited to the actual knowledge, without independent inquiry, of
the lawyers at our firm who have performed legal services on behalf of the Company.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications
stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and validly existing under the laws of the
State of Maryland and is in good standing with the SDAT.
Merrill Lynch, Pierce, Fenner & Smith Incorporated, et al.
November 9, 2010
Page 4
2. The Company has the corporate power to own, lease and operate its properties and to conduct
its business as described in the Offering Memorandum under the caption Summary and to enter into
and perform its obligations under the Note Documents, including the issuance of the Securities and
the Exchange Securities.
3. The execution, delivery and performance of its obligations under the Note Documents
have been duly authorized by all necessary corporate action of the Company. The Securities have
been duly authorized by the Company for issuance and sale pursuant to the Agreement and the
Indenture. The Exchange Securities have been duly authorized for issuance by the Company. The
Note Documents have been duly executed and delivered by the Company.
4. The execution, delivery and performance by the Company of its obligations
under the Note Documents and the consummation by the Company of the transactions contemplated
thereby, including the sale and issuance of the Securities and the Exchange Securities by the
Company, do not and will not conflict with the Charter or Bylaws or with any judgment, ruling,
decree or order known to us, or any statute, rule or regulation of any court or other government
agency or body of the State of Maryland applicable to the Company. We call your attention to the
fact that, in connection with the delivery of this opinion, we have not ordered or reviewed
judgment, lien or any other searches of public or private records of the Company or its properties.
The foregoing opinion is limited to the substantive laws of the State of Maryland and we do
not express any opinion herein concerning any other law. We express no opinion as to the
applicability or effect of federal or state securities laws, including the securities laws of the
State of Maryland, or as to federal or state laws regarding fraudulent transfers. We note that
each of the Note Documents provides that it shall be governed by the laws of the State of New York.
To the extent that any matter as to which our opinion is expressed herein would be governed by the
laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such
matter. Our opinion expressed in paragraph 4 above is based upon our consideration of only those
judgments, rulings, decrees, orders, statutes, rules and regulations of any court or other
government agency or body of the State of Maryland, if any, which, in our experience, are normally
applicable to transactions of the type discussed in such paragraph. The opinion expressed herein
is subject to the effect of judicial decisions which may permit the introduction of parol evidence
to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters specifically set forth herein and no
other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to
supplement this opinion if any applicable law changes after the date hereof or if we become aware
of any fact that might change the opinion expressed herein after the date hereof.
Merrill Lynch, Pierce, Fenner & Smith Incorporated, et al.
November 9, 2010
Page 5
This opinion is being furnished to you solely for your benefit in connection with the Note
Documents. Accordingly, it may not be relied upon by, quoted in any manner to, or delivered to any
other person or entity (except Kirkland & Ellis LLP, counsel to the Company, and Latham &
Watkins LLP, counsel to the Initial Purchasers, who may rely on this opinion as if it
were addressed to them for the purpose of delivering their opinions of even date herewith pursuant
to the Note Documents) without, in each instance, our prior written consent.
Very truly yours,
Annex A-4
Form of Certificate of the Companys General Counsel
I, Joia M. Johnson, the duly appointed Executive Vice President, General Counsel, and Corporate
Secretary of Hanesbrands Inc., a Maryland corporation (the Company), pursuant to Section 4(f) of
the Purchase Agreement dated November 4, 2010 (the Purchase Agreement) among the Company, the
guarantors named therein and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital
Inc., HSBC Securities (USA) Inc., J.P. Morgan Securities LLC and Goldman, Sachs & Co. as
representatives (the Representatives) of the several Initial Purchasers set forth on Schedule 1
thereto (the Initial Purchasers), hereby certify, solely in my capacity as an officer of the
Company (and not in my individual capacity), subject to the limitations set forth herein, that:
Except as described in the Pricing Disclosure Package and the Final Offering Memorandum, I
have no knowledge of any legal, governmental or regulatory actions, suits or proceedings
pending to which the Company or any of its subsidiaries is a party or to which any property
of the Company or any of its subsidiaries is subject which could reasonably be expected to
have a Material Adverse Effect or which could reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated under the Purchase
Agreement; and to my knowledge, no such actions, suits or proceedings are threatened by any
governmental or regulatory authority or are threatened by others.
For purposes of this certificate, my knowledge is based entirely on my conscious awareness
as of the date hereof after consultation with those attorneys in my legal department and outside
counsel whom I have deemed appropriate. I do not assume any obligation to update this certificate
by reason of any fact about which I did not have knowledge as of the date hereof, or for any other
reason. I have relied without independent verification upon factual information provided to me by
the Company and my staff. I have assumed that there has been no relevant change between the dates
as of which the information cited in the preceding sentence was given and the date of hereof. This
certificate is furnished to the Initial Purchasers pursuant to Section 4(f) of the Purchase
Agreement. Without my prior consent, this certificate may not be relied upon or furnished to any
other person. All capitalized terms which are defined in the Purchase Agreement and used but not
otherwise defined herein shall have the meanings given in the Purchase Agreement.
A-4
Annex B
Each Initial Purchaser understands that:
Such Initial Purchaser agrees that it has not offered or sold and will not offer or sell the
Securities in the United States or to, or for the benefit or account of, a U.S. Person (other than
a distributor), in each case, as defined in Rule 902 of Regulation S (i) as part of its
distribution at any time and (ii) otherwise until 40 days after the later of the commencement of
the offering of the Securities pursuant hereto and the Closing Date, other than in accordance with
Regulation S or another exemption from the registration requirements of the Securities Act. Such
Initial Purchaser agrees that, during such 40-day restricted period, it will not cause any
advertisement with respect to the Securities (including any tombstone advertisement) to be
published in any newspaper or periodical or posted in any public place and will not issue any
circular relating to the Securities, except such advertisements as are permitted by and include the
statements required by Regulation S.
Such Initial Purchaser agrees that, at or prior to confirmation of a sale of Securities by it
to any distributor, dealer or person receiving a selling concession, fee or other remuneration
during the 40-day restricted period referred to in Rule 903 of Regulation S, it will send to such
distributor, dealer or person receiving a selling concession, fee or other remuneration a
confirmation or notice to substantially the following effect:
The Securities covered hereby have not been registered under the U.S. Securities Act of 1933,
as amended (the Securities Act), and may not be offered and sold within the United States or to,
or for the account or benefit of, U.S. persons (i) as part of your distribution at any time or (ii)
otherwise until 40 days after the later of the date the Securities were first offered to persons
other than distributors in reliance upon Regulation S and the Closing Date, except in either case
in accordance with Regulation S under the Securities Act (or in accordance with Rule 144A under the
Securities Act or to accredited investors in transactions that are exempt from the registration
requirements of the Securities Act), and in connection with any subsequent sale by you of the
Securities covered hereby in reliance on Regulation S under the Securities Act during the period
referred to above to any distributor, dealer or person receiving a selling concession, fee or other
remuneration, you must deliver a notice to substantially the foregoing effect. Terms used above
have the meanings assigned to them in Regulation S under the Securities Act.
B-1
exv4w2
Exhibit 4.2
HANESBRANDS INC.
AND EACH OF THE SUBSIDIARY GUARANTORS PARTY HERETO
6.375% SENIOR NOTES DUE 2020
FOURTH SUPPLEMENTAL INDENTURE
Dated as of November 9, 2010
Branch Banking and Trust Company
Trustee
CROSS-REFERENCE TABLE
|
|
|
|
|
|
|
Trust Indenture |
|
Supplemental/Base |
Act Section |
|
Indenture Section |
310 |
(a) |
(1) |
|
|
|
7.10 of the Base Indenture |
|
(a) |
(2) |
|
|
|
7.10 of the Base Indenture |
|
(a) |
(3) |
|
|
|
N.A. |
|
(a) |
(4) |
|
|
|
N.A. |
|
(a) |
(5) |
|
|
|
7.10 of the Base Indenture |
|
(b) |
|
|
|
|
7.10 of the Base Indenture |
|
(c) |
|
|
|
|
N.A. |
311 |
(a) |
|
|
|
|
7.11 of the Base Indenture |
|
(b) |
|
|
|
|
7.11 of the Base Indenture |
|
(c) |
|
|
|
|
N.A. |
312 |
(a) |
|
|
|
|
2.06 of the Base Indenture |
|
(b) |
|
|
|
|
13.03 |
|
(c) |
|
|
|
|
13.03 |
313 |
(a) |
|
|
|
|
7.6 of the Base Indenture |
|
(b) |
(2) |
|
|
|
7.6; 7.7 of the Base Indenture |
|
(c) |
|
|
|
|
7.6 of the Base Indenture; 13.02 |
|
(d) |
|
|
|
|
7.6 of the Base Indenture |
314 |
(a) |
|
|
|
|
4.03; 13.02; 13.05 |
|
(c) |
(1) |
|
|
|
13.04 |
|
(c) |
(2) |
|
|
|
13.04 |
|
(c) |
(3) |
|
|
|
N.A. |
|
(d) |
|
|
|
|
N.A. |
|
(e) |
|
|
|
|
13.05 |
|
(f) |
|
|
|
|
N.A. |
315 |
(a) |
|
|
|
|
7.1 of the Base Indenture |
|
(b) |
|
|
|
|
7.5 of the Base Indenture, 13.02 |
|
(c) |
|
|
|
|
7.1 of the Base Indenture |
|
(d) |
|
|
|
|
7.1 of the Base Indenture |
|
(e) |
|
|
|
|
6.11 |
i
|
|
|
|
|
|
Trust Indenture |
|
Supplemental/Base |
Act Section |
|
Indenture Section |
316 |
(a) (last sentence) |
2.10 of the Base Indenture |
|
(a) |
(1) |
(A) |
|
6.05 |
|
(a) |
(1) |
(B) |
|
6.04 |
|
(a) |
(2) |
|
|
N.A. |
|
(b) |
|
|
|
6.07 |
|
(c) |
|
|
|
2.04 |
317 |
(a) |
(1) |
|
|
6.08 |
|
(a) |
(2) |
|
|
6.09 |
|
(b) |
|
|
|
2.5 of the Base Indenture |
318 |
(a) |
|
|
|
N.A. |
|
(b) |
|
|
|
N.A. |
|
(c) |
|
|
|
13.01 |
N.A. means not applicable.
|
|
|
* |
|
This Cross Reference Table is not part of this Supplemental Indenture. |
Table of Contents
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Page |
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE |
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2 |
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SECTION 1.01 Definitions |
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2 |
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SECTION 1.02 Other Definitions |
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31 |
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SECTION 1.03 Incorporation by Reference of Trust Indenture Act |
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31 |
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SECTION 1.04 Rules of Construction |
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32 |
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SECTION 1.05 Conflicts with Base Indenture |
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32 |
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ARTICLE 2 THE NOTES |
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32 |
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SECTION 2.01 Form and Dating |
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32 |
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SECTION 2.02 Execution and Authentication |
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33 |
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SECTION 2.03 Outstanding Notes |
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35 |
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SECTION 2.04 Defaulted Interest |
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35 |
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SECTION 2.05 Registrar and Paying Agent |
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35 |
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SECTION 2.06 Paying Agent to Hold Money In Trust |
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36 |
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SECTION 2.07 Transfer and Exchange |
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36 |
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ARTICLE 3 REDEMPTION AND PREPAYMENT |
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50 |
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SECTION 3.01 Notices to Trustee |
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50 |
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SECTION 3.02 Selection of Notes to Be Redeemed or Purchased |
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50 |
|
SECTION 3.03 Notice of Redemption |
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50 |
|
SECTION 3.04 Effect of Notice of Redemption |
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51 |
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SECTION 3.05 Deposit of Redemption or Purchase Price |
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51 |
|
SECTION 3.06 Notes Redeemed or Purchased in Part |
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52 |
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SECTION 3.07 Optional Redemption |
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52 |
|
SECTION 3.08 Mandatory Redemption |
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53 |
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ARTICLE 4 COVENANTS |
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53 |
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|
SECTION 4.01 Payment of Notes |
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|
53 |
|
SECTION 4.02 Maintenance of Office or Agency |
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53 |
|
SECTION 4.03 SEC Reports and Reports to Holders |
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54 |
|
SECTION 4.04 Compliance Certificate |
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55 |
|
SECTION 4.05 Taxes |
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55 |
|
SECTION 4.06 Stay, Extension and Usury Laws |
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55 |
|
SECTION 4.07 Restricted Payments |
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55 |
|
SECTION 4.08 Limitation on Dividend and Other Payment
Restrictions Affecting
Restricted Subsidiaries |
|
|
59 |
|
SECTION 4.09 Limitation on Incurrence of Indebtedness |
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62 |
|
SECTION 4.10 Limitation on Asset Sales |
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65 |
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SECTION 4.11 Limitation on Transactions with Shareholders and Affiliates |
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|
67 |
|
SECTION 4.12 Limitation on Liens |
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68 |
|
SECTION 4.13 Business Activities |
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70 |
|
SECTION 4.14 Corporate Existence |
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|
70 |
|
iii
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Page |
SECTION 4.15 Repurchase of Notes Upon a Change of Control |
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70 |
|
SECTION 4.16 Limitation on the Issuances and
Sale of Capital Stock of Restricted
Subsidiaries |
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72 |
|
SECTION 4.17 Payments for Consent |
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73 |
|
SECTION 4.18 Note Guarantees |
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73 |
|
SECTION 4.19 Changes in Covenants when Notes Rated Investment Grade |
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|
74 |
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ARTICLE 5 SUCCESSORS |
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75 |
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SECTION 5.01 Consolidation, Merger and Sale of Assets |
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75 |
|
SECTION 5.02 Successor Corporation Substituted |
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76 |
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ARTICLE 6 DEFAULTS AND REMEDIES |
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77 |
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SECTION 6.01 Events of Default |
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77 |
|
SECTION 6.02 Acceleration |
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|
78 |
|
SECTION 6.03 Other Remedies |
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|
79 |
|
SECTION 6.04 Waiver of Past Defaults |
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79 |
|
SECTION 6.05 Control by Majority |
|
|
79 |
|
SECTION 6.06 Limitation on Suits |
|
|
79 |
|
SECTION 6.07 Rights of Holders of Notes to Receive Payment |
|
|
80 |
|
SECTION 6.08 Collection Suit by Trustee |
|
|
80 |
|
SECTION 6.09 Trustee May File Proofs of Claim |
|
|
80 |
|
SECTION 6.10 Priorities |
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|
81 |
|
SECTION 6.11 Undertaking for Costs |
|
|
81 |
|
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ARTICLE 7 [RESERVED] |
|
|
81 |
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|
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
|
|
81 |
|
|
|
|
|
|
SECTION 8.01 Option to Effect Legal Defeasance or Covenant Defeasance |
|
|
81 |
|
SECTION 8.02 Legal Defeasance and Discharge |
|
|
81 |
|
SECTION 8.03 Covenant Defeasance |
|
|
82 |
|
SECTION 8.04 Conditions to Legal or Covenant Defeasance |
|
|
83 |
|
SECTION 8.05 Deposited Money and U.S. Government to
Obligations be Held in
Trust; Other Miscellaneous Provisions |
|
|
84 |
|
SECTION 8.06 Repayment to Company |
|
|
85 |
|
SECTION 8.07 Reinstatement |
|
|
85 |
|
|
|
|
|
|
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER |
|
|
85 |
|
|
|
|
|
|
SECTION 9.01 Without Consent of Holders of Notes |
|
|
85 |
|
SECTION 9.02 With Consent of Holders of Notes |
|
|
86 |
|
SECTION 9.03 Compliance with Trust Indenture Act |
|
|
88 |
|
SECTION 9.04 Revocation and Effect of Consents |
|
|
88 |
|
SECTION 9.05 Notation on or Exchange of Notes |
|
|
89 |
|
SECTION 9.06 Trustee to Sign Amendments, etc. |
|
|
89 |
|
|
|
|
|
|
ARTICLE 10 [RESERVED] |
|
|
89 |
|
|
|
|
|
|
ARTICLE 11 NOTE GUARANTEES |
|
|
89 |
|
|
|
|
|
|
SECTION 11.01 Guarantee |
|
|
89 |
|
SECTION 11.02 Intentionally Omitted |
|
|
90 |
|
SECTION 11.03 Limitation on Subsidiary Guarantor Liability |
|
|
90 |
|
SECTION 11.04 Execution and Delivery of Note Guarantee |
|
|
91 |
|
iv
|
|
|
|
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|
Page |
SECTION 11.05 Subsidiary Guarantors May Consolidate, etc., on Certain Terms |
|
|
91 |
|
SECTION 11.06 Releases |
|
|
92 |
|
|
|
|
|
|
ARTICLE 12 SATISFACTION AND DISCHARGE |
|
|
92 |
|
|
|
|
|
|
SECTION 12.01 Satisfaction and Discharge |
|
|
92 |
|
SECTION 12.02 Application of Trust Money |
|
|
93 |
|
|
|
|
|
|
ARTICLE 13 MISCELLANEOUS |
|
|
94 |
|
|
|
|
|
|
SECTION 13.01 Trust Indenture Act Controls |
|
|
94 |
|
SECTION 13.02 Notices |
|
|
94 |
|
SECTION 13.03 Communication by Holders of Notes with Other Holders of Notes |
|
|
95 |
|
SECTION 13.04 Certificate and Opinion as to Conditions Precedent |
|
|
95 |
|
SECTION 13.05 Statements Required in Certificate or Opinion |
|
|
96 |
|
SECTION 13.06 Rules by Trustee and Agents |
|
|
97 |
|
SECTION 13.07 No Personal Liability of Incorporators, Stockholders, Officers,
Directors or Employees |
|
|
97 |
|
SECTION 13.08 Governing Law |
|
|
97 |
|
SECTION 13.09 No Adverse Interpretation of Other Agreements |
|
|
97 |
|
SECTION 13.10 Successors |
|
|
97 |
|
SECTION 13.11 Severability |
|
|
97 |
|
SECTION 13.12 Counterpart Originals |
|
|
97 |
|
SECTION 13.13 Table of Contents, Headings, etc. |
|
|
97 |
|
SECTION 13.14 Confirmation of Indenture; Benefits of Indenture |
|
|
97 |
|
EXHIBITS
|
|
|
Exhibit A
|
|
Form of Note |
Exhibit B
|
|
Form of Note Guarantee |
Exhibit C
|
|
Form of Supplemental Indenture |
Exhibit D
|
|
Form of Certificate of Transfer |
Exhibit E
|
|
Form of Certificate of Exchange |
Exhibit F
|
|
Form of Certificate of Transferee |
v
THIS FOURTH SUPPLEMENTAL INDENTURE (this Supplemental Indenture) dated as of
November 9, 2010 among Hanesbrands Inc., a Maryland corporation (the Company), the
Subsidiary Guarantors (as defined below) and Branch Banking and Trust Company, a North Carolina
state banking corporation, as trustee (the Trustee) under the indenture, dated as of
August 1, 2008, between the Company and the Trustee (the Base Indenture and, as amended
and supplemented by this Supplemental Indenture, in respect of the Notes, the Indenture).
Upon execution and delivery by all parties hereto, the Indenture shall be effective as to all such
parties.
The Company and the Subsidiary Guarantors have duly authorized, executed and delivered the
Base Indenture to provide for the issuance from time to time of the Companys debentures, notes or
other debt instruments (herein called the Securities), to be issued in one or more
series, and the Guarantee by each of the Subsidiary Guarantors of the Securities, as the Base
Indenture provides.
The Base Indenture provides, among other things, that the Company, the Subsidiary Guarantors
and the Trustee may enter into indentures supplemental to the Base Indenture to establish the form
or terms of any Security.
The Company desires to execute this Supplemental Indenture to establish the form and terms,
and to provide for the issuance, of a series of senior notes designated as 6.375% Senior Notes due
2020 in an aggregate principal amount of $1,000,000,000 (the Initial Notes).
From time to time subsequent to the Closing Date, the Company may, if permitted to do so
pursuant to the terms of the Indenture, the Initial Notes and the terms of its other indebtedness
existing on such future date, issue additional senior notes of the same series as the Initial Notes
in accordance with this Supplemental Indenture (the Additional Notes and, together with
the Initial Notes, the Notes), pursuant to this Supplemental Indenture.
The Subsidiary Guarantors will derive direct and indirect economic benefit from the issuance
of the Securities. Accordingly, each Subsidiary Guarantor has duly authorized the execution and
delivery of this Supplemental Indenture to provide for its unconditional and joint and several
Guarantee of the Notes to the extent provided for in or pursuant to the Indenture.
This Supplemental Indenture is subject to the provisions of the Trust Indenture Act of 1939,
as amended, that are required to be a part of this Supplemental Indenture and shall, to the extent
applicable, be governed by such provisions.
All things necessary have been done to make the Notes, upon execution, authentication and
delivery of the Notes, the valid and legally binding obligations of the Company and to make this
Supplemental Indenture, upon execution and delivery of this Supplemental Indenture, a valid and
legally binding agreement of the Company, in accordance with their and its terms.
All things necessary have been done to make the Guarantees, upon execution and delivery of
this Supplemental Indenture, the valid obligations of each of the Company and each Subsidiary
Guarantor and to make the Indenture a valid and legally binding agreement of each of the Company
and each Subsidiary Guarantor, in accordance with their and its terms.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof,
it is mutually covenanted and agreed, for the equal and ratable benefit of all Holders, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01 Definitions.
144A Global Note means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or
on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a
denomination equal to the outstanding principal amount of the Notes issued in reliance on Rule
144A.
Acquired Indebtedness means Indebtedness of a Person existing at the time such
Person becomes a Restricted Subsidiary or Indebtedness of a Restricted Subsidiary assumed in
connection with an Asset Acquisition by such Restricted Subsidiary.
Adjusted Consolidated Net Income means, for any period, the aggregate net income (or
loss) of the Company and its Restricted Subsidiaries for such period determined in conformity with
GAAP; provided that the following items shall be excluded in computing Adjusted
Consolidated Net Income (without duplication):
(1) the net income (or loss) of any Person that is not a Restricted Subsidiary except
to the extent that dividends or similar distributions have been paid by such Person to the
Company or a Restricted Subsidiary;
(2) solely for purposes of calculating the amount of Restricted Payments that may be
made pursuant to clause (C) of the first paragraph of Section 4.07, the net income (or loss)
of any Person accrued prior to the date it becomes a Restricted Subsidiary or is merged into
or consolidated with the Company or any of its Restricted Subsidiaries or all or
substantially all of the property and assets of such Person are acquired by the Company or
any of its Restricted Subsidiaries;
(3) the net income of any Restricted Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by such Restricted Subsidiary of such net
income is at the time prohibited by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary;
(4) any gains or losses (on an after tax basis) attributable to asset dispositions;
(5) all extraordinary, unusual or non-recurring gains, charges, expenses or losses;
2
(6) the cumulative effect of a change in accounting principles;
(7) any non-cash compensation expenses recorded from grants of stock options,
restricted stock, stock appreciation rights and other equity equivalents to officers,
directors and employees;
(8) any impairment charge or asset write off;
(9) net cash charges associated with or related to any restructurings;
(10) all (a) non-cash compensation expense, or other non-cash expenses or charges,
arising from the sale of stock, the granting of stock options, the granting of stock
appreciation rights and similar arrangements (including any repricing, amendment,
modification, substitution or change of any such stock, stock option, stock appreciation
rights or similar arrangements); (b) any fees and expenses incurred by the Company and its
Restricted Subsidiaries in connection with the Transactions, including without limitation,
any cash expenses incurred in connection with the termination or modification of any Hedging
Obligations in connection with the Transactions; (c) financial advisory fees, accounting
fees, legal fees and similar advisory and consulting fees and related costs and expenses of
the Company and its Restricted Subsidiaries incurred as a result of Asset Acquisitions,
Investments, Asset Sales permitted under this Supplemental Indenture and the issuance of
Capital Stock or Indebtedness, all determined in accordance with GAAP and in each case
eliminating any increase or decrease in income resulting from non-cash accounting
adjustments made in connection with the related Asset Acquisition,
Investment or Asset Sale;
and (d) expenses incurred by the Company or any Restricted Subsidiary to the extent
reimbursed in cash by a third party;
(11) all other non-cash charges, including unrealized gains or losses on agreements
with respect to Hedging Obligations and all non-cash charges associated with announced
restructurings, whether announced previously or in the future (such non-cash restructuring
charges being Non-Cash Restructuring Charges); and
(12) income or loss attributable to discontinued operations (including, without
limitation, operations disposed of during such period whether or not such operations were
classified as discontinued).
Affiliate means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with, such Person. For
purposes of this definition, control (including, with correlative meanings, the terms
controlling, controlled by and under common control with), as applied to any Person, means
the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
Agent means any Registrar, co-registrar, Paying Agent or additional paying agent.
Applicable Premium means, with respect to any Note on any applicable Redemption
Date, the greater of:
3
(1) 1.0% of the principal amount of such Note; or
(2) the excess, if any, of:
(a) the present value at such Redemption Date of (i) the redemption price of the Note
at December 15, 2015, (such redemption price being set forth in the table appearing under
Section 3.07) plus (ii) all required interest payments (excluding accrued and unpaid
interest to such Redemption Date) due on the Note through December 15, 2015, computed using
a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points;
over
(b) the principal amount of such Note.
Applicable Procedures means, with respect to any transfer or exchange of or for
beneficial interests in any Global Security, the rules and procedures of the Depositary, Euroclear
and Clearstream that apply to such transfer or exchange.
Asset Acquisition means (1) an investment by the Company or any of its Restricted
Subsidiaries in any other Person pursuant to which such Person shall become a Restricted Subsidiary
or shall be merged into or consolidated with the Company or any of its Restricted Subsidiaries or
(2) an acquisition by the Company or any of its Restricted Subsidiaries of the property and assets
of any Person other than the Company or any of its Restricted Subsidiaries that constitute
substantially all of a division or line of business of such Person.
Asset Disposition means the sale or other disposition by the Company or any of its
Restricted Subsidiaries of (1) all or substantially all of the Capital Stock of any Restricted
Subsidiary or (2) all or substantially all of the assets that constitute a division or line of
business of the Company or any of its Restricted Subsidiaries.
Asset Sale means any sale, transfer or other disposition (including by way of merger
or consolidation or Sale Leaseback Transaction) in one transaction or a series of related
transactions by the Company or any of its Restricted Subsidiaries to any Person other than the
Company or any of its Restricted Subsidiaries of:
(1) all or any of the Capital Stock of any Restricted Subsidiary (other than sales of
preferred stock that are permitted under Section 4.09);
(2) all or substantially all of the property and assets of a division or line of
business of the Company or any of its Restricted Subsidiaries; or
(3) any other property and assets (other than the Capital Stock or other Investment in
an Unrestricted Subsidiary) of the Company or any of its Restricted Subsidiaries outside the
ordinary course of business of the Company or such Restricted Subsidiary, and
in each case, that is not governed by Section 5.01; provided that Asset Sale shall not
include:
4
(a) sales, transfers or other dispositions of assets constituting a Permitted
Investment or Restricted Payment permitted to be made under Section 4.07;
(b) sales, transfers or other dispositions of assets with a fair market value not in
excess of $25.0 million in any transaction or series of related transactions;
(c) any sale, transfer, assignment or other disposition of any property or equipment
that has become damaged, worn out, obsolete or otherwise unsuitable for use in connection
with the business of the Company or its Restricted Subsidiaries;
(d) the sale or discount of accounts receivable, but only in connection with the
compromise or collection thereof, or the disposition of assets in connection with a
foreclosure or transfer in lieu of a foreclosure or other exercise of remedial action;
(e) any exchange of like property similar to (but not limited to) those allowable under
Section 1031 of the Internal Revenue Code;
(f) sales or grants of licenses to use the Companys or any Restricted Subsidiarys
patents, trade secrets, know-how and technology to the extent that such license does not
prohibit the licensor from using the patent, trade secret, know-how or technology;
(g) transactions permitted under Section 5.01;
(h) sales in connection with a Permitted Securitization or a Permitted Factoring
Program;
(i) dispositions of property to the extent that (i) such property is exchanged for
credit against the purchase price of similar replacement property or (ii) the proceeds of
such disposition are promptly applied to the purchase price of such replacement property;
(j) dispositions constituting leases, subleases, licenses or sublicenses of property
(including intellectual property) in the ordinary course of business and which do not
materially interfere with the business of the Company and its Subsidiaries (for the
avoidance of doubt, other than any perpetual licenses of any material intellectual
property);
(k) any transfer constituting a taking, condemnation or other eminent domain
proceeding; or
(l) a grant of options to purchase, lease or acquire real or personal property in the
ordinary course of business, so long as the disposition resulting from the exercise of such
option would not constitute an Asset Sale under clauses (1), (2) or (3) of this
definition, in each case, after giving effect to clauses (a) through (k) above.
Average Life means, at any date of determination with respect to any debt security,
the quotient obtained by dividing (1) the sum of the products of (a) the number of years from such
5
date of determination to the dates of each successive scheduled principal payment of such debt
security and (b) the amount of such principal payment by (2) the sum of all such principal
payments.
Bankruptcy Law means Title 11, U.S. Code or any similar federal or state law for
the relief of debtors.
Board of Directors means, with respect to any Person, the Board of Directors of such
Person, any duly authorized committee of such Board of Directors, or any Person to which the Board
of Directors has properly delegated authority with respect to any particular matter. Unless
otherwise indicated, the Board of Directors refers to the Board of Directors of the Company.
Broker-Dealer has the meaning set forth in the Registration Rights Agreement.
Business Day means a day other than a Saturday, Sunday or other day on which banking
institutions are authorized or required by law to close in New York State.
Capital Stock means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated, whether voting or non-voting) in equity of
such Person, whether outstanding on the Closing Date or issued thereafter, including, without
limitation, all common stock and preferred stock.
Capitalized Lease means, as applied to any Person, any lease of any property
(whether real, personal or mixed) of which the discounted present value of the rental obligations
of such Person as lessee, in conformity with GAAP, is required to be capitalized on the balance
sheet of such Person.
Capitalized Lease Obligations means all monetary obligations of any Person and its
Subsidiaries under any leasing or similar arrangement which, in accordance with GAAP, should be
classified as Capitalized Leases and the Stated Maturity thereof shall be the date that the last
payment of rent or any other amount due under such Capitalized Lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a premium or penalty is due
thereunder.
Change of Control means such time as:
(1) the adoption of a plan relating to the liquidation or dissolution of the Company;
(2) a person or group (within the meaning of Sections 13(d) and 14(d)(2) of the
Exchange Act) becomes the ultimate beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of more than 50% of the total voting power of the Voting Stock of the Company
on a fully diluted basis;
(3) during any period of 24 consecutive months, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with any new
directors whose election to such Board or whose nomination for election by the stockholders
of the Company was approved by a vote of a majority of the directors
6
then still in office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Company then in office; or
(4) 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 Restricted Subsidiaries taken as a
whole to any person (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act).
Clearstream means Clearstream Banking, S.A.
Closing Date means the date on which the Notes are originally issued under this
Supplemental Indenture.
Commodity Agreement means any forward contract, commodity swap agreement, commodity
option agreement or other similar agreement or arrangement.
Consolidated EBITDA means, for any period, Adjusted Consolidated Net Income for such
period plus, to the extent such amount was deducted in calculating such Adjusted Consolidated Net
Income:
(1) Fixed Charges;
(2) amounts shown under the item Taxes on the Companys income statement;
(3) depreciation expense;
(4) amortization expense; minus
(5) to the extent included in determining such Adjusted Consolidated Net Income, the
sum of (a) reversals (in whole or in part) of any restructuring charges previously treated
as Non-Cash Restructuring Charges in any prior period, (b) all non cash items increasing
Adjusted Consolidated Net Income, other than (A) the accrual of revenue consistent with past
practice and (B) the reversal in such period of an accrual of, or cash reserve for, cash
expenses in a prior period, to the extent such accrual or reserve did not increase
Consolidated EBITDA in a prior period;
all as determined on a consolidated basis for the Company and its Restricted Subsidiaries in
conformity with GAAP.
Consolidated Interest Expense means, for any period, the aggregate amount of
interest in respect of Indebtedness (including, without limitation, amortization of original issue
discount on any Indebtedness and the interest portion of any deferred payment obligation,
calculated in accordance with the effective interest method of accounting; all commissions,
discounts and other fees and charges owed with respect to letters of credit and bankers acceptance
financing; the net costs associated with Interest Rate Agreements; and Indebtedness that is
Guaranteed or
7
secured by the Company or any of its Restricted Subsidiaries); and all but the principal
component of rentals in respect of Capitalized Lease Obligations paid, in each case, accrued or
scheduled to be paid or to be accrued by the Company and its Restricted Subsidiaries during such
period; excluding, however, (1) any amount of such interest of any Restricted
Subsidiary if the net income of such Restricted Subsidiary is excluded in the calculation of
Adjusted Consolidated Net Income pursuant to clause (3) of the definition thereof (but only in the
same proportion as the net income of such Restricted Subsidiary is excluded from the calculation of
Adjusted Consolidated Net Income pursuant to clause (3) of the definition thereof), (2) any
interest expense attributable to a Permitted Factoring Program, and (3) any premiums, fees and
expenses (and any amortization thereof) payable in connection with the offering of the Notes, all
as determined on a consolidated basis (without taking into account Unrestricted Subsidiaries) in
conformity with GAAP.
Contingent Liability means any agreement, undertaking or arrangement by which any
Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or
otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the Indebtedness
of any other Person (other than by endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions upon the capital securities of any other
Person. The amount of any Persons obligation under any Contingent Liability shall (subject to any
limitation with respect thereto) be deemed to be the outstanding principal amount of the debt,
obligation or other liability guaranteed thereby.
continuing means, with respect to any Default or Event of Default, that such Default
or Event of Default has not been cured or waived.
Corporate Trust Office of the Trustee will be at the address of the Trustee
specified in Section 13.02 hereof or such other address as to which the Trustee may give notice to
the Company.
