OXFORD INDUSTRIES, INC.
As filed with the Securities and Exchange Commission on
July 13, 2009
Registration Nos. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-4
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Oxford Industries,
Inc.
(Exact name of registrant as
specified in its charter)
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Georgia
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2320
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58-0831862
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(State or other jurisdiction
of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification No.)
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*and the
Subsidiary Guarantors listed on Schedule A hereto
(Exact name of registrants as
specified in their charters)
222 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
(404) 659-2424
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Thomas E. Campbell
Senior Vice President Law, General Counsel and
Secretary
222 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
(404) 659-2424
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
With a copy to:
Tracy Kimmel
King & Spalding LLP
1185 Avenue of the Americas
New York, New York 10036
(212) 556-2100
Approximate date of commencement of proposed sale to the
public: As soon as practicable after this
Registration Statement becomes effective.
If the securities being registered on this Form are being
offered in connection with the formation of a holding company
and there is compliance with General Instruction G, check the
following
box o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2 of the
Exchange Act. (Check one):
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Large
accelerated
filer o
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Accelerated
filer þ
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Non-accelerated
filer o
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Smaller
reporting
company o
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(Do not check if a smaller reporting company)
If applicable, place an X in the box to designate the
appropriate rule provision relied upon in conducting this
transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender
Offer) o
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender
Offer) o
CALCULATION
OF REGISTRATION FEE
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Title of Each Class of
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Proposed Maximum
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Proposed Maximum
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Amount of
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Securities to be
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Amount to be
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Offering Price
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Aggregate
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Registration
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Registered
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Registered
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per Note
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Offering Price
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Fee
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11.375% Senior Secured Notes due 2015
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$
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150,000,000
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100
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%
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$
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150,000,000
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(1)
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$
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8,370
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Guarantees of 11.375% Senior Secured Notes due 2015
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(2
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(1) |
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The registration fee has been calculated pursuant to
Rule 457(f)(2) under the Securities Act of 1933, as
amended. The proposed maximum offering price is estimated solely
for purpose of calculating the registration fee. |
(2) |
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Pursuant to Rule 457(n) of the Securities Act of 1933, no
registration fee is required for the guarantees. |
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933, or until this Registration
Statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
*Schedule A
Table of Subsidiary Guarantors
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State or Other Jurisdiction of
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I.R.S. Employer
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Exact Name of Subsidiary Guarantor
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Incorporation or Organization
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Identification No.
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Ben Sherman Clothing, Inc.
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Georgia
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58-2124593
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Lionshead Clothing Company
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Delaware
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51-0393413
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Oxford Caribbean, Inc.
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Delaware
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58-2250128
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Oxford Garment, Inc.
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Delaware
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58-1862551
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Oxford International, Inc.
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Georgia
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58-1469312
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Oxford Lockbox, Inc.
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Delaware
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20-4606943
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Oxford of South Carolina, Inc.
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South Carolina
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58-2403944
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Piedmont Apparel Corporation
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Delaware
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51-0393417
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SFI of Oxford Acquisition Corporation
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Delaware
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20-3554043
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Tommy Bahama Beverages, LLC
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Delaware
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20-2046093
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Tommy Bahama Group, Inc.
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Delaware
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13-3676108
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Tommy Bahama R&R Holdings, Inc.
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Delaware
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13-3923200
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Tommy Bahama Texas Beverages, LLC
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Texas
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20-2045908
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Viewpoint Marketing, Inc.
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Florida
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26-0270235
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The
information in this prospectus is not complete and may be
changed. We may not complete the exchange offer until the
registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell
securities and it is not soliciting an offer to buy these
securities in any state where the offer is not permitted.
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SUBJECT
TO COMPLETION DATED JULY 13, 2009
Prospectus
Offer to
Exchange
Up to
$150,000,000 aggregate principal amount
of our 11.375% Senior Secured Notes due 2015
(which we refer to as the new notes)
and the guarantees thereof which have been registered
under the Securities Act of 1933, as amended,
for a like amount of our outstanding
11.375% Senior Secured Notes due 2015
(which we refer to as the old notes)
and the guarantees thereof.
The New
Notes:
The terms of the new notes are substantially identical to the
old notes, except that some of the transfer restrictions,
registration rights and additional interest provisions relating
to the old notes will not apply to the new notes.
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Maturity: The new notes will mature on
July 15, 2015.
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Interest Payments: We will pay interest on the
new notes semi-annually in cash, in arrears, on January 15 and
July 15 of each year, starting on January 15, 2010.
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Guarantees: Certain of our current and future
domestic subsidiaries will guarantee the new notes on a senior
secured basis.
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Ranking: The new notes and the guarantees will
be our and the guarantors senior secured obligations. The
new notes will rank equally in right of payment with all of our
existing and future senior debt and senior in right of payment
to all of our future subordinated debt. The guarantees will rank
equally in right of payment with the guarantors existing
and future senior debt and senior in right of payment to their
future subordinated debt. The new notes and the guarantees will
be secured as set forth below.
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Security: The new notes and the guarantees
will be secured on a first-priority basis by the
U.S. registered trademarks and certain related rights owned
by Oxford Industries, Inc. or a guarantor and certain owned real
property acquired after the issue date of the old notes. Subject
to certain limitations, the new notes and the guarantees also
will be secured on a second-priority basis by a lien on the
assets that secure our obligations under our domestic revolving
credit facility, including present and future receivables,
inventory, certain general intangibles, equipment, stock of
subsidiaries and certain other assets and proceeds relating
thereto. For more information, see Description of the
Notes Security.
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Optional Redemption: The new notes will be
redeemable, in whole or in part, at any time on or after
July 15, 2012 at redemption prices specified under
Description of the Notes Optional
Redemption. In addition, we may redeem up to 35% of the
new notes before July 15, 2012 with the net cash proceeds
from certain equity offerings. We may also redeem some or all of
the new notes before July 15, 2012 at a redemption price of
100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the redemption date, plus a
make-whole premium. In addition, we may be required
to make an offer to purchase the new notes upon the sale of
certain assets or upon a change of control.
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The new notes will not be listed on any securities exchange or
automated quotation system.
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The
Exchange Offer:
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The exchange offer will expire at 5:00 p.m., New York City
time,
on ,
2009, (which is the
20th business
day following the date of this prospectus), unless we extend the
exchange offer in our sole and absolute discretion.
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The exchange offer is not subject to any conditions other than
that it not violate applicable law or any applicable
interpretation of the staff of the Securities and Exchange
Commission, or the Commission.
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Subject to the satisfaction or waiver of specified conditions,
we will exchange the new notes for all old notes that are
validly tendered and not withdrawn prior to the expiration of
the exchange offer.
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Tenders of old notes may be withdrawn at any time before the
expiration of the exchange offer.
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We will not receive any proceeds from the exchange offer.
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The exchange offer involves risks. See Risk
factors beginning on page 12.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus
is ,
2009.
TABLE OF
CONTENTS
This prospectus incorporates important business and financial
information about us that is not included in or delivered with
this prospectus. This information is available without charge to
security holders upon written or oral request to Oxford
Industries, Inc., 222 Piedmont Avenue, N.E., Atlanta, GA 30308,
Attn: Investor Relations Department, telephone number
(404) 659-2424.
In order to obtain timely delivery, you must request the
information no later
than ,
2009, which is five business days before the expiration date of
the exchange offer.
Each broker-dealer that receives new notes for its own
account pursuant to the exchange offer must acknowledge that it
will deliver a prospectus in connection with any resale of the
new notes. The letter of transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an
underwriter within the meaning of the Securities Act
of 1933, as amended, or the Securities Act. This prospectus, as
it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of new notes
received in exchange for old notes where the old notes were
acquired by the broker-dealer as a result of market-making
activities or other trading activities. We have agreed that, for
a period of 180 days after the consummation of the exchange
offer, we will make this prospectus available to any
broker-dealer for use in connection with any such resale. See
Plan of Distribution.
In this prospectus, we, us and
our refer to Oxford Industries, Inc. and its
subsidiaries as a combined entity unless otherwise indicated or
the context requires otherwise.
Neither the SEC, any state securities commission nor any other
regulatory authority has approved or disapproved the securities
offered hereby, nor have any of the foregoing authorities passed
upon or endorsed the merits of this offering or the accuracy or
adequacy of this prospectus. Any representation to the contrary
is a criminal offense.
i
FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated by reference
herein include forward-looking statements about future events.
Generally, the words believe, expect,
intend, estimate,
anticipate, project, will
and similar expressions identify forward-looking statements,
which generally are not historical in nature. Important
assumptions relating to these forward-looking statements
include, among others, assumptions regarding the duration and
severity of the current economic conditions and the impact on
consumer demand and spending, access to capital
and/or
credit markets, particularly in light of recent conditions in
those markets and its impact on our liquidity and that of our
customers, demand for our products, timing of shipments
requested by our wholesale customers, expected pricing levels,
competitive conditions, the timing and cost of planned capital
expenditures, expected synergies in connection with acquisitions
and joint ventures, costs of products and raw materials we
purchase, expected outcomes of pending or potential litigation
and regulatory actions and disciplined execution by key
management. Forward-looking statements reflect our current
expectations, based on currently available information, and are
not guarantees of performance. Although we believe that the
expectations reflected in such forward-looking statements are
reasonable, these expectations could prove inaccurate as such
statements involve risks and uncertainties, many of which are
beyond our ability to control or predict. Should one or more of
these risks or uncertainties, or other risks or uncertainties
not currently known to us or that we currently deem to be
immaterial, materialize, or should underlying assumptions prove
incorrect, actual results may vary materially from those
anticipated, estimated or projected. Important factors relating
to these risks and uncertainties include, but are not limited
to, those described under the heading Risk Factors
in this prospectus. We caution that one should not place undue
reliance on forward-looking statements, which speak only as of
the date on which they are made. We disclaim any intention,
obligation or duty to update or revise any forward-looking
statements, whether as a result of new information, future
events or otherwise, except as required by law.
TRADEMARKS
In this prospectus, we refer (without the ownership notation
after the initial use) to several trademarks that we own,
including Tommy
Bahama®,
Ben
Sherman®,
Ely®,
Arnold
Brant®,
Nickelsontm,
Cattleman®,
Billy
London®,
Oxford
Golf®,
Cumberland
Outfitters®,
and several trademarks that we license, including Kenneth
Cole®,
Dockers®,
Geoffrey
Beene®,
United States Polo
Association®
and
Evisu®.
We also own a
two-thirds
interest in an unconsolidated entity that owns the
Hathaway®
trademark in the United States and several other countries. In
addition to our branded businesses, we design and source certain
private label products, which are products sold exclusively to
one customer under a brand name that is owned by or licensed by
such customer. Significant private label brands include
Stafford®,
Alfani®,
Tasso
Elba®
and Lands
End®.
All brand names or other trademarks appearing in this prospectus
are the property of their respective owners.
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NOTE REGARDING
FINANCIAL INFORMATION
On October 8, 2007, our Board of Directors approved a
change to our fiscal year end. Effective with our fiscal year
that commenced on June 2, 2007, our fiscal year ends at the
end of the Saturday closest to January 31 and will, in each
case, begin at the beginning of the day next following the last
day of the preceding fiscal year. Accordingly, there was a
transition period from June 2, 2007 through
February 2, 2008 for which we filed a transition report on
Form 10-KT.
The terms listed below (or words of similar import) reflect the
respective period noted:
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Fiscal 2009
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52 weeks ending January 30, 2010
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Fiscal 2008
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52 weeks ended January 31, 2009
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Twelve months ended February 2, 2008
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52 weeks and one day ended February 2, 2008
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Eight-month transition period ended February 2, 2008
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35 weeks and one day ended February 2, 2008
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Fiscal 2007
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52 weeks ended June 1, 2007
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Fiscal 2006
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52 weeks ended June 2, 2006
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Fiscal 2003
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52 weeks ended May 30, 2003
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First quarter fiscal 2009
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13 weeks ended May 2, 2009
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Second quarter fiscal 2008
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13 weeks ended August 2, 2008
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First quarter fiscal 2008
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13 weeks ended May 3, 2008
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First quarter of eight month transition period ended
February 2, 2008
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13 weeks ended August 31, 2007
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iii
SUMMARY
This summary highlights selected information about us and
this offering contained in greater detail elsewhere in this
prospectus. It is not complete and may not contain all of the
information that is important to you. We encourage you to read
this entire prospectus and the documents to which we refer you
and the documents we incorporate by reference to understand
fully the terms of the new notes and this offering. References
to the Company, Oxford, OXM,
we, our and us mean Oxford
Industries, Inc. and its subsidiaries, unless otherwise
indicated or the context requires otherwise.
Our
Company
We are an international apparel design, sourcing and marketing
company featuring a diverse portfolio of owned and licensed
brands, company-owned retail operations and a collection of
private label apparel businesses. Our portfolio of leading
apparel brands includes our two lifestyle brands, Tommy Bahama
and Ben Sherman, as well as licensed brands such as Kenneth
Cole, Geoffrey Beene and Dockers. We are predominantly focused
on menswear, which we believe carries less fashion risk than
other apparel categories. We sell our products primarily through
wholesale distribution channels, including national chains,
department stores, mass merchants, specialty stores, specialty
catalog retailers and Internet retailers. As of May 2,
2009, we also operated 102 retail stores for our Tommy Bahama
and Ben Sherman brands. For fiscal 2008, we reported revenue of
$947.5 million. Our common stock is traded on the NYSE
under the symbol OXM and as of July 10, 2009,
we had an equity market capitalization of approximately
$156 million.