Credit Agreement means that certain Credit Agreement, dated December 10, 2009, among
the Company as borrower, the guarantors party thereto, several banks and other financial
institutions or entities from time to time party thereto as lenders, JPMorgan Chase Bank, N.A., as
the administrative agent and the collateral agent, Barclays Bank PLC and Goldman Sachs Credit
Partners L.P., as co-documentation agents, Bank of America, N.A. and HSBC Securities (USA) Inc., as
co-syndication agents, and JPMorgan Securities Inc., Banc of America Securities LLC, HSBC
Securities (USA) Inc. and Barclays Capital, as joint lead arrangers and joint bookrunners.
Credit Facilities means, with respect to the Company and its Restricted
Subsidiaries, one or more debt facilities (including the Credit Agreement), commercial paper
facilities, or indentures providing for revolving credit loans, term loans, notes or other
financings or letters of credit, or other credit facilities, in each case, as amended, modified,
renewed, refunded, replaced or refinanced from time to time.
Currency Agreement means any foreign exchange contract, currency swap agreement or
other similar agreement or arrangement.
8
Custodian means the Trustee, as custodian with respect to the Notes in global form,
or any successor entity thereto.
Default means any event that is, or after notice or passage of time or both would
be, an Event of Default.
Definitive Notes means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 2.05 hereof, substantially in the form of Exhibit
A hereto except that such Note shall not bear the Global Note Legend and shall not have the
Schedule of Exchanges of Interests in the Global Note attached thereto.
Depositary means, with respect to the Notes issuable or issued in whole or in part
in global form, the Person specified in Section 2.05 hereof as the Depositary with respect to the
Notes, and any and all successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of the Indenture.
Disqualified Stock means any class or series of Capital Stock of any Person that by
its terms or otherwise is (1) required to be redeemed prior to the date that is 91 days after the
Stated Maturity of the Notes, (2) redeemable at the option of the holder of such class or series of
Capital Stock at any time prior to the date that is 91 days after the Stated Maturity of the Notes
or (3) convertible into or exchangeable for Capital Stock referred to in clause (1) or (2) above or
Indebtedness having a scheduled maturity prior to the date that is 91 days after the Stated
Maturity of the Notes; provided that only the portion of such Capital Stock which is so
required to be redeemed, redeemable or convertible or exchangeable prior to such date will be
deemed to be Disqualified Stock; provided further that any Capital Stock that would
not constitute Disqualified Stock but for provisions thereof giving holders thereof the right to
require such Person to repurchase or redeem such Capital Stock upon the occurrence of an asset
sale or change of control occurring prior to the date that is 91 days after the Stated Maturity
of the Notes shall not constitute Disqualified Stock if the asset sale or change of control
provisions applicable to such Capital Stock are no more favorable to the holders of such Capital
Stock than the provisions contained in Section 4.10 and Section 4.15 and such Capital Stock
specifically provides that such Person will not repurchase or redeem any such stock pursuant to
such provision prior to the Companys repurchase of such Notes as are required to be repurchased
pursuant to Section 4.10 and Section 4.15 provided further that, any class or
series of Capital Stock of such Person that by its terms or otherwise, authorizes such Person to
satisfy in full its obligations with respect to the payment of dividends or upon maturity,
redemption (pursuant to a sinking fund or otherwise) or repurchase thereof or otherwise by the
delivery of any Capital Stock that is not Disqualified Stock, will not be deemed to be Disqualified
Stock so long as such Person satisfies its obligations with respect thereto solely by delivery of
such Capital Stock.
DTC means The Depository Trust Company, a New York corporation.
Equity Offering means (i) an offer and sale of Capital Stock (other than
Disqualified Stock) of the Company or (ii) an offer and sale of Capital Stock (other than
Disqualified Stock) of a direct or indirect parent entity of the Company (to the extent the net
proceeds therefrom are contributed to the common equity capital of the Company) pursuant to (x) a
registration statement that has been declared effective by the SEC pursuant to the Securities Act
(other than a
9
registration statement on Form S-8 or otherwise relating to equity securities issuable under
any employee benefit plan of the Company or such direct or indirect parent company), or (y) a
private issuance exempt from registration under the Securities Act.
Euroclear means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Exchange Offer has the meaning set forth in the Registration Rights Agreement.
Exchange Registration Statement has the meaning set forth in the Registration Rights
Agreement.
Exchange Notes means the notes issued in the Exchange Offer pursuant to
Section 2.07(f).
Existing Notes means the Fixed Rate Senior Notes and the Floating Rate Senior Notes.
Existing Note Indentures means the Fixed Rate Senior Note Indenture and the Floating
Rate Senior Note Indenture.
fair market value means the price that would be paid in an arms-length transaction
between an informed and willing seller under no compulsion to sell and an informed and willing
buyer under no compulsion to buy, as determined in good faith by (i) for a transaction or series of
related transactions in excess of $50.0 million, the Board of Directors, whose determination shall
be conclusive if evidenced by a resolution of the Board of Directors or (ii) for a transaction or
series of related transactions involving $50.0 million or less, by the chief financial officer,
whose determination shall be conclusive if evidenced by a certificate to such effect.
Fiscal Year means any period of fifty-two or fifty-three consecutive calendar weeks
ending on the Saturday nearest to the last day of December; references to a Fiscal Year with a
number corresponding to any calendar year (e.g., the 2009 Fiscal Year) refer to the Fiscal Year
ending on the Saturday nearest to the last day of December of such calendar year; provided
that in the event that the Company gives notice to the Trustee that it intends to change its Fiscal
Year, Fiscal Year will mean any period of fifty-two or fifty-three consecutive calendar weeks or
twelve consecutive calendar months ending on the date set forth in such notice.
Fixed Charge Coverage Ratio means, for any Person on any Transaction Date, the ratio
of (1) the aggregate amount of Consolidated EBITDA for the then most recent four fiscal quarters
prior to such Transaction Date for which reports have been filed with the SEC or provided to the
Trustee (the Four Quarter Period) to (2) the aggregate Fixed Charges during such Four Quarter
Period. In making the foregoing calculation:
(A) pro forma effect shall be given to any Indebtedness Incurred or repaid during the
period (the Reference Period) commencing on the first day of the Four Quarter Period and
ending on the Transaction Date, in each case, as if such Indebtedness had been Incurred or
repaid on the first day of such Reference Period;
10
(B) Consolidated Interest Expense attributable to interest on any Indebtedness (whether
existing or being Incurred) computed on a pro forma basis and bearing a floating interest
rate shall be computed as if the rate in effect on the Transaction Date (taking into account
any Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement
has a remaining term in excess of 12 months or, if shorter, at least equal to the remaining
term of such Indebtedness) had been the applicable rate for the entire period;
(C) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions
(including giving pro forma effect to the application of proceeds of any Asset Disposition)
that occur during such Reference Period as if they had occurred and such proceeds had been
applied on the first day of such Reference Period; and
(D) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions
(including giving pro forma effect to the application of proceeds of any asset disposition)
that have been made by any Person that has become a Restricted Subsidiary or has been merged
with or into the Company or any Restricted Subsidiary during such Reference Period and that
would have constituted Asset Dispositions or Asset Acquisitions had such transactions
occurred when such Person was a Restricted Subsidiary as if such asset dispositions or asset
acquisitions were Asset Dispositions or Asset Acquisitions that occurred on the first day of
such Reference Period; provided that to the extent that clause (C) or (D) of this
paragraph requires that pro forma effect be given to an Asset Acquisition or Asset
Disposition, such pro forma calculation shall be made in good faith by a responsible
financial or accounting officer of the Company (and may include, for the avoidance of doubt
and without duplication, cost savings, synergies and operating expense reductions resulting
from such Asset Disposition or Asset Acquisition whether or not such cost savings, synergies
or operating expense reductions would be allowed under Regulation S-X promulgated by the SEC
or any other regulation or policy of the SEC).
Fixed Charges means, with respect to any Person for any period, the sum, without
duplication, of:
(1) Consolidated Interest Expense plus
(2)
the product of (x) the amount of all cash dividend payments on
any series of preferred
stock of such Person or any of its Restricted Subsidiaries (other than dividends payable
solely in Capital Stock of such Person or such Restricted Subsidiary (other than
Disqualified Stock) or to such Person or a Restricted Subsidiary of such Person) paid during
such period times (y) a fraction, the numerator of which is one and the denominator of which
is one minus the then current effective consolidated federal, state and local income tax
rate of such Person, expressed as a decimal, as determined on a consolidated basis in
accordance with GAAP.
Fixed Rate Senior Notes means the Companys 8% Senior Notes due 2016 issued on
December 10, 2009 pursuant to the Fixed Rate Senior Notes Indenture.
11
Fixed Rate Senior Note Indenture means the Base Indenture, as amended and
supplemented by the First Supplemental Indenture, dated December 10, 2009, among the Company,
certain subsidiaries of the Company and Branch Banking and Trust Company, as Trustee, with respect
to the Fixed Rate Senior Notes.
Floating Rate Senior Notes means the Companys Floating Rate Senior Notes issued on
December 14, 2006 pursuant to the Floating Rate Senior Notes Indenture.
Floating Rate Senior Note Indenture means the Indenture, dated December 14, 2006,
among the Company, certain subsidiaries of the Company and Branch Banking and Trust Company, as
Trustee, with respect to the Floating Rate Senior Notes.
Foreign Subsidiary means any Restricted Subsidiary of the Company that is an entity
which is a controlled foreign corporation under Section 957 of the Internal Revenue Code.
GAAP means generally accepted accounting principles in the United States of America
as in effect as of the Closing Date as determined by the Public Company Accounting Oversight Board.
All ratios and computations contained or referred to in this Supplemental Indenture shall be
computed in conformity with GAAP applied on a consistent basis, except that calculations made for
purposes of determining compliance with the terms of the covenants and with other provisions of
this Supplemental Indenture shall be made without giving effect to (1) the amortization of any
expenses incurred in connection with the offering of the Notes and (2) except as otherwise
provided, the amortization of any amounts required or permitted by Accounting Principles Board
Opinion Nos. 16 and 17.
Global Note Legend means the legend set forth in Section 2.07(g)(2) hereof, which is
required to be placed on all Global Notes issued under the Indenture.
Global Notes means, individually and collectively, each of the Restricted Global
Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name
of the Depository or its nominee, substantially in the form of Exhibit A hereto and that
bears the Global Note Legend and that has the Schedule of Exchanges of Interests in the Global
Note attached thereto, issued in accordance with Section 2.01, 2.07(b)(3), 2.07(b)(4), 2.07(d)(2)
or 2.07(f) hereof.
Governmental Authority means the government of the United States, any other nation
or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.
Guarantee means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness of any other Person and, without limiting the generality
of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (1)
to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services (unless such purchase arrangements are
on arms length terms and are entered into in the normal course of business), to take-or-pay,
12
or to maintain financial statement conditions or otherwise) or (2) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part); provided that
the term Guarantee shall not include endorsements for collection or deposit in the normal course
of business. The term Guarantee used as a verb has a corresponding meaning.
Hedging Obligations means, with respect to any Person, all liabilities of such
Person under foreign exchange contracts, commodity hedging agreements, currency exchange
agreements, interest rate swap agreements, interest rate cap agreements and interest rate collar
agreements, and all other agreements or arrangements designed to protect such Person against
fluctuations in interest rates, currency exchange rates or commodity prices.
Holder means a holder of any Notes.
Immaterial Subsidiary shall mean, at any time, any Restricted Subsidiary of the
Company that is designated by the Company as an Immaterial Subsidiary if and for so long as such
Restricted Subsidiary, together with all other Immaterial Subsidiaries, has (i) total assets at
such time not exceeding 5% of the Companys consolidated assets as of the most recent fiscal
quarter for which balance sheet information is available and (ii) total revenues and operating
profit for the most recent 12-month period for which income statement information is available not
exceeding 5% of the Companys consolidated revenues and operating profit, respectively;
provided, that a Restricted Subsidiary will not be considered to be an Immaterial
Subsidiary if it guarantees any Indebtedness of the Company.
Incur means, with respect to any Indebtedness, to incur, create, issue, assume,
Guarantee or otherwise become liable for or with respect to, or become responsible for, the payment
of, contingently or otherwise, such Indebtedness; provided that (1) any Indebtedness of a
Person existing at the time such Person becomes a Restricted Subsidiary will be deemed to be
incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and (2)
neither the accrual of interest nor the accretion of original issue discount nor the payment of
interest in the form of additional Indebtedness (to the extent provided for when the Indebtedness
on which such interest is paid was originally issued) shall be considered an Incurrence of
Indebtedness.
Indebtedness means, with respect to any Person at any date of determination (without
duplication):
(1) the principal component of all indebtedness of such Person for borrowed money;
(2) the principal component of all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(3) the principal component of all obligations of such Person in respect of letters of credit
or other similar instruments (including reimbursement obligations with respect thereto, but
excluding obligations with respect to letters of credit (including trade letters of credit)
securing obligations (other than obligations described in (1) or (2) above or (5), (6) or (7)
below) entered into in the normal course of business of such Person to the extent such letters of
13
credit are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later
than the third Business Day following receipt by such Person of a demand for reimbursement);
(4) all obligations of such Person to pay the deferred and unpaid purchase price of property
or services, which purchase price is due more than six months after the date of placing such
property in service or taking delivery and title thereto or the completion of such services, except
Trade Payables;
(5) all Capitalized Lease Obligations;
(6) the principal component of all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by such Person; provided
that the amount of such Indebtedness shall be the lesser of (A) the fair market value of such asset
at such date of determination and (B) the amount of such Indebtedness;
(7) the principal component of all Indebtedness of other Persons Guaranteed by such Person to
the extent such Indebtedness is Guaranteed by such Person;
(8) to the extent not otherwise included in this definition, obligations under Commodity
Agreements, Currency Agreements and Interest Rate Agreements (other than Commodity Agreements,
Currency Agreements and Interest Rate Agreements designed solely to protect the Company or its
Restricted Subsidiaries against fluctuations in commodity prices, foreign currency exchange rates
or interest rates and that do not increase the Indebtedness of the obligor outstanding at any time
other than as a result of fluctuations in commodity prices, foreign currency exchange rates or
interest rates or by reason of fees, indemnities and compensation payable thereunder); and
(9) all Disqualified Stock issued by such Person with the amount of Indebtedness represented
by such Disqualified Stock being equal to the greater of its voluntary or involuntary liquidation
preference and its maximum fixed repurchase price, but excluding accrued dividends, if any, and any
redemption or repurchase premium, if any.
The amount of Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving rise to the
obligation; provided that:
(A) the amount outstanding at any time of any Indebtedness issued with original issue
discount is the face amount of such Indebtedness less the remaining unamortized portion of
the original issue discount of such Indebtedness at such time as determined in conformity
with GAAP;
(B) money borrowed and set aside at the time of the Incurrence of any Indebtedness in
order to prefund the payment of the interest on such Indebtedness shall not be deemed to be
Indebtedness so long as such money is held to secure the payment of such interest; and
(C) Indebtedness shall not include:
14
(i) any liability for federal, state, local or other taxes;
(ii) obligations in respect of performance, bid and surety bonds and completion
guarantees in respect of activities being performed by, on behalf of or for the
benefit of the Company or its Restricted Subsidiaries;
(iii) agreements providing for indemnification, adjustment of purchase price
earn-out, incentive, non-compete, consulting, deferred compensation or similar
obligations, or Guarantees or letters of credit, surety bonds or performance bonds
securing any obligations of the Company or any of its Restricted Subsidiaries
pursuant to such agreements, in any case, Incurred in connection with the
acquisition or disposition of any business, assets or Restricted Subsidiary (other
than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion
of such business, assets or Restricted Subsidiary for the purpose of financing such
acquisition);
(iv) any liability for trade payables incurred in the ordinary course of
business; or
(v) any obligations (including letters of credit) incurred in the ordinary
course of business in connection with workers compensation claims, payment
obligations in connection with self-insurance or similar requirements of the Company
or any Restricted Subsidiary.
Indenture means the Base Indenture, as amended and supplemented by this Supplemental
Indenture, as it may be further amended or supplemented from time to time in accordance with the
terms hereof.
Indirect Participant means a Person who holds a beneficial interest in a Global Note
through a Participant.
Interest Rate Agreement means any interest rate protection agreement, interest rate
future agreement, interest rate option agreement, interest rate swap agreement (whether fixed to
floating or floating to fixed), interest rate cap agreement, interest rate collar agreement,
interest rate hedge agreement, option or future contract or other similar agreement or arrangement.
Investment in any Person means any direct or indirect advance, loan or other
extension of credit (including, without limitation, by way of Guarantee or similar arrangement, but
excluding advances to customers or suppliers in the ordinary course of business that are, in
conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the balance
sheet of the Company or its Restricted Subsidiaries and endorsements for collection or deposit
arising in the ordinary course of business) or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, bonds, notes, debentures or other similar
instruments issued by, such Person and shall include (1) the designation of a Restricted Subsidiary
as an Unrestricted Subsidiary and (2) the retention of the Capital Stock (or any other Investment)
by the Company or any of its Restricted Subsidiaries of (or in) any Person that has ceased to be a
Restricted Subsidiary, including without limitation, by
15
reason of any transaction permitted by clause (3) or (4) of Section 4.16. For purposes of the
definition of Unrestricted Subsidiary and Section 4.07, (a) the amount of or a reduction in an
Investment shall be equal to the fair market value thereof at the time such Investment is made or
reduced and (b) in the event the Company or a Restricted Subsidiary makes an Investment by
transferring assets to any Person and as part of such transaction receives Net Cash Proceeds, the
amount of such Investment shall be the fair market value of the assets less the amount of Net Cash
Proceeds so received, provided the Net Cash Proceeds are applied in accordance with Section 4.10.
Letter of Transmittal means the letter of transmittal to be prepared by the Company
and sent to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.
Leverage Ratio means, as of any date, the ratio of
(a) Total Debt of the Company outstanding on the last day of the most recently ended fiscal
quarter for which reports have been filed with the SEC or provided to the Trustee;
to
(b) Consolidated EBITDA of the Company computed for the then most recent four fiscal quarters
prior to such date for which reports have been filed with the SEC or provided to the Trustee (with
Consolidated EBITDA calculated on a pro forma basis giving effect to all adjustments contemplated
by the definition of Fixed Charge Coverage Ratio).
Lien means any mortgage, pledge, security interest, encumbrance, lien or charge of
any kind (including, without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof or any agreement to give any security interest).
Material Adverse Effect means a material adverse effect on (i) the business,
financial condition, operations, performance, or assets of the Company or the Company and its
Restricted Subsidiaries (other than a Receivables Subsidiary) taken as a whole, (ii) the rights and
remedies of any Holder under the Indenture or (iii) the ability of the Company or its Restricted
Subsidiaries to perform its obligations under the Indenture.
Moodys means Moodys Investors Service, Inc. and its successors and assigns.
Net Cash Proceeds means:
(a) with respect to any Asset Sale, the proceeds of such Asset Sale in the form of cash
or cash equivalents, including payments in respect of deferred payment obligations (to the
extent corresponding to the principal, but not interest, component thereof) when received in
the form of cash or cash equivalents and proceeds from the conversion of other property
received when converted to cash or cash equivalents, net of:
(1) brokerage commissions and other fees and expenses (including fees and
expenses of counsel and investment bankers) related to such Asset Sale;
16
(2) provisions for all taxes (whether or not such taxes will actually be paid
or are payable) as a result of such Asset Sale without regard to the consolidated
results of operations of the Company and its Restricted Subsidiaries, taken as a
whole;
(3) payments made to repay Indebtedness or any other obligation outstanding at
the time of such Asset Sale that either (x) is secured by a Lien on the property or
assets sold or (y) is required to be paid as a result of such sale;
(4) appropriate amounts to be provided by the Company or any Restricted
Subsidiary as a reserve against any liabilities associated with such Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as determined in
conformity with GAAP; and
(5) all distributions and other payments required to be made to minority
interest holders in Subsidiaries or joint ventures as a result of such Asset Sale;
and
(b) with respect to any issuance or sale of Capital Stock, the proceeds of such
issuance or sale in the form of cash or cash equivalents, including payments in respect of
deferred payment obligations (to the extent corresponding to the principal, but not
interest, component thereof) when received in the form of cash or cash equivalents and
proceeds from the conversion of other property received when converted to cash or cash
equivalents, net of attorneys fees, accountants fees, underwriters, initial purchasers
or placement agents fees, discounts or commissions and brokerage, consultant and other fees
incurred in connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
Note Guarantee means any Guarantee of the obligations of the Company under this
Supplemental Indenture and the Notes by any Subsidiary Guarantor.
Notes has the meaning assigned to it in the preamble to this Supplemental Indenture.
The Initial Notes and the Additional Notes shall be treated as a single class for all purposes
under the Indenture, and unless the context otherwise requires, all references to the Notes shall
include the Initial Notes and any Additional Notes.
Obligors means each of the Company and all Subsidiary Guarantors and Obligor means
each of the Company and each Subsidiary Guarantor individually.
Offer to Purchase means an offer to purchase Notes by the Company from the Holders
commenced by mailing a notice to the Trustee and each Holder stating:
(1) the provision of the Indenture pursuant to which the offer is being made and that
all Notes validly tendered will be accepted for payment on a pro rata basis;
17
(2) the purchase price and the date of purchase, which shall be a Business Day no
earlier than 30 days nor later than 60 days from the date such notice is mailed (the
Payment Date);
(3) that any Note not tendered will continue to accrue interest pursuant to its terms;
(4) that, unless the Company defaults in the payment of the purchase price, any Note
accepted for payment pursuant to the Offer to Purchase shall cease to accrue interest on and
after the Payment Date;
(5) that Holders electing to have a Note purchased pursuant to the Offer to Purchase
will be required to surrender the Note, together with the form entitled Option of the
Holder to Elect Purchase on the reverse side of the Note completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the Business Day
immediately preceding the Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the third Business Day immediately
preceding the Payment Date, a telegram, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Notes delivered for purchase and a statement
that such Holder is withdrawing his election to have such Notes purchased; and
(7) 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;
provided that each Note purchased and each new Note issued shall be in a principal
amount of $2,000 or integral multiples of $1,000 in excess thereof.
On the Payment Date, the Company shall (a) accept for payment on a pro rata basis Notes or
portions thereof tendered pursuant to an Offer to Purchase; (b) deposit with the Paying Agent money
sufficient to pay the purchase price of all Notes or portions thereof so accepted; and (c) deliver,
or cause to be delivered, to the Trustee all Notes or portions thereof so accepted together with an
Officers Certificate specifying the Notes or portions thereof accepted for payment by the Company.
The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount
equal to the purchase price, and the Trustee shall promptly authenticate and mail to such Holders a
new Note equal in principal amount to any unpurchased portion of the Note surrendered;
provided that each Note purchased and each new Note issued shall be in a principal amount
of $2,000 or integral multiples of $1,000 in excess thereof. The Company will publicly announce
the results of an Offer to Purchase as soon as practicable after the Payment Date. The Trustee
shall act as the Paying Agent for an Offer to Purchase. The Company will comply with 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 the event that the Company is required to repurchase Notes
pursuant to an Offer to Purchase. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of the Indenture relating to an Offer to Purchase, the
Company will comply with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under such provisions of this Indenture by virtue of such conflict.
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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, any Assistant Secretary, any
Senior Vice-President, any Vice-President or any Assistant Vice President of such Person.
Officers Certificate means a certificate signed on behalf of the Company by at
least two Officers of the Company, one of whom must be the principal executive officer, the
principal financial officer, the treasurer or the principal accounting officer of the Company, that
meets the requirements of Section 13.05 hereof.
Opinion of Counsel means an opinion from legal counsel who is reasonably acceptable
to the Trustee, that meets the requirements of Section 13.05 hereof. The counsel may be an
employee of or counsel to the Company or any Subsidiary of the Company.
Participant means, with respect to the Depositary, Euroclear or Clearstream, a
Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with
respect to DTC, shall include Euroclear and Clearstream).
Permitted Additional Restricted Payment means Restricted Payments made by
the Company in an amount not to exceed $75.0 million during any Fiscal Year; provided,
to the extent that the amount of Permitted Additional Restricted Payments made by the Company
during any Fiscal Year is less than the aggregate amount permitted (including after giving effect
to this proviso) for such Fiscal Year, then such unutilized amount may be carried forward and
utilized by the Company to make Permitted Additional Restricted Payments in any succeeding Fiscal
Year or Years; provided further that, for each Fiscal Year, the amount shall be
increased by an additional $120.0 million so long as both before and after giving effect to such
Restricted Payment, the Leverage Ratio is less than 3.75:1.00.
Permitted Business means the business of the Company and its Subsidiaries engaged in
on the Closing Date and any other activities that are reasonably related, supportive,
complementary, ancillary or incidental thereto or reasonable extensions thereof.
Permitted Factoring Program means any and all agreements or facilities entered into
by the Company or any of its Subsidiaries for the purpose of factoring its receivables or payables
for cash consideration.
Permitted Investment means:
(1) an Investment in the Company or any Restricted Subsidiary or a Person which will,
upon the making of such Investment, become a Restricted Subsidiary (including, if as a
result of such Investment, such Person is merged or consolidated with or into or transfers
or conveys all or substantially all its assets to the Company or any Restricted Subsidiary);
(2) Temporary Cash Investments;
(3) payroll, travel and similar advances to cover matters that are expected at the time
of such advances ultimately to be treated as expenses in accordance with GAAP;
19
(4) stock, obligations or securities received in satisfaction of judgments;
(5) an Investment in an Unrestricted Subsidiary consisting solely of an Investment in
another Unrestricted Subsidiary;
(6) Commodity Agreements, Interest Rate Agreements and Currency Agreements intended to
protect the Company or its Restricted Subsidiaries against fluctuations in commodity prices,
interest rates or foreign currency exchange rates or manage interest rate risk;
(7) loans and advances to employees and officers of the Company and its Restricted
Subsidiaries made in the ordinary course of business for bona fide business purposes not to
exceed $12.0 million in the aggregate at any one time outstanding;
(8) Investments in securities of trade creditors or customers received
(a) pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers, or
(b) in settlement of delinquent obligations of, and other disputes with,
customers, suppliers and others, in each case arising in the ordinary course of
business or otherwise in satisfaction of a judgment;
(9) Investments made by the Company or its Restricted Subsidiaries consisting of
consideration received in connection with an Asset Sale made in compliance with Section
4.10; or
(10) Investments of a Person or any of its Subsidiaries existing at the time such
Person becomes a Restricted Subsidiary of the Company or at the time such Person merges or
consolidates with the Company or any of its Restricted Subsidiaries, in either case, in
compliance with the Indenture; provided that such Investments were not made by such
Person in connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company or such merger or consolidation;
(11) Investments in a Receivables Subsidiary or any Investment by a Receivables
Subsidiary in any other Person under a Permitted Securitization or a Permitted Factoring
Program; provided that any Investment in a Receivables Subsidiary is in the form of
a Purchase Money Note, contribution of additional receivables and related assets or any
equity interests;
(12) Investments to the extent made in exchange for the Issuance of Capital Stock
(other than Disqualified Stock) of the Company;
(13) any Investment made within 90 days after the date of the commitment to make the
Investment, that when such commitment was made, would have complied with the terms of the
Indenture;
(14) repurchases of the Notes or any other outstanding senior indebtedness;
20
\
(15) other Investments made since the Closing Date that do not exceed, at any one time
outstanding, $100.0 million;
(16) Investments in any Person engaged primarily in one or more Permitted Businesses
and supporting ongoing business operations of the Company or its Restricted Subsidiaries
(including, without limitation, Unrestricted Subsidiaries, and Persons that are not
Subsidiaries of the Company) that do not exceed, at any one time outstanding, $100.0
million;
(17) any Investments existing on the Closing Date and any amendment, modification,
restatement, extension, renewal, refunding, replacement or refinancing, in whole or in part,
thereof; provided that the principal amount of any Investment following any such amendment,
modification, restatement, extension, renewal, refunding, replacement or refinancing
pursuant to this clause (17) shall not exceed the principal amount of such Investment on the
Closing Date;
(18) any Investment by any Foreign Subsidiary in (a) any other Foreign Subsidiary or
(b) any Person, if as a result of such Investment (x) such Person becomes a Foreign
Subsidiary or (y) such Person is merged or consolidated with or into or transfers or conveys
all or substantially all of its assets to a Foreign Subsidiary; and
(19) any guarantees of Indebtedness permitted to be incurred by the Section 4.09.
Permitted Liens means:
(1) Liens in connection with a Permitted Securitization or a Permitted Factoring
Program;
(2) Liens existing as of the Closing Date and securing Indebtedness existing as of the
Closing Date and any refinancings, refundings, reallocations, renewals or extensions of such
Indebtedness; provided that, no such Lien shall encumber any additional property
(except for accessions to such property and the products and proceeds thereof) and the
amount of Indebtedness secured by such Lien is not increased from that existing on the
Closing Date;
(3) Liens securing Indebtedness of the type permitted by clause (7) of Section 4.09
that, (i) such Lien is granted within 365 days after such Indebtedness is incurred, (ii) the
Indebtedness secured thereby does not exceed the lesser of the cost or the fair market value
of the applicable property, improvements or equipment at the time of such acquisition (or
construction) and (iii) such Lien secures only the assets that are the subject of the
Indebtedness referred to in such clause;
(4) Liens securing Indebtedness permitted by under clause (9) of Section 4.09;
provided that, such Liens existed prior to such Person becoming a Restricted
Subsidiary, were not created in anticipation thereof and do not extend to any assets other
than those of the Person that becomes a Restricted Subsidiary;
21
(5) Liens in favor of carriers, warehousemen, mechanics, repairmen, materialmen,
customs and revenue authorities and landlords and other similar statutory Liens and Liens in
favor of suppliers (including sellers of goods pursuant to customary reservations or
retention of title, in each case) granted in the ordinary course of business for amounts not
overdue for a period of more than 60 days or are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books or with respect to which the failure to make payment could not
reasonably be expected to have a Material Adverse Effect;
(6) Liens incurred or deposits made in the ordinary course of business in connection
with workers compensation, unemployment insurance or other
forms of governmental insurance or
benefits, or to secure performance of tenders, statutory obligations, bids, leases, trade
contracts or other similar obligations (other than for borrowed money) entered into in the
ordinary course of business or to secure obligations on surety and appeal bonds or
performance bonds performance and completion guarantee and other obligations of a like
nature (including those to secure health, safety and environmental obligations) incurred in
the ordinary course of business; and (ii) obligations in respect of letters of credit or
bank guarantees that have been posted to support payment of the items set forth in the
immediately preceding clause (i);
(7) judgment Liens that are being appealed in good faith or with respect to which
execution has been stayed or the payment of which is covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance companies and which do not
otherwise result in an Event of Default;
(8) easements, rights-of-way covenants, conditions, building codes, restrictions,
reservations, minor defects or irregularities in title and other similar encumbrances and
matters that would be disavowed by a full survey of real property not interfering in any
material respect with the value or use of the affected or encumbered real property to which
such Lien is attached;
(9) Liens securing Indebtedness permitted by clause (8) of Section 4.09;
(10) Liens arising solely by virtue of any statutory or common law provision relating
to bankers liens, rights of set-off or similar rights and remedies as to deposit accounts
or other funds maintained with a creditor depository institution and Liens attaching to
commodity trading accounts or other commodities brokerage accounts incurred in the ordinary
course of business;
(11) (i) licenses, sublicenses, leases or subleases granted to third Persons in the
ordinary course of business not interfering in any material respect with the business of the
Company or any of its Restricted Subsidiaries, (ii) other agreements with respect to the use
and occupancy of real property entered into in the ordinary course of business or in
connection with an Asset Sale permitted by Section 4.10 or (iii) the rights reserved or
vested in any Person by the terms of any lease, license, franchise, grant or permit held by
the Company or any of its Restricted Subsidiaries or by a statutory provision, to terminate
22
any such lease, license, franchise, grant or permit, or to require annual or periodic
payments as a condition to the continuance thereof;
(12) Liens on the property of the Company or any of its Restricted Subsidiaries
securing (i) the non-delinquent performance of bids, trade contracts (other than for
borrowed money), leases, licenses and statutory obligations, (ii) Contingent Liabilities on
surety and appeal bonds, and (iii) other non-delinquent obligations of a like nature; in
each case, incurred in the ordinary course of business;
(13) Liens on Receivables transferred to a Receivables Subsidiary under a Permitted
Securitization or a Permitted Factoring Program;
(14) Liens upon specific items or inventory or other goods and proceeds of the Company
or any of its Restricted Subsidiaries securing such Persons obligations in respect of
bankers acceptances or documentary letters of credit issued or created for the account of
such Person to facilitate the shipment or storage of such inventory or other goods;
(15) Liens (i) (A) on advances of cash or Cash Equivalents in favor of the seller of
any property to be acquired as a Permitted Investment to be applied against the purchase
price for such Permitted Investment and (B) consisting of an agreement involving an Asset
Sale permitted by Section 4.10, in each case under this clause (i), solely to the extent
such Permitted Investment or Asset Sale, as the case may be, would have been permitted on
the date of the creation of such Lien and (ii) on earnest money deposits of cash or Cash
Equivalents made by the Company or any of its Restricted Subsidiaries in connection with any
letter of intent or purchase agreement permitted hereunder;
(16) Liens arising from precautionary Uniform Commercial Code financing statement
filings (or similar filings under other applicable Law);
(17) Liens (i) arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods (including under Article 2 of the UCC) and Liens that are
contractual rights of set-off relating to purchase orders and other similar agreements
entered into by the Company or any of its Restricted Subsidiaries and (ii) relating to the
establishment of depository relations with banks not given in connection with the issuance
of Indebtedness and (iii) relating to pooled deposit or sweep accounts of the Company or any
Restricted Subsidiary to permit satisfaction of overdraft or similar obligations in each
case in the ordinary course of business and not prohibited by this Agreement;
(18) ground leases in respect of real property on which facilities owned or leased by
the Company or any of its Restricted Subsidiaries are located or any Liens senior to any
lease, sub-lease or other agreement under which the Company or any of its Restricted
Subsidiaries uses or occupies any real property;
(19) Liens constituting security given to a public or private utility or any
Governmental Authority as required in the ordinary course of business;
23
(20) pledges or deposits of cash and Cash Equivalents securing deductibles,
self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of
insurance in the ordinary course of business;
(21) Liens on (A) incurred premiums, dividends and rebates which may become payable
under insurance policies and loss payments which reduce the incurred premiums on such
insurance policies and (B) rights which may arise under State insurance guarantee funds
relating to any such insurance policy, in each case securing Indebtedness permitted to be
incurred pursuant to clause (12)(i) of Section 4.09;
(22) Liens for taxes not at the time delinquent or thereafter payable without penalty
or being diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its books or with
respect to which the failure to make payment could not reasonably be expected to have a
Material Adverse Effect; and
(23) Liens in respect of Hedging Obligations.
Permitted Securitization means any sale, transfer or other disposition by the
Company or any of its Restricted Subsidiaries of Receivables and related collateral, credit support
and similar rights and any other assets that are customarily transferred in a securitization of
receivables, pursuant to one or more securitization programs, to a Receivables Subsidiary or a
Person who is not an Affiliate of the Company; provided that (i) the consideration to be
received by the Company and its Restricted Subsidiaries other than a Receivables Subsidiary for any
such disposition consists of cash, a promissory note or a customary contingent right to receive
cash in the nature of a hold-back or similar contingent right, (ii) no Default shall have
occurred and be continuing or would result therefrom, and (iii) the aggregate outstanding balance
of the Indebtedness in respect of all such programs at any point in time is not in excess of $500.0
million.
Person means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.
Private Placement Legend means the legend set forth in Section 2.07(g)(1) hereof to
be placed on all Notes issued under the Indenture except where otherwise permitted by the
provisions of the Indenture.
Purchase Money Note means a promissory note evidencing a line of credit, or
evidencing other Indebtedness owed to the Company or any Restricted Subsidiary in connection with a
Permitted Securitization or a Permitted Factoring Program, which note shall be repaid from cash
available to the maker of such note, other than amounts required to be established as reserves,
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 accounts receivable.
Qualified Institutional Buyer or QIB has the meaning specified in
Rule 144A.
24
Receivable shall mean a right to receive payment arising from a sale or lease of
goods or the performance of services by a Person pursuant to an arrangement with another Person
pursuant to which such other Person is obligated to pay for goods or services under terms that
permit the purchase of such goods and services on credit and shall include, in any event, any items
of property that would be classified as an account, chattel paper, payment intangible or
instrument under the UCC and any supporting obligations.
Receivables Subsidiary shall mean any Wholly Owned Restricted Subsidiary of the
Company (or another Person in which the Company or any Restricted Subsidiary makes an Investment
and to which the Company or one or more of its Restricted Subsidiaries transfer Receivables and
related assets) which engages in no activities other than in connection with the financing of
Receivables and which is designated by the Board of Directors of the applicable Restricted
Subsidiary (as provided below) as a Receivables Subsidiary and which meets the following
conditions:
(a) no portion of the Indebtedness or any other obligations (contingent or otherwise)
of which:
(i) is guaranteed by the Company or any Restricted Subsidiary (that is not a
Receivables Subsidiary);
(ii) is recourse to or obligates the Company or any Restricted Subsidiary (that
is not a Receivables Subsidiary); or
(iii) subjects any property or assets of the Company or any Restricted
Subsidiary (that is not a Receivables Subsidiary), directly or indirectly,
contingently or otherwise, to the satisfaction thereof;
(b) with which neither the Company nor any Restricted Subsidiary (that is not a
Receivables Subsidiary) has any material contract, agreement, arrangement or understanding
(other than Standard Securitization Undertakings); and
(c) to which neither the Company nor any Restricted Subsidiary (that is not a
Receivables Subsidiary) has any obligation to maintain or preserve such entitys financial
condition or cause such entity to achieve certain levels of operating results.
Any such designation by the Board of Directors of the applicable Restricted Subsidiary shall be
evidenced by a certified copy of the resolution of the Board of Directors of such Restricted
Subsidiary giving effect to such designation and an officers certificate certifying, to the best
of such officers knowledge and belief, that such designation complies with the foregoing
conditions.
Registration Rights Agreement means the Registration Rights Agreement,
dated as of November 9, 2010, among the Company and the other parties named on the signature pages
thereof, as such agreement may be amended, modified or supplemented from time to time and, with
respect to any Additional Notes, one or more registration rights agreements among the Company and
the other parties thereto, as such agreement(s) may be
25
amended, modified or supplemented from time to time, in each case relating to rights given by
the Company to the purchasers of Notes to register such Notes under the Securities Act.
Regulation S means Regulation S promulgated under the Securities Act.
Regulation S Global Note means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued
in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule
903 of Regulation S.
Replacement Assets means, on any date, property or assets (other than current
assets) of a nature or type or that are used or useful in a Permitted Business (or an Investment in
a Permitted Business).
Responsible Officer, when used with respect to the Trustee, means any officer within
the Corporate Trust Administration 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 and who shall have direct responsibility for the administration of the
Indenture.
Restricted Definitive Note means a Definitive Note bearing the Private Placement
Legend.
Restricted Global Note means a Global Note bearing the Private Placement Legend.
Restricted Period means the 40-day distribution compliance period as defined in
Regulation S.
Restricted Subsidiary means any Subsidiary of the Company other than an Unrestricted
Subsidiary.
Rule 144 means Rule 144 under the Securities Act (including any successor rule
thereto), as the same may be amended from time to time.
Rule 144A means Rule 144A under the Securities Act (including any successor rule
thereto), as the same may be amended from time to time.
Rule 903 means Rule 903 under the Securities Act (including any successor rule
thereto), as the same may be amended from time to time.
Rule 904 means Rule 904 under the Securities Act (including any successor rule
thereto), as the same may be amended from time to time.
S&P means Standard & Poors Ratings Group, a division of The McGraw-Hill Companies,
and its successors.
26
Sale Leaseback Transaction means a transaction whereby a Person sells or otherwise
transfers assets or properties and then or thereafter leases such assets or properties or any part
thereof or any other assets or properties which such Person intends to use for substantially the
same purpose or purposes as the assets or properties sold or otherwise transferred.
SEC means the United States Securities and Exchange Commission or any successor
agency.
Secured Leverage Ratio means, as of any date of determination, the ratio of
(a) Total Secured Debt of the Company outstanding on the last day of the most recently ended
fiscal quarter for which reports have been filed with the SEC or provided to the Trustee to
(b) Consolidated EBITDA of the Company computed for the then most recent four fiscal quarters
prior to such date for which reports have been filed with the SEC or provided to the Trustee (with
Consolidated EBITDA calculated on a pro forma basis giving effect to all adjustments contemplated
by the definition of Fixed Charge Coverage Ratio).
Securities Act means the Securities Act of 1933, as amended.
Significant Subsidiary means, any Subsidiary that would be a significant
subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act, as such regulation is in effect on the Closing Date.
Special Interest means all additional interest then owing pursuant to the
Registration Rights Agreement.
Standard Securitization Undertakings shall mean representations, warranties,
covenants and indemnities entered into by the Company or any Restricted Subsidiary which are
reasonably customary in a securitization of Receivables.
Stated Maturity means, (1) with respect to any debt security, the date specified in
such debt security as the fixed date on which the final installment of principal of such debt
security is due and payable and (2) with respect to any scheduled installment of principal of or
interest on any debt security, the date specified in such debt security as the fixed date on which
such installment is due and payable.
Subsidiary means, with respect to any Person, any corporation, association or other
business entity of which more than 50% of the voting power of the outstanding Voting Stock is
owned, directly or indirectly, by such Person and one or more other Subsidiaries of such Person.
Subsidiary Guarantor means any Subsidiary of the Company that is a Guarantor of the
Notes, including any Restricted Subsidiary of the Company which provides a Note Guarantee of the
Companys obligations under the Indenture and the Notes pursuant to Section 4.18.
Temporary Cash Investment means any of the following:
27
(a) any direct obligation of (or unconditionally guaranteed by) the United States or a State
thereof (or any agency or political subdivision thereof, to the extent such obligations are
supported by the full faith and credit of the United States or a State thereof) maturing not more
than one year after such time;
(b) commercial paper maturing not more than 270 days from the date of issue, which is issued
by (i) a corporation (other than an Affiliate of the Company or any Subsidiary of the Company)
organized under the laws of any State of the United States or of the District of Columbia and rated
A-1 or higher by S&P or P-1 or higher by Moodys;
(c) any certificate of deposit, time deposit or bankers acceptance, maturing not more than one
year after its date of issuance, which is issued by any bank organized under the laws of the United
States (or any State thereof) and which has (A) a credit rating of A2 or higher from Moodys or A
or higher from S&P and (B) a combined capital and surplus greater than $500.0 million;
(d) any repurchase agreement having a term of 30 days or less entered into with any commercial
banking institution satisfying the criteria set forth in clause (c) which (i) is secured by a fully
perfected security interest in any obligation of the type described in clause (a), and (ii) has a
market value at the time such repurchase agreement is entered into of not less than 100% of the
repurchase obligation of such commercial banking institution thereunder;
(e) with respect to any Foreign Subsidiary, non-Dollar denominated (i) certificates of deposit
of, bankers acceptances of, or time deposits with, any commercial bank which is organized and
existing under the laws of the country in which such Person maintains its chief executive office or
principal place of business or is organized provided such country is a member of the Organization
for Economic Cooperation and Development, and which has a short-term commercial paper rating from
S&P of at least A-1 or the equivalent thereof or from Moodys of at least P-1 or the equivalent
thereof (any such bank being an Approved Foreign Bank) and maturing within one year of the date
of acquisition and (ii) equivalents of demand deposit accounts which are maintained with an
Approved Foreign Bank; or
(f) readily marketable obligations issued or directly and fully guaranteed or insured by the
government or any agency or instrumentality of any member nation of the European Union whose legal
tender is the Euro and which are denominated in Euros or any other foreign currency comparable in
credit quality and tenor to those referred to above and customarily used by corporations for cash
management purposes in any jurisdiction outside the United States to the extent reasonably required
in connection with any business conducted by any Foreign Subsidiary organized in such jurisdiction,
having (i) one of the three highest ratings from either Moodys or S&P and (ii) maturities of not
more than one year from the date of acquisition thereof; provided that the full faith and
credit of any such member nation of the European Union is pledged in support thereof.
TIA means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect
on the date on which this Supplemental Indenture is qualified thereunder, as may be amended from
time to time.
28
Total Assets means, as of any date, the total consolidated assets of the Company and
its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, as shown
on the most recent balance sheet of the Company filed with the SEC or delivered to the Trustee.
Total Debt means, on any date and with respect to any Person, the outstanding
principal amount of all:
(1) obligations of such Person and its Restricted Subsidiaries for borrowed money or advances
and all obligations of such Person evidenced by bonds, debentures, notes or similar instruments;
(2) monetary obligations, contingent or otherwise, relative to the face amount of all letters
of credit, whether or not drawn, and bankers acceptances issued for the account of such Person and
its Restricted Subsidiaries; and
(3) all Capitalized Lease Obligations of such Person and its Restricted Subsidiaries; minus
(4) an amount equal to the unrestricted cash and Temporary Cash Investments of such Person and
its Restricted Subsidiaries,
in each case exclusive of intercompany Indebtedness between such Person and its Restricted
Subsidiaries and any Contingent Liability in respect of any of the foregoing and calculated in
accordance with GAAP on a consolidated basis.
Total Secured Debt means, on any date and with respect to any Person, the Total Debt
of such Person as of that date that is secured by a Lien, calculated in accordance with GAAP on a
consolidated basis.
Trade Payables means, with respect to any Person, any accounts payable or any other
indebtedness or monetary obligation to trade creditors created, assumed or Guaranteed by such
Person or any of its Subsidiaries arising in the ordinary course of business in connection with the
acquisition of goods or services.
Transaction Date means, with respect to the Incurrence of any Indebtedness, the date
such Indebtedness is to be Incurred and, with respect to any Restricted Payment, the date such
Restricted Payment is to be made.
Transactions means, collectively, (i) the issuance of the Notes, (ii) the repayment
of borrowings under certain credit facilities of the Company concurrent with the closing of the
offering of the Notes, and (iii) the payment of fees and expenses in connection and in accordance
with the foregoing.
Trustee means the party named as such in the preamble to this Supplemental Indenture
until a successor replaces it in accordance with the applicable provisions of the Indenture and
thereafter means the successor serving hereunder.
29
Treasury Rate means, as of any redemption date, the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519) which has become
publicly available at least two Business Days prior to the redemption date (or, if such Statistical
Release is no longer published, any publicly available source of similar market data)) most nearly
equal to the period from the redemption date to December 15, 2015; provided, however, that
if the period from the redemption date to December 15, 2015 is not equal to the constant maturity
of a United States Treasury security for which a weekly average yield is given, the Treasury Rate
shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from
the weekly average yields of United States Treasury securities for which such yields are given,
except that if the period from the redemption date to December 15, 2015 is less than one year, the
weekly average yield on actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used. The Company will (a) calculate the Treasury Rate as of the
second Business Day preceding the applicable redemption date and (b) prior to such redemption date
file with the Trustee an Officers Certificate setting forth the Applicable Premium and the
Treasury Rate and showing the calculation of each in reasonable detail.
Unrestricted Definitive Note means a Definitive Note that does not bear and is not
required to bear the Private Placement Legend.
Unrestricted Global Note means a Global Note that does not bear and is not required
to bear the Private Placement Legend.
Unrestricted Subsidiary means (1) any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted Subsidiary by the Board of Directors in the
manner provided below and (2) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors
may designate any Restricted Subsidiary (including any newly acquired or newly formed Subsidiary of
the Company) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or
owns or holds any Lien on any property of, the Company or any Restricted Subsidiary;
provided that (A) any Guarantee by the Company or any Restricted Subsidiary of any
Indebtedness of the Subsidiary being so designated shall be deemed an Incurrence of such
Indebtedness and an Investment by the Company or such Restricted Subsidiary (or both, if
applicable) at the time of such designation; (B) either (I) the Subsidiary to be so designated has
total assets of $2.0 million or less or (II) if such Subsidiary has assets greater than $2.0
million such designation would be permitted under Section 4.07 and (C) if applicable, the
Incurrence of Indebtedness and the Investment referred to in clause (A) of this proviso would be
permitted under Section 4.07 and Section 4.09. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that (a) no Default or
Event of Default shall have occurred and be continuing at the time of or after giving effect to
such designation and (b) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding
immediately after such designation would, if Incurred at such time, have been permitted to be
Incurred (and shall be deemed to have been Incurred) for all purposes of the Indenture. Any such
designation by the Board of Directors shall be evidenced to the Trustee by promptly filing with the
Trustee a copy of the resolution of the Board of Directors giving effect to such designation and an
Officers Certificate certifying that such designation complied with the foregoing provisions.
30
U.S. Government Obligations means securities that are (1) direct obligations of the
United States of America for the payment of which its full faith and credit is pledged or (2)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are not callable or
redeemable at the option of the Company thereof at any time prior to the Stated Maturity of the
Notes, and shall also include a depository receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S. Government Obligation or
the specific payment of interest on or principal of the U.S. Government Obligation evidenced by
such depository receipt.
Voting Stock means with respect to any Person, Capital Stock of any class or kind
ordinarily having the power to vote for the election of directors, managers or other voting members
of the governing body of such Person.
Wholly Owned of any specified Person as of any date means the Capital Stock of such
Person (other than directors and foreign nationals qualifying shares) that is at the time
entitled to vote in the election of the Board of Directors of such Person is owned by the referent
Person.
SECTION 1.02 Other Definitions.
|
|
|
|
|
Defined in |
Term |
|
Section |
Additional Notes |
|
Preamble |
Authentication Order |
|
2.02 |
Change of Control Offer |
|
4.15 |
Change of Control Payment |
|
4.15 |
Change of Control Payment Date |
|
4.15 |
Covenant Defeasance |
|
8.03 |
Event of Default |
|
6.01 |
Excess Proceeds |
|
4.10 |
Initial Notes |
|
Preamble |
Legal Defeasance |
|
8.02 |
Paying Agent |
|
2.05 |
Redemption Date |
|
3.07 |
Registrar |
|
2.05 |
Restricted Payments |
|
4.07 |
SECTION 1.03 Incorporation by Reference of Trust Indenture Act. Whenever this Supplemental
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made
a part of this Supplemental Indenture.
31
The following TIA terms used in this Supplemental Indenture have the following meanings:
indenture securities means the Notes;
indenture security Holder means a Holder of a Note;
indenture to be qualified means the Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the Notes and the Note Guarantees means the Company and the Subsidiary
Guarantors, respectively, and any successor obligor upon the Notes and the Note Guarantees,
respectively.
All other terms used in the Indenture that are defined by the TIA, defined by TIA reference to
another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
SECTION 1.04 Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(3) or is not exclusive;
(4) words in the singular include the plural, and in the plural include the singular;
(5) will shall be interpreted to express a command;
(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act will be deemed to
include substitute, replacement of successor sections or rules adopted by the SEC from time
to time.
SECTION 1.05 Conflicts with Base Indenture. In the event that any provision of this
Supplemental Indenture limits, qualifies or conflicts with a provision of the Base Indenture, such
provision of this Supplemental Indenture shall control with respect to the Notes and the Note
Guarantees (but not with respect to any other Securities issued under the Base Indenture).
ARTICLE 2
THE NOTES
SECTION 2.01 Form and Dating. There is hereby created and designated a series of
Securities under the Base Indenture: the title of the Notes shall be 6.375% Senior Notes Due
32
2020. The changes, modifications and supplements to the Base Indenture effected by this
Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Notes
and shall not apply to any other series of Securities that may be issued under the Base Indenture
unless a supplemental indenture with respect to such other series of Securities specifically
incorporates such changes, modifications and supplements.
The Stated Maturity of the Notes shall be December 15, 2020. The Notes shall be payable and
may be presented for payment, redemption, registration of transfer and exchange, without service
charge, at the Corporate Trust Office.
The Notes shall bear interest at the rate of 6.375% per annum from and including the Closing
Date, or from the most recent date to which interest has been paid or duly provided for, as further
provided in the form of Note annexed hereto as Exhibit A. Interest shall be computed on the basis
of a 360-day year composed of twelve 30-day months. The dates on which such interest shall be
payable (each, an Interest Payment Date) shall be June 15 and December 15 of each year, beginning
on June 15, 2011, and the record date for any interest payable on each such Interest Payment Date
shall be the close of business on the immediately preceding June 1 and December 1, respectively,
whether or not a Business Day.
Notes issued in global form will be substantially in the form of Exhibit A hereto
(including the Global Note Legend thereon and the Schedule of Exchanges of Interests in the Global
Note attached thereto). Notes issued in definitive form will be substantially in the form of
Exhibit A hereto (but without the Global Note Legend thereon and without the Schedule of Exchanges
of Interests in the Global Note attached thereto). Each Global Note will represent such of the
outstanding Notes as will be specified therein and each shall provide that it represents 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 will be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.07 hereof.
The terms and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Supplemental Indenture and the Company, the Subsidiary Guarantors and the
Trustee, by their execution and delivery of this Supplemental 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 the Indenture, the provisions of the Indenture shall
govern and be controlling.
SECTION 2.02 Execution and Authentication. At least two Officers must 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 will nevertheless be valid.
33
A Note will not be valid until authenticated by the manual signature of the Trustee. The
signature will be conclusive evidence that the Note has been authenticated under this Supplemental
Indenture.
The
Trustee will, upon receipt of a written order of the Company signed
by one Officer (an
Authentication Order), authenticate Notes for original issue up to the aggregate
principal amount stated on the face of the Notes.
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 Supplemental 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.
The Company may, from time to time, subject to compliance with all other applicable provisions
of the Indenture, without notice to or consent of the Holders of the Notes, create and issue
pursuant to the Indenture Additional Notes having terms and conditions identical to the Notes
issued on the date hereof, except that Additional Notes may:
(1) have a different issue date than other outstanding Notes;
(2) have a different issue price than other outstanding Notes; and
(3) have a different amount of interest payable on the first Interest Payment Date
after issuance than is payable on other outstanding Notes;
provided, no Additional Notes shall be issued unless such Additional Notes will be fungible
for U.S. federal income tax and securities law purposes with Notes issued on the Closing Date; and
provided further, the Additional Notes have the same CUSIP number as the Notes issued on
the date hereof. No Additional Notes may be issued if on the issue date therefor, any Event of
Default has occurred and is continuing.
The Initial Notes and any Additional Notes shall be treated as a single class for all purposes
under the Indenture, including waivers, amendments and United States federal tax purposes.
With respect to any issuance of Additional Notes, the Company shall deliver to the Trustee a
resolution of the Board of Directors or, if applicable, a certificate signed by a Designated
Officer (as defined in the applicable resolutions of the Board of Directors of the Company) and an
Officers Certificate in respect of such Additional Notes, which shall together provide the
following information:
(1) the aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to the Indenture; and
(2) the issue date, issue price, amount of interest accrued and payable on the first
Interest Payment Date, the first Interest Payment Date and the CUSIP number of such
Additional Notes.
34
SECTION 2.03 Outstanding Notes. The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by the Trustee in
accordance with the provisions hereof, and those described in this Section 2.03 or Sections 8.02 or
8.03 hereof or Article II of the Base Indenture as not outstanding. Except as set forth in
Sections 2.9 and 2.10 of the Base Indenture, a Note does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Note; however, Notes held by the Company or a
Subsidiary of the Company shall not be deemed to be outstanding for purposes of Section 3.07(a)
hereof.
If a Note is replaced pursuant to Section 2.8 of the Base Indenture, it ceases to be
outstanding.
If the principal amount of any Note is considered paid under Section 4.01 hereof, 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 will be deemed to be no longer outstanding and will cease to
accrue interest.
SECTION 2.04 Defaulted Interest. If the Company defaults in a payment of interest on the
Notes, it will 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 hereof. The Company will
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 will fix or cause to be fixed each such special
record date and payment date, provided that no such special record date may 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) will 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.
SECTION 2.05 Registrar and Paying Agent. The Company will 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 will 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 will 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.
35
The Company initially appoints DTC or its nominee to act as Depositary with respect to the
Global Securities.
The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act
as Custodian with respect to the Global Securities.
SECTION 2.06 Paying Agent to Hold Money In Trust. The Company will 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 Special Interest, 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 will have no further liability for the money.
SECTION 2.07 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a
whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged
by the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 90 days after the date of such notice from the Depositary;
(2) the Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee; or
(3) there has occurred and is continuing an Event of Default with respect to the Notes.
Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive Notes shall
be issued in such names as the Depositary shall instruct the Trustee. Such Definitive Notes will
be issued in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof and
will be in registered form only, without coupons. Global Notes also may be exchanged or replaced,
in whole or in part, as provided in the Base Indenture. Every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.07 or
the Base Indenture, shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided in this Section
2.07(a), however, beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.07(b), (c) or (f) hereof.
36
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Supplemental Indenture and the Applicable Procedures. None
of the Company, Trustee, Paying Agent, nor any agent of the Company shall have any responsibility
or liability for any aspect of the records relating to or payment made on account of beneficial
ownership interests in a Global Note, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests. Beneficial interests in the Restricted Global
Notes will be subject to restrictions on transfer comparable to those set forth herein to the
extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also
will require compliance with either subparagraph (1) or (2) below, as applicable, as well as one or
more of the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a
U.S. Person. Beneficial interests in any Unrestricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note. No written orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section 2.07(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.07(b)(1) above, the transferor of such beneficial interest must deliver to the
Registrar either:
(A) both:
(i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged; and
(ii) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase; or
(B) both:
(i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures
37
directing the Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be transferred or exchanged; and
(ii) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above.
Upon consummation of an Exchange Offer by the Company in accordance with Section 2.07(f) hereof,
the requirements of this Section 2.07(b)(2) shall be deemed to have been satisfied upon receipt by
the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of
such beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes contained in this
Supplemental Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.07(h)
hereof.
(3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.07(b)(2) above and the Registrar
receives the following:
(A) if the transferee will take delivery in the form of a beneficial interest
in the 144A Global Note, then the transferor must deliver a certificate in the form
of Exhibit D hereto, including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a beneficial interest
in the Regulation S Global Note, then the transferor must deliver a certificate in
the form of Exhibit D hereto, including the certifications in item (2) thereof.
(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.07(b)(2) above and:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it is not
(i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;
38
(B) such transfer is effected by a Broker-Dealer pursuant to the Exchange
Registration Statement in accordance with the Registration Rights Agreement; or
(C) the Registrar receives the following:
(i) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the form
of Exhibit E hereto, including the certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of
Exhibit D hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (C), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (C) above at a time when an Unrestricted
Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount
of beneficial interests transferred pursuant to subparagraph (C) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global
Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If
any holder of a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive Note, a
39
certificate from such holder in the form of Exhibit E hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in accordance
with Rule 144A, a certificate to the effect set forth in Exhibit D hereto, including
the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit D hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit D hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred in reliance on an
exemption from the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the effect set forth
in Exhibit D hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit D hereto,
including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect set
forth in Exhibit D hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.07(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.07(c) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.07(c)(1) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes.
A holder of a beneficial interest in a Restricted Global Note may exchange such
40
beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive
Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes
or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected by a Broker-Dealer pursuant to the Exchange
Registration Statement in accordance with the Registration Rights Agreement; or
(C) the Registrar receives the following:
(i) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in the form of Exhibit E
hereto, including the certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit D hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (C), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(3) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.
If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction
of the conditions set forth in Section 2.07(b)(2) hereof, the Trustee will cause the
aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.07(h) hereof, and the Company will execute and the Trustee will authenticate
and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.07(c)(3) will be registered in
41
such name or names and in such authorized denomination or denominations as the holder
of such beneficial interest requests through instructions to the Registrar from or through
the Depositary and the Participant or Indirect Participant. The Trustee will deliver such
Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this Section 2.07(c)(3) will
not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If
any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to exchange such
Note for a beneficial interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit E hereto, including the certifications in item (2)(b)
thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in Exhibit D
hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit D hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance
with Rule 144, a certificate to the effect set forth in Exhibit D hereto, including
the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred in reliance on an
exemption from the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the effect set forth
in Exhibit D hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred to the Company or
any of its Subsidiaries, a certificate to the effect set forth in Exhibit D hereto,
including the certifications in item (3)(b) thereof; or
42
(G) if such Restricted Definitive Note is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate to the
effect set forth in Exhibit D hereto, including the certifications in item (3)(c)
thereof,
the Trustee will cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global
Note, and in the case of clause (C) above, the Regulation S Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in
an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected by a Broker-Dealer pursuant to the Exchange
Registration Statement in accordance with the Registration Rights Agreement; or
(C) the Registrar receives the following:
(i) if the Holder of such Definitive Notes proposes to exchange such
Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit E hereto, including the
certifications in item (1)(c) thereof; or
(ii) if the Holder of such Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit D hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (C), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
43
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.07(d)(2),
the Trustee will cancel the Definitive Notes and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will
cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected
pursuant to subparagraphs (2)(C) or (3) above at a time when an Unrestricted Global Note has
not yet been issued, the Company will issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the principal amount of Definitive
Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holders compliance with the provisions of this Section 2.07(e), the
Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder must provide any additional certifications, documents
and information, as applicable, required pursuant to the following provisions of this Section
2.07(e).
(1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted
Definitive Note may be transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule 144A, then the transferor
must deliver a certificate in the form of Exhibit D hereto, including the
certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule 904, then the
transferor must deliver a certificate in the form of Exhibit D hereto, including the
certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit D hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if applicable.
44
(2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note
or transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected by a Broker-Dealer pursuant to the Exchange
Registration Statement in accordance with the Registration Rights Agreement; or
(C) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit E hereto, including the certifications in
item (1)(d) thereof; or
(ii) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such Holder in the
form of Exhibit D hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (C), if the Registrar so
requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the Securities
Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of
Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such
a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company will issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee will authenticate:
45
(1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes accepted for
exchange in the Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a
distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144)
of the Company; and
(2) Unrestricted Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange
Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and
(C) they are not affiliates (as defined in Rule 144) of the Company.
Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal amount
of the applicable Restricted Global Notes to be reduced accordingly, and the Company will execute
and the Trustee will authenticate and deliver to the Persons designated by the Holders of
Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.
(g) Legends. The following legends will appear on the face of all Global Notes and Definitive
Notes issued under the Indenture unless specifically stated otherwise in the applicable provisions
of this Supplemental Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) 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 SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
SECURITIES ACT), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE ACQUIRER:
(1) |
|
REPRESENTS THAT IT, AND ANY ACCOUNT FOR WHICH IT IS ACTING, (A) IS A QUALIFIED INSTITUTIONAL
BUYER (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) OR (B) IS NOT A U.S.
PERSON (WITHIN THE MEANING OF RULE 902 OF REGULATION S UNDER THE SECURITIES ACT), AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND |
|
(2) |
|
AGREES FOR THE BENEFIT OF THE ISSUER THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE (AS DEFINED IN THE NEXT PARAGRAPH), EXCEPT: |
46
|
(A) |
|
TO THE ISSUER OR ANY SUBSIDIARY THEREOF, OR |
|
|
(B) |
|
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT, OR |
|
|
(C) |
|
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, OR |
|
|
(D) |
|
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT; OR |
|
|
(E) |
|
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. |
THE RESALE RESTRICTION TERMINATION DATE WILL BE THE DATE (1) THAT IS AT LEAST ONE YEAR AFTER THE
LAST ORIGINAL ISSUE DATE HEREOF AND (2) ON WHICH THE ISSUER
INSTRUCTS THE TRUSTEE THAT THIS LEGEND
SHALL BE DEEMED REMOVED FROM THIS SECURITY, IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE
INDENTURE RELATING TO THIS SECURITY.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(E) ABOVE, THE ISSUER AND THE
TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING
MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION
IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or
(f) of this Section 2.07 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend. The Company may also provide a
certificate to the Trustee instructing the Trustee that the Private Placement Legend
no longer applies or issue one or more new Notes to the Trustee in replacement for
all or part of the Notes with the Private Placement Legend.
(2) Global Note Legend. Each Global Note will bear a legend in substantially the
following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR
ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY
47
MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE
FOURTH SUPPLEMENTAL
INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.07(a) OF THE FOURTH SUPPLEMENTAL INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE BASE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
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 DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (DTC), TO THE COMPANY 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.
(h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be
returned to or retained and canceled by the Trustee in accordance with the Base Indenture. At any
time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note, such other Global Note will be
increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Company will execute and
the Trustee will authenticate Global Notes and Definitive Notes upon receipt
48
of an Authentication Order in accordance with Section 2.02 hereof or at the Registrars
request.
(2) No service charge will be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note 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 2.11, 3.6
and 9.6 of the Base Indenture and Section 4.15 hereof).
(3) The Registrar will not be required to register the transfer of or exchange of any
Note selected for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
(4) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes will be the valid Obligations of the Company,
evidencing the same Debt, and entitled to the same benefits under the Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(5) Neither the Registrar nor the Company will be required:
(A) to issue, to register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the day of any selection
of Notes for redemption and ending at the close of business on the day of selection;
(B) to register the transfer of or to exchange any Note 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.
(6) 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 for all other purposes, and none of the Trustee,
any Agent or the Company shall be affected by notice to the contrary.
(7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.02 hereof.
(8) All certifications, certificates and Opinions of Counsel required to be submitted
to the Registrar pursuant to this Section 2.07 to effect a registration of transfer or
exchange may be submitted by facsimile.
49
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01 Notices to Trustee. If the Company elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 30
days but not more than 60 days before a Redemption Date, an Officers Certificate setting forth:
(1) the clause of this Supplemental Indenture pursuant to which the redemption shall
occur,
(2) the Redemption Date;
(3) the principal amount of Notes to be redeemed;
(4) the redemption price; and
(5) applicable CUSIP numbers.
SECTION 3.02 Selection of Notes to Be Redeemed or Purchased. If the Company is redeeming
or purchasing less than all of the Notes, the Trustee will select Notes for redemption or purchase
as follows:
(1) if the Notes are listed on any national securities exchange, in compliance with the
requirements of the principal national securities exchange on which the Notes are listed; or
(2) if the Notes are not listed on any national securities exchange, then on a
pro rata basis.
In the event of partial redemption or purchase the particular Notes to be redeemed or
purchased will be selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption or purchase date by the Trustee from the outstanding Notes not
previously called for redemption or purchase.
The Trustee will promptly notify the Company in writing of the Notes selected for redemption
or purchase and, in the case of any Note selected for partial redemption or purchase, the principal
amount thereof to be redeemed or purchased. Notes and portions of Notes selected will be in
amounts of $2,000 or whole multiples of $1,000 in excess thereof. No notes of $2,000 or less in
original principal amount shall be redeemed in part. Except as provided in the preceding sentence,
provisions of the Indenture that apply to Notes called for redemption or purchase also apply to
portions of Notes called for redemption or purchase.
SECTION 3.03 Notice of Redemption. At least 30 days but not more than 60 days before a
Redemption Date, the Company will 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, except that
redemption notices may be mailed more than 60 days prior to a Redemption Date if
50
the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge
of this Supplemental Indenture pursuant to Articles 8 or 12 of this Supplemental
Indenture.
The notice will identify the Notes to be redeemed and will state:
(1) the Redemption Date;
(2) the redemption price;
(3) 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 will be issued in the name
of the holder thereof upon cancellation of the partially redeemed Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
(6) 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;
(7) the paragraph of the Notes and/or Section of the Indenture pursuant to which the
Notes called for redemption are being redeemed; and
(8) 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 Companys request, the Trustee will give the notice of redemption in the Companys name
and the Companys expense; provided, however, that the Company has delivered to the
Trustee, at least 40 days (unless a shorter time shall be acceptable to the Trustee) 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.
SECTION 3.04 Effect of Notice of Redemption. Once notice of redemption is mailed in
accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable
on the Redemption Date at the redemption price. A notice of redemption may, at the Companys
discretion, be subject to one or more conditions precedent including but not limited to completion
of a sale of common stock or other corporate transaction.