The following charts set forth our fiscal 2008 net sales by
operating group and brand category:
Founded in 1942, we have undergone a transformation in recent
years as we migrated away from our historical domestic
manufacturing roots to outsourcing more than 95% of our
products. In recent years, we have focused on designing,
sourcing and marketing apparel products bearing brands owned by
us. During fiscal 2008, approximately 68% of our net sales were
from products bearing brands that we own, compared to
approximately 4% in fiscal 2003. A key component of our business
strategy is to develop and market compelling lifestyle brands
and products that are fashion right and evoke a
strong emotional response from our target consumers. Critical
steps in the evolution of our business model towards branded
apparel include:
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Acquiring Tommy Bahama in June 2003;
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Acquiring Ben Sherman in July 2004; and
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Selling our private label Womenswear Group operations in June
2006.
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Operating
Groups
Tommy Bahama. Tommy Bahama designs, sources
and markets mens and womens sportswear and related
products that define casually elegant island living consistent
with Tommy Bahamas aspirational lifestyle. Tommy
Bahamas target consumers are affluent men and women
35 years and older who embrace a relaxed
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and casual approach to daily living. We design, source and
market collections of mens and womens sportswear and
related products and license the brand to third parties to
market non-apparel categories including fragrances, watches,
eyewear, furniture and rum, among others. During fiscal 2008,
approximately 44% of Tommy Bahamas net sales were to
wholesale customers and approximately 56% were directly to
consumers through our retail stores, restaurant-retail locations
and
e-commerce
operations. Our key wholesale customers include Macys and
Nordstrom (13% and 10% of fiscal 2008 net sales,
respectively). As of May 2, 2009, we operated 59
full-priced stores, 13 outlet stores and 12 restaurant-retail
locations.
Ben Sherman. London-based Ben Sherman was
established in 1963 as an edgy, young mens
Mod-inspired
shirt brand that has evolved into a British lifestyle brand
targeting youthful-thinking men and women ages 19 to 35
throughout the world. We design, source and market Ben Sherman
sportswear and license the brand to third parties to market
categories including suits and dress shirts, small leather goods
and jewelry, among other items. During fiscal 2008,
approximately 60% and 20% of Ben Shermans net sales
occurred in the United Kingdom and the United States,
respectively, with the remaining 20% occurring primarily in
Europe, Asia and Australia. During fiscal 2008, approximately
83% of Ben Shermans net sales were to wholesale customers,
with the remaining 17% sold directly to consumers through our
retail stores and our
e-commerce
operations. Our largest wholesale customer is Debenhams (13% of
fiscal 2008 net sales). As of May 2, 2009, we operated
five United Kingdom, two German and four U.S. full-price
stores, as well as seven outlet stores in the United Kingdom.
Lanier Clothes. Lanier Clothes designs and
markets branded and private label mens suits, sportcoats,
suit separates and dress slacks across a wide range of price
points. Private label products under brands including Stafford
(JCPenney), Alfani (Macys), Tasso Elba (Macys) and
Lands End (Sears) represented approximately 50% of Lanier
Clothes net sales during fiscal 2008. Our branded products
include our owned Arnold Brant and Billy London brands as well
as licensed trademarks such as Kenneth Cole, Dockers and
Geoffrey Beene. Our largest Lanier Clothes customers include
JCPenney, Macys and Sears, which accounted for
approximately 30%, 18% and 12% of Lanier Clothes fiscal
2008 net sales, respectively.
Oxford Apparel. Oxford Apparel produces
branded and private label dress shirts, suited separates, sport
shirts, casual slacks, outerwear, sweaters, jeans, swimwear,
westernwear and golf apparel. Private label products for
customers including Sears, Mens Wearhouse, Target, Costco
and Macys represented approximately 56% of Oxford
Apparels net sales during fiscal 2008. Our owned brands
include Oxford Golf, Ely and Cattleman. We also own a
two-thirds interest in an unconsolidated entity that owns the
Hathaway trademark in the United States and several other
countries. Additionally, we have licenses to sell products under
the Dockers and United States Polo Association trademarks for
certain product categories. Our largest Oxford Apparel customers
include Sears, Mens Wearhouse, Target and Costco, which
accounted for approximately 20%, 13%, 12% and 11% of Oxford
Apparels fiscal 2008 net sales, respectively.
Competitive
Strengths
We believe that the following competitive strengths
differentiate our business:
Strong Lifestyle Brands. Tommy Bahama and Ben
Sherman are lifestyle brands, which we consider to
be brands with a clearly defined and targeted point of view
inspired by an appealing lifestyle or attitude. We believe our
lifestyle brands evoke a strong emotional response and loyalty
from our target customers, which allow us to command a higher
price point at retail and results in higher profits. Our
successful lifestyle brands also provide opportunities for
branded retail operations as well as licensing ventures in
product categories beyond apparel. For example, we estimate that
our Tommy Bahama brand generates over $850 million of sales
at retail annually. The brand is offered through more than 3,000
wholesale doors and our 84 retail stores and licensed across
multiple product categories including fragrances, watches,
eyewear, furniture and rum, among others. An appraisal completed
on June 15, 2009 by Valuation Research Corporation, an
independent appraisal consulting firm (VRC),
estimated the value, subject to certain assumptions (as set
forth on page 26 of this prospectus), of the Tommy Bahama
trade name in the U.S. to be approximately
$208 million.
Diversified Business Model. Our portfolio is
diversified by brand, product and distribution channel, which we
believe enhances our consumer appeal and reduces our dependence
on any one brand, style or customer.
2
By Brand. We maintain a broad portfolio of
owned and licensed brands that target consumers across a wide
range of ages and incomes. In fiscal 2008, our net sales were
comprised of 68% owned brands, 10% licensed brands and 22%
private label brands. Tommy Bahama, our largest owned brand,
comprised 45% of net sales for fiscal 2008. We design, source
and market our products on a
brand-by-brand
basis targeting distinct consumer demographics and lifestyle
preferences. For example, our Tommy Bahama and Ben Sherman
brands target affluent customers, while our Billy London brand
and many of our private labels focus on more value-oriented
customers.
By Product. Across our brand portfolio, we
offer a broad range of apparel and related products at various
price points. We believe our portfolio is well-balanced among
dress and casual styles; tops and bottoms, swimwear and
outerwear classifications; and knits, wovens and other
fabrications. While menswear, which we believe carries less
fashion risk and is more stable than other apparel categories,
comprises the majority of our net sales, we are developing a
growing womenswear business.
By Channel. We market our products through all
major retail distribution channels, making our products
accessible to customers wherever they prefer to shop. During
fiscal 2008, 73% of our net sales were to wholesale customers
and 27% were direct-to-consumer sales. We distribute our
products through more than 20,000 doors at more than 7,000
wholesale customers, including national chains, department
stores, mass merchants, specialty stores, specialty catalogs and
Internet retailers. Sales to our five largest customers
accounted for approximately 45% of our total wholesale sales in
fiscal 2008. We also operate retail stores, restaurants
and/or
e-commerce
websites for our Tommy Bahama and Ben Sherman brands. As of
May 2, 2009, there were 102 Tommy Bahama and Ben Sherman
stores.
Longstanding Relationships with Leading
Retailers. We have strong relationships with
leading retailers across all major distribution channels. These
longstanding relationships enhance our ability to maximize the
selling space dedicated to our products, monitor our product
presentation and merchandise selection and introduce new
products and brands. We have developed and maintained
longstanding relationships with our key wholesale customers,
including Macys, Nordstrom, Sears and JCPenney. Through
our private label business, we design and source apparel for
highly recognizable brands at leading retailers, including
Sears, JCPenney, Target, Costco, Mens Wearhouse and
Wal-Mart. We have partnered with most of these wholesale and
private label customers for over 30 years.
Significant Cash Flow Generation. We manage
our business and make investment decisions using a return on
invested capital framework with strict criteria. Our business
model has historically generated solid cash flow due to our
disciplined approach, modest capital requirements and strong
brands and retail relationships. In fiscal 2008, the twelve
months ended February 2, 2008 and fiscal 2007, we generated
approximately $69.6 million, $33.3 million and
$28.3 million, respectively, of cash from operating
activities net of capital expenditures. In fiscal 2008, we
enhanced our cash flow by decreasing our overhead expenses,
aggressively managing our inventories and moderating our capital
expenditures for new stores.
Well-Established, Cost-Effective Sourcing
Capabilities. We source over 95% of our products
from
third-parties
primarily in Asia. We have operated our buying office in Hong
Kong since 1974, over which time we have developed and
maintained longstanding relationships with many suppliers. Our
in-house, local sourcing expertise and well-established network
of relationships across many countries allow us to quickly
allocate our production among countries and vendors to respond
to economic, competitive and regulatory challenges; optimize our
costs; and control product quality. In fiscal 2008, we sourced a
majority of our products from manufacturers in China, Indonesia,
Bangladesh and India.
Experienced Retail and Apparel Management
Team. We have a strong and dedicated management
team that has substantial operating experience. Our senior
management has an average of approximately 30 years of
experience in the apparel industry and approximately
19 years average tenure at Oxford. The management team is
led by Chief Executive Officer J. Hicks Lanier, whose family
founded our company in 1942.
3
Business
Strategy
Our strategic objective is to become one of the worlds
leading diversified purveyors of strong lifestyle brands. We
intend to realize this objective through the following
strategies:
Further Develop our Tommy Bahama and Ben Sherman Lifestyle
Brands. We intend to continue to enhance
consumers recognition of and loyalty to our Tommy Bahama
and Ben Sherman brands by increasing our retail store base,
growing our womenswear offerings, expanding internationally and
further developing our
e-commerce
presence and licensing programs. We believe that our retail
stores help to strengthen our brands by presenting our full
product lines, providing high visibility in an environment we
control and enabling us to understand the needs and preferences
of our consumers. We believe there are significant opportunities
over the long-term to continue to open stores for Tommy Bahama
and Ben Sherman and expand our retail footprint. Womenswear is a
much larger category than menswear, and we believe it presents a
significant growth opportunity for both of our lifestyle brands,
which are currently focused primarily on mens apparel. We
also have the opportunity to increase our brands
international presence. In fiscal 2008, Tommy Bahama generated
substantially all of its sales in the United States, and Ben
Sherman generated 60% of its sales in the United Kingdom.
Increase Cash Returns from Our Legacy Operating
Groups. Over the past few years, we have
rationalized our legacy operating groups, which currently
consist of Lanier Clothes and Oxford Apparel. Specific actions
have included selling our private label Womenswear Group,
exiting certain underperforming lines of business and resizing
our overhead structure. We believe that these initiatives have
resulted in smaller but more cash generative businesses and have
freed working capital to be more effectively deployed. Since our
restructuring of Oxford Apparel starting approximately three
years ago, we have enjoyed a growing operating margin on a
smaller sales base that requires less capital investment. For
example, sales declined from $353 million in fiscal 2006 to
$257 million in fiscal 2008 while operating margin grew
from 4.1% to 4.5% over the same period. Following our
restructuring of Lanier Clothes which commenced during the
second quarter of fiscal 2008, we have earned operating income
in each of the past three quarters as compared to operating
losses in several preceding periods. For example, we earned an
operating margin of 8.7% in our first quarter of fiscal 2009 as
compared to -0.1% in our first quarter of fiscal 2008. We intend
to continually monitor and rationalize underperforming lines
that do not meet our return on invested capital goals so that we
can optimize cash returns.
Enhance Operating Discipline and Control. We
intend to continue to aggressively manage inventories, overhead
expenses and capital expenditures to optimize our profitability
and cash flow as well as maintain a healthy balance sheet and
liquidity. Our stated cost savings plan for fiscal 2009 is a
$40 million reduction in selling, general and
administrative expenses (SG&A) compared to
fiscal 2008. In the first quarter of fiscal 2009, our SG&A
was more than $20 million less than our SG&A in the
first quarter of fiscal 2008. In addition, in the first quarter
of fiscal 2009, our SG&A as a percentage of sales declined
20 basis points despite a 20.6% decline in sales compared
to the first quarter of fiscal 2008.
Selectively Pursue Complementary Lifestyle Brand
Acquisitions. We expect to continue to
selectively pursue acquisitions of lifestyle brands that we
believe fit our business model. We believe that our success with
Tommy Bahama and Ben Sherman validates our ability to
successfully integrate strategic acquisitions and operate
acquired brands. While we are currently focused on controlling
costs and balance sheet management, we intend to continue to
pursue acquisitions in a disciplined and opportunistic manner,
most likely when conditions in our markets improve.
4
The
Exchange Offer
The following summary contains basic information about the
exchange offer and is not intended to be complete. For a more
detailed description of the terms and conditions of the exchange
offer, please refer to the section entitled The Exchange
Offer.
|
|
|
The Exchange Offer |
|
We are offering to exchange $1,000 principal amount of the new
notes, which have been registered under the Securities Act, for
each $1,000 principal amount of the old notes, which have not
been registered under the Securities Act. We issued the old
notes on June 30, 2009. |
|
|
|
In order to exchange your old notes, you must promptly tender
them before the expiration date (as described herein). All old
notes that are validly tendered and not validly withdrawn will
be exchanged. We will issue the new notes on or promptly after
the expiration date. |
|
|
|
You may tender your old notes for exchange in whole or in part
in denominations of $2,000 and integral multiples of $1,000 in
excess thereof. |
|
Registration Rights Agreement |
|
We sold the old notes on June 30, 2009 to Banc of America
Securities LLC, SunTrust Robinson Humphrey, Credit Suisse
Securities (USA) LLC, BB&T Capital Markets, a Division of
Scott & Stringfellow LLC, Morgan Keegan &
Company, Inc., Barclays Capital Inc. and PNC Capital Markets
LLC, the initial purchasers. Simultaneously with that sale, we
signed a registration rights agreement with the initial
purchasers relating to the old notes that requires us to conduct
this exchange offer (the Registration Rights
Agreement). |
|
|
|
Subject to certain limitations, you have the right under the
Registration Rights Agreement to exchange your old notes for new
notes. The exchange offer is intended to satisfy such right.
After the exchange offer is complete, you will no longer be
entitled to any exchange or registration rights with respect to
your old notes. |
|
|
|
For a description of the procedures for tendering old notes, see
The Exchange Offer Procedures for Tendering
Old Notes. |
|
Consequences of Failure to Exchange |
|
If you do not exchange your old notes for new notes in the
exchange offer, you will still have the restrictions on transfer
provided in the old notes and in the indenture that governs both
the old notes and the new notes. In general, the old notes may
not be offered or sold unless registered or exempt from
registration under the Securities Act, or in a transaction not
subject to the Securities Act and applicable state securities
laws. We do not plan to register the old notes under the
Securities Act. See Risk Factors Holders that
do not exchange their old notes hold restricted securities. |
|
Expiration Date |
|
The exchange offer will expire at 5:00 p.m., New York City
time, on , 2009, (which
is the 20th business day following the date of this prospectus),
unless we extend the exchange offer in our sole and absolute
discretion. In that case, the expiration date will be the latest
date and time to which we extend the exchange offer. |
5
|
|
|
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|
See The Exchange Offer Expiration Date,
The Exchange Offer Extensions and
The Exchange Offer Amendments. |
|
Conditions to the Exchange Offer |
|
The exchange offer is subject to customary conditions, some of
which we may waive. For more information, see The Exchange
Offer Conditions to the Exchange Offer. |
|
Procedures for Tendering Old Notes |
|
If you hold old notes through The Depository Trust Company
(DTC) and wish to participate in the exchange offer,
you must comply with the Automated Tender Offer Program
procedures of DTC. See The Exchange Offer
Procedures for Tendering Old Notes. If you are not a DTC
participant, you may tender your old notes by book-entry
transfer by contacting your broker, dealer or other nominee or
by opening an account with a DTC participant, as the case may be. |
|
|
|
By accepting the exchange offer, you will represent to us that,
among other things: |
|
|
|
any new notes that you receive will be
acquired in the ordinary course of your business;
|
|
|
|
you are not engaging in or intending to engage in a
distribution of the new notes and you have no arrangement or
understanding with any person or entity, including any of our
affiliates, to participate in the distribution of the new notes;
|
|
|
|
if you are a broker-dealer that will receive new
notes for your own account in exchange for old notes that were
acquired as a result of market-making activities, that you will
deliver a prospectus, as required by law, in connection with any
resale of the new notes; and
|
|
|
|
you are not our affiliate as defined in
Rule 405 under the Securities Act, or, if you are an
affiliate, you will comply with any applicable registration and
prospectus delivery requirements of the Securities Act.
|
|
Withdrawal Rights |
|
You may withdraw the tender of your old notes at any time before
the expiration date. To do this, you should deliver a written
notice of your withdrawal to the exchange agent according to the
withdrawal procedures described in the section The
Exchange Offer Withdrawal Rights. |
|
Exchange Agent |
|
The exchange agent for the exchange offer is U.S. Bank National
Association. The address, telephone number and facsimile number
of the exchange agent are provided in the section The
Exchange Offer Exchange Agent, as well as in
the letter of transmittal. |
|
Use of Proceeds |
|
We will not receive any cash proceeds from the issuance of the
new notes. See the section Use of Proceeds. |
|
United States Federal Income Tax Consequences
|
|
Your participation in the exchange offer generally will not be a
taxable event for U.S. federal income tax purposes. You will not
recognize any taxable gain or loss or any interest income as a
result of the exchange. See the section U.S. Federal
Income Tax Consequences of the Exchange Offer. |
6
Summary
Description of the New Notes
The summary below describes the principal terms of the new
notes. The terms of the new notes are identical in all material
respects to the terms of the old notes, except that the
registration rights and related liquidated damages provisions
and the transfer restrictions applicable to the old notes are
not applicable to the new notes. The new notes will evidence the
same debt as the old notes and will be governed by the same
indenture. Please read the section entitled Description of
the Notes in this prospectus, which contains a more
detailed description of the terms and conditions of the new
notes.
|
|
|
Issuer |
|
Oxford Industries, Inc. |
|
Notes Offered |
|
$150,000,000 aggregate principal amount of 11.375% Senior
Secured Notes. |
|
Maturity Date |
|
July 15, 2015. |
|
Interest Payment Dates |
|
January 15 and July 15, commencing January 15, 2010. |
|
Subsidiary Guarantees |
|
Each of our domestic subsidiaries that on June 30, 2009 was
a borrower or guaranteed obligations under the Second Amended
and Restated Credit Agreement, dated as of August 15, 2008,
by and among Oxford Industries, Inc., Tommy Bahama Group, Inc.,
the persons party thereto from time to time as Guarantors, the
financial institutions party thereto from time to time as
lenders, the financial institutions party thereto from time to
time as Issuing Banks and SunTrust Bank, as administrative agent
(our domestic revolving credit facility) will
guarantee the new notes. The new notes will be guaranteed
following the issue date by certain additional domestic
restricted subsidiaries. See Description of the
Notes Additional Guarantees. Oxford and the
guarantors generated approximately 89% of our consolidated
revenues for the fiscal year ended January 31, 2009 and
held approximately 81% of our consolidated assets as of
January 31, 2009. |
|
Ranking |
|
The new notes and the guarantees will be senior secured
obligations of Oxford Industries, Inc. and the guarantors
secured to the extent described below. The new notes and the
guarantees will rank: |
|
|
|
pari passu with any senior indebtedness of Oxford
and the guarantors (except to the extent of the value of the
collateral);
|
|
|
|
senior to any indebtedness of Oxford and the
guarantors that is expressly subordinated to the new notes and
the guarantees;
|
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|
effectively senior to any unsecured indebtedness or
indebtedness with a junior lien to the lien securing the new
notes and the guarantees to the extent of the value of the
collateral for the new notes and the guarantees;
|
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|
effectively junior to any secured indebtedness which
is either secured by assets that are not collateral for the new
notes and the guarantees or which are secured by a prior lien in
the collateral for the new notes and the guarantees, in each
case, to the extent of the value of the assets securing such
indebtedness;
|
7
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|
|
effectively junior to our and the guarantors
obligations under our domestic revolving credit facility to the
extent our and the guarantors assets secure such
obligations on a first-priority basis; and
|
|
|
|
effectively junior to all obligations of our
subsidiaries that are not guarantors.
|
|
Security |
|
The new notes and the guarantees will be secured on a
first-priority basis, subject to certain permitted liens, by a
lien on the U.S. registered trademarks and certain related
rights owned by us and the guarantors and on certain owned real
property acquired by us and the guarantors following the issue
date of the old notes (which will secure our and the
guarantors obligations under our domestic revolving credit
facility on a second-priority basis) and by a second-priority
security interest in our assets and the guarantors assets
that secure our domestic revolving credit facility on a
first-priority basis including, subject to certain limitations,
present and future receivables, inventory, general intangibles,
equipment, investment property, stock of subsidiaries, and
certain other assets and proceeds relating thereto. See
Description of the Notes Security. |
|
Optional Redemption |
|
On or after July 15, 2012, we may redeem some or all of the
new notes at any time at the redemption prices, together with
accrued and unpaid interest, specified under Description
of the Notes Optional Redemption. |
|
|
|
Before July 15, 2012, we may redeem some or all of the new
notes at a redemption price equal to 100% of the principal
amount of each new note to be redeemed plus a make-whole premium
described in Description of the Notes Optional
Redemption. |
|
|
|
In addition, at any time prior to July 15, 2012, we may
redeem up to 35% of the new notes with the net cash proceeds
from specified equity offerings at a redemption price equal to
111.375% of the principal amount of each new note to be
redeemed, plus accrued and unpaid interest, if any, to the date
of redemption. |
|
Change of Control |
|
Upon a change of control (as defined in Description of the
Notes Certain Definitions), we must offer to
repurchase the new notes at 101% of the principal amount, plus
accrued interest to the purchase date. |
|
Certain Covenants |
|
The indenture governing the new notes contains certain
covenants, including limitations and restrictions on our ability
to: |
|
|
|
incur additional indebtedness;
|
|
|
|
make dividend payments or other restricted payments;
|
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|
create liens;
|
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|
sell assets;
|
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|
sell securities of our subsidiaries;
|
8
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|
enter into certain types of transactions with
shareholders and affiliates; and
|
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|
enter into mergers, consolidations, or sales of all
or substantially all of our assets.
|
|
|
|
These covenants are subject to important exceptions and
qualifications, which are described in Description of the
Notes Certain Covenants. |
|
Risk Factors |
|
Potential investors in the new notes should carefully consider
the matters set forth under the caption Risk Factors
prior to making an investment decision with respect to the new
notes. |
Oxford Industries, Inc. was founded in 1942 as a Georgia
corporation. Our principal executive offices are located at 222
Piedmont Avenue, N.E., Atlanta, Georgia 30308, and our telephone
number is
(404) 659-2424.
9
Summary
Consolidated Financial and Other Data
The following summary consolidated financial and other data as
of the end of and for fiscal 2006, fiscal 2007 and fiscal 2008
have been derived from our audited consolidated financial
statements, which have been audited by Ernst & Young
LLP. The summary consolidated financial and other data as of the
end of and for the twelve months ended February 2, 2008 and
the first quarter of fiscal 2008 and fiscal 2009 have been
derived from our unaudited condensed consolidated financial
statements and, in our opinion, reflect all adjustments,
consisting of normal accruals, necessary for a fair presentation
of the data as of the dates and for those periods presented. Our
results of operations for the first quarter of fiscal
2009 may not be indicative of results that may be expected
for the full year. The data below reflects the divestiture of
substantially all of the assets of our Womenswear Group
operations in fiscal 2006, resulting in those operations being
classified as discontinued operations for all periods presented.
The totals in the table below may not add due to rounding. You
should read the information set forth below in conjunction with
Managements Discussion and Analysis of Financial
Condition and Results of Operations and our consolidated
financial statements and related notes thereto, each contained
in our Annual Report on
Form 10-K
for fiscal 2008 and our Quarterly Report on
Form 10-Q
for the first quarter of fiscal 2009 and incorporated by
reference in this prospectus.