SECTION 3.05 Deposit of Redemption or Purchase Price. One Business Day prior to the
redemption or purchase date, the Company will deposit with the Trustee or with the Paying Agent
money sufficient to pay the redemption or purchase price of and accrued interest on all Notes to be
redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the
Company any money deposited with the Trustee or the Paying Agent by the
51
Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued
interest on, all Notes to be redeemed or purchased.
If the Company complies with the provisions of the preceding paragraph, on and after the
redemption or purchase date, interest will cease to accrue on the Notes or the portions of Notes
called for redemption or purchase. If a Note is redeemed or purchased on or after an interest
record date but on or prior to the related interest payment date, then 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 or purchase is not so paid upon
surrender for redemption or purchase because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or
purchase 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 hereof.
SECTION 3.06 Notes Redeemed or Purchased in Part. Upon surrender of a Note that is
redeemed or purchased in part, the Company will issue and, upon receipt of an Authentication Order,
the Trustee will authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed or unpurchased portion of the Note surrendered.
SECTION 3.07 Optional Redemption. (a) At any time prior to December 15, 2013, the Company
may, on any one or more occasions, redeem up to 35% of the aggregate principal amount of the Notes
(including any Additional Notes) with the Net Cash Proceeds of one or more Equity Offerings at a
redemption price equal to 106.375% of the principal amount thereof, plus accrued and unpaid
interest and Special Interest, if any, to the applicable date of redemption (the Redemption
Date) (subject to the right of holders of record on the relevant record date to receive
interest due on the relevant interest payment date); provided that at least 65% of the
original aggregate principal amount of the Notes issued on the Closing Date remains outstanding
after each such redemption and the redemption occurs within 180 days after the closing of the
related Equity Offering.
(b) On and after December 15, 2015, the Company may redeem all or, from time to time, a part
of the Notes upon not less than 30 nor more than 60 days notice, at the following redemption
prices (expressed as a percentage of principal amount of the Notes), plus accrued and unpaid
interest including Special Interest, if any, on the Notes, if any, to the Redemption Date (subject to the right of holders of record on
the relevant record date to receive interest due on the relevant interest payment date), if
redeemed during the twelve-month period beginning on December 15 of the years indicated below:
|
|
|
|
|
Year |
|
Percentage |
2015 |
|
|
103.188 |
% |
2016 |
|
|
102.125 |
% |
2017 |
|
|
101.062 |
% |
2018 and thereafter |
|
|
100.000 |
% |
(c) At any time prior to December 15, 2015, the Company may also redeem all or a part of the
Notes upon not less than 30 nor more than 60 days prior notice mailed by first-class
52
mail to each Holders registered address at a redemption price equal to 100% of the principal
amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest,
including Special Interest, if any, to, the Redemption Date (subject to the rights of Holders of
Notes on the relevant record date to receive interest due on the relevant interest payment date).
(d) All redemptions of the Notes will be made upon not less than 30 days nor more than 60
days prior notice mailed by first class mail to each Holders registered address as provided in
Section 3.03. Unless the Company defaults in the payment of the redemption price, interest will
cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption
Date.
(e) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Section 3.01 through 3.06 hereof.
SECTION 3.08 Mandatory Redemption. The Company is not required to make mandatory
redemption or sinking fund payments with respect to the Notes.
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Notes. The Company will pay or cause to be paid the principal of,
premium, if any, and interest, including Special Interest, if any, on the Notes on the dates and in
the manner provided in Section 2.01 hereof and in the Notes. Principal, premium, if any, and
interest, including Special Interest, if any,
will 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. New York City 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 will pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal, interest and premium, if any,
including Special Interest, if any, at the rate set forth in
Section 2.01 hereof, to the extent lawful.
SECTION 4.02 Maintenance of Office or Agency. The Company will maintain an office or
agency (which may be an office of the Trustee or an affiliate or an agent 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 the Indenture may be
served. The Company will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company fails to maintain any such
required office or agency or fails 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. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.
53
The Company hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company.
SECTION 4.03 SEC Reports and Reports to Holders.
(a) Whether or not required by the SECs rules and regulations, so long as any Notes
are outstanding, the Company will furnish to the Holders or cause the Trustee to furnish to
the Holders, within the time periods specified in the SECs rules and regulations:
(1) all quarterly and annual reports that would be required to be filed with
the SEC on Forms 10-Q and 10-K if the Company were required to file such reports;
and
(2) 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.
All such reports will be prepared in all material respects in accordance with the rules and
regulations applicable to such reports. Each annual report on Form 10-K will include a
report on the Companys consolidated financial statements by the Companys certified
independent accountants. Notwithstanding the foregoing, the furnishing or filing of such
reports with the SEC on EDGAR (or any successor system thereto) shall be deemed to
constitute furnishing of such reports with the Trustee.
(b) In addition, the Company will file a copy of each of the reports referred to in
clauses (1) and (2) above with the SEC for public availability within the time periods
specified in the rules and regulations applicable to such reports (unless the SEC will not
accept such a filing) and will post the reports on its website within those time periods.
(c) If the Company is no longer subject to the periodic reporting requirements of the
Exchange Act for any reason, the Company will nevertheless continue filing the reports
specified in the preceding paragraphs of this covenant with the SEC within the time periods
specified above unless the SEC will not accept such a filing. The Company will not take any
action for the purpose of causing the SEC not to accept any such filings. If,
notwithstanding the foregoing, the SEC will not accept the Companys filings for any reason,
the Company will post the reports referred to in the preceding paragraphs on its website
within the time periods that would apply to a non-accelerated filer if the Company were
required to file those reports with the SEC.
(d) In addition, the Company and the Subsidiary Guarantors agree that, for so long as
any Notes remain outstanding, if at any time they are not required to file with the SEC the
reports required by the preceding paragraphs, they will 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.
54
SECTION 4.04 Compliance Certificate.
(a) The Company and each Subsidiary Guarantor (to the extent that such Subsidiary
Guarantor is so required under the TIA) 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 the 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 the Indenture and is not in default in the performance or observance
of any of the terms, provisions and conditions of the Indenture (or, if a Default or Event
of Default has 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).
(b) So long as any of the Notes are outstanding, the Company will deliver to the
Trustee, forthwith upon any Officer becoming aware of any Default or Event of Default that
has not been cured, an Officers Certificate specifying such Default or Event of Default and
what action the Company is taking or proposes to take with respect thereto.
SECTION 4.05 Taxes. The Company will pay, and will cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies except such as are
contested in good faith and by appropriate proceedings or where the failure to effect such payment
is not adverse in any material respect to the Holders of the Notes.
SECTION 4.06 Stay, Extension and Usury Laws. The Company and each of the Subsidiary
Guarantors covenants (to the extent that it may lawfully do so) that it will 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 the Indenture; and the Company and each of the Subsidiary
Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 4.07 Restricted Payments.
(a) The Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly:
(1) declare or pay any dividend or make any distribution on or with respect to
its Capital Stock (other than (x) dividends or distributions payable solely in shares of Capital Stock (other than Disqualified Stock) of the Company or in
options, warrants or other rights to acquire shares of such Capital Stock and (y)
pro rata dividends or distributions on equity securities of Restricted
55
Subsidiaries held by minority stockholders) held by Persons other than the
Company or any of its Restricted Subsidiaries;
(2) purchase, call for redemption or redeem, retire or otherwise acquire for
value any shares of Capital Stock (including options, warrants or other rights to
acquire such shares of Capital Stock) of the Company;
(3) make any voluntary or optional principal payment, or voluntary or optional
redemption, repurchase, defeasance, or other acquisition or retirement for value, of
Indebtedness of the Company that is expressly subordinated in right of payment to
the Notes or any Indebtedness of a Subsidiary Guarantor that is expressly
subordinated in right of payment to a Note Guarantee, in each case, prior to the
date that is one year before the Stated Maturity of such subordinated Indebtedness;
or
(4) make any Investment, other than a Permitted Investment, in any Person;
(such payments or any other actions described in clauses (1) through (4) above being collectively
Restricted Payments) if, at the time of, and after giving effect to, the proposed Restricted
Payment:
(A) a Default or Event of Default shall have occurred and be continuing,
(B) the Company could not Incur at least $1.00 of Indebtedness under the first
paragraph of Section 4.09(a), or
(C) the aggregate amount of all Restricted Payments made after the Closing Date
would exceed the sum of:
(1) 50% of the aggregate amount of the Adjusted Consolidated Net
Income (or, if the Adjusted Consolidated Net Income is a loss,
minus 100% of the amount of such loss) less the amount of any
net reduction in Investments included pursuant to clause (3) below
that would otherwise be included in Adjusted Consolidated Net Income,
accrued on a cumulative basis during the period (taken as one
accounting period) beginning on October 1, 2006 and ending on the
last day of the last fiscal quarter preceding the Transaction Date
for which reports have been filed with the SEC or provided to the
Trustee, plus
(2) the aggregate Net Cash Proceeds received by the Company
after the Closing Date as a capital contribution or from the issuance
and sale of its Capital Stock (other than Disqualified Stock) to a
Person who is not a Subsidiary of the Company, including the Net Cash
Proceeds received by the Company from any issuance or sale permitted
by the Indenture of convertible
56
Indebtedness of the Company subsequent to the Closing Date but
only upon the conversion of such Indebtedness into Capital Stock
(other than Disqualified Stock) of the Company, or from the issuance
to a Person who is not a Subsidiary of the Company of any options,
warrants or other rights to acquire Capital Stock of the Company (in
each case, exclusive of any Disqualified Stock or any options,
warrants or other rights that are redeemable at the option of the
holder, or are required to be redeemed, prior to the Stated Maturity
of the Notes) plus
(3) an amount equal to the net reduction in Investments in any
Person resulting from payments of interest on Indebtedness,
dividends, repayments of loans or advances, or other transfers of
assets, in each case, to the Company or any Restricted Subsidiary or
from the Net Cash Proceeds from the sale of any such Investment
(whether or not any such payment or proceeds are included in the
calculation of Adjusted Consolidated Net Income) or from
redesignations of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the definition of
Investments), not to exceed, in each case, the aggregate amount of
all Investments previously made by the Company or any Restricted
Subsidiary in such Person or Unrestricted Subsidiary.
(b) The provisions of Section 4.07(a) hereof will not be violated by reason of:
(1) the payment of any dividend or the consummation of any redemption of any
Capital Stock or subordinated Indebtedness within 90 days after the related date of
declaration or call for redemption if, at said date of declaration or call for
redemption, such payment or redemption would comply with the preceding paragraph;
(2) the redemption, repurchase, defeasance or other acquisition or retirement
for value of Indebtedness that is subordinated in right of payment to the Notes or
any Note Guarantee with the proceeds of, or in exchange for, Indebtedness Incurred
under clause (3) of the second paragraph of Section 4.09(a);
(3) the making of any Restricted Payment in exchange for, or out of the
proceeds of a capital contribution or a substantially concurrent offering of, shares
of Capital Stock (other than Disqualified Stock) of the Company (or options,
warrants or other rights to acquire such Capital Stock); provided that such
new options, warrants or other rights are not redeemable at the option of the
holder, or required to be redeemed, prior to the Stated Maturity of the Notes;
(4) the declaration and payment of regularly scheduled or accrued dividends or
distributions to holders of Disqualified Stock of the Company and any class or
series of preferred stock of any Restricted Subsidiary of the Company
57
issued on or after the Closing Date in accordance with the Fixed Charge
Coverage Ratio set forth in Section 4.09;
(5) payments or distributions, to dissenting stockholders required by
applicable law, pursuant to or in connection with a consolidation, merger or
transfer of assets of the Company that complies with the provisions of this
Supplemental Indenture applicable to mergers, consolidations and transfers of all or
substantially all of the property and assets of the Company;
(6) Investments acquired as a capital contribution to, or in exchange for, or
out of the proceeds of a substantially concurrent offering of, Capital Stock (other
than Disqualified Stock) of the Company;
(7) the repurchase of Capital Stock deemed to occur upon the exercise of
options or warrants if such Capital Stock represents all or a portion of the
exercise price thereof or payments in lieu of the issuance of fractional shares of
Capital Stock or withholding to pay for taxes payable by such employee upon such
grant or award;
(8) Investments by any Foreign Subsidiary in any other Foreign Subsidiary;
(9) the repurchase, redemption, retirement or other acquisition of Capital
Stock required by the employee stock ownership programs of the Company or required
or permitted under employee agreements and any purchase, repurchase, redemption or
other acquisition or retirement for value of Capital Stock made in lieu of
withholding taxes in connection with any exercise or exchange of options, warrants,
incentives or rights to acquire Capital Stock;
(10) other Investments in an amount not to exceed $200.0 million at any time
outstanding;
(11) Permitted Additional Restricted Payments;
(12) the purchase, redemption, cancellation or other retirement for a nominal
value per right of any rights granted to all the holders of common stock of the
Company pursuant to any shareholder rights plan adopted for the purpose of
protecting shareholders from takeover tactics;
(13) the repurchase, redemption or other acquisition of Disqualified Stock of
the Company or its Restricted Subsidiaries in exchange for, or out of the proceeds
of a capital contribution or a substantially concurrent offering of, shares of
Disqualified Stock of the Company (or options, warrants or other rights to acquire
such Disqualified Stock);
(14) the purchase or redemption of any Indebtedness which is subordinated in
right of payment to the Notes or any Note Guarantee (i) at a purchase price not
greater than 101% of the principal amount of such
58
Indebtedness in the event of a Change of Control in accordance with
provisions similar to those described in Section 4.15 or (ii) at a purchase price
not greater than 100% of the principal amount thereof in accordance with the
provisions similar to those described in Section 4.10; provided that, prior
to or simultaneously with such purchase or redemption, the Company has made an Offer
to Purchase as provided in such covenants with respect to the Notes and has
completed the repurchase or redemption of the Notes validly tendered for payment in
connection with such Offer to Purchase in accordance with Section 4.15 and Section
4.10, as applicable; or
(15) the distribution, as a dividend or otherwise, of shares of Capital Stock
of, or Indebtedness owed to the Company or a Restricted Subsidiary by, Unrestricted
Subsidiaries;
provided that, in the case of clauses (2), (4), (11), (13), (14) and (15) no Default (of
the type described in clauses (1), (2), (9) or (10) under Section 6.01) or Event of Default shall
have occurred and be continuing or occur as a consequence of the actions or payments set forth
therein.
Each Restricted Payment permitted pursuant to the preceding paragraph (other than the
Restricted Payment referred to in clause (2), (7) or (11) thereof or an exchange of Capital Stock
for Capital Stock or Indebtedness referred to in clause (3) thereof or an Investment acquired as a
capital contribution or in exchange for Capital Stock referred to in clause (6) thereof) shall be
included in calculating whether the conditions of clause (C) of the first paragraph of this Section
4.07 have been met with respect to any subsequent Restricted Payments, and the Net Cash Proceeds
from any issuance of Capital Stock referred to in clause (3) or (6) of the preceding paragraph
shall not be included in such calculation. In the event the proceeds of an issuance of Capital
Stock of the Company are used for the redemption, repurchase or other acquisition of the Notes, or
Indebtedness that is pari passu with the Notes or any Note Guarantee, then the Net Cash Proceeds of
such issuance shall be included in clause (C) of the first paragraph of this Section 4.07 only to
the extent such proceeds are not used for such redemption, repurchase or other acquisition of
Indebtedness.
For purposes of determining compliance with this Section 4.07, in the event that a Restricted
Payment meets the criteria of more than one of the types of Restricted Payments described in the
above clauses, including the first paragraph of this Section 4.07, the Company, in its sole
discretion, may order and classify, and from time to time may reclassify, such Restricted Payment
if it would have been permitted at the time such Restricted Payment was made and at the time of
such reclassification.
SECTION 4.08 Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
(a) The Company will not, and will not permit any Restricted Subsidiary to, create or
otherwise cause or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any Restricted Subsidiary (other than a
Receivables Subsidiary) to:
59
(1) pay dividends or make any other distributions permitted by applicable law
on any Capital Stock of such Restricted Subsidiary owned by the Company or any other
Restricted Subsidiary (it being understood that the priority of any preferred stock
in receiving dividends or liquidating distributions prior to the dividends or
liquidating distributions being paid on common stock shall not be deemed a
restriction on the ability to make distributions on Capital Stock);
(2) make loans or advances to the Company or any other Restricted Subsidiary
(it being understood that the subordination of loans or advances made to the Company
or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any
Restricted Subsidiary shall not be deemed a restriction on the ability to make loans
or advances); or
(3) repay any Indebtedness owed to the Company or any other Restricted
Subsidiary or transfer any of its property or assets to the Company or any other
Restricted Subsidiary (it being understood that such transfers shall not include any
type of transfer described in clauses (1) or (2) above or in this clause (3)).
(b) The foregoing provisions shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in the Credit Agreement, the Indenture, the
Existing Note Indentures or any other agreements in effect on the Closing Date, and
any extensions, refinancings, renewals or replacements of such agreements;
provided that the encumbrances and restrictions in any such extensions,
refinancings, renewals or replacements taken as a whole are no less favorable in any
material respect to the Holders than those encumbrances or restrictions that are
then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law or any applicable rule,
regulation or order;
(3) that are customary non-assignment provisions in contracts, agreements,
leases, permits and licenses;
(4) that are purchase money obligations for property acquired and Capitalized
Lease Obligations that impose restrictions on the property purchased or leased;
(5) existing with respect to any Person or the property or assets of such
Person acquired by the Company or any Restricted Subsidiary, existing at the time of
such acquisition and not incurred in contemplation thereof, which encumbrances or
restrictions are not applicable to any Person or the property or assets of any
Person other than such Person or the property or assets of such Person so acquired
and any extensions, refinancings, renewals or replacements thereof; provided
that the encumbrances and restrictions in any such extensions,
60
refinancings, renewals or replacements taken as a whole are no less favorable
in any material respect to the Holders than those encumbrances or restrictions that
are then in effect and that are being extended, refinanced, renewed or replaced;
(6) in the case of clause (3) of the first paragraph of this Section 4.08:
(A) that restrict in a customary manner the subletting, assignment or
transfer of any property or asset that is a lease, license, conveyance or
contract or similar property or asset,
(B) existing by virtue of any transfer of, agreement to transfer,
option or right with respect to, or Lien on, any property or assets of the
Company or any Restricted Subsidiary not otherwise prohibited by the
Indenture,
(C) arising or agreed to in the normal course of business, not relating
to any Indebtedness, and that do not, individually or in the aggregate,
detract from the value of property or assets of the Company or any
Restricted Subsidiary in any manner material to the Company or any
Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real
property interests set forth in any reciprocal easement agreements of the
Company or any Restricted Subsidiary;
(7) with respect to a Restricted Subsidiary and imposed pursuant to an
agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock of, or property and assets of, such
Restricted Subsidiary;
(8) relating to a Subsidiary Guarantor and contained in the terms of any
Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction is not materially more
disadvantageous to the Holders of the Notes than is customary in comparable
financings (as determined by the Company in good faith); and
(B) the Company determines that any such encumbrance or restriction
will not materially affect the Companys ability to make principal or
interest payments on the Notes;
(9) arising from customary provisions in joint venture agreements and other
similar agreements;
(10) existing in the documentation governing any Permitted Securitization or
Permitted Factoring Program;
61
(11) contained in any agreement governing Indebtedness permitted under (A)
clause (8) of the second paragraph of Section 4.09(a); or (B) Section 4.09;
provided that with respect to this sub-clause (B), such encumbrances and
restrictions contained in any agreement or instrument will not materially affect the
Companys ability to make anticipated principal or interest payments on the Notes
(as determined by the chief financial officer of the Company);.
(12) existing under or by reason of any Investment not prohibited by the
Section 4.07 and any Permitted Investment; or
(13) of the type referred to in the first paragraph of this covenant imposed by
any amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of the contracts, instruments or
obligations referred to in clauses (1) through (12) above; provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are, in the good faith judgment of the
Issuers, not materially more restrictive as a whole with respect to such dividend
and other payment restrictions than those contained in the dividend or other payment
restrictions prior to such amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing.
Nothing contained in this Section 4.08 shall prevent the Company or any Restricted Subsidiary
from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in
Section 4.12 or (2) restricting the sale or other disposition of property or assets of the Company
or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its
Restricted Subsidiaries.
SECTION 4.09 Limitation on Incurrence of Indebtedness.
(a) The Company will not, and will not permit any of its Restricted Subsidiaries to,
Incur any Indebtedness (other than the Notes, the Note Guarantees and other Indebtedness
existing on the Closing Date (other than Indebtedness described in clause (1) below, the
incurrence of which will be governed by such clause (1))) and the Company will not permit
any of its Restricted Subsidiaries to issue any Disqualified Stock; provided,
however, that the Company or any Subsidiary Guarantor may Incur Indebtedness
(including, without limitation, Acquired Indebtedness) if, after giving effect to the
Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom,
the Fixed Charge Coverage Ratio would be greater than 2.0:1.0.
Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified
below) may Incur each and all of the following:
(1) the incurrence by the Company and any Subsidiary Guarantor of additional
Indebtedness and letters of credit under Credit Facilities in an aggregate principal
amount under this clause (1) (with letters of credit
being deemed to have a principal amount equal to the maximum potential liability of
the Company and such Subsidiary Guarantor thereunder)
62
(together with refinancings thereof) not to exceed in an aggregate amount as of any date of any such incurrence the greater of (A) $1,700.0
million less any amount of such Indebtedness permanently repaid with the Net
Proceeds of Asset Sales as provided under Section 4.10 and (B) the sum of (i) 85% of
the net book value of the inventory of the Company and its Restricted Subsidiaries
and (ii) 85% of the net book value of the accounts receivable of the Company and its
Restricted Subsidiaries, in each case, determined on a consolidated basis in
accordance with GAAP based on the most recent quarter-end financial statements
available to the Company (after giving pro forma effect to the incurrence of such
Indebtedness and the application of the net proceeds therefrom);
(2) Indebtedness owed to the Company or any Restricted Subsidiary;
provided that any event which results in any such Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any subsequent transfer of such
Indebtedness (other than to the Company or another Restricted Subsidiary) shall be
deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted
by this clause (2);
(3) Indebtedness issued in exchange for, or the net proceeds of which are used
to refinance or refund, then outstanding Indebtedness including, without limitation,
the Notes and the Existing Notes (other than Indebtedness outstanding under clauses
(1), (2), (5), (6), (7), (8), (9) and (13) and any refinancings thereof) in an
amount not to exceed the amount so refinanced or refunded (plus premiums, accrued
interest, fees and expenses); provided that (a) if the Indebtedness to be
refinanced is subordinated in right of payment to the Notes or a Note Guarantee,
such new Indebtedness, by its terms or by the terms of any agreement or instrument
pursuant to which such new Indebtedness is issued or remains outstanding, is
expressly made subordinate in right of payment to the Notes or the Note Guarantee on
terms not materially less favorable in the aggregate to the subordination provisions
of the Indebtedness to be refinanced or refunded, (b) the Average Life of such new
Indebtedness is at least equal to the remaining Average Life of the Indebtedness to
be refinanced or refunded and (c) such new Indebtedness shall not include (i)
Indebtedness of a Subsidiary of the Company that is not a Subsidiary Guarantor that
refinances or refunds Indebtedness of the Company or a Subsidiary Guarantor and (ii)
Indebtedness of the Company or a Restricted Subsidiary that refinances or refunds
Indebtedness of an Unrestricted Subsidiary;
(4) Indebtedness of the Company, to the extent the net proceeds thereof are
(A) used to purchase Notes tendered in an Offer to Purchase made as a result of a
Change in Control or an Optional Redemption or (B) promptly deposited to defease the
Notes as described under Article 8 and Article 12;
(5) Guarantees of Indebtedness of the Company or any Restricted Subsidiary of
the Company by any other Restricted Subsidiary of the Company; provided the
Guarantee of such Indebtedness is permitted by and made in accordance with Section
4.18;
63
(6) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently (except in the
case of daylight overdrafts) drawn against insufficient funds in the ordinary course
of business provided, however, that such Indebtedness is
extinguished within five Business Days of Incurrence;
(7) Indebtedness (i) in respect of industrial revenue bonds or other similar
governmental or municipal bonds, (ii) evidencing the deferred purchase price of
newly acquired property or incurred to finance the acquisition of property, plant or
equipment of the Company and its Restricted Subsidiaries (pursuant to purchase money
mortgages or otherwise, whether owed to the seller or a third party)
(provided that, such Indebtedness is incurred within 365 days of the
acquisition of such property, plant or equipment) and (iii) in respect of
Capitalized Lease Obligations and (iv) refinancing of any Indebtedness described in
clauses (i), (ii) or (iii) hereof; provided that, the aggregate amount of
all Indebtedness outstanding pursuant to this clause (7) shall not, as of any date of
incurrence, exceed the greater of (x) $200.0 million or (y) 5.0% of Total Assets;
(8) Indebtedness of Foreign Subsidiaries and Guarantees thereof in an aggregate
outstanding principal amount not to exceed $500.0 million at any one time
outstanding;
(9) Indebtedness of a Person existing at the time such Person became a
Restricted Subsidiary, but only if (A) such Indebtedness was not created or incurred
in contemplation of such Person becoming a Restricted Subsidiary or (B) on the date
that such Person became a Restricted Subsidiary and after giving effect to the
incurrence of such Indebtedness and the acquisition pursuant to this clause (9),
either (i) the Company would have been able to incur $1.00 of additional
Indebtedness pursuant to the first paragraph of Section 4.09(a) or (ii) the Fixed
Charge Coverage Ratio would be greater than immediately prior to such acquisition;
(10) Indebtedness incurred in the ordinary course of business in connection
with cash pooling arrangements, cash management and other Indebtedness incurred in
the ordinary course of business in respect of netting services, overdraft
protections and similar arrangements in each case in connection with cash management
and deposit accounts;
(11) (x) Permitted Securitizations and Standard Securitization Undertakings and
(y) a Permitted Factoring Program;
(12) Indebtedness consisting of (i) the financing of insurance premiums or (ii)
take or pay obligations in supply agreements, in each case in the ordinary course of
business;
(13) Hedging Obligations entered into in the ordinary course of business and
not for speculative purposes;
64
(14) Indebtedness of the Company and its Subsidiaries representing the
obligation of such Person to make payments with respect to the cancellation or
repurchase of Capital Stock of officers, employees or directors (or their estates)
of the Company or such Subsidiaries pursuant to the terms of employment, severance
or termination agreements, benefit plans or similar documents; and
(15) additional Indebtedness of the Company or any Restricted Subsidiary (in
addition to Indebtedness permitted under clauses (1) through (14) above) in an
aggregate principal amount outstanding at any time (together with refinancings
thereof) not to exceed $250.0 million.
(b) Notwithstanding any other provision of this Section 4.09, the maximum amount of
Indebtedness that may be Incurred pursuant to this Section 4.09 will not be deemed to be
exceeded, with respect to any outstanding Indebtedness due solely to the result of
fluctuations in the exchange rates of currencies. The amount of any particular Indebtedness
incurred in a foreign currency will be calculated based on the exchange rate for such
currency vis-à-vis the U.S. dollar on the date of such incurrence.
(c) For purposes of determining any particular amount of Indebtedness under this
Section 4.09, (x) Indebtedness outstanding under the Credit Agreement on the Closing Date
following the application of the net proceeds of the Notes issued on
the Closing Date, shall be treated as Incurred pursuant to clause (1) of the second paragraph of Section
4.09(a), (y) Guarantees, Liens or obligations with respect to letters of credit supporting
Indebtedness otherwise included in the determination of such particular amount shall not be
included and (z) any Liens granted pursuant to the equal and ratable provisions referred to
in Section 4.12 shall not be treated as Indebtedness. For purposes of determining
compliance with this Section 4.09, in the event that an item of Indebtedness meets the
criteria of more than one of the types of Indebtedness described above (other than
Indebtedness referred to in clause (x) of the preceding sentence), including under the first
paragraph of clause (a), the Company, in its sole discretion, may classify, and from time to
time may reclassify, all or any portion of such item of Indebtedness.
(d) The Company and the Subsidiary Guarantors will not Incur any Indebtedness if such
Indebtedness is subordinate in right of payment to any other Indebtedness unless such
Indebtedness is also subordinate in right of payment to the Notes (in the case of the
Company) or the Note Guarantees (in the case of any Subsidiary Guarantor), in each case, at
least to the same extent. For purposes of the foregoing, no Indebtedness will be deemed
subordinate in right of payment to any other Indebtedness by virtue of being unsecured or by
virtue of being secured on a first or junior Lien basis.
SECTION 4.10 Limitation on Asset Sales. The Company will not, and will not permit any
Restricted Subsidiary to, consummate any Asset Sale unless:
(1) the consideration received by the Company or such Restricted Subsidiary is at least
equal to the fair market value of the assets sold or disposed of; and
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(2) at least 75% of the consideration received consists of (a) cash or Temporary Cash
Investments, (b) the assumption of Indebtedness of the Company or any Restricted Subsidiary
(in each case, other than Indebtedness owed to the Company or any Affiliate of the Company),
provided that the Company or such Restricted Subsidiary is irrevocably released in
writing from all liability under such Indebtedness, (c) Replacement Assets or (d) a
combination of the foregoing.
The Company will, or will cause the relevant Restricted Subsidiary to:
(1) within twelve months after the date of receipt of any Net Cash Proceeds from an
Asset Sale:
(A) apply an amount equal to such Net Cash Proceeds to permanently repay
Indebtedness under any Credit Facility or other unsubordinated Indebtedness of the
Company or any Subsidiary Guarantor or Indebtedness of any other Restricted
Subsidiary, in each case, owing to a Person other than the Company or any Affiliate
of the Company (and to cause a corresponding permanent reduction in commitments if
such repaid Indebtedness was outstanding under the revolving portion of a Credit
Facility); or
(B) invest an equal amount, or the amount not so applied pursuant to clause (A)
(or enter into a definitive agreement committing to so invest within 12 months after
the date of such agreement) in Replacement Assets; and
(2) apply (no later than the end of the 12-month period referred to in clause (1)) any
excess Net Cash Proceeds (to the extent not applied pursuant to clause (1)) as provided in
the following paragraphs of this Section 4.10.
The amount of such excess Net Cash Proceeds required to be applied (or to be committed to be
applied) during such 12-month period as set forth in clause (1) of the preceding sentence and not
applied as so required by the end of such period shall constitute Excess Proceeds.
If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds not
theretofore subject to an Offer to Purchase pursuant to this Section 4.10 totals at least $100.0
million, the Company must commence, not later than the last Business Day of such month, and
consummate an Offer to Purchase from the Holders (and, if required by the terms of any Indebtedness
that is pari passu with the Notes (Pari Passu Indebtedness), from the holders of such
Pari Passu Indebtedness) on a pro rata basis an aggregate principal amount of Notes (and Pari Passu
Indebtedness) equal to the Excess Proceeds on such date, at a purchase price equal to 100% of their
principal amount, plus, in each case, accrued interest (if any) to the Payment Date.
Notwithstanding the foregoing, the Company may, in its discretion, make an Offer to Purchase
pursuant to this covenant in advance of any requirement to commence an Offer to Purchase pursuant
to the previous sentence. To the extent that any Excess Proceeds remain after consummation of an
Offer to Purchase pursuant to this Section 4.10, the Company may use those Excess Proceeds for any
purpose not otherwise prohibited by the Indenture and the amount of Excess Proceeds shall be reset
to zero.
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Pending the final application of any Net Proceeds, the Company may temporarily reduce
revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not
prohibited by the Indenture.
SECTION 4.11 Limitation on Transactions with Shareholders and Affiliates.
(a) The Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into, renew or extend any transaction (including, without limitation, the
purchase, sale, lease or exchange of property or assets, or the rendering of any service)
with any Affiliate of the Company or any Restricted Subsidiary involving aggregate
consideration in excess of $10.0 million, except upon terms not materially less favorable to
the Company or such Restricted Subsidiary than could be obtained, at the time of such
transaction or, if such transaction is pursuant to a written agreement, at the time of the
execution of the agreement providing therefor, in a comparable arms-length transaction with
a Person that is not such a holder or an Affiliate.
(b) The foregoing limitation does not limit, and shall not apply to:
(1) transactions (A) approved by a majority of the disinterested members of the
Board of Directors or (B) for which the Company or a Restricted Subsidiary delivers
to the Trustee a written opinion of a nationally recognized investment banking,
accounting, valuation or appraisal firm stating that the transaction is fair to the
Company or such Restricted Subsidiary from a financial point of view;
(2) any transaction solely between the Company and any of its Restricted
Subsidiaries or solely among Restricted Subsidiaries;
(3) the payment of regular fees to directors of the Company who are not
employees of the Company and director and officer indemnification arrangements
entered into by the Company in the ordinary course of business of the Company;
(4) transactions with a Person that is an Affiliate of the Company solely
because the Company owns, directly or through a Restricted Subsidiary, an Equity
Interest in, or controls, such Person;
(5) transactions in connection with a Permitted Securitization including
Standard Securitization Undertakings or a Permitted Factoring Program;
(6) any sale of shares of Capital Stock (other than Disqualified Stock) of the
Company, and the granting of registration and other customary rights in connection
therewith;
(7) any Permitted Investments or any Restricted Payments not prohibited by
Section 4.07;
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(8) any agreement as in effect or entered into as of the Closing Date or any
amendment thereto or any transaction contemplated thereby (including pursuant to any
amendment thereto) and any replacement agreement thereto so long as any such
amendment or replacement agreement is not more disadvantageous to the Holders in any
material respect than the original agreement as in effect on the Closing Date;
(9) any employment agreement, change in control/severance agreement, employee
benefit plan (including retirement, health and other benefit plans), officer or
director indemnification agreement or any similar arrangement or compensation
(including bonuses and equity compensation) entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business and payments pursuant
thereto;
(10) any tax sharing agreement or payment pursuant thereto, between the Company
and/or one or more Subsidiaries on the one hand, and any other Person with which the
Company or such Subsidiaries are required or permitted to file consolidated tax
return or with which the Company or such Subsidiaries are part of a consolidated
group for tax purposes on the other hand, which payments by the Company and the
Restricted Subsidiaries are not in excess of the tax liabilities that would have
been payable by them on a stand-alone basis;
(11) transactions with customers, suppliers or purchasers or sellers of goods
or services, in each case, in the ordinary course of business of the Company and its
Restricted Subsidiaries and otherwise in compliance with the terms of the Indenture;
provided, that, in the reasonable determination of the Board of Directors or senior
management of the Company, such transactions are on terms that are no less favorable
to the Company or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted Subsidiary
with an unrelated Person;
(12) transactions with joint ventures or Unrestricted Subsidiaries entered into
in the ordinary course of business; or
(13) pledges of equity interests of Unrestricted Subsidiaries.