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|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal
|
|
|
|
|
|
|
|
|
|
Fiscal Year
|
|
|
12 Months
|
|
|
Year
|
|
|
First Quarter
|
|
|
|
Ended
|
|
|
Ended
|
|
|
Ended
|
|
|
Ended
|
|
|
|
June 2,
|
|
|
June 1,
|
|
|
February 2,
|
|
|
January 31,
|
|
|
May 3,
|
|
|
May 2,
|
|
|
|
2006
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
2008
|
|
|
2009
|
|
|
|
(In millions)
|
|
|
|
|
|
|
|
|
|
(Unaudited)
|
|
|
|
|
|
(Unaudited)
|
|
|
Statement of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales
|
|
$
|
1,109.1
|
|
|
$
|
1,128.9
|
|
|
$
|
1,085.3
|
|
|
$
|
947.5
|
|
|
$
|
272.9
|
|
|
$
|
216.7
|
|
Cost of goods sold
|
|
|
677.4
|
|
|
|
681.1
|
|
|
|
647.4
|
|
|
|
551.0
|
|
|
|
156.6
|
|
|
|
127.0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
431.7
|
|
|
|
447.8
|
|
|
|
437.8
|
|
|
|
396.5
|
|
|
|
116.3
|
|
|
|
89.8
|
|
SG&A
|
|
|
339.1
|
|
|
|
357.0
|
|
|
|
366.5
|
|
|
|
358.1
|
|
|
|
99.6
|
|
|
|
78.7
|
|
Amortization of intangible assets
|
|
|
7.6
|
|
|
|
6.4
|
|
|
|
5.4
|
|
|
|
2.9
|
|
|
|
0.8
|
|
|
|
0.3
|
|
Impairment of goodwill, intangible assets and joint venture
investment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
314.8
|
|
|
|
|
|
|
|
|
|
Royalties and other operating income
|
|
|
13.1
|
|
|
|
16.5
|
|
|
|
19.8
|
|
|
|
17.3
|
|
|
|
4.2
|
|
|
|
2.5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
|
98.1
|
|
|
|
100.8
|
|
|
|
85.7
|
|
|
|
(262.0
|
)
|
|
|
20.1
|
|
|
|
13.2
|
|
Gain on repurchase of Senior Unsecured Notes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7.8
|
|
|
|
|
|
|
|
|
|
Interest expense, net
|
|
|
24.0
|
|
|
|
22.2
|
|
|
|
22.4
|
|
|
|
23.7
|
|
|
|
6.3
|
|
|
|
4.6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings before income taxes
|
|
|
74.1
|
|
|
|
78.6
|
|
|
|
63.3
|
|
|
|
(278.0
|
)
|
|
|
13.7
|
|
|
|
8.7
|
|
Income taxes (benefit)
|
|
|
22.9
|
|
|
|
26.3
|
|
|
|
17.9
|
|
|
|
(12.1
|
)
|
|
|
4.2
|
|
|
|
2.2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net earnings (loss) from continuing operations
|
|
$
|
51.2
|
|
|
$
|
52.3
|
|
|
$
|
45.4
|
|
|
$
|
(265.8
|
)
|
|
$
|
9.5
|
|
|
$
|
6.5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
Other Financial Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash interest expense
|
|
$
|
21.7
|
|
|
$
|
20.2
|
|
|
$
|
20.5
|
|
|
$
|
21.0
|
|
|
$
|
5.7
|
|
|
$
|
4.2
|
|
Capital expenditures
|
|
|
25.0
|
|
|
|
31.3
|
|
|
|
33.7
|
|
|
|
20.7
|
|
|
|
8.7
|
|
|
|
3.8
|
|
Depreciation
|
|
|
15.1
|
|
|
|
16.7
|
|
|
|
19.0
|
|
|
|
22.0
|
|
|
|
4.8
|
|
|
|
4.6
|
|
Net cash provided by operating activities
|
|
|
81.0
|
|
|
|
59.6
|
|
|
|
67.0
|
|
|
|
90.4
|
|
|
|
36.2
|
|
|
|
2.5
|
|
Balance Sheet Data (at period end):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
10.5
|
|
|
$
|
36.9
|
|
|
$
|
14.9
|
|
|
$
|
3.3
|
|
|
$
|
6.1
|
|
|
$
|
8.4
|
|
Total assets
|
|
|
885.6
|
|
|
|
908.7
|
|
|
|
910.3
|
|
|
|
473.5
|
|
|
|
884.7
|
|
|
|
467.9
|
|
Total debt, including current maturities
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200.2
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199.7
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272.3
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199.3
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239.1
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207.0
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Shareholders equity
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398.7
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454.1
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407.5
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93.1
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415.0
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100.3
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10
Ratio of
Earnings to Fixed Charges
The following table presents our ratio of earnings to fixed
charges. The ratio of earnings to fixed charges is calculated as
earnings before income taxes, plus fixed charges, net of
capitalized interest, divided by fixed charges. Fixed charges
include interest costs incurred and estimated interest within
rental expense. Fixed charges include the
87/8% Notes,
which we repurchased or otherwise discharged upon consummation
of the offering of the old notes, and are not adjusted to give
effect to the offering of the old notes.
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Eight
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Month
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Transition
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Twelve
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Period
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Months
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Fiscal Year
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Fiscal Year Ended
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Ended
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Ended
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Ended
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First Quarter Ended
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May 28,
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June 3,
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June 2,
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June 1,
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February 2,
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February 2,
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January 31,
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May 3,
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May 2,
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2004
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2005
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2006
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2007
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2008
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2008
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2009
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2008
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2009
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Ratio of earnings to fixed charges(a)
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2.7x
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2.9x
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3.2x
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3.5x
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2.2x
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2.9x
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2.5x
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2.2x
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(a) |
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The ratio coverage for fiscal 2008 was less than 1.0x. The
coverage deficiency was approximately $277 million for this
period. Earnings before income taxes for this period was
impacted by impairment charges totaling $314.8 million
relating to goodwill, intangible assets and investment in a
joint venture. |
11
RISK
FACTORS
An investment in the new notes involves a high degree of
risk. In addition to the other information contained or
incorporated by reference in this prospectus, prospective
investors should carefully consider the following risks before
investing in the new notes. If any of the following risks
actually occur, our business, financial condition and operating
results could be materially adversely affected, which, in turn,
could adversely affect our ability to pay interest and principal
on the new notes. The risks discussed below also include
forward-looking statements, and our actual results may differ
substantially from those discussed in these forward-looking
statements. See Forward-Looking Statements in this
prospectus.
General
Business Risks
Our
business is and will continue to be heavily influenced by
economic trends and general economic conditions, as evidenced by
the impact of the current global economic crisis on our
business. Economic conditions may continue to adversely affect
our sales, increase our cost of goods sold or require us to
significantly modify our business practices.
The recent deterioration of the general economic environment,
distress in the financial markets and general uncertainty about
the economy are having a significant negative impact on
businesses and consumers around the world, including our own
business.
The global economic crisis has had, and is continuing to have,
an adverse impact on retail sales of apparel and other consumer
products. Reduced sales by our wholesale customers may lead to
lower retail inventory levels, reduced orders from us
and/or order
cancellations. Reduced sales by these customers, along with the
possibility of their reduced access to, or inability to access,
the credit markets, may result in our customers experiencing
significant financial difficulties. Financial difficulties of
customers could result in reduced sales to those customers or
could result in store closures, bankruptcies or liquidations by
those customers. Higher credit risk relating to receivables from
customers experiencing financial difficulty may result. If these
developments occur, our inability to shift sales to other
customers or to collect on our accounts receivable could
negatively impact our financial condition and results of
operations.
In addition, credit markets have experienced significant
disruptions and certain leading financial institutions have
either declared bankruptcy or have shown significant
deterioration in their financial stability. Further
deterioration in the financial markets could make future
financing difficult or more expensive.
These or any other significant changes in the operations or
liquidity for any of the parties with which we conduct our
business, including suppliers, customers, trademark licensees
and lenders, among others, now or in the future, or in the
access to capital markets for us or any such parties, could
result in lower demand for our products, lower sales, higher
costs or other disruptions in our business.
A significant portion of our revenues are direct-to-consumer
through retail stores, restaurants and Internet websites.
Reduced consumer confidence, along with a reduction in the
availability of consumer credit and increasing unemployment, may
lead to reduced purchases of our products at our retail stores,
restaurants and Internet websites. This could have a negative
impact on the demand for our products and reduce our operating
leverage.
Additionally, during economic periods such as the current
conditions, certain long term commitments, such as leases and
license agreements, may not be as beneficial in the short-term
as was desired when we initially entered into the agreements.
Lease agreements and license agreements often require certain
minimum payments which do not fluctuate with sales. Our ability
to reduce these costs may be minimal, even if we determine to no
longer utilize the retail space or trademark over a portion of
the term of the agreement, as the other party may not be willing
to renegotiate the agreement. These long-term agreements may
result in higher costs as a percentage of sales than we
originally anticipated or we realized in prior years and thus
negatively impact our operating results in future periods.
12
We are unsure of the duration and severity of this economic
crisis. However, if the crisis persists or worsens and economic
conditions remain weak over a long period, the likelihood of the
crisis having an even more significant impact on our business
increases.
Beyond the current economic crisis, the apparel industry is
cyclical and dependent upon the overall level of discretionary
consumer spending, which changes as regional, domestic and
international economic conditions change. Often, the apparel
industry tends to experience longer periods of recession and
generally experiences greater declines than the general economy.
Overall economic conditions that affect discretionary consumer
spending include, but are not limited to, employment levels,
recessions, energy costs, interest rates, tax rates, personal
debt levels, housing prices and stock market volatility.
Uncertainty about the future may also impact the level of
discretionary consumer spending or result in shifts in consumer
spending to products other than apparel. Any deterioration in
general economic or political conditions, acts of war or
terrorism or other factors that create uncertainty or alter the
discretionary consumer habits in our key markets, particularly
the United States and the United Kingdom, could reduce our
sales, increase our costs of goods sold or require us to
significantly modify our current business practices and,
consequently, harm our results of operations. These and other
events that impact our operating results could also result in
adverse consequences to our business, such as our failure to
satisfy financial covenants under our debt instruments or our
inability to continue to meet minimum sales thresholds to
certain of our licensors.
We
make use of debt to finance our operations, which exposes us to
risks that could adversely affect our business, financial
position and operating results.
Our levels of debt vary as a result of the seasonality of our
business, investments in acquisitions and working capital and
divestitures. As of June 30, 2009, we had
$150.0 million of outstanding old notes, approximately
$32.0 million of outstanding borrowings under our domestic
revolving credit facility and $10.1 million of outstanding
borrowings under our £12 million Senior Secured
Revolving Credit Facility (our U.K. revolving credit
facility). Our debt levels may increase in the future
under our existing facilities or potentially under new
facilities, or the terms or forms of our financing arrangements
in the future may change, which may increase our exposure to the
items discussed below.
Our indebtedness includes, and any future indebtedness may
include, certain obligations and limitations, including the
periodic payment of principal and interest, maintenance of
certain covenants and certain other limitations related to
additional debt, dividend payments, investments and dispositions
of assets. Our ability to satisfy these obligations will be
dependent upon our business, financial condition and operating
results. These obligations and limitations may increase our
vulnerability to adverse economic and industry conditions, place
us at a competitive disadvantage compared to our competitors
that are less leveraged and limit our flexibility in carrying
out our business plan and planning for, or reacting to, changes
in the industry in which we operate.
In August 2008, we entered into our domestic revolving credit
facility. Our domestic revolving credit facility amended and
restated our Amended and Restated Credit Agreement dated as of
July 28, 2004, as previously amended (our prior
domestic revolving credit facility), among Oxford
Industries, Inc., certain of our domestic subsidiaries as
borrowers or guarantors, certain financial institutions party
thereto as lenders, certain financial institutions party thereto
as the issuing banks and SunTrust Bank, as administrative agent,
which was scheduled to mature in July 2009. Our domestic
revolving credit facility matures in August 2013. Our domestic
revolving credit facility is an asset-based facility, with
borrowing availability determined primarily by the level of our
eligible accounts receivable and inventory balances. We
currently anticipate that cash flows from operations and the
projected borrowing availability under our domestic revolving
credit facility will be sufficient to fund our liquidity
requirements. However, if we do not have a sufficient borrowing
base at any given time, borrowing availability under our
domestic revolving credit facility may not be sufficient to
support our liquidity needs. Additionally, if any of the
financial institutions that are parties to our domestic
revolving credit facility were to declare bankruptcy or become
insolvent, they may be unable to perform under their agreements
with us. This could leave us with reduced borrowing capacity.
We have interest rate risk on a portion of our indebtedness, as
certain of our indebtedness is based on variable interest rates.
We generally do not engage in hedging activities with respect to
our interest rate risk.
13
An increase in interest rates may require us to pay a greater
amount of our funds from operations towards interest, even if
the amount of borrowings outstanding remains the same. As a
result, we may have to revise or delay our business plans,
reduce or delay capital expenditures or otherwise adjust our
plans for operations.
The
apparel industry is highly competitive, and we face significant
competitive threats to our business from various third parties
that could reduce our sales, increase our costs, result in
reduced price points for our products and/or result in decreased
margins.
The apparel industry is highly competitive. Our competitors
include numerous domestic and foreign apparel designers,
manufacturers, distributors, importers, licensors, and
retailers, some of which may also be our customers and some of
whom are significantly larger and have significantly greater
financial resources than we do. The level and nature of our
competition varies, and the number of our direct competitors and
the intensity of competition may increase as we expand into
other markets or product lines or as other companies expand into
our markets or product lines. Some of our competitors may be
able to adapt to changes in consumer demand more quickly, to
devote greater resources to establishing brand recognition or to
adopt more aggressive pricing policies than we can.
Additionally, as a result of the current economic conditions,
certain of our competitors are offering apparel for sale at
significant discounts, which results in more pressure to reduce
prices or the risk that our products may not be as desirable as
lower priced products. In addition, with respect to certain of
our businesses, retailers that are our customers may pose a
significant competitive threat by sourcing their products
directly or by marketing their own private label brands. These
private label lines may also receive prominent positioning on
the retail floor by department stores. These competitive factors
within the apparel industry may result in reduced sales,
increased costs, lower prices for our products
and/or
decreased margins.
Our
business could be harmed if we fail to maintain proper inventory
levels.
In light of the current economic crisis, we believe we have
planned inventory purchases for fiscal 2009 conservatively.
However, if the crisis persists or worsens and economic
conditions remain weak over a long period, we may be unable to
sell the products we have ordered in advance from manufacturers
or that we have in our inventory. Inventory levels in excess of
customer demand may result in inventory markdowns or the sale of
excess inventory at discounted prices. These events could
significantly harm our operating results and impair the image of
our brands. Conversely, as economic conditions improve, we may
not be in a position to order quality products from our
manufacturers in a timely manner
and/or we
may experience inventory shortages, which might result in
unfilled orders, negatively impact customer relationships,
diminish brand loyalty and result in lost revenues, any of which
could harm our business.
Our
success depends on the reputation and value of our owned and
licensed brand names, including, in particular, Tommy Bahama and
Ben Sherman, and actions by us, our wholesale customers or
others who have interests in our brands could diminish the
reputation or value of our brands and adversely affect our
business operations.
The success of our business depends on the reputation and value
of our owned and licensed brand names. The value of our brands
could be diminished by actions taken by us, for instance by
becoming overly promotional, our wholesale customers or others
who have interests in the brands. We cannot always control the
marketing and promotion of our products by our wholesale
customers or other third parties who have an interest in our
brands, and actions by such parties that are inconsistent with
our own marketing efforts or that otherwise adversely affect the
appeal of our products could diminish the value or reputation of
one or more of our brands and have an adverse effect on our
sales and business operations.
We
rely on our licensing partners to preserve the value of our
brands and as a source of royalty income.