(c) Notwithstanding the foregoing, any transaction or series of related transactions
covered by the first paragraph of this Section 4.11 and not covered by clauses (2) through
(13) of this paragraph, the aggregate amount of which exceeds $50.0 million in value, must
be approved or determined to be fair in the manner provided for in clause (1)(A) or (B)
above.
SECTION 4.12 Limitation on Liens. The Company will not, and will not permit any Restricted
Subsidiary to, create, incur, assume or suffer to exist any Lien on any of its assets or properties
of any character (including any shares of Capital Stock or Indebtedness of any Restricted
Subsidiary), which Lien is securing any Indebtedness, without making effective provision for all of
the Notes and all other amounts due under the Indenture to be directly
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secured equally and ratably with (or, if the obligation or liability to be secured by such Lien is
subordinated in right of payment to the Notes, prior to) the obligation or liability secured by
such Lien.
The foregoing limitation does not apply to:
(1) Liens existing on the Closing Date;
(2) Liens granted on or after the Closing Date on any assets or Capital Stock of the
Company or its Restricted Subsidiaries created in favor of the Holders;
(3) Liens in connection with a Permitted Securitization or a Permitted Factoring
Program;
(4) Liens securing Indebtedness which is Incurred to refinance secured Indebtedness
which is permitted to be Incurred under clause (3) of the second paragraph of Section
4.09(a); provided that such Liens do not extend to or cover any categories of property or assets
of the Company or any Restricted Subsidiary other than the categories of property or assets securing the
Indebtedness being refinanced;
(5) Liens to secure Indebtedness having an aggregate principal amount not to exceed, as
of the date of granting any such Lien, the greater of (A) the amount permitted under clause
(1) of the second paragraph of Section 4.09(a) or (B) the maximum amount that would not
cause the Secured Leverage Ratio to exceed 2.5 to 1.0 on the date on which such Lien is
granted (after giving pro forma effect to the incurrence of such Indebtedness and the
application of the net proceeds therefrom);
(6) Liens (including extensions and renewals thereof) securing Indebtedness permitted
under clause (7) of the second paragraph of Section 4.09(a); provided that, (i) such
Lien is granted within 365 days after such Indebtedness is incurred, (ii) the Indebtedness
secured thereby does not exceed the lesser of the cost or the fair market value of the
applicable property, improvements or equipment at the time of such acquisition (or
construction) and (iii) such Lien secures only the assets that are the subject of the
Indebtedness referred to in such clause;
(7) Liens on cash set aside at the time of the Incurrence of any Indebtedness, or
government securities purchased with such cash, in either case, to the extent that such cash
or government securities pre-fund the payment of interest on such Indebtedness and are held
in a collateral or escrow account or similar arrangement to be applied for such purpose;
(8) Liens on any assets or properties of Foreign Subsidiaries to secure Indebtedness
permitted under clause (8) of the second paragraph of Section 4.09(a);
(9) Liens on (A) incurred premiums, dividends and rebates which may become payable
under insurance policies and loss payments which reduce the incurred premiums on such
insurance policies and (B) rights which may arise under State insurance guarantee funds
relating to any such insurance policy, in each case securing
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Indebtedness permitted to be incurred pursuant to clause (12) of the second paragraph
of Section 4.09(a);
(10) other Liens securing Indebtedness or other obligations permitted under this
Supplemental Indenture and outstanding in an aggregate principal amount not to exceed $200.0
million; or
(11) Permitted Liens.
SECTION 4.13 Business Activities. The Company will not, and will not permit any of its
Restricted Subsidiaries to, engage in any business other than Permitted Businesses.
SECTION 4.14 Corporate Existence. Subject to Article 5 hereof, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and effect:
(1) 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
(2) 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 at least two Officers of the Company, one of which
is the Chief Executive Officer or the Chief Financial Officer of the Company, 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.
SECTION 4.15 Repurchase of Notes Upon a Change of Control.
(a) If a Change of Control occurs, unless the Company has exercised its right to
redeem all of the Notes in accordance with Section 3.07 hereof, each Holder will have the right to
require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of
$1,000 in excess thereof) of such Holders Notes at a purchase price in cash equal to 101% of the
principal amount of Notes repurchased plus accrued and unpaid interest and Special
Interest, if any, on the Notes repurchased to the date of purchase (subject to the rights of
Holders of Notes on the relevant record date to receive interest due on the relevant interest
payment date) (the Change of Control Payment). Notwithstanding the foregoing, the
Company may make its offer to purchase the Notes as described in this section in advance of a
Change of Control, conditioned upon consummation of such Change of Control, if a definitive
agreement in respect of such anticipated Change of Control is in place as of the time of such
offer.
Within 30 days following any Change of Control, unless the Company has exercised its right to
redeem all of the Notes in accordance with Section 3.07 hereof, the Company will mail a notice (the
Change of Control Offer) to each Holder, with a copy to the
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Trustee,
stating:
(1) that a Change of Control has occurred (or, if applicable, that a definitive
agreement in respect of such Change of Control is in place) and that such holder has the
right to require the Company to purchase such holders Notes at a purchase price in cash
equal to the Change of Control Payment;
(2)
the repurchase date, which 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);
(3) that any Note not tendered will continue to accrue interest;
(4) 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 will cease to accrue
interest after the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to transfer the Notes by book-entry transfer to the Paying Agent (or
in the case of any Definitive Notes, to surrender the Notes, with the form entitled Option
of Holder to Elect Purchase attached to the Notes completed) 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;
(6) 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 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
(7) 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 $2,000 in principal amount or an integral multiple of
$1,000.
(b) On the Change of Control Payment Date, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions of Notes (in integral multiples of $1,000)
properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company.
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The Paying Agent will promptly mail to each holder of Notes so tendered the Change of Control
Payment for such Notes, and the Trustee will 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 will be in a principal
amount of $2,000 or an integral multiple of $1,000 in excess thereof.
If the Change of Control Payment Date is on or after an interest record date and on or before
the related interest payment date, any accrued and unpaid interest and Special Interest, if any,
will 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 will be payable to holders who tender pursuant to the
Change of Control Offer.
(c) Notwithstanding anything to the contrary in this Section 4.15, the Company will not be
required to make a Change of Control Offer upon a Change of Control if (1) 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 Section 4.15 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, or (2) an irrevocable notice of redemption in respect of all of the outstanding Notes has
been given pursuant to Section 3.07 hereof, unless and until there is a default in payment of the
applicable redemption price.
(d) If holders of not less than 90% in aggregate principal amount of the outstanding Notes
validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any
third party making a Change of Control Offer in lieu of the Company as described above, purchases
all of the Notes validly tendered and not withdrawn by such holders, the Company will have the
right, upon not less than 30 nor more than 60 days prior notice, given not more than 30 days
following such purchase pursuant to the Change of Control Offer described above, to redeem all
Notes that remain outstanding following such purchase at a redemption price in cash equal to the
applicable Change of Control Payment plus, to the extent not included in the Change of Control
Payment, accrued and unpaid interest, if any, and Special Interest, if any, to the date of redemption.
(e) The
Company will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations in connection with the
repurchase of the Notes pursuant to this Section 4.15. To
the extent that the provisions of any securities laws or regulations conflict with this Section
4.15, the Company will comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.15 by virtue of such compliance.
SECTION 4.16 Limitation on the Issuance and Sale of Capital Stock of Restricted
Subsidiaries. The Company will not sell, and will not permit any Restricted Subsidiary,
directly or indirectly, to issue or sell, any shares of Capital Stock of a Restricted Subsidiary
(including options, warrants or other rights to purchase shares of such Capital Stock) except:
(1) to the Company or a Wholly Owned Restricted Subsidiary;
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(2) issuances of directors qualifying shares or sales to foreign nationals or
other persons of shares of Capital Stock of foreign Restricted Subsidiaries, in each
case, to the extent required by applicable law;
(3) if, immediately after giving effect to such issuance or sale, such
Restricted Subsidiary would no longer constitute a Restricted Subsidiary and any
Investment in such Person remaining after giving effect to such issuance or sale
would have been permitted to be made under Section 4.07 if made on the date of such
issuance or sale; or
(4) sales of Capital Stock (other than Disqualified Stock) (including options,
warrants or other rights to purchase shares of such Capital Stock) of a Restricted
Subsidiary; provided that the Company or such Restricted Subsidiary either
(a) applies the Net Cash Proceeds of any such sale in accordance with Section 4.10
or (b) to the extent such sale is of preferred stock, such sale is permitted under
Section 4.09.
SECTION 4.17 Payments for Consent. The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or
for the benefit of any Holder for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of the Indenture or the Notes unless such consideration is offered to be
paid and is paid to all Holders 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 Note Guarantees. The Company will cause each Restricted Subsidiary (other
than HBI Playtex BATH LLC, HBI Receivables LLC, and other than any Restricted Subsidiary that is a
Foreign Subsidiary or an Immaterial Subsidiary) the equity interest of all of which are 100% owned
directly or indirectly by the Company, to execute and deliver a supplemental indenture to the
Indenture providing for a Guarantee (a Subsidiary Guarantee) of payment of the principal
of, premium, if any, and interest, including Special Interest, if any on the Notes by such
Restricted Subsidiary.
If the Company or any of its Restricted Subsidiaries acquires or creates another Restricted
Subsidiary after the Closing Date and such newly acquired or created Restricted Subsidiary
Guarantees (or is a Guarantor of) any Indebtedness (Guaranteed Indebtedness) of the
Company under a Credit Facility, then such Restricted Subsidiary will become a Subsidiary Guarantor
and execute a supplemental indenture and deliver an Opinion of Counsel satisfactory to the Trustee
(in accordance with Section 13.04) within 30 days of the date on which it was acquired or created;
provided that (a) any Restricted Subsidiary that constitutes an Immaterial Subsidiary or Foreign
Subsidiary need not become a Subsidiary Guarantor until such time as it (i) ceases to be an
Immaterial Subsidiary or Foreign Subsidiary or (ii) guarantees Indebtedness of the Company under a
Credit Facility and (b) the provisions of this paragraph will not apply to Receivables
Subsidiaries.
If the Guaranteed Indebtedness is (A) pari passu in right of payment with the Notes or any
Note Guarantee, then the Guarantee of such Guaranteed Indebtedness shall be pari passu in
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right of
payment with, or subordinated to, the Subsidiary Guarantee or (B) subordinated in right of payment
to the Notes or any Note Guarantee, then the Guarantee of such Guaranteed Indebtedness shall be
subordinated in right of payment to the Subsidiary Guarantee to an extent that is not materially
less favorable than that the Guaranteed Indebtedness is subordinated to the Notes or the Note
Guarantee.
Notwithstanding the foregoing, any Note Guarantee by any Subsidiary Guarantor may provide by
its terms that it shall be automatically and unconditionally released and discharged upon the
satisfaction of any of the conditions set forth in Section 11.06 hereof.
SECTION 4.19 Changes in Covenants when Notes Rated Investment Grade.
(a) If on any date following the Closing Date: (i) the Notes are rated Baa3 or better
by Moodys and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for
reasons outside of the control of the Company, the equivalent investment grade credit rating
from any other nationally recognized statistical rating organization within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company as a replacement
agency); and (ii) no Default or Event of Default shall have occurred and be continuing,
then, beginning on that day and subject to the provisions of the following paragraph, the
covenants specifically listed under the following sections in this Supplemental Indenture
will be suspended:
|
(1) |
|
Section 4.07; |
|
|
(2) |
|
Section 4.08; |
|
|
(3) |
|
Section 4.09; |
|
|
(4) |
|
Section 4.10; |
|
|
(5) |
|
Section 4.11; |
|
|
(6) |
|
the second paragraph of Section 4.18; and |
|
|
(7) |
|
clause (3) of Section 5.01(a). |
(b) During any period that the foregoing covenants have been suspended, the Companys
Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries.
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency
should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants
will be reinstituted as of and from the date of such rating decline. Calculations under
reinstated Section 4.07 or Section 4.09 will be made as if Section 4.07 or Section
4.09, as the case may be, had been in effect since the Closing Date except that no
Default will be deemed to have occurred solely by reason of a Restricted Payment or
incurrence
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of Indebtedness made while such relevant covenant was suspended and it being
understood that no actions taken by (or omissions of) the Company or any of its Restricted
Subsidiaries during the suspension period shall constitute a Default or an Event of Default
under the covenants listed in Section 4.19(a)(1) through (7) above. All Indebtedness
incurred while Section 4.09 was suspended will be deemed to have been incurred in reliance
upon the exception provided for Indebtedness existing on the Closing Date provided by the
first paragraph of Section 4.09(a).
ARTICLE 5
SUCCESSORS
SECTION 5.01 Consolidation, Merger and Sale of Assets.
(a) The Company will not (1), directly or indirectly, consolidate or merge with or into
another Person (whether or not the Company is the surviving corporation), or (2) sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all of the
property or assets of the Company and its Restricted Subsidiaries taken as a whole, in one
or more related transactions, to another Person, unless:
(1) it shall be the continuing Person, or the Person (if other than it) formed
by such consolidation or into which it is merged or that acquired or leased such
property and assets (the Surviving Person) shall be a corporation, limited
partnership, limited liability company or other entity organized and validly
existing under the laws of the United States of America or any jurisdiction thereof
and shall expressly assume, by a supplemental indenture, executed and delivered to
the Trustee, all of the Companys obligations under the Indenture, the Notes and the
Registration Rights Agreement; provided, however , that if the Surviving
Person is not a corporation, a corporation that has no material assets or
liabilities other than the Notes shall become a co-issuer of the Notes pursuant to a
supplemental indenture duly executed by the Trustee;
(2) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction on a pro forma basis
either (a) the Company (or the Surviving Person, if applicable) could Incur at least
$1.00 of Indebtedness under the first paragraph of part (a) of Section 4.09 or (b)
the Companys (or the Surviving Persons, if applicable) Fixed Charge Coverage Ratio
is greater than that of the Company prior to the consummation of such transaction;
provided, however, that this clause (a)(3) does not apply if, in the good
faith determination of the chief financial officer of the Company, whose
determination shall be evidenced by certification to such effect, the principal
purpose of such transaction is to change the state of incorporation of the Company
and any such transaction shall not have as one of its purposes the evasion of the
foregoing limitations; and
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(4) the Company will have delivered to the Trustee an Officers Certificate
(attaching the arithmetic computations to demonstrate compliance with clause (3) of
this paragraph) and an Opinion of Counsel, each stating that such transaction and,
if a supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with the applicable provisions of the Indenture, that
all conditions precedent in the Indenture relating to such transaction have been
satisfied and that supplemental indenture is enforceable;
(b) No Subsidiary Guarantor will consolidate with, merge with or into, or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of its property and assets
(as an entirety or substantially an entirety in one transaction or a series of related
transactions) to, any Person or permit any Person to merge with or into it unless:
(1) it shall be the continuing Person, or the Person (if other than it) formed
by such consolidation or into which it is merged or that acquired or leased such
property and assets shall expressly assume, by a supplemental indenture, executed
and delivered to the Trustee, all of such Subsidiary Guarantors obligations under
its Note Guarantee;
(2) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; and
(3) the Company will have delivered to the Trustee an Officers Certificate and
an Opinion of Counsel, each stating that such transaction and such supplemental
indenture comply with the applicable provisions of the Indenture, that all
conditions precedent in the Indenture relating to such transaction have been
satisfied and that such supplemental indenture is enforceable;
The foregoing requirements of this Section 5.01(b) shall not apply to
a consolidation or merger of any Subsidiary Guarantor with and into the Company or any other
Subsidiary Guarantor, so long as the Company or such Subsidiary Guarantor survives such
consolidation or merger.
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 a transaction that is subject to, and that complies with the
provisions of, Section 5.01 hereof, 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
the 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 the 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 or other disposition of all or
substantially all of the properties or assets of the Company (determined
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on a consolidated basis for the Company and its Subsidiaries), in one or more related transactions
subject to, and in compliance with the provisions of, Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default. Each of the following is an Event of Default:
(1) default for 30 days in the payment when due of interest or Special Interest, if
any, on the Notes;
(2) default in the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on the Notes;
(3) (A) failure by the Company or any of its Restricted Subsidiaries for 30 days after
notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class to comply with the provisions
of Section 4.15 or (B) failure by the Company or any of its Restricted Subsidiaries to
comply with the provisions of Section 5.01 hereof;
(4) failure by the Company or any of its Restricted Subsidiaries for 30 days after
notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class to comply with the provisions
of Section 4.07, Section 4.09 or Section 4.10;
(5) failure by the Company or any of its Restricted Subsidiaries for 60 days after
notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class to comply with any of the
other agreements in the Indenture;
(6) 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 Restricted Subsidiaries that is a Significant Subsidiary (or the
payment of which is guaranteed by the Company or any of its Restricted Subsidiaries that is
a Significant Subsidiary), whether such Indebtedness or Guarantee now exists or is created
after the Closing Date, if that default:
(A) is caused by a failure to pay principal of, or interest or premium, if any,
on, such Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such 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 or the maturity of which has been so
accelerated, aggregates $100.0 million or more;
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(7) failure by the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary to pay final judgments entered by a court or courts of competent jurisdiction
aggregating in excess of $100.0 million, which judgments are not paid, discharged or stayed
for a period of 60 days;
(8) except as permitted by the Indenture, any Note Guarantee is held in any judicial
proceeding to be unenforceable or invalid or ceases for any reason to be in full force and
effect or any Subsidiary Guarantor, or any Person acting on behalf of any Subsidiary
Guarantor denies or disaffirms its obligations under its Note Guarantee;
(9) the Company or any of its Restricted Subsidiaries that would constitute a
Significant Subsidiary 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, or
(D) makes a general assignment for the benefit of its creditors; and
(10) 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 Restricted Subsidiaries
that is a Significant Subsidiary in an involuntary case;
(B) appoints a custodian of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or for all or substantially all of the property of
the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary;
or
(C) orders the liquidation of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days.
SECTION 6.02 Acceleration. In the case of an Event of Default specified in clause (9) or
(10) of Section 6.01 hereof that occurs with respect to the Company, the principal of, premium, if
any, and accrued interest, including Special Interest, if any, on the Notes then outstanding shall
automatically become due and payable immediately without any declaration or other act on the part
of the Trustee or any Holder. If any other Event of Default occurs and is continuing under the
Indenture, the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes,
then outstanding, by written notice to the Company (and to the Trustee if such notice is given by
the Holders), may, and the Trustee at the request of such Holders shall, declare the principal of,
premium, if any, and accrued interest, including Special Interest, if any,
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on the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal
of, premium, if any, and accrued interest, including Special Interest, if any, shall be immediately
due and payable. In the event of a declaration of acceleration because an Event of Default set
forth in clause (6) above has occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such Event of Default
pursuant to clause (6) shall be remedied or cured by the Company or the relevant Restricted
Subsidiary or waived by the holders of the relevant Indebtedness within 60 days after the
declaration of acceleration with respect thereto.
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 and interest on the
Notes or to enforce the performance of any provision of the Notes or the Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04 Waiver of Past Defaults. The Holders of at least a majority in principal
amount of the outstanding Notes by written notice to the Company and to the Trustee may waive all
past defaults and rescind and annul a declaration of acceleration and its consequences if (x) all
existing Events of Default, other than the nonpayment of the principal of, premium, if any, and
accrued interest on the Notes that have become due solely by such declaration of acceleration, have
been cured or waived and (y) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction. 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 the
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. The Holders of at least a majority in aggregate
principal amount of the outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or
the Indenture or that may involve the Trustee in personal liability and may take any other action
it deems proper that is not inconsistent with any such direction received from Holders of Notes.
SECTION 6.06 Limitation on Suits. Except to enforce the right to receive payment of
principal, premium, if any, or interest, including Special Interest, if any, when due, no Holder
may pursue any remedy with respect to the Indenture or the Notes unless:
(1) the Holder gives the Trustee written notice of a continuing Event of Default;
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(2) the Holders of at least 25% in aggregate principal amount of outstanding Notes make
a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee
against any costs, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and
(5) during such 60-day period, the Holders of a majority in aggregate principal amount
of the outstanding Notes do not give the Trustee a direction that is inconsistent with the
request.
A Holder of a Note may not use the 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 the Indenture, the right of any Holder of a Note to receive payment of principal,
premium, 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(1) or (2) 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 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 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 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 7.7 of the Base Indenture. 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 7.7 of the Base Indenture 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,
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securities and other properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization 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
6, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 7.7 of
the Base Indenture, including payment of all compensation, reasonable expenses and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for principal, premium, if
any, and interest, ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, premium, 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 pursuant to this
Section 6.10.
SECTION 6.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy
under the 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 and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note
pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the
then outstanding Notes.
ARTICLE 7
[RESERVED]
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 Option to Effect Legal Defeasance or Covenant Defeasance. The Company may,
any time, at the option of its Board of Directors evidenced by a resolution set forth in an
Officers Certificate, elect to have either Section 8.02 or 8.03 hereof be applied to all
outstanding Notes and the Note Guarantees upon compliance with the conditions set forth below in
this Article 8.
SECTION 8.02 Legal Defeasance and Discharge. Upon the Companys exercise under Section
8.01 hereof of the option applicable to this Section 8.02, the Company and each of
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the Subsidiary Guarantors will, subject to the satisfaction of the conditions set forth in Section
8.04 hereof, be deemed to have been discharged from their obligations with respect to all
outstanding Notes (including the Note Guarantees) on the date the conditions set forth below are
satisfied (hereinafter, Legal Defeasance). For this purpose, Legal Defeasance means that
the Company and the Subsidiary Guarantors will be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will
thereafter be deemed to be outstanding only for the purposes of Section 8.05 hereof and the other
Sections of this Supplemental Indenture referred to in clauses (1) and (2) below, and to have
satisfied all their other obligations under such Notes, the Note Guarantees and the 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 will survive until otherwise
terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of, or interest or premium, if any, on such Notes when such payments are due from
the trust referred to in Section 8.04 hereof;
(2) the Companys obligations with respect to such Notes under Article 2 and Section
4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Companys and the Subsidiary Guarantors obligations in connection therewith; and
(4) 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 hereof.
SECTION 8.03 Covenant Defeasance. Upon the Companys exercise under Section 8.01 hereof of
the option applicable to this Section 8.03, the provisions of this Supplemental Indenture will no
longer be in effect with respect to clause (3) of the first paragraph under Section 5.01(a) and all
the covenants described herein under Article 4 (hereinafter Covenant Defeasance) and
clause (3) under Section 6.01 with respect to such clause (3) of the first paragraph under Section
5.01(a), clauses (4) and (5) under Section 6.01 with respect to such other covenants and clauses
(6) and (7) under Section 6.01 shall be deemed not to be Events of Default upon, among other
things, the deposit with the Trustee, in trust, of money and/or U.S. Government Obligations that
through the payment of interest and principal in respect thereof in accordance with their terms
will provide money in an amount sufficient to pay the principal of, premium, if any, and accrued
interest on the Notes on the Stated Maturity of such payments in accordance with the terms of the
Indenture and the Notes, the satisfaction of the provisions described in clauses 2(B), (3) and (7)
of Section 8.04 and the delivery by the Company to the Trustee of an Opinion of Counsel to the
effect that, among other things, the Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and defeasance of certain covenants and Events of
Default and will be subject to federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit and defeasance had not occurred. Upon
such an occurrence the Notes will
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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 will continue to be deemed outstanding for all other purposes hereunder (it being
understood that such Notes will not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Note Guarantees,
the Company and the Subsidiary Guarantors may omit to comply with and will 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 will not constitute a Default or an Event of Default under Section 6.01 hereof,
but, except as specified above, the remainder of the Indenture and such Notes and Note Guarantees
will be unaffected thereby.
In the event that the Company exercises its option to omit compliance with certain covenants
and provisions of the Indenture with respect to the Notes as described in the immediately preceding
paragraph and the Notes are declared due and payable because of the occurrence of an Event of
Default that remains applicable, the amount of money and/or U.S. Government Obligations on deposit
with the Trustee will be sufficient to pay amounts due on the Notes at the time of their Stated
Maturity but may not be sufficient to pay amounts due on the Notes at the time of the acceleration
resulting from such Event of Default. However, the Company will remain liable for such payments and
the Companys obligations or any Subsidiary Guarantors Note Guarantee with respect to such
payments will remain in effect.
SECTION 8.04 Conditions to Legal or Covenant Defeasance. In order to exercise either Legal
Defeasance or Covenant Defeasance under either Section 8.02 or 8.03:
(1) The Company must deposit with the Trustee, in trust, money and/or U.S. Government
Obligations that through the payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount sufficient to pay the principal
of, premium, if any, and accrued interest on the Notes on the Stated Maturity of such
payments in accordance with the terms of the Indenture and the Notes;
(2) The Company must have delivered to the Trustee
(A) either (x) an Opinion of Counsel to the effect that Holders will not
recognize income, gain or loss for federal income tax purposes as a result of the
Companys exercise of its option under this Article 8 and will be subject to federal
income tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit, Defeasance and discharge had not occurred, which
Opinion of Counsel must be based upon (and accompanied by a copy of) a ruling of the
Internal Revenue Service to the same effect unless there has been a change in
applicable federal income tax law after the Closing Date such that a ruling is no
longer required or (y) a ruling directed to the Trustee received from the Internal
Revenue Service to the same effect as the aforementioned Opinion of Counsel and (B)
an officers certificate to the effect that the deposit was not made with the intent
of preferring holders of the Notes
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over any other creditors with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others;
(3) immediately after giving effect to such deposit on a pro forma basis, no Event of
Default, or event that after the giving of notice or lapse of time or both would become an
Event of Default, shall have occurred and be continuing on the date of such deposit, and
such deposit shall not result in a breach or violation of, or constitute a default under,
any other agreement or instrument to which the Company or any of its Subsidiaries is a party
or by which the Company or any of its Subsidiaries is bound;
(4) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than the 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;
(5) the Company must deliver to the Trustee an Officers Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Notes over
the other creditors of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others;
(6) the Company must deliver 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; and
(7) if at such time the Notes are listed on a national securities exchange, the Company
must deliver to the Trustee an Opinion of Counsel to the effect that the Notes will not be
delisted as a result of such deposit, Defeasance and discharge.
provided, that notwithstanding the foregoing, in order to exercise Covenant Defeasance under
Section 8.03, the Company must only satisfy those conditions of this Section 8.04 that are
specifically identified in Section 8.03 hereof and such other conditions required by Section 8.03.
SECTION 8.05 Deposited Money and U.S. Government to Obligations be Held in Trust; Other
Miscellaneous Provisions. Subject to Section 8.06 hereof, all money and non-callable U.S.
Government Obligations (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 hereof in respect of the outstanding Notes will be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and the 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, and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable U.S. Government Obligation deposited pursuant to
Section 8.04 hereof 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.
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Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to
the Company from time to time upon the request of the Company any money or non-callable U.S.
Government Obligations held by it as provided in Section 8.04 hereof 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(1) hereof),
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 pursuant to Section 8.04 or Section 12.01 for the
payment of the principal of, premium, if any, or interest on any Note and remaining unclaimed for
two years after such principal, premium, 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) will be discharged from such
trust; and the Holder of such Note will thereafter be permitted to 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, will thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in 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 will not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 8.07 Reinstatement. If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable U.S. Government Obligations in accordance with Section 8.02 or 8.03
hereof, 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 Companys and
the Subsidiary Guarantors obligations under the Indenture and the Notes and the Note Guarantees
will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof 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 hereof, as the case may be; provided, however,
that, if the Company makes any payment of principal of, premium, if any, or interest on any Note
following the reinstatement of its obligations, the Company will 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
Supplemental Indenture, without the consent of any Holder of Notes, the Company, the Subsidiary
Guarantors and the Trustee may amend or supplement the Indenture, the Notes or the Note Guarantees:
(1) to cure any ambiguity, defect or inconsistency;
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(2) to provide for uncertificated Notes in addition to or in place of certificated
Notes;
(3) to conform the text of the Indenture to any provisions of the Description of
Notes section of the offering memorandum to the extent that a portion of that Description
of Notes section of the offering memorandum was intended to be a verbatim recitation of the
Indenture or the Notes;
(4) to provide for the issuance of additional Notes under the Indenture to the extent
otherwise so permitted under the terms of the Indenture;
(5) to comply with the provisions of Section 4.18 and Article 5 hereof;
(6) to comply with any requirements of the SEC in connection with the qualification of
the Indenture under the Trust Indenture Act;
(7) to evidence and provide for the acceptance of appointment by a successor Trustee;
(8) to add a Subsidiary Guarantor; or
(9) to make any change that, in the good faith opinion of the Board of Directors, does
not materially and adversely affect the rights of any Holder.
Upon the request of the Company and upon receipt by the Trustee of the documents described in
Section 13.04 hereof, the Trustee will join with the Company and the Subsidiary Guarantors in the
execution of any such amended or supplemental indenture, but the Trustee will not be obligated to
enter into such amended or supplemental indenture that affects its own rights, duties or immunities
under the Indenture or otherwise.
SECTION 9.02 With Consent of Holders of Notes. Except as provided below in this Section
9.02, the Company, the Subsidiary Guarantors and the Trustee may amend or supplement the Indenture
(including, without limitation, Section 4.10 and 4.15 hereof), the Note Guarantees and the Notes
with the consent of the Holders of at least a majority in aggregate principal amount of the Notes
(including, without limitation, Additional Notes, if any) then outstanding (including, without
limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, 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 the Indenture or the Note Guarantees or the
Notes may be waived with the consent of the Holders of a majority in aggregate principal amount of
the then outstanding Notes (including, without limitation, Additional Notes, if any) voting as a
single class (including, without limitation, consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes). Section 2.03 hereof shall determine which Notes
are considered to be outstanding for purposes of this Section 9.02.
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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 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 13.04 hereof, the
Trustee will join with the Company and the Subsidiary Guarantors in the execution of such amended
or supplemental indenture unless such amended or supplemental indenture directly affects the
Trustees own rights, duties or immunities under the Indenture or otherwise, in which case the
Trustee may in its discretion, but will not be obligated to, enter into such amended or
supplemental Indenture.
It is not necessary for the consent of the Holders of Notes under this Section 9.02 to approve
the particular form of any proposed amendment, supplement or waiver, but it is sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company will 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, will not, however, in any way impair or affect the validity of any such amendment,
supplement or waiver. However, without the consent of each Holder affected, an amendment,
supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(1) change the Stated Maturity of the principal of, or any installment of interest on,
any Note;
(2) reduce the principal amount of or premium, if any, or interest on, any Note;
(3) change the optional Redemption Dates or optional redemption prices of the Notes
from that stated under Section 3.07;
(4) change the place or currency of payment of principal of, or premium, if any, or
interest on, any Note;
(5) impair the right to institute suit for the enforcement of any payment on or after
the Stated Maturity (or, in the case of a redemption, on or after the Redemption Date) of
any Note;
(6) waive a default in the payment of principal of, premium, if any, or interest,
including Special Interest, if any, on the Notes (other than a rescission of acceleration of
the Notes to the extent that such acceleration was initially instituted pursuant to a vote
of the Holders);
(7) release any Subsidiary Guarantor from its Note Guarantee, except as provided in the
Indenture;
(8) amend or modify any of the provisions of the Indenture in any manner which
subordinates the Notes issued thereunder in right of payment to any other
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Indebtedness of the Company or which subordinates any Note Guarantee in right of
payment to any other Indebtedness of the Subsidiary Guarantor issuing any such Note
Guarantee; or
(9) reduce the percentage or aggregate principal amount of outstanding Notes the
consent of whose Holders is necessary for waiver of compliance with certain provisions of
the Indenture or for waiver of certain defaults.
SECTION 9.03 Compliance with Trust Indenture Act. Every amendment or supplement to the
Indenture or the Notes will 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 Holders 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.
For purposes of the Indenture, the consent of the Holder of a Global Security shall be deemed
to include any consent delivered by any member of, or participant in, any Depositary or DTC, any
nominees thereof and their respective successors and assigns, or such other depository institution
hereinafter appointed by the Company (Depository Entity) by electronic means in accordance with
the Automated Tender Offer Procedures system or other customary procedures of, and pursuant to
authorization by, such Depository Entity.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action required or
permitted to be taken pursuant to the Indenture. If a record date is fixed, then notwithstanding
the first paragraph of this Section 9.04, those Persons who were Holders at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to give such consent or
to revoke any consent previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall become valid or effective
more than 120 days after such record date.
Any Holder entitled hereunder to give, make or take any action under the Indenture with regard
to any particular Note may do so, or duly appoint any Person or Persons as its agent or agents to
do so, with regard to all or any part of the principal amount of such Note.
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, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
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Any consent of any Holder of Notes may include, without limitation, any consent obtained in
connection with a tender offer or exchange offer for, or purchase of, Notes.
Failure to make the appropriate notation or issue a new Note will not affect the validity and
effect of such amendment, supplement or waiver.
SECTION 9.06 Trustee to Sign Amendments, etc. The Trustee will 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 amended or supplemental indenture until its Board of Directors approves it. In
executing any amended or supplemental indenture, the Trustee will be provided with and (subject to
Section 7.1 of the Base Indenture) will be fully protected in relying upon, in addition to the
documents required by Section 13.04 hereof, an Officers Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is authorized or permitted by
the Indenture.
ARTICLE 10
[RESERVED]
ARTICLE 11
NOTE GUARANTEES
SECTION 11.01 Guarantee.
(a) Subject to this Article 11, each of the Subsidiary 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 the Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that:
(1) the principal of, premium, if any, and interest, including Special
Interest, if any, on the Notes will be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all other obligations
of the Company to the Holders or the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and
(2) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that same will 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 or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Subsidiary Guarantors will be jointly and severally obligated to pay the same
immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a
guarantee of collection.
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(b) The Subsidiary Guarantors hereby agree that their obligations hereunder are
unconditional, irrespective of the validity, regularity or enforceability of the Notes or
the 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 Subsidiary
Guarantor. Each Subsidiary 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 Note Guarantee will not be discharged except
by complete performance of the obligations contained in the Notes and the Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Subsidiary Guarantors, any amount
paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore
discharged, will be reinstated in full force and effect.
(d) Each Subsidiary Guarantor agrees that it will not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further
agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 hereof for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (2) 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) will forthwith become due and payable by the Subsidiary Guarantors
for the purpose of this Note Guarantee, in each case subject to any rescission of any such
acceleration pursuant to Section 6.04. The Subsidiary Guarantors will have the right to
seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Note Guarantee.
SECTION 11.02 Intentionally Omitted
SECTION 11.03 Limitation on Subsidiary Guarantor Liability. Each Subsidiary Guarantor, and
by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such
parties that the Note Guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer
or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Subsidiary
Guarantors hereby irrevocably agree that the obligations of such Subsidiary Guarantor will be
limited to the maximum amount that will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws,
and after giving effect to any collections from, rights to receive
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contribution from or payments made by or on behalf of any other Subsidiary Guarantor in respect of
the obligations of such other Subsidiary Guarantor under this Article 11, result in the obligations
of such Subsidiary Guarantor under its Note Guarantee not constituting a fraudulent transfer or
conveyance.
SECTION 11.04 Execution and Delivery of Note Guarantee. To evidence its Note Guarantee set
forth in Section 11.01 hereof, each Subsidiary Guarantor hereby agrees that a notation of such Note
Guarantee substantially in the form attached as Exhibit B hereto will be endorsed by an
Officer of such Subsidiary Guarantor on each Note authenticated and delivered by the Trustee and
that the Indenture will be executed on behalf of such Subsidiary Guarantor by one of its Officers.
Each Subsidiary Guarantor hereby agrees that its Note Guarantee set forth in Section 11.01
hereof will remain in full force and effect notwithstanding any failure to endorse on each Note a
notation of such Note Guarantee.
If an Officer whose signature is on the Indenture or on the Note Guarantee no longer holds
that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed,
the Note Guarantee will be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, will
constitute due delivery of the Note Guarantee set forth in the Indenture on behalf of the
Subsidiary Guarantors.
SECTION 11.05 Subsidiary Guarantors May Consolidate, etc., on Certain Terms. Except as
otherwise provided in this Section 11.05, no Subsidiary Guarantor will consolidate with, merge with
or into, or sell, convey, transfer, lease or otherwise dispose of all or substantially all of its
property and assets (as an entirety or substantially an entirety in one transaction or a series of
related transactions) to, any Person or permit any Person to merge with or into it unless:
(1) it shall be the continuing Person, or the Person (if other than it) formed by such
consolidation or into which it is merged or that acquired or leased such property and assets
shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee,
all of such Subsidiary Guarantors obligations under its Note Guarantee;
(2) immediately after giving effect to such transaction, no Default or Event of Default
shall have occurred and be continuing; and
(3) the Company will have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that such transaction and such supplemental indenture
comply with the applicable provisions of the Indenture, that all conditions precedent in the
Indenture relating to such transaction have been satisfied and that such supplemental
indenture is enforceable.
In case of any such consolidation, merger, sale or disposition and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the Trustee and
substantially in the form of Exhibit C hereto, of the Note Guarantee endorsed upon the
Notes and
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the due and punctual performance of all of the covenants and conditions of the Indenture to be
performed by the Subsidiary Guarantor, such successor Person will succeed to and be substituted for
the Subsidiary Guarantor with the same effect as if it had been named herein as a Subsidiary
Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note
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 Note Guarantees so issued will in
all respects have the same legal rank and benefit under the Indenture as the Note Guarantees
theretofore and thereafter issued in accordance with the terms of the Indenture as though all of
such Note Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses (1), (2) and (3)
above, the foregoing requirements of this Section 11.05 shall not apply to a consolidation or
merger of any Subsidiary Guarantor with and into the Company or any other Subsidiary Guarantor, so
long as the Company or such Subsidiary Guarantor survives such consolidation or merger.
SECTION 11.06 Releases.
The Note Guarantee of a Subsidiary Guarantor will be released, and such Subsidiary Guarantor
will be released from and relieved of all of its obligations under its Note Guarantee and the
Indenture:
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(1) |
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in connection with any sale, exchange or transfer of the Capital Stock of that
Subsidiary Guarantor (including by way of merger or consolidation), after which such
Subsidiary Guarantor is no longer a Subsidiary of the Company; |
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(2) |
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if the Company designates any Restricted Subsidiary that is a Subsidiary
Guarantor to be an Unrestricted Subsidiary in accordance with the applicable provisions
of the Indenture; |
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(3) |
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the release of such Subsidiary Guarantors Guarantee of all other Indebtedness
of the Company; or |
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(4) |
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upon Legal Defeasance in accordance with Article 8 hereof or satisfaction and
discharge of the Indenture in accordance with Article 12 hereof. |
Upon delivery by the Company to the Trustee of an Officers Certificate and an Opinion of
Counsel to the effect that a release of a Subsidiary Guarantor in accordance with this Section
11.06 is authorized or permitted by the Indenture, Trustee will, upon the request and at the
expense of the Company, execute any documents reasonably requested by the Company in order to
evidence the release of such Subsidiary Guarantor from its obligations under its Note Guarantee and
the Indenture.
ARTICLE 12
SATISFACTION AND DISCHARGE
SECTION 12.01 Satisfaction and Discharge. The Indenture will be discharged and will cease
to be of further effect as to all Notes issued hereunder when:
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(1) either
(a) all of the Notes theretofore authenticated and delivered (except lost,
stolen or destroyed Notes which have been replaced or paid and Notes for whose
payment money has theretofore been deposited in trust by the Company and thereafter
repaid to the Company) have been delivered to the Trustee for cancellation; or
(b) all Notes not theretofore delivered to the Trustee for cancellation have
become due and payable pursuant to an optional redemption notice or otherwise or
will become due and payable within one year, and the Company has irrevocably
deposited or caused to be deposited with the Trustee funds in an amount sufficient
to pay and discharge the entire indebtedness on the Notes not theretofore delivered
to the Trustee for cancellation for principal of, premium, if any, and interest on
the Notes to the date of deposit together with irrevocable instructions from the
Company directing the Trustee to apply such funds to the payment thereof at maturity
or on the Redemption Date, as the case may be; and
(2) no Default or Event of Default has occurred and is continuing on the date of the
deposit (other than a Default or Event of Default resulting from the borrowing of funds to
be applied to such deposit) and the deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or any Subsidiary
Guarantor is a party or by which the Company or any Subsidiary Guarantor is bound; and
(3) the Company has paid all other sums payable under the Indenture by the Company.
In addition, the Company must deliver an Officers Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
Upon satisfaction of the conditions set forth in this Section 12.01, and the receipt of such
Officers Certificate and Opinion of counsel, the Trustee, upon request and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of the
Indenture.
Notwithstanding the satisfaction and discharge of the Indenture, if money has been deposited
with the Trustee pursuant to subclause (b) of clause (1) of this Section, the provisions of
Sections 12.02 and 8.06 will survive. In addition, nothing in this Section 12.01 will be deemed to
discharge those provisions of Section 7.7 of the Base Indenture that, by their terms, survive the
satisfaction and discharge of the Indenture.
SECTION 12.02 Application of Trust Money. Subject to the provisions of Section 8.06
hereof, all money deposited with the Trustee pursuant to Section 12.01 hereof shall be held in
trust and applied by it, in accordance with the provisions of the Notes and the Indenture, to the
payment, either directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited with the
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Trustee; but such money need not be segregated from other funds except to the extent required by
law.
If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 12.01 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Companys and any Subsidiary Guarantors obligations under the Indenture and
the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section
12.01 hereof; provided that if the Company has made any payment of principal of, premium,
if any, or interest on any Notes because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Notes to receive such payment from the money or
U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls. If any provision of this Supplemental
Indenture limits, qualifies or conflicts with the duties imposed by TIA § 318(c), the imposed
duties will control.
SECTION 13.02 Notices. Any notice or communication by the Company, any Subsidiary
Guarantor 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), telex, telecopier
or overnight air courier guaranteeing next day delivery, to the others address:
If to the Company and/or any Subsidiary Guarantor:
Hanesbrands Inc.
1000 East Hanes Mill Road
Winston Salem, North Carolina 27105
Attention: Richard D. Moss
With a copy to:
Kirkland & Ellis LLP
300 North LaSalle
Chicago, Illinois 60654
Attention: Gerald T. Nowak
If to the Trustee:
Branch Banking and Trust Company
223 West Nash Street
Wilson, North Carolina 27893
Attention: Corporate Trust Administration
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The Company, any Subsidiary Guarantor 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) will 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 telexed; when receipt
acknowledged, 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 will 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 will 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 will not affect its sufficiency with
respect to other Holders.
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 will mail a copy to the Trustee
and each Agent at the same time.
Where the Indenture provides for notice in any manner, such notice may be waived in writing by
the Person entitled to receive such notice, either before or after the event, and such waiver shall
be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action taken in reliance
upon such waiver.
Where the Indenture provides for notice of any event to a Holder of a Global Security, such
notice shall be sufficiently given if given to the Depositary for such Global Security (or its
designee), pursuant to the Applicable Procedures, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of such notice.
SECTION 13.03 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 the
Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA § 312(c).
SECTION 13.04 Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under the Indenture, the Company shall
furnish to the Trustee (except that the Opinion of Counsel referred to in Section 13.04(2) hereof
shall not be required in connection with the Authentication Order):
(1) an Officers Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 13.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in the Indenture relating to the proposed action have been satisfied; and
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(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which must include the statements set forth in Section 13.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Company or any Subsidiary Guarantor may be
based, insofar as it relates to legal matters, upon a certificate of opinion of, or representations
by, counsel, unless such Officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, and may
state that it is so based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an Officer or Officers of the Company or such Subsidiary Guarantor
stating that the information with respect to such factual matters is in possession of the Company
or such Subsidiary Guarantor, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate of opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under the Indenture, they may,
but need not, be consolidated and form one instrument.
SECTION 13.05 Statements Required in Certificate or Opinion. Each certificate or opinion
with respect to compliance with a condition or covenant provided for in the Indenture (other than a
certificate provided pursuant to TIA § 314(a)(4)) must comply with the provisions of TIA § 314(e)
and must include:
(1) a statement that the Person making such certificate or opinion has read such
covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.
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SECTION 13.06 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 13.07 No Personal Liability of Incorporators, Stockholders, Officers, Directors or
Employees. No recourse for the payment of the principal of, premium, if any, or interest on
any of the Notes or for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Company or any Subsidiary Guarantor in
the Indenture, or in any of the Notes or Note Guarantees or because of the creation of any
Indebtedness represented thereby, shall be had against any incorporator, stockholder, officer,
director, employee or controlling person of the Company or any Subsidiary Guarantor or of any
successor Person thereof. Each Holder, by accepting the Notes, waives and releases all such
liability. The waiver and release are part of the consideration for the issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal securities laws.
SECTION 13.08 Governing Law. THE INDENTURE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HERETO AND THERETO, INCLUDING THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEABILITY
THEREOF, SHALL BE GOVERNED BY AND SHALL BE CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
SECTION 13.09 No Adverse Interpretation of Other Agreements. The 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 the
Indenture.
SECTION 13.10 Successors. All agreements of the Company in the Indenture and the Notes
will bind its successors. All agreements of the Trustee in the Indenture will bind its successors.
All agreements of each Subsidiary Guarantor in the Indenture will bind its successors, except as
otherwise provided in Section 11.06.
SECTION 13.11 Severability. In case any provision in the Indenture or in the Notes is
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.
SECTION 13.12 Counterpart Originals. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy will be an original, but all of them together represent
the same agreement.
SECTION 13.13 Table of Contents, Headings, etc. The Table of Contents, Cross-Reference
Table and Headings of the Articles and Sections of this Supplemental Indenture have been inserted
for convenience of reference only, are not to be considered a part of this Supplemental Indenture
and will in no way modify or restrict any of the terms or provisions hereof.
SECTION 13.14 Confirmation of Indenture; Benefits of Indenture. The Base Indenture, as
supplemented and amended by this Supplemental Indenture and all other indentures
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supplemental
to this Supplemental Indenture, is in all respects ratified and
confirmed, and the Base Indenture and this
Supplemental Indenture and all indentures supplemental to this Supplemental Indenture shall be read, taken and construed
as one and the same instrument. Nothing in the Indenture or in the Notes or Note Guarantees,
express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Notes, any benefit or any legal or equitable right, remedy or claim
under the Indenture, the Notes or the Note Guarantees.
[Signatures on following pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed
as of the day and year first above written.
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HANESBRANDS INC.
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By: |
/s/ Richard D. Moss
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Name: |
Richard D. Moss |
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Title: |
Senior Vice President and Treasurer |
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On behalf of each of the Guarantors listed below:
BA INTERNATIONAL, L.L.C.
CARIBESOCK, INC.
CARIBETEX, INC.
CASA INTERNATIONAL, LLC
CEIBENA DEL, INC.
HANES MENSWEAR, LLC
HANES PUERTO RICO, INC.
HANESBRANDS DIRECT, LLC
HANESBRANDS DISTRIBUTION, INC.
HBI BRANDED APPAREL ENTERPRISES, LLC
HBI BRANDED APPAREL LIMITED, INC.
HBI INTERNATIONAL, LLC
HBI SOURCING, LLC
INNER SELF LLC
JASPER-COSTA RICA, L.L.C.
PLAYTEX DORADO, LLC
PLAYTEX INDUSTRIES, INC.
SEAMLESS TEXTILES, LLC
UPCR, INC.
UPEL, INC.
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By: |
/s/ Richard D. Moss
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Name: |
Richard D. Moss |
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Title: |
Treasurer |
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GEARCO, INC.
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By: |
/s/ Richard D. Moss
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Name: |
Richard D. Moss |
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Title: |
Vice President Treasurer |
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On behalf of each of the Guaranteeing Subsidiaries below:
GFSI HOLDINGS, INC.
GFSI, INC.
CC PRODUCTS, INC.
EVENT 1, INC.
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By: |
/s/ Richard D. Moss
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Name: |
Richard D. Moss |
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Title: |
Vice President and Treasurer |
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed
as of the day and year first above written.
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BRANCH BANKING AND TRUST COMPANY,
as Trustee
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By: |
/s/ Gregory Yanok
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Gregory Yanok |
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Vice President |
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EXHIBIT A
[Face of Note]
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]
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CUSIP:
ISIN:
6.375% Senior Notes due 2020
HANESBRANDS INC.
promises to pay to Cede & Co. or registered assigns, the principal sum of [ ] DOLLARS on December 15, 2020.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
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HANESBRANDS INC.
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By: |
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Name: |
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HANESBRANDS INC.
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A- 4
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture:
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BRANCH BANKING AND TRUST COMPANY, as
Trustee
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[Back of Note]
6.375% Senior Notes due 2020
This Note is one of a duly authorized issue of debentures, notes or other debt instruments of
Hanesbrands Inc., a Maryland corporation (the Company), issued and to be issued in one or
more series under an indenture, dated as of August 1, 2008 (the Base Indenture), between
the Company and the Trustee. The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may be denominated in different
currencies, may mature at different times, may bear interest (if any) at different rates (which
rates may be fixed or variable), may be subject to different redemption provisions (if any), may be
subject to different sinking, purchase, or analogous funds (if any), may be subject to different
covenants and Events of Default, and may otherwise vary as provided in the Indenture.
This Note is a series of Securities of the Company (herein called the Notes), initially
limited in aggregate principal amount to $1,000,000,000, designated
pursuant to the Base Indenture, as
amended and supplemented by the Fourth Supplemental Indenture, dated as of November 9, 2010
(the Supplemental Indenture), among the Company, the Subsidiary Guarantors and the
Trustee (the Base Indenture, as amended and supplemented by the Supplemental Indenture is referred to
herein as the Indenture).
Capitalized terms used herein have the meanings assigned to them in the Indenture unless otherwise
indicated.
1. Interest.
The Company promises to pay interest on the principal amount of this Note at the rate per annum
equal to 6.375%. The Company will pay interest semi-annually in arrears on June 15 and December 15
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 will 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 the first Interest Payment Date shall be June 15, 2011. The Company will pay
interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal, interest and premium, if any, at the above rate, to the extent lawful. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
The interest rate on the Notes will in no event be higher than the maximum rate permitted by
applicable law.
2. Method of Payment.
The Company will pay interest on the Notes (except defaulted interest) to the Persons who are
registered Holders of Notes at the close of business on the June 1 or December 1 next preceding the
Interest Payment Date, even if such Notes are canceled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.04 of the Supplemental Indenture with
respect to defaulted interest. The Notes will be payable as to principal, premium 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 may be made by check
mailed to the Holders at their addresses set forth in the register of Holders; provided
that payment by wire transfer of immediately available funds will be required
A- 6
with respect to principal of, interest, and premium, if any, on all Global Securities and all other
Notes the Holders of which will have provided wire transfer instructions to the Company or the
Paying Agent. Such payment will 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, Branch Banking and Trust Company, the Trustee under the Indenture, will 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 and the Trust Indenture Act.
The terms of the Notes include those stated in the Indenture and those made part of the Indenture
by reference to the TIA (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 unsecured obligations of the
Company. This Note is a Global Security and the Notes are Global Securities under the
Indenture.
5. Optional Redemption.
At any
time prior to December 15, 2013, the Company may, at its option, on one or more occasions,
redeem up to 35% of the aggregate principal amount of the Notes (including any Additional Notes)
with the Net Cash Proceeds of one or more Equity Offerings at a redemption price equal to 106.375%
of the principal amount thereof, plus accrued and unpaid interest and Special Interest, if any, to
the Redemption Date (subject to the right of holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided that at least 65% of
the original aggregate principal amount of the Notes issued on the Closing Date remains outstanding
after each such redemption and the redemption occurs within 180 days after the closing of the
related Equity Offering.
On and after December 15, 2015, the Company may, at its option, redeem all or, from time to time,
a part of the Notes upon not less than 30 nor more than 60 days notice, at the following
redemption prices (expressed as a percentage of principal amount of the Notes), plus accrued and
unpaid interest and Special Interest, if any, on the Notes, if any, to the Redemption Date (subject
to the right of holders of record on the relevant record date to receive interest due on the
relevant interest payment date), if redeemed during the twelve-month period beginning on December
15 of the years indicated below:
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Year |
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2015 |
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103.188 |
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2016 |
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102.125 |
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2017 |
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101.062 |
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2018 and thereafter |
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100.000 |
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At any time prior to December 15, 2015, the Company may, at its option, also redeem all or a part
of the Notes upon not less than 30 nor more than 60 days prior notice mailed by first-class
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mail to each Holders registered address at a redemption price equal to 100% of the principal
amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and
Special Interest, if any, to, the Redemption Date (subject to the rights of Holders of Notes on the
relevant record date to receive interest due on the relevant interest payment date).
Unless the Company defaults in the payment of the redemption price, interest will cease to accrue
on the Notes or portions thereof called for redemption on the applicable redemption date.
The Company may acquire Notes by means other than a redemption or required repurchase, whether by
tender offer, open market purchases, negotiated transactions or otherwise, in accordance with
applicable securities laws, so long as such acquisition does not otherwise violate the terms of the
Indenture.
6. Mandatory Redemption.
The Company is not required to make mandatory redemption or sinking fund payments with respect to
the Notes.
7. Repurchase at the Option of Holder.
If a Change of Control occurs, the Company will make a Change of Control Offer to each Holder to
repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of
each Holders Notes at a purchase price equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest, including Special Interest, if any, on the Notes repurchased, if
any, to, but not including, the date of purchase, subject to the rights of the Holders on the
relevant record date to receive interest due on the relevant interest payment date.
If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, in which the
aggregate amount of Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to
Section 4.10 of the Supplemental Indenture totals at least $100.0 million, the Company must
commence, not later than the last Business Day of the month in which such Excess Proceeds exceed
$100.0 million, and consummate an Offer to Purchase from the Holders (and, if required by the terms
of any Pari Passu Indebtedness, from the holders of such Pari Passu Indebtedness) on a pro rata
basis an aggregate principal amount of Notes (and Pari Passu Indebtedness) equal to the Excess
Proceeds on such date, at a purchase price equal to 100% of their principal amount, plus, in each
case, accrued interest (if any) to the Payment Date. To the extent that any Excess Proceeds remain
after consummation of an Offer to Purchase pursuant to Section 4.10 of the Supplemental Indenture,
the Company may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture
and the amount of Excess Proceeds shall be reset to zero. Pending the final application of any Net
Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the
Net Proceeds in any manner that is not prohibited by the Indenture.
8. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the Company will 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, except that redemption notices may be mailed more than 60 days
prior to a Redemption Date if the notice is issued in connection with a defeasance of the Notes or
a satisfaction and discharge of the Indenture pursuant to Articles 8 or 12 of the Supplemental
Indenture.
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9. Denominations, Transfer, Exchange.
The Notes are issued in registered form without coupons in denominations of $2,000 and integral
multiples of $1,000 in excess thereof. 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. No service charge will
be imposed by the Company, the Trustee or the registrar for any registration of transfer or
exchange of Notes, but the Company may require a holder to pay a sum sufficient to cover any
transfer tax or other governmental 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, the
Company 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 Company, the Subsidiary Guarantors and the Trustee may amend or
supplement the Indenture (including, without limitation, Section 4.10 and 4.15 of the Supplemental
Indenture), the Note Guarantees and the Notes with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes (including, without limitation, Additional
Notes, if any) then outstanding (including, without limitation, consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections
6.04 and 6.07 of the Supplemental Indenture, 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 the Indenture or the Note Guarantees or the Notes may be waived
with the consent of the Holders of a majority in aggregate principal amount of the then outstanding
Notes (including, without limitation, Additional Notes, if any) voting as a single class
(including, without limitation, consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes). Section 2.03 of the Supplemental Indenture shall determine
which Notes are considered to be outstanding.
Without the consent of any Holder, the Company, the Subsidiary Guarantors and the Trustee may amend
or supplement the Indenture, the Notes or the Note Guarantees: to cure any ambiguity, defect or
inconsistency; to provide for uncertificated Notes in addition to or in place of certificated
Notes; to conform the text of the Indenture to any provisions of the Description of Notes section
of the offering memorandum to the extent that a portion of that Description of Notes section of
the offering memorandum was intended to be a verbatim recitation of the Indenture or the Notes; to
provide for the issuance of additional Notes under the Indenture to the extent otherwise so
permitted under the terms of the Indenture; to comply with the provisions described under Section
4.18 or Section 5.01 of the Supplemental Indenture; to comply with any requirements of the SEC in
connection with the qualification of the Indenture under the Trust Indenture Act; to evidence and
provide for the acceptance of appointment by a successor Trustee; to add a Subsidiary Guarantor; or
to make any change that, in the good faith opinion of the Board of Directors, does not materially
and adversely affect the rights of any Holder.
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12. Defaults and Remedies.
Events of Default include: (i) default for 30 days in the payment when due of interest, including
Special Interest, if any, on the Notes; (ii) default in the payment when due (at maturity, upon
redemption or otherwise) of the principal of, or premium, if any, on the Notes; (iii) (A) failure
by the Company or any of its Restricted Subsidiaries for 30 days after notice to the Company by the
Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding
voting as a single class to comply with the provisions of Section 4.15 of the Supplemental
Indenture or (B) failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions of Section 5.01 of the Supplemental Indenture; (iv) failure by the Company or any of its
Restricted Subsidiaries for 30 days after notice to the Company by the Trustee or the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding voting as a single class to
comply with the provisions of Section 4.07, Section 4.09 or Section 4.10 of the Supplemental
Indenture; (v) failure by the Company or any of its Restricted Subsidiaries for 60 days after
notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding voting as a single class to comply with any of the other agreements
in the Indenture; (vi) 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 Restricted Subsidiaries that is a Significant Subsidiary (or the payment of
which is guaranteed by the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary), whether such Indebtedness or Guarantee now exists or is created after the date of the
Indenture, if that default: (A) is caused by a failure to pay principal of, or interest or premium,
if any, on, such Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such 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 or the maturity of which has been
so accelerated, aggregates $100.0 million or more; (vii) failure by the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary to pay final judgments entered by a court
or courts of competent jurisdiction aggregating in excess of $100.0 million, which judgments are
not paid, discharged or stayed for a period of 60 days;(viii) except as permitted by the Indenture,
any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for
any reason to be in full force and effect or any Subsidiary Guarantor, or any Person acting on
behalf of any Subsidiary Guarantor denies or disaffirms its obligations under its Note Guarantee;
(ix) the Company or any of its Restricted Subsidiaries that would constitute a Significant
Subsidiary 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; or (D) makes a
general assignment for the benefit of its creditors; and (x) 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 Restricted Subsidiaries that is a Significant Subsidiary in an involuntary case; (B) appoints a
custodian of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or
for all or substantially all of the property of the
Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary; or (C) orders the liquidation of the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary; and the order or decree remains unstayed
and in effect for 60 consecutive days.
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In the case of an Event of Default specified in clause (9) or (10) of Section 6.01 of the
Supplemental Indenture that occurs with respect to the Company, the principal of, premium, if any,
and accrued interest on the Notes then outstanding shall automatically become due and payable
immediately without any declaration or other act on the part of the Trustee or any Holder. If any
other Event of Default occurs and is continuing under the Indenture, the Trustee or the Holders of
at least 25% in aggregate principal amount of the Notes, then outstanding, by written notice to the
Company (and to the Trustee if such notice is given by the Holders), may, and the Trustee at the
request of such Holders shall, declare the principal of, premium, if any, and accrued interest on
the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal of,
premium, if any, and accrued interest shall be immediately due and payable. In the event of a
declaration of acceleration because an Event of Default set forth in clause (6) of Section 6.01 of
the Supplemental Indenture has occurred and is continuing, such declaration of acceleration shall
be automatically rescinded and annulled if the event of default triggering such Event of Default
pursuant to clause (6) of Section 6.01 of the Supplemental Indenture shall be remedied or cured by
the Company or the relevant Restricted Subsidiary or waived by the holders of the relevant
Indebtedness within 60 days after the declaration of acceleration with respect thereto.
13. Trustee Dealings with Company.
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 Affiliates of the Company, with the same rights it would
have 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, will not have any liability for any obligations of the Company or the Guarantors under the
Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. 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 will 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. 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.
A- 11
18. Repayment to the Company.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust
pursuant to Section 8.04 or Section 12.01 of the Supplemental Indenture for the payment of the
principal of, premium, if any, or interest on any Note and remaining unclaimed for two years after
such principal, premium, 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) will be discharged from such trust; and the
Holder of such Note will thereafter be permitted to 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, will thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in 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 will not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining will be repaid to
the Company.
19. Governing Law.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO AND THERETO, INCLUDING THE
INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEABILITY THEREOF, SHALL BE GOVERNED BY AND SHALL
BE CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:
Hanesbrands Inc.
1000
East Hanes Mill Road
Winston-Salem,
North Carolina 27105
Attention:
Corporate Secretary
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
____________________________________________
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing
_________________________ attorney to transfer such Note on the books of the Issuer, with full
power of substitution in the premises.
Dated:_______________________
NOTICE: The signature to this assignment must correspond with the name as written upon the face of
the within Note in every particular without alteration or enlargement or any change whatsoever.
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 Exchange Act.
A-13
[For Definitive Notes only]
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to either Section 4.10
or Section 4.15 of the Indenture, as applicable, check the corresponding box:
Section 4.10 o Section 4.15 o
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section
4.10 or Section 4.15 of the Indenture, as applicable, state the amount in principal amount:
$______________
Date:________________
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Your Signature: |
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(Sign exactly as your name appears on the
other side of this Note.) |
Tax Identification No.: |
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Signature Guarantee*:________________
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee) |
A-14
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:
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Principal Amount |
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Amount of decrease |
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of this Global Note |
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in Principal Amount |
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in Principal Amount |
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authorized officer |
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Date of Exchange |
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this Global Note |
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this Global Note |
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Custodian |
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A-15
EXHIBIT B
FORM OF NOTATION OF GUARANTEE
For value received, each Subsidiary Guarantor (which term includes any successor Person under
the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in
the Indenture and subject to the provisions in the indenture, dated as of August 1, 2008 (the
Base Indenture), among Hanesbrands Inc. (the Company ), the Subsidiary
Guarantors party thereto and Branch Banking and Trust Company, as trustee (the Trustee),
as amended and supplemented by the Fourth Supplemental Indenture, dated as of November 9, 2010 (the
Supplemental Indenture), among the Company, the Subsidiary Guarantors and the Trustee
(Base Indenture, as amended and supplemented by the Supplemental Indenture is referred to herein as
the Indenture) (a) the due and punctual payment of the principal of, premium, if any, and
interest on, the Notes, whether at maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal of and interest on
the Notes, if any, if lawful, the due and punctual payment of
Special Interest on the Notes, if any, if lawful,
and the due and punctual performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time
of payment or renewal of any Notes or any of such other obligations, that the same will 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 or otherwise. The obligations of the Subsidiary
Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the
Indenture are expressly set forth in Article 11 of the Supplemental Indenture and reference is
hereby made to the Indenture for the precise terms of the Note Guarantee. Each Holder of a Note, by
accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the
Trustee attorney-in-fact of such Holder for such purpose.
Capitalized terms used but not defined herein have the meanings given to them in the
Indenture.
[NAME OF SUBSIDIARY GUARANTOR(S)]
B-1
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
THIS SUPPLEMENTAL INDENTURE (the [_______] Supplemental Indenture), dated as of
, 20__, among (the Guaranteeing Subsidiary), a
subsidiary of Hanesbrands Inc. (or its permitted successor), a Maryland corporation (the
Company), the Company, the other Subsidiary Guarantors (as defined in the Indenture
referred to herein) and Branch Banking and Trust Company, as trustee under the Indenture referred
to below (the Trustee).
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the Trustee the indenture, dated
as of August 1, 2008 (the Base Indenture), among Hanesbrands Inc. (the Company
), the Subsidiary Guarantors party thereto and the Trustee, as amended and supplemented by the
Fourth Supplemental Indenture, dated as of November 9, 2010 (the Supplemental Indenture),
among the Company, the Subsidiary Guarantors and the Trustee (Base Indenture, as amended and
supplemented by the Supplemental Indenture is referred to herein as the Indenture)
providing for the issuance of the Companys 6.375% Senior Notes due 2020 (the Notes);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Companys Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the Note Guarantee ); and
WHEREAS, pursuant to Section 9.01 of the Supplemental Indenture, the Trustee is authorized to
execute and deliver this [___] Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an
unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee
and in the Indenture including but not limited to Article 11 of the Supplemental Indenture.
4. No Recourse Against Others. No director, officer, employee, incorporator or stockholder
of the Company or any Guarantor, as such, will have any liability for any obligations of the
Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes
C-1
by accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under
the federal securities laws.
5. Governing Law. THIS [___] SUPPLEMENTAL INDENTURE AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO AND THERETO, INCLUDING THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEABILITY
THEREOF, SHALL BE GOVERNED BY AND SHALL BE CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
6. Counterparts. The parties may sign any number of copies of this [___] Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
7. Effect of Headings. The Section headings herein are for convenience only and shall not
affect the construction hereof.
8. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this [___] Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary
and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this [___] Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
Dated: , 20___
[GUARANTEEING SUBSIDIARY]
HANESBRANDS INC.
[EXISTING SUBSIDIARY GUARANTORS]
[TRUSTEE]
C-2
EXHIBIT D
FORM OF CERTIFICATE OF TRANSFER
Hanesbrands Inc.
1000 East Hanes Mill Road
Winston-Salem, North Carolina 27105
Attention: Corporate Secretary
[TRUSTEE ADDRESS]
Attention: Corporate Unit
Re: 6.375% Senior Notes Due 2020
Reference is hereby made to the Indenture, dated as of December 10, 2009, among Hanesbrands Inc.,
as issuer (the Company), the guarantors party thereto (the Guarantors) and Branch Banking and
Trust Company, as supplemented by the Fourth Supplemental Indenture, dated as of November 9, 2010,
among the Company, the guarantors and the Trustee (as so supplemented, the Indenture).
Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.
___________________, (the Transferor) owns and proposes to transfer the Note[s] or interest in
such Note[s] specified in Annex A hereto, in the principal amount of $___________ in such Note[s]
or interests (the Transfer), to ___________________________ (the Transferee), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies
that:
[CHECK ALL THAT APPLY]
1. o Check if Transferee will take delivery of a beneficial interest in the 144A Global Note
or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected pursuant
to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the Securities
Act), and, accordingly, the Transferor hereby further certifies that the beneficial interest or
Definitive Note is being transferred to a Person that the Transferor reasonably believes is
purchasing the beneficial interest or Definitive Note for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion, and such Person
and each such account is a qualified institutional buyer within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and
in the Indenture and the Securities Act.
2. o Check if Transferee will take delivery of a beneficial interest in the Regulation S
Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a
D-1
Person in the United States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities market and neither
such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with
a buyer in the United States, (ii) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the
Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of
a U.S. Person. Upon consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
3. o Check and complete if Transferee will take delivery of a beneficial interest in a
Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or
Regulation S. The Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws
of any state of the United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) o such Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act;
or
(b) o such Transfer is being effected to the Company or a subsidiary thereof;
or
(c) o such Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery requirements of
the Securities Act;
or
(d) o such Transfer is being effected pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a Restricted
Global Note or Restricted Definitive Notes and the requirements of the exemption claimed,
which certification is supported by (1) a certificate executed by the Transferee in the
form of Exhibit F to the Indenture and (2) if such Transfer is in
D-2
respect of a principal amount of Notes at the time of transfer of less than $250,000,
an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Notes and in the Indenture and the
Securities Act.