Certain of our brands, such as Tommy Bahama and Ben Sherman,
have a reputation of outstanding quality and name recognition
that makes the brands valuable as a source of royalty income.
During fiscal 2008, we recognized approximately
$15.6 million of royalty income. While we take significant
steps to ensure the reputation of our brands is maintained
through our license agreements, there can be no guarantee our
14
brands will not be negatively impacted through our association
with products outside of our core apparel products or due to the
actions of a licensee. The improper or detrimental actions of a
licensee may not only result in a decrease in the sales of our
licensees products but also could significantly impact the
perception of our brands.
The
apparel industry is subject to rapidly evolving fashion trends,
and we must continuously offer innovative and market appropriate
products to maintain and grow our existing businesses. Failure
to offer innovative and market appropriate products may
adversely affect our sales and lead to excess inventory,
markdowns and/or dilution of our brands.
We believe that the principal competitive factors in the apparel
industry are design, brand image, consumer preference, price,
quality, marketing and customer service. Although certain of our
products carry over from season to season, the apparel industry
in general is subject to rapidly changing fashion trends and
shifting consumer demands. Accordingly, we must anticipate,
identify and capitalize upon emerging fashion trends. We believe
that our success depends on our ability to continuously develop,
source, market and deliver a wide variety of innovative,
fashionable and desirable brands and products. These products
must be offered at appropriate price points in their respective
distribution channels. Sales growth from our brands will depend
largely upon our ability to continue to maintain and enhance the
distinctive brand identities.
Due to the competitive nature of the apparel industry, there can
be no assurance that the demand for our products will not
decline or that we will be able to successfully evaluate and
adapt our products to align with consumers preferences,
fashion trends and changes in consumer demographics. As is
typical with new products, market acceptance of new price
points, designs and products is subject to uncertainty. The
introduction or repositioning of new lines and products often
requires substantial costs in design, marketing and advertising,
which may not be recovered if the products are not successful.
Any failure on our part to develop appealing products and update
core products could result in lower sales
and/or harm
the reputation and desirability of our products. Additionally,
since we generally make decisions regarding product designs
several months in advance of the time when consumer acceptance
can be measured, such a failure could leave us with a
substantial amount of unsold excess inventory, which we may be
forced to sell at lower price points. Any of these factors could
result in a deterioration of the appeal of our brands and
products, adversely affecting our business, financial condition
and operating results.
Our
business depends on our senior management and other key
personnel, and the unexpected loss of individuals integral to
our business, our inability to attract and retain qualified
personnel in the future or our failure to successfully plan for
and implement succession of our senior management and key
personnel may have an adverse effect on our operations, business
relationships and ability to execute our
strategies.
Our senior management has substantial experience and expertise
in the apparel industry. Our success depends, to a significant
extent, upon the continued services of our senior management, as
well as our ability to attract, hire, motivate and retain
additional talented and highly qualified management in the
future, including in the areas of design, merchandising, sales,
marketing and production, as well as our ability to hire and
train qualified retail management and associates. Our success
depends upon disciplined execution at all levels of our
organization, including our senior management. Competition for
qualified personnel in the apparel industry is intense, and we
compete to attract and retain these individuals with other
companies which may have greater financial resources. In
addition, we will need to plan for the succession of our senior
management and successfully integrate new members of management
within our organization.
The unexpected loss of J. Hicks Lanier, our Chairman and Chief
Executive Officer, or any of our other senior management, could
materially affect our operations, business relationships and
ability to execute our strategies.
15
We
depend on a group of key customers for a significant portion of
our wholesale sales. A significant adverse change in a customer
relationship or in a customers financial position could
negatively impact our net sales and profitability.
We generate a significant percentage of our sales from a few
major customers. During fiscal 2008, sales to our five largest
customers accounted for approximately 45% of our total wholesale
sales and sales to our largest wholesale customer represented
approximately 15% of our wholesale sales. In addition, the net
sales of our individual operating groups may be concentrated
among several large customers. Continued consolidation in the
retail industry could result in a decrease in the number of
stores that carry our products, restructuring of our
customers operations, more centralized purchasing
decisions, direct sourcing and greater leverage by customers,
potentially resulting in lower prices, realignment of customer
affiliations or other factors which could negatively impact our
net sales and profitability.
We generally do not have long-term contracts with any of our
customers. Instead, we rely on
long-standing
relationships with these customers and our position within the
marketplace. As a result, purchases generally occur on an
order-by-order
basis, and each relationship can generally be terminated by
either party at any time. A decision by one or more major
customers to terminate its relationship with us or to reduce its
purchases from us, whether motivated by competitive
considerations, quality or style issues, financial difficulties,
economic conditions or otherwise, could adversely affect our net
sales and profitability, as it would be difficult to
immediately, if at all, replace this business with new customers
or increase sales volumes with other existing customers.
In addition, due to long product lead times, several of our
product lines are designed and manufactured in anticipation of
orders for sale. We make commitments for fabric and production
in connection with these lines. These commitments can be made up
to several months prior to the receipt of firm orders from
customers, and if orders do not materialize or are canceled, we
may incur expenses to terminate our fabric and production
commitments and dispose of excess inventories.
We also extend credit to several of our key customers without
requiring collateral, which results in a large amount of
receivables from just a few customers. During the past several
years, particularly in light of the current economic crisis,
companies in the apparel industry, including some of our
customers, have had financial difficulties and are currently
experiencing tightened credit markets and declining sales and
profitability on a comparable store basis. If one or more of our
key customers experiences significant problems in the future,
including as a result of general weakness in the apparel
industry, our sales may be reduced, and the risk associated with
extending credit to these customers may increase. A significant
adverse change in a customers financial position could
cause us to limit or discontinue business with that customer,
require us to assume greater credit risk relating to that
customers receivables or limit our ability to collect
amounts related to previous shipments to that customer. These or
other events related to our significant customers could
adversely affect our net sales and profitability.
Our
concentration of retail stores and wholesale customers for
certain of our products exposes us to certain regional
risks.
Our retail locations are heavily concentrated in certain
geographic areas in the United States, including Florida,
California, Hawaii, Arizona and Nevada, for our Tommy Bahama
retail stores and the United Kingdom for our Ben Sherman retail
stores. As of May 2, 2009, 53 of our Tommy Bahama retail
stores were located in these U.S. states and five of our
Ben Sherman full price retail stores were located in the United
Kingdom. Additionally, a significant portion of our wholesale
sales for Tommy Bahama and Ben Sherman products are concentrated
in the same geographic areas as our own retail store locations
for these brands. Due to this concentration, we have heightened
exposure to factors that impact these regions, including general
economic conditions, weather patterns, natural disasters,
changing demographics and other factors.
16
Our
foreign sourcing operations as well as the sale of products in
foreign markets result in an exposure to fluctuations in foreign
currency exchange rates.
As a result of our international operations, we are exposed to
certain risks in conducting business outside of the United
States. Substantially all of our orders to have goods produced
in foreign countries are denominated in U.S. dollars.
Purchase prices for our products may be impacted by fluctuations
in the exchange rate between the U.S. dollar and the local
currencies of the contract manufacturers, either of which may
have the effect of increasing our cost of goods sold in the
future. If the value of the U.S. dollar decreases relative
to certain foreign currencies in the future, then the prices
that we negotiate for products could increase, and it is
possible that we would not be able to pass this increase on to
customers, which would negatively impact our margins. If the
value of the U.S. dollar increases between the time a price
is set and payment for a product, the price we pay may be higher
than that paid for comparable goods by competitors that pay for
goods in local currencies, and these competitors may be able to
sell their products at more competitive prices. Additionally,
currency fluctuations could also disrupt the business of our
independent manufacturers that produce our products by making
their purchases of raw materials more expensive and difficult to
finance.
We received U.S. dollars for greater than 85% of our
product sales during fiscal 2008. The sales denominated in
foreign currencies primarily relate to Ben Sherman sales in the
United Kingdom and Europe. An increase in the value of the
U.S. dollar compared to these other currencies in which we
have sales could result in lower levels of sales and earnings in
our consolidated statements of operations, although the sales in
foreign currencies could be equal to or greater than amounts in
prior periods. We generally do not engage in hedging activities
with respect to our exposure to foreign currency risk except
that, on occasion, we do purchase foreign currency forward
exchange contracts for our goods purchased on U.S. dollar
terms that are expected to be sold in the United Kingdom and
Europe.
We are
dependent upon the availability of raw materials and the ability
of our third-party producers, substantially all of whom are
located in foreign countries, to meet our requirements; any
failures by these producers to meet our requirements, or the
unavailability of suitable producers or raw materials at
reasonable prices may negatively impact our ability to deliver
quality products to our customers on a timely basis or result in
higher costs or reduced net sales.
We source substantially all of our products from non-exclusive,
third-party producers located in foreign countries. Although we
place a high value on long-term relationships with our
suppliers, generally we do not have long-term contracts but,
instead, conduct business on an
order-by-order
basis. Therefore, we compete with other companies for the
production capacity of independent manufacturers. We regularly
depend upon the ability of third-party producers to secure a
sufficient supply of raw materials, adequately finance the
production of goods ordered and maintain sufficient
manufacturing and shipping capacity. Although we monitor
production in third-party manufacturing locations, we cannot be
certain that we will not experience operational difficulties
with our manufacturers, such as the reduction of availability of
production capacity, errors in complying with product
specifications, insufficient quality control, failures to meet
production deadlines or increases in manufacturing costs. Such
difficulties may negatively impact our ability to deliver
quality products to our customers on a timely basis, which may,
in turn, have a negative impact on our customer relationships
and result in lower net sales.
Most of the products we purchase from third-party producers are
package purchases, and we and our third-party suppliers rely on
the availability of raw materials at reasonable prices. The
principal fabrics used in our business are cotton, linens,
wools, silk, other natural fibers, synthetics and blends of
these materials. The prices paid for these fabrics depend on the
market price for raw materials used to produce them. The price
and availability of certain raw materials have fluctuated in the
past, and may fluctuate in the future, depending on a variety of
factors, including crop yields, weather, supply conditions,
government regulation, war, terrorism, labor unrest, global
health concerns, economic climate, the cost of petroleum and
other unpredictable factors. Additionally, costs of our
third-party providers or our transportation costs may increase
due to these same factors. We historically have not entered into
any futures contracts to hedge commodity prices. Any significant
increase in the price of raw materials or decrease in the
availability of raw materials could cause delays in
17
product deliveries to our customers, which could have an adverse
impact on our customer relationships
and/or
increase our costs, some or all of which we may be unable to
pass on to our customers.
We also require third-party producers to meet certain standards
in terms of working conditions, environmental protection and
other matters before placing business with them. As a result of
costs relating to compliance with these standards, we may pay
higher prices than some of our competitors for products. In
addition, the labor and business practices of independent
apparel manufacturers have received increased attention from the
media, non-governmental organizations, consumers and
governmental agencies in recent years. Failure by us or our
independent manufacturers to adhere to labor or other laws or
business practices accepted as ethical, and the potential
litigation, negative publicity and political pressure relating
to any of these events, could disrupt our operations or harm our
reputation.
Since
we source substantially all of our products from third-party
producers located in foreign countries, our business is subject
to legal, regulatory, political and economic risks, including
risks relating to the importation of our products, and our
products may become less competitive as a result of adverse
changes affecting our international operations.
As we source substantially all of our products from foreign
countries, including approximately 50% of our product purchases
from China during fiscal 2008, we are exposed to risks
associated with changes in the laws and regulations governing
the importing and exporting of apparel products into and from
the countries in which we operate.
Some of the risks associated with importing our products from
foreign countries include quotas, imposed by countries in which
our products are manufactured or countries into which our
products are imported, which limit the amount and type of goods
that may be imported annually from or into these countries;
changes in social, political, labor and economic conditions or
terrorist acts that could result in the disruption of trade from
the countries in which our manufacturers are located; the
imposition of additional or new duties, tariffs, taxes or other
charges and shifts in sourcing patterns as a result of such
charges; significant fluctuations in the cost of raw materials;
significant delays in the delivery of our products, due to
security considerations; rapid fluctuations in sourcing costs,
including costs for raw materials and labor; the imposition of
antidumping or countervailing duties; fluctuations in the value
of the dollar against foreign currencies; and restrictions on
the transfer of funds to or from foreign countries.
We currently benefit from duty-free treatment under
international trade agreements and regulations such as the North
American Free Trade Agreement. In addition, Chinas
safeguard quota on certain classes of apparel products expired
on December 31, 2008, and the United States and China have
not finalized a new quota arrangement, if any, for periods after
2008. The imposition of a new quota arrangement between the
United States and China or the elimination of duty-free
treatment or our inability to qualify for such benefits would
adversely impact our business by increasing our cost of goods
sold.
Our products are subject to increasingly stringent and complex
product performance and safety standards, laws and other
regulations. With the passage of the Consumer Product Safety
Improvement Act of 2008, there are new requirements mandated for
the textile and apparel industries. These requirements relate to
all apparel currently regulated under the Consumer Product
Safety Commission, or CPSC, and also include new requirements
that relate to metal and painted trim items and certain other
raw materials used in childrens age 12 and under
apparel. These requirements could result in greater expense
associated with compliance efforts and failure to comply with
such regulations could result in a delay, non-delivery or
mandated destruction of inventory shipments during key seasons
or other financial penalties. While we are continuing to monitor
the situation and intend to abide by the rules and changes made
by the CPSC, significant or continuing noncompliance with such
standards and laws could harm our reputation, our business
relationships or our ability to execute our strategies.