4. o Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global
Note or of an Unrestricted Definitive Note.
(a) o Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.
(b) o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant
to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.
(c) o Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of
the Company.
D-3
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[Insert Name of Transferor]
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By: |
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Name: |
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Title: |
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Dated: _______________________
D-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
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o a beneficial interest in the. |
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o 144A Global Note (CUSIP _________), or |
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o Regulation S Global Note (CUSIP _________), or |
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o a Restricted Definitive Note. |
2. After the Transfer the Transferee will hold:
[CHECK ONE]
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o a beneficial interest in the: |
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o 144A Global Note (CUSIP _________), or |
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o Regulation S Global Note (CUSIP _________), or |
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o Unrestricted Global Note (CUSIP _________); or |
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o a Restricted Definitive Note; or |
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o an Unrestricted Definitive Note, |
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in accordance with the terms of the Indenture. |
D-5
EXHIBIT E
FORM OF CERTIFICATE OF EXCHANGE
Hanesbrands Inc.
1000 East Hanes Mill Road
Winston-Salem, North Carolina 27105
Attention: Corporate Secretary
[TRUSTEE ADDRESS]
Attention: Corporate Unit
Re: 6.375% Senior Notes Due 2020
Reference is hereby made to the Indenture, dated as of December 10, 2009, among Hanesbrands Inc.,
as issuer (the Company), the guarantors party thereto (the Guarantors) and Branch Banking and
Trust Company, as supplemented by the Fourth Supplemental Indenture, dated as of November 9, 2010,
among the Company, the guarantors and the Trustee (as so supplemented, the Indenture).
Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.
__________________________, (the Owner) owns and proposes to exchange the Note[s] or interest in
such Note[s] specified herein, in the principal amount of $____________ in such Note[s] or
interests (the Exchange). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note
for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a) o Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial
interest in an Unrestricted Global Note. In connection with the Exchange of the Owners beneficial
interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owners own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance
with the Securities Act of 1933, as amended (the Securities Act), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted
Global Note is being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(b) o Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted
Definitive Note. In connection with the Exchange of the Owners beneficial interest in a
Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owners own account without transfer,
E-1
(ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of any state of the
United States.
(c) o Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted
Global Note. In connection with the Owners Exchange of a Restricted Definitive Note for a
beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owners own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(d) o Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In
connection with the Owners Exchange of a Restricted Definitive Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the
Owners own account without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
(a) o Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted
Definitive Note. In connection with the Exchange of the Owners beneficial interest in a
Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for the Owners own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.
(b) o Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted
Global Note. In connection with the Exchange of the Owners Restricted Definitive Note for a
beneficial interest in the [CHECK ONE] o 144A Global Note, o Regulation S Global Note, with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the
Owners own account without transfer and (ii) such Exchange has been effected in compliance with
the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, and in compliance with any applicable blue sky securities laws
of any state of the United States. Upon consummation of the
E-2
proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued
will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed
on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of
the Company.
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[Insert Name of Transferor]
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By: |
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Name: |
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Title: |
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Dated: ______________________
E-3
EXHIBIT F
FORM OF CERTIFICATE FROM
TRANSFEREE
Hanesbrands Inc.
1000 East Hanes Mill Road
Winston-Salem, North Carolina 27105
Attention: Corporate Secretary
[TRUSTEE ADDRESS]
Attention: Corporate Unit
Re: 6.375% Senior Notes Due 2020
Reference is hereby made to the Indenture, dated as of December 10, 2009, among Hanesbrands Inc.,
as issuer (the Company), the guarantors party thereto (the Guarantors) and Branch Banking and
Trust Company, as supplemented by the Fourth Supplemental Indenture, dated as of November 9, 2010,
among the Company, the guarantors and the Trustee (as so supplemented, the Indenture).
Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of $____________ aggregate principal amount of:
(a) o a beneficial interest in a Global Note, or
(b) o a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest therein is subject to
certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except
in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended
(the Securities Act).
2. We understand that the offer and sale of the Notes have not been registered under the Securities
Act, and that the Notes and any interest therein may not be offered or sold except as permitted in
the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do
so only (A) to the Company; (B) under a registration statement that has been declared effective
under the Securities Act; (C) to a Person that we reasonably believe is a Qualified Institutional
Buyer (as defined in Rule 144A under the Securities Act) that is purchasing for its own account or
for the account of another Qualified Institutional Buyer and to whom notice is given that the
transfer is being made in reliance on Rule 144A, all in compliance with Rule 144A (if available);
(D) in an offshore transaction complying with Rule 903 or Rule
F-1
904 of Regulation S under the Securities Act; or (E) under any other available exemption from the
registration requirements of the Securities Act.
3. We understand that, prior to any transfer of the Notes pursuant to clause (E) of paragraph 2, we
will be required to furnish to the Company such legal opinions as the Company may require and may
rely upon to confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act. We further
understand that the Notes purchased by us will bear a legend to the foregoing effect. We
understand that we may also be required to furnish to you and the Company such certifications and
other information as you or the Company may require and may rely upon to confirm that any transfer
is being made pursuant to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
4. We have such knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Notes, and we and any accounts for which
we are acting are each able to bear the economic risk of our or its investment.
5. We are not acquiring the Notes with a view towards any distribution thereof in a transaction
that would violate the Securities Act or the securities laws of any state of the United States or
any other applicable jurisdiction. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts as to each of which we exercise
sole investment discretion and on behalf of which we have the full power to make the foregoing
acknowledgments, representations and agreements.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. We understand that you and the
Company and others will rely upon the truth and accuracy of the foregoing acknowledgments,
representations and agreements and agree that, if any of the foregoing acknowledgments,
representations and agreements is no longer accurate, we will promptly notify you and the Company
of such inaccuracy.
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[Insert Name of Transferee]
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By: |
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Name: |
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Title: |
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Dated: _______________________
D-2
exv4w4
Exhibit 4.4
THIRD SUPPLEMENTAL INDENTURE
This SUPPLEMENTAL INDENTURE (the Third Supplemental Indenture), dated as of
November 1, 2010, among GearCo. Inc., GFSI Holdings, Inc., GFSI, Inc., CC Products, Inc. and Event
1, Inc. (each, a Guaranteeing Subsidiary, and together the Guaranteeing
Subsidiaries), each a subsidiary of Hanesbrands Inc. (or its permitted successor), a Maryland
corporation (the Company), the Company, the other Subsidiary Guarantors (as defined in
the Indenture referred to herein) and Branch Banking and Trust Company, as trustee under the
Indenture referred to below (the Trustee).
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the Trustee the indenture, dated
as of August 1, 2008 (the Base Indenture), among the Company, the Subsidiary Guarantors
party thereto and the Trustee, as amended and supplemented by the First Supplemental Indenture,
dated as of December 10, 2009 (the First Supplemental Indenture), among the Company, the
Subsidiary Guarantors and the Trustee (Base Indenture, as amended and supplemented by the First
Supplemental Indenture is referred to herein as the Indenture) providing for the issuance
of the Companys 8.000% Senior Notes due 2016 (the Notes);
WHEREAS, EPLD Temporary Corp. became a Subsidiary Guarantor by execution of the Second
Supplemental Indenture dated August 13, 2010;
WHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of August 9, 2010, by
and among the Company, EPLD Temporary Corp., GearCo, Inc., GFSI Holdings, Inc., GFSI, Inc. and the
other parties signatory thereto, on November 1, 2010, EPLD Temporary Corp. merged with and into
GearCo, Inc., the separate corporate existence of EPLD Temporary Corp. ceased and GearCo, Inc.
continued as the surviving corporation in such merger;
WHEREAS, the Indenture provides that under certain circumstances each Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which such
Guaranteeing Subsidiary shall unconditionally guarantee all of the Companys Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the Note
Guarantee); and
WHEREAS, pursuant to Section 9.01 of the First Supplemental Indenture, the Trustee is
authorized to execute and deliver this Third Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, each Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
2. Agreement To Guarantee. Each Guaranteeing Subsidiary hereby agrees to provide an
unconditional Guarantee on the terms and subject to the conditions set forth in the Note
Guarantee and in the Indenture including but not limited to Article 11 of the First Supplemental
Indenture.
3. No Recourse Against Others. No director, officer, employee, incorporator or stockholder
of the Company or any Guarantor, as such, will have any liability for any obligations of the
Company or the Guarantors under the Notes, the Indenture, the Note Guarantees 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. The waiver may not be effective to waive liabilities under
the federal securities laws.
4. GOVERNING LAW. THIS THIRD SUPPLEMENTAL INDENTURE AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO AND THERETO, INCLUDING THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEABILITY
THEREOF, SHALL BE GOVERNED BY AND SHALL BE CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
5. Counterparts. The parties may sign any number of copies of this Third Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
6. Effect Of Headings. The Section headings herein are for convenience only and shall not
affect the construction hereof.
7. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Third Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing
Subsidiaries and the Company.
2
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be
duly executed and attested, all as of the date first above written.
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GEARCO, INC. |
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By:
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/s/ Richard D. Moss |
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Name: Richard D. Moss
Title: Vice President Treasurer |
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On behalf of each of the Guaranteeing Subsidiaries below: |
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GFSI HOLDINGS, INC.
GFSI, INC.
CC PRODUCTS, INC.
EVENT 1, INC. |
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By:
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/s/ Richard D. Moss |
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Name: Richard D. Moss
Title: Treasurer |
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HANESBRANDS INC. |
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By:
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/s/ Richard D. Moss |
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Name: Richard D. Moss
Title: Senior Vice President and Treasurer |
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On behalf of each of the Guarantors listed below: |
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BA INTERNATIONAL, L.L.C.
CARIBESOCK, INC.
CARIBETEX, INC.
CASA INTERNATIONAL, LLC
CEIBENA DEL, INC.
HANES MENSWEAR, LLC
HANES PUERTO RICO, INC.
HANESBRANDS DIRECT, LLC
HANESBRANDS DISTRIBUTION, INC.
HBI BRANDED APPAREL ENTERPRISES, LLC
HBI BRANDED APPAREL LIMITED, INC.
HBI INTERNATIONAL, LLC
HBI SOURCING, LLC
INNER SELF LLC
JASPER-COSTA RICA, L.L.C. |
[Supplemental Indenture Signature Page]
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PLAYTEX DORADO, LLC
PLAYTEX INDUSTRIES, INC.
SEAMLESS TEXTILES, LLC
UPCR, INC.
UPEL, INC. |
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By:
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/s/ Richard D. Moss |
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Name: Richard D. Moss
Title: Treasurer |
[Supplemental Indenture Signature Page]
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BRANCH BANKING AND TRUST COMPANY
as Trustee |
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By:
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/s/ Gregory Yanok |
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Name: Gregory Yanok
Title: Vice President |
[Supplemental Indenture Signature Page]
exv4w5
Exhibit 4.5
SECOND SUPPLEMENTAL INDENTURE
Second Supplemental Indenture (this Supplemental Indenture), dated as of
November 1, 2010, among GearCo. Inc., GFSI Holdings, Inc., GFSI, Inc., CC Products, Inc. and Event
1, Inc. (each, a Guaranteeing Subsidiary, and together the Guaranteeing
Subsidiaries), each a subsidiary of Hanesbrands Inc. (or its permitted successor), a Maryland
corporation (the Company), the Company, the other Subsidiary Guarantors (as defined in
the Indenture referred to herein) and Branch Banking and Trust Company, as trustee under the
Indenture referred to below (the Trustee).
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
Indenture), dated as of December 14, 2006 providing for the issuance of Floating Rate
Senior Notes due 2014 (the Notes);
WHEREAS, EPLD Temporary Corp. became a Subsidiary Guarantor by execution of a Supplemental
Indenture dated August 13, 2010;
WHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of August 9, 2010, by
and among the Company, EPLD Temporary Corp., GearCo, Inc., GFSI Holdings, Inc., GFSI, Inc. and the
other parties signatory thereto, on November 1, 2010, EPLD Temporary Corp. merged with and into
GearCo, Inc., the separate corporate existence of EPLD Temporary Corp. ceased and GearCo, Inc.
continued as the surviving corporation in such merger;
WHEREAS, the Indenture provides that under certain circumstances each Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which such
Guaranteeing Subsidiary shall unconditionally guarantee all of the Companys Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the Note
Guarantee); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to
execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, each Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
2. Agreement To Guarantee. Each Guaranteeing Subsidiary hereby agrees to provide an
unconditional Guarantee on the terms and subject to the conditions
set forth in the Note Guarantee and in the Indenture including but not limited to Article 11 thereof.
3. No Recourse Against Others. No director, officer, employee, incorporator or stockholder
of the Company or any Guarantor, as such, will have any liability for any obligations of the
Company or the Guarantors under the Notes, the Indenture, the Note Guarantees 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. The waiver may not be effective to waive liabilities under
the federal securities laws.
4. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HERETO AND THERETO, INCLUDING THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEABILITY
THEREOF, SHALL BE GOVERNED BY AND SHALL BE CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
5. Counterparts. The parties may sign any number of copies of this Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement.
6. Effect Of Headings. The Section headings herein are for convenience only and shall not
affect the construction hereof.
7. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiaries
and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
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GEARCO, INC. |
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By:
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/s/ Richard D. Moss |
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Name: Richard D. Moss
Title: Vice President Treasurer |
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On behalf of each of the Guaranteeing Subsidiaries below: |
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GFSI HOLDINGS, INC.
GFSI, INC.
CC PRODUCTS, INC.
EVENT 1, INC. |
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By:
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/s/ Richard D. Moss |
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Name: Richard D. Moss
Title: Treasurer |
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HANESBRANDS INC. |
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By:
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/s/ Richard D. Moss |
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Name: Richard D. Moss
Title: Senior Vice President and Treasurer |
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On behalf of each of the Guarantors listed below: |
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BA INTERNATIONAL, L.L.C.
CARIBESOCK, INC.
CARIBETEX, INC.
CASA INTERNATIONAL, LLC
CEIBENA DEL, INC.
HANES MENSWEAR, LLC
HANES PUERTO RICO, INC.
HANESBRANDS DIRECT, LLC
HANESBRANDS DISTRIBUTION, INC.
HBI BRANDED APPAREL ENTERPRISES, LLC
HBI BRANDED APPAREL LIMITED, INC.
HBI INTERNATIONAL, LLC
HBI SOURCING, LLC
INNER SELF LLC
JASPER-COSTA RICA, L.L.C.
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[Supplemental Indenture Signature Page]
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PLAYTEX DORADO, LLC
PLAYTEX INDUSTRIES, INC.
SEAMLESS TEXTILES, LLC
UPCR, INC.
UPEL, INC. |
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By:
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/s/ Richard D. Moss |
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Name: Richard D. Moss
Title: Treasurer |
[Supplemental Indenture Signature Page]
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BRANCH BANKING AND TRUST COMPANY
as Trustee |
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By:
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/s/ Gregory Yanok |
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Name: Gregory Yanok
Title: Vice President |
[Supplemental Indenture Signature Page]
exv10w1
Exhibit 10.1
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
by and among
Hanesbrands Inc.
and
the Guarantors
listed in Schedule 2 hereto
and
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Barclays Capital Inc.
HSBC Securities (USA) Inc.
J.P. Morgan Securities LLC
Goldman, Sachs & Co.
(as representatives of the several
Initial Purchasers
listed in Schedule 1 hereto)
Dated as of November 9, 2010
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this Agreement) is made and entered into as of November
9, 2010, by and among Hanesbrands Inc., a Maryland corporation (the Issuer), the guarantors
listed in Schedule 2 hereto (the Guarantors), and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Barclays Capital Inc., HSBC Securities (USA) Inc., J.P. Morgan Securities LLC and
Goldman, Sachs & Co. (as representatives of the several initial purchasers listed in Schedule 1
hereto, the Initial Purchasers), each of whom has agreed to purchase pursuant to the Purchase
Agreement (as defined below) the Issuers 6.375% Senior Notes due 2020 (the Initial Notes) fully
and unconditionally guaranteed by the Guarantors (the Guarantees). The Initial Notes and the
Guarantees attached thereto are herein collectively referred to as the Initial Securities.
This Agreement is made pursuant to the Purchase Agreement, dated November 4, 2010 (the
Purchase Agreement), among the Issuer, the Guarantors and the Initial Purchasers (i) for the
benefit of the Initial Purchasers and (ii) for the benefit of the holders from time to time of the
Initial Securities, including the Initial Purchasers. In order to induce the Initial Purchasers to
purchase the Initial Securities, the Issuer has agreed to provide the registration rights set forth
in this Agreement. The execution and delivery of this Agreement is a condition to the obligations
of the Initial Purchasers set forth in Section 2(h) of the Purchase Agreement.
The parties hereby agree as follows:
I. DEFINITIONS.
AS USED IN THIS AGREEMENT, THE FOLLOWING CAPITALIZED TERMS SHALL HAVE THE FOLLOWING MEANINGS:
Broker-Dealer: Any broker or dealer registered with the Commission under the Exchange Act.
Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday or a day on which
banking institutions or trust companies located in New York, New York are authorized or obligated
to be closed.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A registered Exchange Offer shall be deemed Consummated for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the Securities Act of the
Exchange Offer Registration Statement relating to the Exchange Notes to be issued in the Exchange
Offer, (ii) the maintenance of such Registration Statement continuously effective and the keeping
of the Exchange Offer open for a period not less than the minimum period required pursuant to
Section III(B) hereof, and (iii) the delivery by the Issuer to the Registrar under the Indenture of
Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of Initial Securities that were properly tendered and not withdrawn
by Holders thereof pursuant to the Exchange Offer prior to the expiration thereof.
Effectiveness Target Date: As defined in Section V hereof.
Entitled Security: Each Initial Note, until the earliest to occur of (a) the date on which
such Initial Note has been exchanged by a Person other than a Broker-Dealer for an Exchange Note in
the Exchange Offer; (b) following the exchange by a Broker-Dealer in the Exchange Offer of an
Initial Note for an Exchange Note, the date on which such Exchange Note is sold to a purchaser who
receives from such Broker-Dealer on or prior to the date of such sale a copy of the Prospectus
contained in the Exchange Offer Registration Statement; (c) the date on which such Initial Note has
been effectively registered under the Securities Act and disposed of in accordance with the Shelf
Registration Statement; or (d) the date on which such Initial Note is actually sold pursuant to
Rule 144 under the Securities Act; provided that an Initial Note will not cease to be an Entitled
Security for purposes of the Exchange Offer by virtue of this clause (d).
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Issuer under the Securities Act of the Exchange Notes
pursuant to a Registration Statement pursuant to which the Issuer offers the Holders of all
outstanding Entitled Securities the opportunity to exchange all such outstanding Entitled
Securities held by such Holders for Exchange Notes in an aggregate principal amount equal to the
aggregate principal amount of the Entitled Securities tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration Statement relating to the Exchange
Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose to sell the Initial
Securities to certain qualified institutional buyers, as such term is defined in Rule 144A under
the Securities Act and to certain non-U.S. persons pursuant to Regulation S under the Securities
Act.
Exchange Guarantees: The guarantees by the Guarantors of the Exchange Notes.
Exchange Notes: The 6.375% Senior Notes due 2020, of the same series under the Indenture as
the Initial Securities, to be issued to Holders in exchange for Entitled Securities pursuant to
this Agreement.
FINRA: Financial Industry Regulatory Authority, Inc, an independent regulatory organization.
Holders: As defined in Section II(B) hereof.
Indemnified Holder: As defined in Section VIII(A) hereof.
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Indenture: The indenture, dated as of August 1, 2008, among the Issuer, certain subsidiaries
of the Issuer and Branch Banking and Trust Company, as trustee (the Trustee), as amended and
supplemented by the Fourth Supplemental Indenture thereto, dated November 9, 2010, by and among the
Issuer, the Guarantors and the Trustee, pursuant to which the Securities are to be issued, as such
Indenture is amended or supplemented from time to time in accordance with the terms thereof.
Initial Notes: As defined in the preamble hereto.
Initial Placement: The issuance and sale by the Issuer of the Initial Securities to the
Initial Purchasers pursuant to the Purchase Agreement.
Initial Purchasers: As defined in the preamble hereto.
Initial Securities: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Securities.
Person: An individual, partnership, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as amended or supplemented
by any prospectus supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such Prospectus.
Registration Default: As defined in Section V hereof.
Registration Statement: Any registration statement of the Issuer relating to (a) an offering
of Exchange Notes pursuant to an Exchange Offer or (b) the registration for resale of Entitled
Securities pursuant to the Shelf Registration Statement, which is filed pursuant to the provisions
of this Agreement, in each case, including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
Securities: The Initial Securities, Entitled Securities, Exchange Notes and Exchange
Guarantees.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section IV(a) hereof.
Shelf Registration Statement: As defined in Section IV(a) hereof.
Special Interest Payment Date: With respect to the Initial Securities, each Interest Payment
Date.
Trust Indenture Act: The Trust Indenture Act of 1939, as amended.
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Underwritten Registration or Underwritten Offering: A registration in which securities of the
Issuer are sold to an underwriter for reoffering to the public.
II. SECURITIES SUBJECT TO THIS AGREEMENT.
A. Entitled Securities. The securities entitled to the benefits of this Agreement are the
Entitled Securities.
B. Holders of Entitled Securities. A Person is deemed to be a holder of Entitled Securities
(each, a Holder) whenever such Person owns Entitled Securities.
III. REGISTERED EXCHANGE OFFER.
A. Unless the Exchange Offer shall not be required or permissible under applicable law or
Commission policy (after the procedures set forth in Section VI(A) hereof have been complied with),
each of the Issuer and the Guarantors shall (i) cause to be filed with the Commission on or prior
to 180 days after the Closing Date (or if such 180th day is not a Business Day, the next succeeding
Business Day), an Exchange Offer Registration Statement under the Securities Act relating to the
Exchange Notes and the Exchange Offer, (ii) use all commercially reasonable efforts to cause such
Exchange Offer Registration Statement to become effective on or prior to 270 days after the Closing
Date (or if such 270th day is not a Business Day, the next succeeding Business Day), and (iii) upon
the effectiveness of such Registration Statement, commence the Exchange Offer. The Exchange Offer
shall be on the appropriate form permitting registration of the Exchange Notes to be offered in
exchange for the Entitled Securities and to permit resales of Initial Securities held by
Broker-Dealers as contemplated by Section III(C) hereof.
B. The Issuer and the Guarantors shall cause the Exchange Offer Registration Statement to be
effective continuously and shall keep the Exchange Offer open for a period of not less than the
minimum period required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less than 20 Business Days
after the date notice of the Exchange Offer is mailed to the Holders. The Issuer shall cause the
Exchange Offer to comply with all applicable federal and state securities laws. No securities
other than the Exchange Notes shall be included in the Exchange Offer Registration Statement.
Unless the Exchange Offer shall not be required or permissible under applicable law or Commission
policy (after the procedures set forth in Section VI(A) hereof have been complied with), the Issuer
shall use all commercially reasonable efforts to issue on or prior to 30 Business Days, or longer
if required by applicable securities laws, after the date on which the Exchange Offer Registration
Statement was declared effective by the Commission, Exchange Notes in exchange for all notes
properly tendered and not withdrawn in the Exchange Offer prior to the expiration thereof.
C. The Issuer shall indicate in a Plan of Distribution section contained in the Prospectus
forming a part of the Exchange Offer Registration Statement that any Broker-Dealer who holds
Initial Securities that are Entitled Securities and that were acquired for its own account as a
result of market-making activities or other trading activities (other than Entitled
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Securities acquired directly from the Issuer), may exchange such Initial Securities pursuant
to the Exchange Offer; however, such Broker-Dealer may be deemed to be an underwriter within the
meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of
the Securities Act in connection with any resales of the Exchange Notes received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such Plan of Distribution section shall also contain all other information with
respect to such resales by Broker-Dealers that the Commission may require in order to permit such
resales pursuant thereto, but such Plan of Distribution shall not name any such Broker-Dealer or
disclose the amount of Initial Securities held by any such Broker-Dealer except to the extent
required by the Commission.
Each of the Issuer and the Guarantors shall use all commercially reasonable efforts to keep
the Exchange Offer Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section VI(C) hereof to the extent necessary to ensure that it is
available for resales of Initial Securities acquired by Broker-Dealers for their own accounts as a
result of market-making activities or other trading activities, and to ensure that it conforms with
the requirements of this Agreement, the Securities Act and the policies, rules and regulations of
the Commission as announced from time to time, for a period ending on the earlier of (i) 180 days
from the date on which the Exchange Offer Registration Statement is declared effective and (ii) the
date on which a Broker-Dealer is no longer required to deliver a prospectus in connection with
market-making or other trading activities.
The Issuer shall provide sufficient copies of the latest version of such Prospectus to
Broker-Dealers promptly upon request at any time during such 180 day period (or shorter period as
provided in the preceding paragraph) in order to facilitate such resales.
IV. SHELF REGISTRATION.
A. Shelf Registration. If (i) the Issuer and the Guarantors are not required to file an
Exchange Offer Registration Statement or permitted to consummate the Exchange Offer because the
Exchange Offer is not permitted by applicable law or Commission policy (after the procedures set
forth in Section VI(A) hereof have been complied with), or (ii) any holder of Entitled Securities
notifies the Issuer prior to the 20th Business Day following the consummation of the
Exchange Offer that (A) it is prohibited by law or Commission policy from participating in the
Exchange Offer, (B) it may not resell the Exchange Notes acquired by it in the Exchange Offer to
the public without delivering a Prospectus and the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales, or (C) it is a
Broker-Dealer and owns Initial Notes acquired directly from the Issuer or an affiliate of the
Issuer, then the Issuer and the Guarantors will:
(x) use all commercially reasonable efforts to file a Shelf Registration Statement, which
may be an amendment to the Exchange Offer Registration Statement (in either event, the
Shelf Registration Statement) with the Commission on or prior to 30 days after such filing
obligation arises (or if such 30th day is not a Business Day, the next succeeding Business
Day); and
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(y)use all commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective by the Commission on or prior to 90 days after the such obligation arises (or if such 90th day is not a Business Day, the next succeeding Business Day).
Each of the Issuer and the Guarantors shall use all commercially reasonable efforts to
keep such Shelf Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections VI(B) and (C) hereof to the extent necessary to
ensure that it is available for resales of Initial Securities by the Holders of Entitled
Securities entitled to the benefit of this Section IV(A), and to ensure that it conforms
with the requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of one year
following the effective date of such Shelf Registration Statement (or shorter period that
will terminate when all the Initial Securities covered by such Shelf Registration Statement
have been sold pursuant to such Shelf Registration Statement or are otherwise no longer Entitled Securities).
B.
Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Entitled Securities may include any of its Entitled Securities
in any Shelf Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Issuer in writing, within 10 Business Days after receipt of a request
therefor, such information as the Issuer may reasonably request for use in connection with
any Shelf Registration Statement or Prospectus or preliminary Prospectus included therein.
Each Holder as to which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Issuer all information required to be disclosed in order to make the information
previously furnished to the Issuer by such Holder not materially misleading.
V. SPECIAL INTEREST.
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IF (I) THE ISSUER AND THE GUARANTORS FAIL TO FILE ANY OF THE REGISTRATION STATEMENTS
REQUIRED BY THIS AGREEMENT ON OR BEFORE THE DATE SPECIFIED FOR SUCH FILING, (II) ANY OF SUCH
REGISTRATION STATEMENTS IS NOT DECLARED EFFECTIVE BY THE COMMISSION ON OR PRIOR TO THE DATE
SPECIFIED FOR SUCH EFFECTIVENESS (THE EFFECTIVENESS TARGET DATE), (III) THE ISSUER AND THE
GUARANTORS FAIL TO CONSUMMATE THE EXCHANGE OFFER WITHIN 30 BUSINESS DAYS OF THE EFFECTIVENESS
TARGET DATE WITH RESPECT TO THE EXCHANGE OFFER REGISTRATION STATEMENT OR (IV) THE SHELF
REGISTRATION STATEMENT OR THE EXCHANGE OFFER REGISTRATION STATEMENT IS DECLARED EFFECTIVE BUT
THEREAFTER CEASES TO BE EFFECTIVE OR USABLE IN CONNECTION WITH RESALES OF ENTITLED SECURITIES
DURING THE PERIODS SPECIFIED IN THIS AGREEMENT (EACH SUCH EVENT REFERRED TO IN CLAUSES (I) THROUGH
(IV) ABOVE, A REGISTRATION DEFAULT) AS LIQUIDATED DAMAGES FOR SUCH REGISTRATION DEFAULT, THE
ISSUER AND THE GUARANTORS AGREE TO PAY HOLDERS OF ENTITLED SECURITIES SPECIAL INTEREST OF 0.25% PER
ANNUM DURING THE FIRST 90-DAY PERIOD IMMEDIATELY FOLLOWING THE OCCURRENCE OF ANY REGISTRATION
DEFAULT. THE AMOUNT OF SPECIAL INTEREST WILL INCREASE BY 0.25% PER ANNUM WITH RESPECT TO EACH
SUBSEQUENT 90-DAY PERIOD UNTIL ALL REGISTRATION DEFAULTS HAVE BEEN CURED, UP TO A MAXIMUM AMOUNT OF
SPECIAL INTEREST FOR ALL REGISTRATION DEFAULTS OF 1.0% PER ANNUM OF THE PRINCIPAL AMOUNT OF THE
ENTITLED SECURITIES OUTSTANDING. FOLLOWING THE CURE OF ALL REGISTRATION DEFAULTS, THE ACCRUAL OF
SPECIAL INTEREST WILL CEASE. SPECIAL INTEREST WILL ACCRUE AND BE PAYABLE ONLY WITH RESPECT TO A
SINGLE REGISTRATION DEFAULT AT ANY GIVEN TIME, NOWITHSTANDING THE FACT THAT MULTIPLE REGISTRATION
DEFAULTS MAY EXIST AT SUCH TIME. THE ACCRUAL OF SPECIAL INTEREST SHALL BE THE EXCLUSIVE MONETARY
REMEDY AVAILABLE TO THE HOLDERS OF ENTITLED SECURITIES FOR ANY REGISTRATION DEFAULT, AND A
REGISTRATION DEFAULT SHALL NOT CONSTITUTE A DEFAULT UNDER THE INDENTURE.
All obligations of the Issuer and the Guarantors set forth in the preceding paragraph that are
outstanding with respect to any Entitled Security at the time such security ceases to be a Entitled
Security shall survive until such time as all such obligations with respect to such security shall
have been satisfied in full.
VI. REGISTRATION PROCEDURES.
A. Exchange Offer Registration Statement. In connection with the Exchange Offer, the Issuer
and the Guarantors shall comply with all of the applicable provisions of Section VI(C) hereof, and
shall comply with all of the following provisions:
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1. If in the reasonable opinion of counsel to the Issuer there is a question as to
whether the Exchange Offer is permitted by applicable law, each of the Issuer and the
Guarantors hereby agrees to use commercially reasonable efforts to seek a no-action
letter or other favorable decision from the Commission allowing the Issuer and the
Guarantors to Consummate an Exchange Offer for such Initial Securities. Each of the Issuer
and the Guarantors hereby agrees to use commercially reasonable efforts to pursue the
issuance of such a decision to the Commission staff level but shall not be required to take
commercially unreasonable action to effect a change of Commission policy. Each of the
Issuer and the Guarantors hereby agrees, however, to (A) participate in telephonic
conferences with the Commission, (B) deliver to the Commission staff an analysis prepared by
counsel to the Issuer setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C) otherwise use commercially
reasonable efforts to pursue a favorable resolution by the Commission staff of such
submission.
2. As a condition to its participation in the Exchange Offer pursuant to the terms of
this Agreement, each Holder of Entitled Securities shall furnish, upon the request of the
Issuer, prior to the Consummation thereof, a written representation to the Issuer (which may
be contained in the letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an affiliate (within the meaning of Rule 405
under the Securities Act) of the Issuer, (B) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any Person to participate in, a
distribution of the Exchange Notes to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Notes in its ordinary course of business. In addition, all such
Holders of Entitled Securities shall otherwise cooperate in the Issuers preparations for
the Exchange Offer. Each Holder hereby acknowledges and agrees that any Broker-Dealer and
any such Holder using the Exchange Offer to participate in a distribution of the securities
to be acquired in the Exchange Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission enunciated in Morgan
Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the Commissions letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters (which may include any
no-action letter obtained pursuant to clause (1) above), and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale transaction should be covered
by an effective registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K if the resales are of Exchange
Notes obtained by such Holder in exchange for Initial Securities acquired by such Holder
directly from the Issuer.
B. Shelf Registration Statement. In connection with the Shelf Registration Statement, each of
the Issuer and the Guarantors shall comply with all the provisions of Section VI(C) hereof.