Our, or any of our suppliers, failure to comply with
customs or similar laws or any other applicable regulations
could restrict our ability to import products or lead to fines,
penalties or adverse publicity, and future regulatory actions or
trade agreements may provide our competitors with a material
advantage over us or materially increase our costs.
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Our
operations are reliant on information technology, and any
interruption or other failure in our information technology
systems may impair our ability to compete effectively in the
apparel industry, including our ability to provide services to
our customers and meet the needs of management.
The efficient operation of our business is dependent on
information technology. Information systems are used in all
stages of our operations from design to distribution and as a
method of communication with our customers and suppliers.
Additionally, certain of our operating groups utilize
e-commerce
websites to sell goods directly to consumers. Our management
also relies on information systems to provide relevant and
accurate information in order to allocate resources and forecast
and report our operating results. Service interruptions may
occur as a result of a number of factors, including computer
viruses, hacking or other unlawful activities by third parties,
disasters, or failures to properly install, upgrade, integrate,
protect, repair or maintain our systems and
e-commerce
websites. In connection with our periodic assessment of the
appropriateness and relevance of our financial and operational
systems, we commenced implementation of a new integrated
financial system in fiscal 2008. Additionally, future
assessments could result in a change to or replacement of our
systems in the future. There can be no assurances that we will
be successful in developing or acquiring competitive systems,
including an integrated financial system, which are responsive
to our needs and the needs of our customers. Any interruption or
other failure of critical business information systems,
including an interruption or failure caused by our inability to
successfully upgrade, change or implement our financial or
operational systems, could cause difficulties in operating our
business and communicating with our customers or our ability to
report our financial results, which could cause our sales and
profits to decrease and could also require significant
expenditures to remediate any such difficulties.
We may
be unable to protect our trademarks and other intellectual
property or may otherwise have our brand names
harmed.
We believe that our registered and common law trademarks and
other intellectual property, as well as other contractual
arrangements, including licenses and other proprietary
intellectual property rights, have significant value and are
important to our continued success and our competitive position
due to their recognition by retailers and consumers.
Approximately 68% of our net sales in fiscal 2008 was
attributable to branded products for which we own the trademark.
Therefore, our success depends to a significant degree upon our
ability to protect and preserve our intellectual property. We
rely on laws in the United States and other countries to protect
our proprietary rights. However, we may not be able to
sufficiently prevent third parties from using our intellectual
property without our authorization, particularly in those
countries where the laws do not protect our proprietary rights
as fully as in the United States. The use of our intellectual
property or similar intellectual property by others could reduce
or eliminate any competitive advantage we have developed,
causing us to lose sales or otherwise harm the reputation of our
brands.
Additionally, there can be no assurance that the actions that we
have taken will be adequate to prevent others from seeking to
block sales of our products as violations of proprietary rights.
Although we have not been materially inhibited from selling
products in connection with trademark disputes, as we extend our
brands into new product categories and new product lines and
expand the geographic scope of our marketing, we could become
subject to litigation based on allegations of the infringement
of intellectual property rights of third parties. In the event a
claim of infringement against us is successful, we may be
required to pay damages, royalties or license fees to continue
to use intellectual property rights that we had been using, or
we may be unable to obtain necessary licenses from third parties
at a reasonable cost or within a reasonable time. Litigation and
other legal action of this type, regardless of whether it is
successful, could result in substantial costs to us and
diversion of our management and other resources.
Our
sales and operating results are influenced by weather patterns
and natural disasters.
Like other companies in the apparel industry, our sales volume
may be adversely affected by unseasonable weather conditions or
natural disasters, which may cause consumers to alter their
purchasing habits or result in a disruption to our operations.
Because of the seasonality of our business and the concentration
of a significant proportion of our customers in certain
geographic regions, the occurrence of such events could
disproportionately impact our business, financial condition and
operating results.
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We
hold licenses for the use of other parties brand names,
and we cannot guarantee our continued use of such brand names or
the quality or salability of such brand names.
We have entered into license and design agreements to use
certain trademarks and trade names, such as Kenneth Cole,
Dockers, United States Polo Association, Geoffrey Beene and
Evisu, to market our products. Approximately 10% of our net
sales during fiscal 2008 related to the products for which we
license the use of the trademark for specific product
categories. These license and design agreements will expire at
various dates in the future. We cannot guarantee that we will be
able to renew these licenses on acceptable terms upon expiration
or that we will be able to acquire new licenses to use other
popular trademarks. For example, during fiscal 2008, we decided
to exit license agreements relating to the
Nautica®,
O
Oscartm
and Tommy
Hilfiger®
brands. The termination or expiration of a license agreement
will cause us to lose the sales and any associated profits
generated pursuant to such license and in certain cases could
result in an impairment charge for related intangible assets.
In addition to certain compliance obligations, all of our
significant licenses provide minimum thresholds for royalty
payments and advertising expenditures for each license year,
which we must pay regardless of the level of our sales of the
licensed products. If these thresholds are not met, our
licensors may be permitted contractually to terminate these
agreements or seek payment of minimum royalties even if the
minimum sales are not achieved. In addition, our licensors
produce their own products and license their trademarks to other
third parties, and we are unable to control the quality of these
goods that others produce. If licensors or others do not
maintain the quality of these trademarks or if the brand image
deteriorates, our sales and any associated profits generated by
such brands may decline.
We are
dependent on a limited number of distribution centers, making
our operations particularly susceptible to
disruption.
Our ability to meet customer expectations, manage inventory and
achieve objectives for operating efficiencies depends on the
proper operation of our primary distribution facilities, some of
which are owned and others of which are operated by third
parties. Finished garments from our contractors are inspected
and stored at these distribution facilities. If any of these
distribution facilities were to shut down or otherwise become
inoperable or inaccessible for any reason, we could experience a
reduction in sales, a substantial loss of inventory or higher
costs and longer lead times associated with the distribution of
our products during the time it takes to reopen or replace the
facility. This could negatively affect our operating results and
our customer relationships.
We may
not be successful in identifying locations and negotiating
appropriate lease terms for retail stores and
restaurants.
An integral part of our strategy has been to develop and operate
retail stores and restaurants for certain of our brands. Net
sales from retail stores and restaurants were approximately 26%
of our consolidated net sales during fiscal 2008. Successful
operation of our retail stores and restaurants depends, in part,
on the overall ability of the retail location to attract a
consumer base sufficient to make store sales volume profitable.
If we are unable to identify new locations with consumer traffic
sufficient to support a profitable sales level, retail growth
may consequently be limited. Further, if existing retail stores
and restaurants do not maintain a sufficient customer base that
provides a reasonable sales volume, it could have a negative
impact on our sales, gross margin, and results of operations.
Our
restaurant operations may be negatively impacted by regulatory
issues or by health, safety, labor and similar operational
issues, or by publicity surrounding any of these
issues.
The restaurant industry is highly competitive and requires
compliance with a variety of federal, state and local
regulations. In particular, all of our Tommy Bahama restaurants
serve alcohol and, therefore, maintain liquor licenses. Our
ability to maintain our liquor licenses depends on our
compliance with applicable laws and regulations. The loss of a
liquor license would adversely affect the profitability of a
restaurant. Additionally, as a participant in the restaurant
industry, we face risks related to food quality, food-borne
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illness, injury, health inspection scores and labor relations.
Regardless of whether allegations related to these matters are
valid or whether we become liable, we may be materially affected
by negative publicity associated with these issues. The negative
impact of adverse publicity relating to one restaurant may
extend beyond the restaurant involved to affect some or all of
the other restaurants, as well as the image of the Tommy Bahama
brand as a whole.
The
acquisition of new businesses has certain inherent risks,
including, for example, strains on our management team and
unexpected acquisition costs.
One component of our business strategy is the acquisition of new
businesses or product lines as and when appropriate investment
opportunities are available. Our sales growth may be limited if
we are unable to find suitable acquisition candidates at
reasonable prices in the future, if we do not have the financial
resources available to us in order to successfully consummate a
desired acquisition, if we are unsuccessful in integrating any
acquired businesses in a timely manner or if the acquisitions do
not achieve the anticipated results. Evaluating and completing
acquisitions in the future may strain our administrative,
operational and financial resources and distract our management
from our ongoing businesses.
In addition, integrating acquired businesses is a complex,
time-consuming and expensive process. The integration process
for newly acquired businesses could create for us a number of
challenges and adverse consequences associated with the
integration of product lines, employees, sales teams and
outsourced manufacturers; employee turnover, including key
management and creative personnel of the acquired and existing
businesses; disruption in product cycles for newly acquired
product lines; maintenance of acceptable standards, controls,
procedures and policies; and the impairment of relationships
with customers of the acquired and existing businesses. Further,
we may not be able to manage the combined operations and assets
effectively or realize the anticipated benefits of the
acquisition.
As a result of acquisitions that have occurred or may occur in
the future, we may become responsible for unexpected liabilities
that we failed to discover in the course of performing due
diligence in connection with the acquired businesses. We cannot
be assured that any indemnification to which we may be entitled
from the sellers will be enforceable, collectible or sufficient
in amount, scope or duration to fully offset the possible
liabilities associated with the business acquired.
Divestitures
of certain businesses or discontinuations of certain product
lines may require us to find alternative uses for our
resources.
We may determine in the near future that it is appropriate to
divest or discontinue certain operations, as we did in fiscal
2006 when we divested our Womenswear Group operations and as we
have, more recently, in exiting certain product categories in
our Lanier Clothes and Oxford Apparel operating groups.
Divestitures of certain businesses that do not align with our
strategy or the discontinuation of certain product lines which
may not provide the returns that we expect or desire may result
in underutilization of our resources in the event that the
operations are not replaced with new lines of business either
internally or through acquisition. There can be no guarantee
that if we divest certain businesses or discontinue certain
product lines that we will be able to replace the sales and
profits related to these businesses or appropriately utilize our
remaining resources, which may result in a decline in our
operating results.
We
operate in various countries with differing laws and
regulations, which may impair our ability to maintain compliance
with regulations and laws.
Although we attempt to abide by the laws and regulations in each
jurisdiction in which we operate, the complexity of the laws and
regulations to which we are subject, including customs
regulations, labor laws, competition laws, consumer protection
laws and domestic and international tax legislation, makes it
difficult for us to ensure that we are currently, or will be in
the future, compliant with all laws and regulations. We may be
required to make significant expenditures or modify our business
practices to comply with existing or future laws or regulations,
and unfavorable resolution to litigation or a violation of
applicable laws and regulations may increase our costs and
materially limit our ability to operate our business.
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Compliance
with privacy and information laws and requirements could be
costly, and a breach of information security or privacy could
adversely affect our business.
The regulatory environment governing our use of individually
identifiable data of customers, employees and others is complex.
Privacy and information security laws and requirements change
frequently, and compliance with them may require us to incur
costs to make necessary systems changes and implement new
administrative processes. If a data security breach occurs, our
reputation could be damaged and we could experience lost sales,
fines or lawsuits.
Risks
Related to the New Notes
In addition to the factors above relating generally to risks
associated with our business (and, therefore, to any investment
in us), you should also consider the following factors that
represent special risks associated with an investment in the new
notes.
Our
substantial indebtedness could adversely affect our financial
health and prevent us from fulfilling our obligations under the
new notes.
We have a significant amount of indebtedness. As of
June 30, 2009, we had $192.1 million of indebtedness
outstanding. The old notes have and the new notes will have a
higher interest rate than the
87/8% Senior
Notes due 2011 (the
87/8% Notes)
that were repurchased or redeemed with the proceeds from the
offering of the old notes, which has increased our interest
expense following the offering of the old notes.
Our substantial amount of indebtedness could have important
consequences for you. For example, it could:
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make it more difficult for us to satisfy our obligations with
respect to the new notes;
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limit our ability to borrow additional funds, or to sell assets
to raise funds, if needed, for working capital, capital
expenditures, acquisitions or other purposes;
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increase our vulnerability to adverse economic and industry
conditions;
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require us to dedicate a substantial portion of our cash flow
from operations to payments on our debt, thereby reducing funds
available for operations, future business opportunities or other
purposes, such as funding our working capital and capital
expenditures;
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limit our flexibility in planning for, or reacting to, changes
in the business and industry in which we operate;
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limit our ability to service our indebtedness, including the new
notes;
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place us at a competitive disadvantage compared to any less
leveraged competitors; and
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prevent us from raising the funds necessary to repurchase all
new notes tendered to us upon the occurrence of certain changes
of control, which would constitute a default under the indenture
governing the new notes.
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The occurrence of any one of these events could have a material
adverse effect on our business, financial condition, results of
operations, prospects or ability to satisfy our obligations
under the new notes.
Subject to restrictions in the indenture governing the new notes
and restrictions in our domestic revolving credit facility, we
may incur additional indebtedness, which could increase the
risks associated with our already substantial indebtedness. The
terms of the indenture will permit us to incur additional debt,
including additional secured debt. If we incur any additional
indebtedness secured by liens that rank equally with those
securing the new notes, the holders of that debt will be
entitled to share ratably with you in any proceeds distributed
in connection with any insolvency, liquidation, reorganization,
dissolution or other
winding-up
of us.
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Our
ability to generate cash depends on many factors beyond our
control, and we may not be able to generate the cash required to
service our debt.