C. General Provisions. In connection with any Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Entitled Securities
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(including, without
limitation, any Registration Statement and the related Prospectus required to
permit resales of Initial Securities by Broker-Dealers), each of the Issuer and the Guarantors
shall:
1. use all commercially reasonable efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements, including, if
required by the Securities Act or any regulation thereunder, financial statements of the
Guarantors for the period specified in Section III or IV hereof, as applicable; upon the
occurrence of any event that would cause any such Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission or (B) not to be
effective and usable for resale of Entitled Securities during the period required by this
Agreement, the Issuer shall file promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such misstatement or omission, and, in
the case of either clause (A) or (B), use all commercially reasonable efforts to cause such
amendment to be declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as practicable thereafter;
2. prepare and file with the Commission such amendments and post-effective amendments
to the applicable Registration Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in Section III or IV hereof, as
applicable, or such shorter period as will terminate when all Entitled Securities covered by
such Registration Statement have been sold; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with the applicable provisions of Rules 424
and 430A under the Securities Act in a timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the intended method
or methods of distribution by the sellers thereof set forth in such Registration Statement
or supplement to the Prospectus;
3. in the case of a Shelf Registration Statement or an Exchange Offer Registration
Statement maintained as effective following the closing of the Exchange Offer due to the
participation of a Broker-Dealer, during the applicable period set forth in Section III or
IV hereof, advise the underwriter(s) or Broker-Dealer(s) who have requested copies of the
Prospectus included in such Registration Statement, if any, and selling Holders named in a
Shelf Registration Statement promptly and if requested by such Persons, to confirm such
advice in writing, (A) when the Prospectus or any prospectus supplement or post-effective
amendment has been filed, and, with respect to any Registration Statement or any
post-effective amendment thereto, when the same has become effective, (B) of any request by
the Commission for amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement
under the Securities Act or of the suspension by any state securities commission of the
qualification of the Entitled Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for
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any of the preceding purposes, (D) of the existence of any
fact or the happening of any
event that makes any statement of a material fact made in the Registration Statement,
the Prospectus, any amendment or supplement thereto, or any document incorporated by
reference therein untrue, or that requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the statements therein (with
respect to the Prospectus, in light of the circumstances under which they were made) not
misleading. If at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or exemption from
qualification of the Entitled Securities under state securities or blue sky laws, each of
the Issuer and the Guarantors shall use all commercially reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
4. furnish without charge to each of the Initial Purchasers, each selling Holder named
in any Shelf Registration Statement, and each of the underwriter(s), if any, before filing
with the Commission, copies of any Shelf Registration Statement or any Prospectus included
therein or any amendments or supplements to any such Shelf Registration Statement or
Prospectus (including all documents incorporated by reference after the initial filing of
such Shelf Registration Statement), which documents will be subject to the review and
comment of not more than one counsel of such Holders and underwriter(s) in connection with
such sale, if any, for a reasonable period prior to filing (but in any case not more than
five Business Days), and the Issuer will not file any such Shelf Registration Statement or
Prospectus or any amendment or supplement to any such Shelf Registration Statement or
Prospectus (including all such documents incorporated by reference) to which an Initial
Purchaser of Entitled Securities covered by such Shelf Registration Statement or the
underwriter(s), if any, shall reasonably object in writing after the receipt thereof (such
objection to be deemed timely made upon confirmation of telecopy transmission within such
reasonable period specified by the Issuer). The objection of an Initial Purchaser or
underwriter, if any, shall be deemed to be reasonable if such Shelf Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be filed, contains a
material misstatement or omission. This clause (4) shall not apply to any filing by the
Issuer or the Guarantors of any proxy or information statement, annual report on Form 10-K,
quarterly report on Form 10-Q or Current Report on Form 8-K with respect to matters that are
unrelated to the Entitled Securities and the offering or exchange therefore;
5. in the case of a Shelf Registration Statement, make available at reasonable times
for inspection by the Initial Purchasers, the managing underwriter(s), if any, participating
in any disposition pursuant to such Shelf Registration Statement and not more than one law
firm or accounting firm retained by such Initial Purchasers or any of the underwriter(s),
all financial and other records, pertinent corporate documents and properties of each of the
Issuer and the Guarantors and cause the Issuers and the Guarantors officers, directors and
employees to supply all information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement or any post-effective
amendment thereto subsequent to the
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filing thereof and prior to its effectiveness and to
participate in meetings with investors to the extent requested by the managing
underwriter(s), if any;
6. if reasonably requested by the underwriter(s), if any, or a Holder of Entitled
Securities under a Shelf Registration Statement, promptly incorporate in any Shelf
Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment
if necessary, such information as such underwriter(s), if any, or Holder(s) of Entitled
Securities may reasonably request to have included therein, including, without limitation,
information relating to the Plan of Distribution of the Entitled Securities, information
with respect to the principal amount of Entitled Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other terms of the offering
of the Entitled Securities to be sold in such offering; and make all required filings of
such Prospectus supplement or post-effective amendment as soon as practicable after the
Issuer is notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
7. [Intentionally Omitted]
8. in the case of a Shelf Registration Statement, furnish to each Initial Purchaser,
each selling Holder and the underwriter(s), if any, without charge, at least one copy of the
Shelf Registration Statement, as first filed with the Commission, and of each amendment
thereto, including financial statements and schedules, all documents incorporated by
reference therein (upon request) and all exhibits (including exhibits incorporated therein
by reference)(upon request);
9. deliver to each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request; each of the Issuer
and the Guarantors hereby consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Entitled Securities covered by the
Prospectus or any amendment or supplement thereto;
10. in the case of a Shelf Registration Statement, enter into such agreements
(including an underwriting agreement), and make such customary representations and
warranties, and take all such other actions, all to such extent as may be reasonably
requested by any Initial Purchaser or by any Holder of Entitled Securities or underwriter in
connection with any sale or resale pursuant to any Shelf Registration Statement contemplated
by this Agreement; and whether or not an underwriting agreement is entered into and whether
or not the registration is an Underwritten Registration, each of the Issuer and the
Guarantors shall:
a. furnish to each of the Initial Purchasers, each selling Holder and each
underwriter, if any, in such substance and scope as they may reasonably request and
as are customarily made by issuers to underwriters in primary underwritten
offerings, upon the effectiveness of the Shelf Registration Statement:
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(1) a certificate, dated the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed by two executive
officers of each of the Issuer and the Guarantors, confirming, as of
the date thereof, matters substantially similar to those set forth in
Section 4(d) of the Purchase Agreement and such other matters as such
parties may reasonably request;
(2) an opinion, dated the date of effectiveness of the Shelf
Registration Statement, of counsel for the Issuer and the Guarantors,
covering matters similar to those set forth in Section 4(f) of the Purchase
Agreement; and
(3) a customary comfort letter, dated the date of effectiveness of the
Shelf Registration Statement, from the Issuers independent accountants, in
the customary form and covering matters of the type customarily requested to
be covered in comfort letters by underwriters in connection with primary
underwritten offerings, and covering or affirming matters substantially
similar to those set forth in the comfort letters delivered pursuant to
Section 4(e) of the Purchase Agreement, without exception;
b. set forth in full or incorporate by reference in the underwriting agreement,
if any, the indemnification provisions and procedures of Section VIII hereof with
respect to all parties to be indemnified pursuant to said Section; and
c. deliver such other documents and certificates as may be reasonably requested
by the managing underwriter, if any, and the Holders of the majority in aggregate
principal amount of the Entitled Securities, to evidence compliance with Section
VI(C)(10)(a) hereof and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Issuer or any of the Guarantors
pursuant to this Section VI(C)(10), if any.
11. prior to any public offering of Entitled Securities, use all commercially
reasonable efforts to register or qualify the Entitled Securities under the state securities
or blue sky laws of such jurisdictions as the selling Holders or underwriter(s), if any, may
request and do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Entitled Securities covered by the Shelf
Registration Statement; provided, however, that neither the Issuer nor the Guarantors shall
be required to register or qualify as a foreign entity where it is not then so qualified or
to take any action that would subject it to the service of process in suits or to taxation
in any jurisdiction where it is not then so subject;
12. shall issue, upon the request of any Holder of Initial Securities covered by the
Shelf Registration Statement, Exchange Notes having an aggregate principal amount equal to
the aggregate principal amount of Initial Securities surrendered to the Issuer by such
Holder in exchange therefor or being sold by such Holder; such Exchange Notes to
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be registered in the name of such Holder or in the name of the purchaser(s) of such
Securities, as the case may be; in return, the Initial Securities held by such Holder
shall be surrendered to the Issuer for cancellation;
13. cooperate with the selling Holders and the underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates representing Entitled Securities to be
sold and not bearing any restrictive legends; and enable such Entitled Securities to be in
such denominations and registered in such names as the Holders or the underwriter(s), if
any, may request prior to any sale of Entitled Securities made by such Holders or
underwriter(s);
14. in the case of a Shelf Registration Statement or an Exchange Offer Registration
Statement maintained as effective following the closing of the Exchange Offer, during the
applicable period set forth in Section III or IV hereof, if any fact or event contemplated
by Section VI(C)(3)(D) hereof shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Entitled Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which they were made, not
misleading;
15. provide a CUSIP number for all Securities not later than the effective date of the
Registration Statement covering such Securities and provide the Trustee under the Indenture
with printed certificates for such Securities which are in a form eligible for deposit with
the Depository Trust Company and take all other action necessary to ensure that all such
Securities are eligible for deposit with the Depository Trust Company;
16. cooperate and assist in any filings required to be made with the FINRA and in the
performance of any due diligence investigation by any underwriter (including any qualified
independent underwriter as the term is defined within the rules and regulations of FINRA)
that is required to be retained in accordance with the rules and regulations of the FINRA;
17. otherwise use all commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its security
holders, as soon as practicable, a consolidated earnings statement meeting the requirements
of Rule 158 under the Securities Act (which need not be audited) for the twelve-month period
(A) commencing at the end of any fiscal quarter in which Entitled Securities are sold to
underwriters in a firm commitment or best efforts Underwritten Offering or (B) if not sold
to underwriters in such an offering, beginning with the first month of the Issuers first
fiscal quarter commencing after the effective date of the Registration Statement;
18. cause the Indenture to be qualified under the Trust Indenture Act not later than
the effective date of the first Registration Statement required by this Agreement,
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and, in connection therewith, cooperate with the Trustee and the Holders of Securities to
effect such changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the Trust Indenture Act; and to execute and use
all commercially reasonable efforts to cause the Trustee to execute, all documents that may
be required to effect such changes and all other forms and documents required to be filed
with the Commission to enable such Indenture to be so qualified in a timely manner;
19. in the case of a Shelf Registration Statement, cause all Securities covered by such
Shelf Registration Statement to be listed on each securities exchange or automated quotation
system on which similar securities issued by the Issuer are then listed if requested by the
Holders of a majority in aggregate principal amount of Initial Securities or the managing
underwriter(s), if any; and
20. if not otherwise available on EDGAR, provide promptly to each Holder upon request
each document filed with the Commission pursuant to the requirements of Section 13 and
Section 15 of the Exchange Act.
Notwithstanding the foregoing, the Issuer may suspend the offering and sale under the Shelf
Registration Statement or time period in which such Shelf Registration Statement is required to be
filed (the Suspension Period) for a period or periods the board of directors of the Issuer (the
Board) reasonably determines necessary if (A) the Board determines (i) there are valid business
reasons for doing so (until such business reasons cease to exist), including, without limitation, a
potential acquisition, divesture of assets or other material corporate transaction, or (ii) if the
Shelf Registration Statement, prospectus or amendment or supplement thereto contains an untrue
statement of a material fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading, and
(B) the Issuer notifies the Holders of Entitled Securities within five days after the Board makes
the relevant determination set forth in clause (A) above; provided that the period of suspension
under clause (A) above shall not exceed 120 days in each twelve-month period during which the Shelf
Registration Statement is required to be effective. In addition, the Issuer may suspend the
offering and sale under the Shelf Registration Statement if such Shelf Registration Statement was
required to be filed due to a failure to consummate the Exchange Offer within the required time
period and such suspension occurs following the consummation of the Exchange Offer.
Each Holder agrees by acquisition of a Entitled Security that, upon receipt of any notice from
the Issuer of the existence of any fact of the kind described in Section VI(C)(3)(D) hereof or of
any Suspension Period, such Holder will forthwith discontinue disposition of Entitled Securities
pursuant to the applicable Registration Statement until such Holders receipt of the copies of the
supplemented or amended Prospectus contemplated by Section VI(C)(14) hereof, or until it is advised
in writing (the Advice) by the Issuer that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Issuer, each Holder will deliver to the Issuer (at the Issuers
expense) all copies, other than permanent file copies then in such Holders possession, of the
Prospectus covering such Entitled Securities that was current at the time of receipt of such
notice. In the event the Issuer shall give any such notice, the time period
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regarding the
effectiveness of such Registration Statement set forth in Section III or IV hereof, as
applicable, shall be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to Section VI(C)(3)(D) hereof or notice of any
Suspension Period to and including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended Prospectus contemplated by
Section VI(C)(14) hereof or shall have received the Advice; provided, however, that no such
extension shall be taken into account in determining whether Special Interest is due pursuant to
Section V hereof or the amount of such Special Interest, it being agreed that the Issuers option
to suspend use of a Registration Statement pursuant to this paragraph shall be treated as a
Registration Default for purposes of Section V hereof.
VII. REGISTRATION EXPENSES.
A. All expenses incident to the Issuers and the Guarantors performance of or compliance with
this Agreement will be borne by the Issuer and the Guarantors, jointly and severally, regardless of
whether a Registration Statement becomes effective, including, without limitation: (i) all
registration and filing fees and expenses (including filings made by any Initial Purchaser or
Holder with the FINRA (and, if applicable, the fees and expenses of any qualified independent
underwriter and its counsel that may be required by the rules and regulations of the FINRA)); (ii)
all fees and expenses of compliance with federal securities and state securities or blue sky laws;
(iii) all expenses of printing (including printing of Prospectuses), messenger and delivery
services and telephone; (iv) all reasonable fees and disbursements of counsel for the Issuer, the
Guarantors and, subject to Section VII(B) hereof, the Holders of Entitled Securities; (v) all
application and filing fees in connection with listing the Exchange Notes on a securities exchange
or automated quotation system pursuant to the requirements thereof; and (vi) all fees and
disbursements of independent certified public accountants of the Issuer and the Guarantors
(including the expenses of any special audit and comfort letters required by or incident to such
performance).
Each of the Issuer and the Guarantors will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and expenses of any
Person, including special experts, retained by the Issuer or the Guarantors.
Notwithstanding the foregoing, the Holders of Entitled Securities being registered shall pay
all agency fees and commissions and underwriting discounts and commissions, if any, and transfer
taxes, if any, attributable to the sale of such Entitled Securities, and the fees and disbursements
of any counsel or other advisors or experts retained by such Holders (severally or jointly), other
than the counsel and experts specifically referred to above.
B. In connection with any Registration Statement required by this Agreement (including,
without limitation, the Exchange Offer Registration Statement and the Shelf Registration
Statement), the Issuer and the Guarantors, jointly and severally, will reimburse the Initial
Purchasers and the Holders of Entitled Securities being tendered in the Exchange Offer and/or
resold pursuant to the Plan of Distribution contained in the Exchange Offer Registration
Statement or registered pursuant to the Shelf Registration Statement, as applicable, for the
-15-
reasonable fees and disbursements of not more than one counsel for the holders of Entitled
Securities and Initial Purchasers, who shall be Latham & Watkins LLP, or such other counsel as may
be chosen by the Holders of a majority in principal amount of the Entitled Securities for whose
benefit such Registration Statement is being prepared.
VIII. INDEMNIFICATION.
A. The Issuer and the Guarantors, jointly and severally, agree to indemnify and hold harmless
(i) each Holder and (ii) each Person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) any Holder (any of the Persons referred to in
this clause (ii) being hereinafter referred to as a controlling person) and (iii) the respective
officers, directors, partners, employees, representatives and agents of any Holder or any
controlling person (any Person referred to in clause (i), (ii) or (iii) may hereinafter be referred
to as an Indemnified Holder), to the fullest extent lawful, from and against any and all losses,
claims, damages, liabilities, judgments, actions and expenses (including, without limitation, and
as incurred, reimbursement of all reasonable costs of investigating, preparing, pursuing, settling,
compromising, paying or defending any claim or action, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable fees and expenses of
counsel to any Indemnified Holder), joint or several, directly or indirectly caused by, related to,
based upon, arising out of or in connection with any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement or Prospectus (or any amendment or
supplement thereto), or any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or expenses are caused by an untrue statement or omission
or alleged untrue statement or omission that is made in reliance upon and in conformity with
information relating to any of the Holders furnished in writing to the Issuer by any of the Holders
expressly for use therein. This indemnity agreement shall be in addition to any liability which
the Issuer or any of the Guarantors may otherwise have.
In case any action or proceeding (including any governmental or regulatory investigation or
proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to
which indemnity may be sought against the Issuer or the Guarantors, such Indemnified Holder (or the
Indemnified Holder controlled by such controlling person) shall promptly notify the Issuer and the
Guarantors in writing; provided, however, that the failure to give such notice shall not relieve
any of the Issuer or the Guarantors of its obligations pursuant to this Agreement except to the
extent they are prejudiced by any such failure. Such Indemnified Holder shall have the right to
employ its own counsel in any such action and the reasonable fees and expenses of not more than one
counsel to such Indemnified Holder (in addition to any local counsel) shall be paid, as incurred,
by the Issuer and the Guarantors, subject to the limitations on the Issuers and the Guarantors
indemnification obligations set forth in the preceding paragraph. The Issuer and the Guarantors
shall not, in connection with any one such action 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 any local counsel) at any time for such Indemnified
Holders, which firm shall be designated by the Holders. The Issuer and the
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Guarantors shall be liable for any settlement of any such action or proceeding effected with the
Issuers and the Guarantors prior written consent, which consent shall not be withheld
unreasonably, and each of the Issuer and the Guarantors agrees to indemnify and hold harmless any
Indemnified Holder from and against any loss, claim, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Issuer and the Guarantors. The
Issuer and the Guarantors shall not, without the prior written consent of each Indemnified Holder,
settle or compromise or consent to the entry of judgment in or otherwise seek to terminate any
pending or threatened action, claim, litigation or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not any Indemnified Holder is a party thereto),
unless such settlement, compromise, consent or termination includes an unconditional release of
each Indemnified Holder from all liability arising out of such action, claim, litigation or
proceeding.
B. Each Holder of Entitled Securities agrees, severally and not jointly, to indemnify and hold
harmless the Issuer, the Guarantors and the respective directors and officers of the Issuer and the
Guarantors who sign a Registration Statement, and any Person controlling (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) the Issuer or any of the
Guarantors, and the respective officers, directors, partners, employees, representatives and agents
of each such Person, to the same extent as the foregoing indemnity from the Issuer and the
Guarantors to each of the Indemnified Holders, but only with respect to claims and actions based on
information relating to such Holder furnished in writing by such Holder expressly for use in any
Registration Statement or Prospectus. In case any action or proceeding shall be brought against
the Issuer, the Guarantors or its their respective directors or officers or any such controlling
person in respect of which indemnity may be sought against a Holder of Entitled Securities, such
Holder shall have the rights and duties given the Issuer and the Guarantors, and the Issuer, the
Guarantors, their respective directors and officers and such controlling person shall have the
rights and duties given to each Holder by the preceding paragraph.
C. If the indemnification provided for in this Section VIII is unavailable to an indemnified
party under Section VIII(A) or (B) hereof (other than by reason of exceptions provided in those
Sections) in respect of any losses, claims, damages, liabilities, judgments, actions or expenses
referred to therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative benefits received by the Issuer and the Guarantors, on the one
hand, and the Holders, on the other hand, from the Initial Placement (which in the case of the
Issuer and the Guarantors shall be deemed to be equal to the total net proceeds (before deducting
expenses) to the Issuer and the Guarantors from the Initial Placement), the amount of Special
Interest which did not become payable as a result of the filing of the Registration Statement
resulting in such losses, claims, damages, liabilities, judgments actions or expenses, and such
Registration Statement, or if such allocation is not permitted by applicable law, the relative
fault of the Issuer and the Guarantors, on the one hand, and the Holders, on the other hand, in
connection with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
-17-
considerations. The relative fault of the Issuer on the one hand and of the Holders on the
other shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Issuer or any of the Guarantors, on the one hand, or the Holders, on
the other hand, and the parties relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities or expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section VIII(A) hereof, any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or defending any action
or claim.
The Issuer, the Guarantors and each Holder of Entitled Securities agree that it would not be
just and equitable if contribution pursuant to this Section VIII(C) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this Section VIII, none of
the Holders (and its related Indemnified Holders) shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the total discount received by such Holder
with respect to the Initial Securities exceeds the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation. The Holders obligations to contribute pursuant to this
Section VIII(C) are several in proportion to the respective principal amount of Initial Securities
held by each of the Holders hereunder and not joint.
IX. RULE 144A.
EACH OF THE ISSUER AND THE GUARANTORS HEREBY AGREES WITH EACH HOLDER, FOR SO LONG AS ANY
ENTITLED SECURITIES REMAIN OUTSTANDING, TO MAKE AVAILABLE TO ANY HOLDER OR BENEFICIAL OWNER OF
ENTITLED SECURITIES IN CONNECTION WITH ANY SALE THEREOF AND ANY PROSPECTIVE PURCHASER OF SUCH
ENTITLED SECURITIES FROM SUCH HOLDER OR BENEFICIAL OWNER, THE INFORMATION REQUIRED BY RULE
144A(D)(4) UNDER THE SECURITIES ACT IN ORDER TO PERMIT RESALES OF SUCH ENTITLED SECURITIES PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT.
X. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
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NO HOLDER MAY PARTICIPATE IN ANY UNDERWRITTEN REGISTRATION HEREUNDER UNLESS SUCH HOLDER (A)
AGREES TO SELL SUCH HOLDERS ENTITLED SECURITIES ON THE BASIS PROVIDED IN ANY UNDERWRITING
ARRANGEMENTS APPROVED BY THE PERSONS ENTITLED HEREUNDER TO APPROVE SUCH ARRANGEMENTS AND (B)
COMPLETES AND EXECUTES ALL REASONABLE QUESTIONNAIRES, POWERS OF ATTORNEY, INDEMNITIES, UNDERWRITING
AGREEMENTS, LOCK-UP LETTERS AND OTHER DOCUMENTS REQUIRED UNDER THE TERMS OF SUCH UNDERWRITING
ARRANGEMENTS.
XI. SELECTION OF UNDERWRITERS.
THE HOLDERS OF ENTITLED SECURITIES COVERED BY THE SHELF REGISTRATION STATEMENT WHO DESIRE TO
DO SO MAY SELL SUCH ENTITLED SECURITIES IN AN UNDERWRITTEN OFFERING. IN ANY SUCH UNDERWRITTEN
OFFERING, THE INVESTMENT BANKER(S) AND MANAGING UNDERWRITER(S) THAT WILL ADMINISTER SUCH OFFERING
WILL BE SELECTED BY THE HOLDERS OF A MAJORITY IN AGGREGATE PRINCIPAL AMOUNT OF THE ENTITLED
SECURITIES INCLUDED IN SUCH OFFERING; PROVIDED, HOWEVER, THAT SUCH INVESTMENT BANKER(S) AND
MANAGING UNDERWRITER(S) MUST BE REASONABLY SATISFACTORY TO THE ISSUER.
XII. MISCELLANEOUS.
A. Remedies. Each of the Issuer and the Guarantors hereby agrees that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of
this Agreement and hereby agree to waive the defense in any action for specific performance that a
remedy at law would be adequate.
B. No Inconsistent Agreements. Each of the Issuer and the Guarantors will not on or after the
date of this Agreement enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions
hereof. Neither the Issuer nor the Guarantors are currently party to any agreement granting any
registration rights with respect to any of its securities that are similar to the Entitled
Securities to any Person. The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of the Issuers or any of the
Guarantors securities under any agreement in effect on the date hereof.
C. Adjustments Affecting the Securities. The Issuer will not take any action, or permit any
change to occur, with respect to the Securities that would materially and adversely affect the
ability of the Holders to Consummate any Exchange Offer.
D. Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not be given
unless the Issuer has (i) in the case of Section V hereof and this Section XII(D)(i), obtained the
written consent of Holders of all outstanding Entitled
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Securities and (ii) in the case of all other provisions hereof, obtained the written consent
of Holders of a majority of the outstanding principal amount of Entitled Securities (excluding any
Entitled Securities held by the Issuer or its Affiliates). Notwithstanding the foregoing, a waiver
or consent to departure from the provisions hereof that relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the Exchange Offer and that does not affect
directly or indirectly the rights of other Holders whose securities are not being tendered pursuant
to such Exchange Offer may be given by the Holders of a majority of the outstanding principal
amount of Entitled Securities being tendered or registered; provided, however, that, with respect
to any matter that directly or indirectly affects the rights of any Initial Purchaser hereunder,
the Issuer shall obtain the written consent of each such Initial Purchaser with respect to which
such amendment, qualification, supplement, waiver, consent or departure is to be effective.
E. Notices. All notices and other communications provided for or permitted hereunder shall be
made in writing by hand-delivery, first-class mail (registered or certified, return receipt
requested), telex, telecopier, or air courier guaranteeing overnight delivery:
1. if to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and
2. if to the Issuer:
Hanesbrands Inc.
1000 East Hanes Mill Road
Winston Salem, NC 27105
Telecopier No.: 336-519-0524
Attention: Joia M. Johnson
With a copy to:
Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Telecopier No.: (312) 862-2200
Attention: Gerald T. Nowak, P.C.
Theodore Peto
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.
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F. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties, including, without limitation, and without the
need for an express assignment, subsequent Holders of Entitled Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor or assign of a
Holder unless and to the extent such successor or assign acquired Entitled Securities from such
Holder.
G. Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
H. Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
I. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES THEREOF.
J. Severability. In the event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
K. Entire Agreement. This Agreement is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement and understanding
of the parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Issuer with respect to the Entitled
Securities. This Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
-21-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
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HANESBRANDS INC.
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By: |
/s/ Richard D. Moss |
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Name: |
Richard D. Moss |
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Title: |
Senior Vice President and Treasurer |
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On behalf of each of the Guarantors listed below:
BA INTERNATIONAL, L.L.C.
CARIBESOCK, INC.
CARIBETEX, INC.
CASA INTERNATIONAL, LLC
CEIBENA DEL, INC.
HANES MENSWEAR, LLC
HANES PUERTO RICO, INC.
HANESBRANDS DIRECT, LLC
HANESBRANDS DISTRIBUTION, INC.
HBI BRANDED APPAREL ENTERPRISES, LLC
HBI BRANDED APPAREL LIMITED, INC.
HBI INTERNATIONAL, LLC
HBI SOURCING, LLC
INNER SELF LLC
JASPER-COSTA RICA, L.L.C.
PLAYTEX DORADO, LLC
PLAYTEX INDUSTRIES, INC.
SEAMLESS TEXTILES, LLC
UPCR, INC.
UPEL, INC. |
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By: |
/s/ Richard D. Moss |
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Name: |
Richard D. Moss |
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Title: |
Treasurer |
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[Signature page to Registration Rights Agreement]
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GEARCO, INC.
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By: |
/s/ Richard D. Moss |
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Name: |
Richard D. Moss |
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Title: |
Vice President Treasurer |
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On behalf of each of the Guaranteeing Subsidiaries below:
GFSI HOLDINGS, INC.
GFSI, INC.
CC PRODUCTS, INC.
EVENT 1, INC.
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By: |
/s/ Richard D. Moss |
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Name: |
Richard D. Moss |
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Title: |
Vice President and Treasurer |
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[Signature page to Registration Rights Agreement]
The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the
date first written above.
Accepted: November 9, 2010
For itself and on behalf of the
several Initial Purchasers listed
in Schedule 1 hereto:
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
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By: |
/s/
Thomas Brown |
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Authorizing Signatory |
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BARCLAYS CAPITAL INC.
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By: |
/s/
Benjamin Burton |
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Authorizing Signatory |
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HSBC SECURITIES (USA) INC.
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By: |
/s/
Richard Zobkiw |
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Authorizing Signatory |
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J.P. MORGAN SECURITIES LLC
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By: |
/s/ Joseph C. Stephanak |
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Authorizing Signatory |
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GOLDMAN, SACHS & CO.
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By: |
/s/
Goldman, Sachs & Co. |
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Authorizing Signatory |
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[Signature page to Registration Rights Agreement]
Schedule 1
Initial Purchasers
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Barclays Capital Inc.
HSBC Securities (USA) Inc.
J.P. Morgan Securities LLC
Goldman, Sachs & Co.
BB&T Capital Markets, a division of Scott & Stringfellow, LLC
Fifth Third Securities Inc.
PNC Capital Markets LLC
RBC Capital Markets, LLC
Scotia Capital (USA) Inc.
SunTrust Robinson Humphrey, Inc.
Schedule 2
Guarantors
BA International, L.L.C.
Caribesock, Inc.
Caribetex, Inc.
CASA International, LLC
Ceibena Del, Inc.
Hanes Menswear, LLC
Hanes Puerto Rico, Inc.
Hanesbrands Direct, LLC
Hanesbrands Distribution, Inc.
HBI Branded Apparel Enterprises, LLC
HBI Branded Apparel Limited, Inc.
HbI International, LLC
HBI Sourcing, LLC
Inner Self LLC
Jasper-Costa Rica, L.L.C.
Playtex Dorado, LLC
Playtex Industries, Inc.
Seamless Textiles, LLC
UPCR, Inc.
UPEL, Inc.
GearCo, Inc.
GFSI Holdings, Inc.
GFSI, Inc.
CC Products, Inc.
Event 1, Inc.
exv99w1
Exhibit 99.1
Hanesbrands Inc.
1000 East Hanes Mill Road
Winston-Salem, NC 27105
(336) 519-8080
news release
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FOR IMMEDIATE RELEASE |
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News Media, contact:
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Matt Hall, (336) 519-3386 |
Analysts and Investors, contact:
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Brian Lantz, (336) 519-7130 |
HANESBRANDS INC. COMPLETES LONG-TERM DEBT REFINANCING TO
TAKE ADVANTAGE OF FAVORABLE FIXED INTEREST RATES
WINSTON-SALEM, N.C. (Nov. 9, 2010) Hanesbrands Inc. (NYSE: HBI) today announced that it has
completed a senior notes offering and debt refinancing that gives the company a significant
percentage of fixed-rate debt at longer maturities with approximately the same amount of overall
annual interest expense. The companys level of total debt remains unchanged.
The company issued $1 billion of 10-year 6.375 percent senior unsecured notes due Dec. 15, 2020.
Standard & Poors Ratings Services assigned a BB- rating to the notes, upgraded all other company
notes to a BB- rating and upgraded the companys outlook to stable. Hanesbrands used proceeds from
the new 10-year notes to retire early its $691 million floating-rate term loan under its credit
facility, reduce its revolving credit facility balance, and pay related fees and expenses.
With the refinancing, Hanesbrands has favorable fixed interest rates and long maturities on 75
percent of its approximately $2 billion of bond debt. In addition to the new $1 billion senior
notes, the company has $500 million of 8 percent senior notes due in 2016 and $491 million in
floating-rate notes due in 2014.
In the fourth quarter, Hanesbrands expects to incur primarily noncash charges for early retirement of its term
loan credit facility and other related expenses of approximately $22 million, or $0.20 earnings per share.
These charges reduce Hanesbrands expectations for 2010 EPS by the same amount to a range of $2.07 to
$2.12. All other expectations communicated on the companys third-quarter earnings conference call held
on Oct. 27, 2010, remain unchanged.
We took advantage of the robust debt market to create an even stronger capital structure that
supports our continued growth momentum, said E. Lee Wyatt, Hanesbrands executive vice president
and chief financial officer. In addition, our new structure gives us tremendous liquidity and
flexibility to support our priorities for cash flow: investing in our business, paying down debt,
funding acquisitions, and returning cash to shareholders.
Hanesbrands Inc. Completes Long-Term Debt Refinancing to Take Advantage of Favorable Fixed Interest
Rates Page 2
The notes were offered in the United States to qualified institutional buyers pursuant to Rule 144A
under the Securities Act of 1933, as amended (the Securities Act), and to non-U.S. persons in
reliance on Regulation S under the Securities Act. The notes have not been registered under the
Securities Act and may not be offered or sold in the United States absent registration or an
applicable exemption from the registration requirements.
This press release shall not constitute an offer to sell or the solicitation of an offer to buy any
of the notes, nor shall there be any sale of the notes in any state or jurisdiction in which such
offer, solicitation, or sale is unlawful.
Cautionary Statement Concerning Forward-Looking Statements
Statements in this press release that are not statements of historical fact are forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934, including those regarding our long-term goals, trends associated
with our business and our recently completed debt refinancing. These forward-looking statements
are made only as of the date of this press release and are based on our current intent, beliefs,
plans and expectations. They involve risks and uncertainties that could cause actual future
results, performance or developments to differ materially from those described in or implied by
such forward-looking statements. These risks and uncertainties include the following: our ability
to successfully manage social, political, economic, legal and other conditions affecting our
foreign operations and supply-chain sources; the impact of natural disasters; the impact of
dramatic changes in the volatile market price of cotton and increases in prices of other materials
used in our products; the impact of increases in prices of oil-related materials and other costs
such as energy and utility costs; our ability to effectively manage our inventory and reduce
inventory reserves; our ability to continue to effectively distribute our products through our
distribution network as we continue to consolidate our distribution network; our ability to
optimize our global supply chain; current economic conditions; consumer spending levels; the risk
of inflation or deflation; financial difficulties experienced by, or loss of or reduction in sales
to, any of our top customers or groups of customers; gains and losses in the shelf space that our
customers devote to our products; the highly competitive and evolving nature of the industry in
which we compete; our ability to keep pace with changing consumer preferences; our debt and debt
service requirements that restrict our operating and financial flexibility and impose interest and
financing costs; the financial ratios that our debt instruments require us to maintain; future
financial performance, including availability, terms and deployment of capital; our ability to
comply with environmental and occupational health and safety laws and regulations; costs and
adverse publicity from violations of labor or environmental laws by us or our suppliers; and other
risks identified from time to time in our most recent Securities and Exchange Commission reports,
including our annual report on Form 10-K, quarterly reports on Form 10-Q and current reports on
Form 8-K, registration statements, press releases and other communications. Except as required by
law, the company undertakes no obligation to update or revise forward-looking statements to reflect
changed assumptions, the occurrence of unanticipated events or changes to future operating results
over time.
Hanesbrands Inc. Completes Long-Term Debt Refinancing to Take Advantage of Favorable Fixed Interest
Rates Page 3
Hanesbrands Inc.
Hanesbrands Inc. is a leading marketer of everyday basic apparel under some of the worlds
strongest apparel brands, including Hanes, Champion, Playtex, Bali, JMS/Just My Size, barely
there, Wonderbra and Gear For Sports. The company sells T-shirts, bras, panties, mens
underwear, childrens underwear, socks, hosiery, casualwear and activewear produced in the
companys low-cost global supply chain. Hanesbrands has approximately 50,000 employees in more
than 25 countries and takes pride in its strong reputation for ethical business practices. More
information about the company and its corporate social responsibility initiatives, including the
companys 2010 U.S. Environmental Protection Agency Energy Star Partner of the Year Award and No.
91 ranking on Newsweeks 500 greenest companies list, may be found on the Hanesbrands Internet
website at www.hanesbrands.com.
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