Our ability to make payments on and refinance our indebtedness,
including the new notes, and to fund our operations will depend
on our ability to generate cash in the future. Our historical
financial results have been, and our future financial results
are expected to be, subject to substantial fluctuations, and
will depend upon general economic conditions and financial,
competitive, legislative, regulatory and other factors that are
beyond our control. If we are unable to meet our debt service
obligations or fund our other liquidity needs, we may need to
refinance all or a portion of our debt, including the new notes,
before maturity, seek additional equity capital, reduce or delay
scheduled expansions and capital expenditures or sell material
assets or operations. We cannot assure you that we will be able
to pay our debt or refinance it on commercially reasonable
terms, or at all, or to fund our liquidity needs.
If for any reason we are unable to meet our debt service
obligations, we would be in default under the terms of the
agreements governing our outstanding debt. If such a default
were to occur, the lenders under our domestic revolving credit
facility could elect to declare all amounts outstanding under
our domestic revolving credit facility immediately due and
payable, and the lenders would not be obligated to continue to
advance funds under our domestic revolving credit facility. If
the amounts outstanding under these agreements are accelerated,
we cannot assure you that our assets will be sufficient to repay
in full the money owed to the banks or to our debt holders,
including holders of new notes.
The
indenture governing the new notes and our domestic revolving
credit facility contain various covenants limiting the
discretion of our management in operating our business and could
prevent us from capitalizing on business opportunities and
taking some corporate actions.
The indenture governing the new notes and our domestic revolving
credit facility impose significant operating and financial
restrictions on us. These restrictions limit or restrict, among
other things, our ability and the ability of our restricted
subsidiaries to:
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incur additional indebtedness;
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make restricted payments (including paying dividends on,
redeeming, repurchasing or retiring our capital stock);
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make investments;
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create liens;
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sell assets;
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enter into agreements restricting our subsidiaries ability
to pay dividends, make loans or transfer assets to us;
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engage in transactions with affiliates; and
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consolidate, merge or sell all or substantially all of our
assets.
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These covenants are subject to important exceptions and
qualifications and, with respect to the new notes, are described
under the heading Description of the Notes
Certain Covenants in this prospectus. In addition, our
domestic revolving credit facility also requires us to maintain
compliance with financial covenants. Our ability to comply with
this covenant may be affected by events beyond our control,
including those described in this Risk Factors
section. A breach of any of the covenants contained in our
domestic revolving credit facility including our inability to
comply with the financial covenant could result in an event of
default, which would allow the lenders under our domestic
revolving credit facility to declare all borrowings outstanding
to be due and payable, which would in turn trigger an event of
default under the indenture governing the new notes. At maturity
or in the event of an acceleration of payment obligations, we
would likely be unable to pay our outstanding indebtedness with
our cash and cash equivalents then on hand. We would, therefore,
be required to seek alternative sources of funding, which may
not be available on commercially reasonable terms, terms as
favorable as our current agreements or at all, or face
bankruptcy. If
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we are unable to refinance our indebtedness or find alternative
means of financing our operations, we may be required to curtail
our operations or take other actions that are inconsistent with
our current business practices or strategy.
Holders
of our indebtedness secured by liens ranking prior to the lien
securing the new notes have rights senior to the rights of the
holders of the new notes with respect to the collateral securing
such other secured indebtedness.
Obligations under our domestic revolving credit facility are
secured by a first-priority lien on accounts receivable (other
than royalty payments in respect of trademark licenses),
inventory, investment property (including the equity interests
of certain subsidiaries), general intangibles (other than
trademarks, trade names and related rights), deposit accounts,
intercompany obligations, equipment, goods, documents,
contracts, books and records and other personal property of ours
and of the guarantors. The new notes and the related guarantees
will be secured by a second-priority lien in the collateral
securing indebtedness under our domestic revolving credit
facility. Any rights to payment and claims by the holders of the
new notes will, therefore, be subject to the rights to payment
or claims by our lenders under our domestic revolving credit
facility with respect to distributions of such collateral. Only
when our obligations under our domestic revolving credit
facility are satisfied in full will the proceeds of certain
assets be available to repay the new notes.
Certain
assets are excluded from the collateral.
Certain assets are excluded from the collateral securing the new
notes as described under Description of the
Notes Security including the following:
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any trademarks not registered with the U.S. Patent and
Trademark Office;
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any trademarks not owned by Oxford Industries, Inc. or the
guarantors (including the Ben Sherman trademark, which is owned
by a non-guarantor subsidiary);
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any capital stock or other securities of any of our subsidiaries
to the extent that the pledge of that capital stock or other
securities results in our being required to file separate
financial statements of such subsidiary with the SEC, as
described in more detail in the next risk factor;
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any capital stock of any of our first-tier foreign subsidiaries
in excess of 65% of the voting stock of those first-tier foreign
subsidiaries, any capital stock of any other foreign
subsidiaries and any assets of foreign subsidiaries;
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real property (other than certain real property owned in fee
simple acquired by us after the issue date of the old
notes); and
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items as to which a security interest cannot be granted without
violating contract rights or applicable law and certain licenses
in which a security interest cannot be created without breach of
such license or applicable law.
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If an event of default occurs and the new notes are accelerated,
the new notes will rank equally with the holders of all of our
other unsubordinated and unsecured indebtedness and other
liabilities with respect to such excluded assets. As a result,
if the value of the security interest for the new notes and the
guarantees is less than the value of the claims of the holders
of the new notes, no assurance can be provided that the holders
of the new notes would receive any substantial recovery from the
excluded assets.
The
pledge of the securities of our subsidiaries that secures the
new notes will automatically be released for so long as that
pledge would require the filing of separate financial statements
with the SEC for that subsidiary.
The new notes are secured by a pledge of the stock and other
securities of our subsidiaries held by our company or the
guarantors. Under the SEC regulations in effect as of the issue
date of the new notes, if the par value, book value as carried
by us or market value (whichever is greatest) of the capital
stock, other securities or similar items of a subsidiary pledged
as part of the collateral is greater than or equal to 20% of
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the aggregate principal amount of the notes then outstanding,
such a subsidiary would be required to provide separate
financial statements to the SEC. Therefore, the indenture
governing the notes and the security agreement provides that any
capital stock and other securities of any of our subsidiaries
will be excluded from the collateral for so long as the pledge
of such capital stock or other securities to secure the notes
would cause such subsidiary to be required to file separate
financial statements with the SEC pursuant to
Rule 3-16
of
Regulation S-X
or another similar rule. As a result, holders of the new notes
could lose a portion or all of their security interest in the
capital stock or other securities of those subsidiaries during
that period. It may be more difficult, costly and time-consuming
for holders of the new notes to foreclose on the assets of a
subsidiary than to foreclose on its capital stock or other
securities, so the proceeds realized upon any such foreclosure
could be significantly less than those that would have been
received upon any sale of the capital stock or other securities
of such subsidiary.
The
value of the new note holders security interest in the
collateral may not be sufficient to satisfy all our obligations
under the new notes.
Obligations under the new notes are secured (x) on a
first-priority basis by a lien on the U.S. registered
trademarks and certain related rights owned by us and the
guarantors and on certain owned real property acquired by us and
the guarantors following the issue date of the new notes and
(y) on a second-priority basis by a lien on all of the
assets described above securing our domestic revolving credit
facility on a first-priority basis. In the event of a
foreclosure on the collateral securing our domestic revolving
credit facility on a
first-priority
basis (or a distribution in respect thereof in a bankruptcy or
insolvency proceeding), the proceeds from such collateral
securing our domestic revolving credit facility on which the new
notes have a
second-priority
lien may not be sufficient to satisfy the new notes because such
proceeds would, under the intercreditor agreement, first be
applied to satisfy our obligations under our domestic revolving
credit facility. Only after all of our obligations under our
domestic revolving credit facility have been satisfied will
proceeds from such collateral be applied to satisfy our
obligations under the notes.
The value of the collateral at any time will depend on market
and other economic conditions, including the availability of
suitable buyers for the collateral. By its nature, some or all
of the collateral may be illiquid and may have no readily
ascertainable market value. The value of the assets pledged as
collateral for the new notes could be impaired in the future as
a result of changing economic conditions, competition or other
future trends. In the event of a foreclosure, liquidation,
bankruptcy or similar proceeding, no assurance can be given that
the proceeds from any sale or liquidation of the collateral
securing our obligations under our domestic revolving credit
facility on a first-priority basis will be sufficient to pay our
obligations under the new notes, in full or at all, after first
satisfying our obligations in full under our domestic revolving
credit facility. There also can he no assurance that the
collateral will be saleable, and, even if saleable, the timing
of its liquidation would be uncertain. In addition, we may not
have liens perfected on all of the collateral securing the new
notes prior to the closing of this offering. Although the
indenture governing the new notes contains a covenant requiring
us to use commercially reasonable efforts to perfect the lien on
certain of our assets promptly following the issue date of the
notes, no assurance can be given that such liens will be
perfected on a timely basis. Accordingly, there may not be
sufficient collateral to pay all or any of the amounts due on
the new notes. Any claim for the difference between the amount,
if any, realized by holders of the new notes from the sale of
the collateral securing the new notes and the obligations under
the new notes will rank equally in right of payment with all of
our other unsecured unsubordinated indebtedness and other
obligations, including trade payables.
With respect to some of the collateral, the collateral
agents security interest and ability to foreclose will
also be limited by the need to meet certain requirements, such
as obtaining third-party consents and making additional filings.
If we are unable to obtain these consents or make these filings,
the security interests may be invalid and the holders will not
be entitled to the collateral or any recovery with respect
thereto. We cannot assure you that any such required consents
can be obtained on a timely basis or at all. These requirements
may limit the number of potential bidders for certain collateral
in any foreclosure and may delay any sale, either of which
events may have an adverse effect on the sale price of the
collateral. Therefore, the practical value of realizing on the
collateral may, without the appropriate consents and filings, be
limited.
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The
appraisal of the Tommy Bahama trade name in the U.S. may not
reflect the value that would be realized by holders of the Notes
if the collateral agent were to foreclose on the
trademark.
If we do not make payments of principal and interest on the new
notes when due, in order to obtain such payments, the holders of
the new notes may have to rely on the proceeds from the sale of,
or other exercise of remedies against, the collateral securing
the new notes. Those proceeds may be insufficient to cover
payments due under the new notes.
VRC prepared an appraisal dated June 15, 2009 of the Tommy
Bahama trade name in the U.S. The appraisal was based on a
discounted cash flow analysis utilizing the relief from royalty
and the loss of income methods, among other considerations.
Although the appraisal is based upon a number of estimates and
assumptions that are considered reasonable by the appraiser
issuing the appraisal, these estimates and assumptions are
subject to significant business and economic uncertainties and
contingencies, many of which are beyond our control or the
ability of the appraiser to accurately assess and estimate, and
are based upon assumptions including estimates of future net
sales, growth rates, royalty rates for trademarks and discount
rates. An appraisal that is subject to different assumptions and
limitations or based on different methodologies may result in
valuations that are materially different from those contained in
VRCs appraisal.
An appraisal is only an estimate of value as of its date. An
appraisal should not be relied upon as a measure of realizable
value. The proceeds realized upon a sale of the Tommy Bahama
trademark and certain related rights may be less than the
appraised value of the trade name. The value of such trademark
and certain related rights if remedies are exercised under the
indenture will depend on market and economic conditions, the
availability of buyers, and other factors. Accordingly, we can
provide no assurance that the proceeds realized upon any such
exercise of remedies would be sufficient to satisfy in full
payments due under the notes.
Rights
of holders of new notes in the collateral may be adversely
affected by the failure to perfect liens on certain collateral
acquired in the future.
Applicable law requires that certain property and rights
acquired after the grant of a general security interest or lien
can only be perfected at the time such property and rights are
acquired and identified. There can be no assurance that the
trustee or the collateral agent will monitor, or that we will
inform the collateral agent or the administrative agent of, the
future acquisition of property and rights that constitute
collateral, and that the necessary action will be taken to
properly perfect the lien on such after-acquired collateral. The
collateral agent for the new notes has no obligation to monitor
the acquisition of additional property or rights that constitute
collateral or the perfection of any security interests therein.
Such failure may result in the loss of the practical benefits of
the liens thereon or of the priority of the liens securing the
new notes.
Claims
of creditors of our subsidiaries which do not guarantee the new
notes will be structurally senior and have priority over holders
of the new notes with respect to the assets and earnings of such
subsidiaries.
Our foreign subsidiaries and certain of our domestic
subsidiaries will not guarantee the new notes. Our non-guarantor
subsidiaries would have had $78 million in assets as of
May 2, 2009 and $88 million in net sales for the
twelve months ended May 2, 2009. Claims of creditors of our
non-guarantor subsidiaries, including trade creditors, generally
will effectively rank senior and have priority with respect to
the assets and earnings of such subsidiaries over our claims or
those of our creditors, including holders of the new notes. As
of May 2, 2009, our non-guarantor subsidiaries had
$32.3 million of indebtedness and other liabilities,
including trade payables, outstanding (excluding amounts payable
to us and our guarantors).
Fraudulent
conveyance laws may permit courts to void the subsidiary
guarantees of the new notes in specific circumstances, which
would interfere with the payment of the subsidiary guarantees
and realization upon collateral owned by the
guarantors.
Under the federal bankruptcy laws and comparable provisions of
state fraudulent transfer laws, any guarantee made by any of our
subsidiaries could be voided, or claims under the guarantee made
by any of our
26
subsidiaries could be subordinated to all other obligations of
any such subsidiary, if the subsidiary, at the time it incurred
the obligations under any guarantee:
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incurred the obligations with the intent to hinder, delay or
defraud creditors; or
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received less than reasonably equivalent value in exchange for
incurring those obligations; and
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(1)
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was insolvent or rendered insolvent by reason of that incurrence;
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(2)
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was engaged in a business or transaction for which the
subsidiarys remaining assets constituted unreasonably
small capital; or
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(3)
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intended to incur, or believed that it would incur, debts beyond
its ability to pay those debts as they mature.
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A legal challenge to the obligations under any guarantee on
fraudulent conveyance grounds could focus on any benefits
received in exchange for the incurrence of those obligations. We
believe that each of our subsidiaries making a guarantee
received reasonably equivalent value for incurring the
guarantee, but a court may disagree with our conclusion or elect
to apply a different standard in making its determination.
The measures of insolvency for purposes of the fraudulent
transfer laws vary depending on the law applied in the
proceeding to determine whether a fraudulent transfer has
occurred. Generally, however, an entity would be considered
insolvent if:
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the sum of its debts, including contingent liabilities, is
greater than the fair saleable value of all of its assets;
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the present fair saleable value of its assets is less than the
amount that would be required to pay its probable liabilities on
its existing debts, including contingent liabilities, as they
become absolute and mature; or
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it cannot pay its debts as they become due.
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The
intercreditor agreement in connection with the indenture
governing the new notes may limit the rights of the holders of
the new notes and their control with respect to the collateral
securing the new notes.
The rights of the holders of the new notes with respect to the
collateral securing our domestic revolving credit facility on a
first-priority basis may be substantially limited pursuant to
the terms of the intercreditor agreement. Under the
intercreditor agreement, if amounts or commitments remain
outstanding under our domestic revolving credit facility,
actions taken in respect of collateral securing our obligations
under our domestic revolving credit facility on a first-priority
basis, including the ability to cause the commencement of
enforcement proceedings against such collateral and to control
the conduct of these proceedings, will be at the sole direction
of the holders of the obligations secured by the first-priority
liens, subject to certain limitations. As a result, the
collateral agent, on behalf of the holders of the new notes, may
not have the ability to control or direct these actions, even if
the rights of the holders of the new notes are adversely
affected. Additionally, the agent for the lenders under our
domestic revolving credit facility will generally have a right
to access and use the collateral securing the new notes on a
first-priority basis for a period of 270 days (subject to
certain extensions) following any foreclosure by the collateral
agent on such collateral. See Description of the
Notes Intercreditor Agreement.
In the
event of a bankruptcy, the ability of the holders of the new
notes to realize upon the collateral will be subject to certain
bankruptcy law limitations.
Bankruptcy law could prevent the collateral agent, subject to
the rights of the lenders under our domestic revolving credit
facility, from repossessing and disposing of, or otherwise
exercising remedies in respect of, the collateral upon the
occurrence of an event of default if a bankruptcy proceeding
were to be commenced by or against Oxford Industries, Inc. prior
to the collateral agent having repossessed and disposed of, or
otherwise exercised remedies in respect of, the collateral.
Under the U.S. bankruptcy code, a secured creditor such as
the
27
collateral agent is prohibited from repossessing its security
from a debtor in a bankruptcy case, or from disposing of
security repossessed from such debtor, without bankruptcy court
approval. Moreover, the bankruptcy code permits the debtor to
continue to retain and to use collateral even though the debtor
is in default under the applicable debt instrument; provided
that the secured creditor is given adequate
protection. The meaning of the term adequate
protection may vary according to the circumstances, but it
is intended in general to protect the value of the secured
creditors interest in the collateral. The court may find
adequate protection if the debtor pays cash or
grants additional security, if and at such times as the court in
its discretion determines, for any diminution in the value of
the collateral during the pendency of the bankruptcy case. In
view of the lack of a precise definition of the term
adequate protection and the broad discretionary
powers of a bankruptcy court, it is impossible to predict how
long payments with respect to the new notes could be delayed
following commencement of a bankruptcy case, whether or when the
trustee could repossess or dispose of the collateral or whether
or to what extent holders would be compensated for any delay in
payment or loss of value of the collateral through the
requirement of adequate protection.
In the
event of a bankruptcy, holders may not have a claim with respect
to original issue discount on the new notes constituting
unmatured interest under the U.S Bankruptcy
Code.
Under the U.S. bankruptcy code, the principal amount of
each new note in excess of its issue price is treated as
unmatured interest. The claim of a holder of a new note in a
bankruptcy proceeding in respect of the new notes with respect
to this original issue discount would be limited to the portion
thereof that had accreted prior to the date of the commencement
of the bankruptcy case. Holders of new notes would not be
entitled to receive any additional portion of the original issue
discount that accreted during the commencement of a bankruptcy
proceeding except to the extent the new notes are oversecured by
their security interest in the collateral.
We may
be unable to repurchase the new notes upon a change of control
as required by the indenture governing the new
notes.
Upon the occurrence of certain specific kinds of change of
control events specified in Description of the
Notes, we must offer to repurchase all outstanding new
notes. In such circumstances, we cannot assure you that we would
have sufficient finds available to repay all of our senior
indebtedness and any other indebtedness that would become
payable upon a change of control and to repurchase all of the
new notes. Our failure to purchase the new notes would be a
default under the indenture governing the new notes, which would
in turn trigger a default under our domestic revolving credit
facility.
Risks
Related to the Exchange Offer
If you
do not exchange your old notes for new notes, your ability to
sell your old notes will be restricted.
If you do not exchange your old notes for new notes in the
exchange offer, you will continue to be subject to the
restrictions on transfer described in the legend on your old
notes. The restrictions on transfer of your old notes arise
because we issued the old notes in a transaction not subject to
the registration requirements of the Securities Act and
applicable state securities laws. In general, you may only offer
to sell the old notes if they are registered under the
Securities Act and applicable state securities laws or offered
or sold pursuant to an exemption from those requirements. If you
are still holding any old notes after the expiration date of the
exchange offer and the exchange offer has been consummated, you
will not be entitled to have those old notes registered under
the Securities Act or to any similar rights under the
Registration Rights Agreement, subject to limited exceptions, if
applicable. After the exchange offer is completed, we will not
be required, and we do not intend, to register the old notes
under the Securities Act. In addition, if you do exchange your
old notes in the exchange offer for the purpose of participating
in a distribution of the new notes, you may be deemed to have
received restricted securities and, if so, will be required to
comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any resale
transaction. To the extent old notes are tendered and accepted
in the exchange offer, the trading market, if any, for the old
notes would be adversely affected.
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Your
ability to transfer the new notes may be limited by the absence
of an active trading market, and there is no assurance that any
active trading market will develop for the new
notes.
There is no established public market for the new notes. We do
not intend to list the new notes on any securities exchange or
automated quotation system. We cannot assure you that an active
market for the new notes will develop or, if developed, that it
will continue. Historically, the market for non-investment grade
debt, such as the new notes, has been subject to disruptions
that have caused substantial volatility in the prices of
securities similar to the new notes. We cannot assure you that
the market, if any, for the new notes will be free from similar
disruptions, and any such disruptions may adversely affect the
prices at which you may sell your new notes.
The
old notes were issued with original issue discount for U.S.
federal income tax purposes and consequently the new notes will
be treated as issued with original issue discount for U.S.
federal income tax purposes.
The old notes were issued with original issue discount in an
amount equal to the excess of the stated principal amount of the
notes over the issue price of the notes. Consequently, the new
notes will be treated as issued with original issue discount for
U.S. federal income tax purposes, and U.S. holders
will be required to include original issue discount in gross
income on a constant yield to maturity basis in advance of
receipt of cash payment thereof.
29
THE
EXCHANGE OFFER
Purpose
and Effect of the Exchange Offer
We have entered into a Registration Rights Agreement with the
initial purchasers of the old notes. Under the Registration
Rights Agreement, we agreed, among other things, to:
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file a registration statement with the SEC relating to an offer
to exchange the old notes for new notes;
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use our reasonable best efforts to cause the registration
statement relating to the exchange offer to become effective
under the Securities Act; and
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use our reasonable best efforts to cause the exchange offer to
be consummated on or before July 1, 2010.
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The registration statement of which this prospectus forms a part
was filed in compliance with our obligations under the
Registration Rights Agreement. If the exchange offer is not
consummated on or before July 1, 2010, we will incur
additional interest expense.
The new notes will have terms substantially identical to the old
notes except that the new notes will not contain terms with
respect to transfer restrictions and registration rights and
additional interest payable for the failure to consummate the
exchange offer by July 1, 2010. Old notes in an aggregate
principal amount of $150,000,000 were issued on June 30,
2009.
In addition, pursuant to the Registration Rights Agreement,
under the circumstances set forth below, we will file a shelf
registration statement with respect to the resale of the old
notes and we will use our reasonable best efforts to keep the
shelf registration statement effective until the earlier of the
second anniversary of the original issue date of the old notes
and the date all old notes covered by the shelf registration
statement have been sold as contemplated in the shelf
registration statement. These circumstances include:
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if we determine, upon the advice of outside counsel, that the
exchange offer is not permitted due to a change in applicable
law or SEC policy;
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if for any reason the registered exchange offer is not
consummated by July 1, 2010;
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if any of the initial purchasers so requests after consummation
of the registered exchange offer with respect to the old notes
not eligible to be exchanged for the new notes and held by it
following the consummation of the exchange offer; or
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if any holder (other than the initial purchasers) is not
eligible to participate in the exchange offer.
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Each holder of old notes that wishes to exchange such old notes
for transferable new notes in the exchange offer will be
required to make the following representations:
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any new notes to be received by it will be acquired in the
ordinary course of its business;
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it has no arrangement or understanding with any person to
participate in the distribution (within the meaning of
Securities Act) of the new notes;
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it is not an affiliate, as defined in Rule 405
under the Securities Act, of us or any guarantor; and
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if such holder is a broker-dealer, that it will receive new
notes for its own account in exchange for old notes that were
acquired as a result of market-making activities or other
trading activities and such holder will acknowledge that it will
deliver a prospectus in connection with any resale of such new
notes.
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In addition, each broker-dealer that receives new notes for its
own account in exchange for old notes, where such old notes were
acquired by such broker-dealer as a result of market-making
activities or other trading activities, must, in the absence of
an exemption, comply with the registration and prospectus
delivery requirements of the Securities Act in connection with
secondary resales of new notes and cannot rely on the
30
position of the SEC staff set forth in Exxon Capital Holdings
Corporation, Morgan Stanley & Co., Incorporated or
similar no-action letters. See Plan of Distribution.
Resale of
New Notes
Based on interpretations of the SEC staff set forth in no-action
letters issued to unrelated third parties, we believe that new
notes issued in the exchange offer in exchange for old notes may
be offered for resale, resold and otherwise transferred by any
exchange note holder without compliance with the registration
and prospectus delivery provisions of the Securities Act, if:
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such holder is not an affiliate of ours within the
meaning of Rule 405 under the Securities Act;
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such new notes are acquired in the ordinary course of the
holders business; and
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the holder does not intend to participate in the distribution of
such new notes.
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Any holder who tenders in the exchange offer with the intention
of participating in any manner in a distribution of the new
notes:
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cannot rely on the position of the staff of the SEC set forth in
Exxon Capital Holdings Corporation or similar
interpretive letters; and
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must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a
secondary resale transaction.
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If, as stated above, a holder cannot rely on the position of the
staff of the SEC set forth in Exxon Capital Holdings
Corporation or similar interpretive letters, any effective
registration statement used in connection with a secondary
resale transaction must contain the selling security holder
information required by Item 507 of
Regulation S-K
under the Securities Act.
This prospectus may be used for an offer to resell, for the
resale or for other retransfer of new notes only as specifically
set forth in this prospectus. With regard to broker-dealers,
only broker-dealers that acquired the old notes as a result of
market-making activities or other trading activities may
participate in the exchange offer. Each broker-dealer that
receives new notes for its own account in exchange for old
notes, where such old notes were acquired by such broker-dealer
as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus
in connection with any resale of the new notes. Please read the
section captioned Plan of Distribution for more
details regarding these procedures for the transfer of new
notes. We have agreed that, for a period of 180 days after
the exchange offer is consummated, we will make this prospectus
available to any broker-dealer for use in connection with any
resale of the new notes.
Terms of
the Exchange Offer
Upon the terms and subject to the conditions set forth in this
prospectus, we will accept for exchange any old notes properly
tendered and not withdrawn prior to the expiration date. We will
issue $2,000 principal amount of new notes in exchange for each
$2,000 principal amount of old notes surrendered under the
exchange offer. We will issue $1,000 integral multiple amount of
new notes in exchange for each $1,000 integral multiple amount
of old notes surrendered under the exchange offer. Old notes may
be tendered only in denominations of $2,000 and integral
multiples of $1,000 in excess thereof.
The form and terms of the new notes will be substantially
identical to the form and terms of the old notes except the new
notes will be registered under the Securities Act, will not bear
legends restricting their transfer and will not provide for any
additional interest upon our failure to fulfill our obligations
under the Registration Rights Agreement to file, and cause to
become effective, a registration statement. The new notes will
evidence the same debt as the old notes. The new notes will be
issued under and entitled to the benefits of the same indenture
that authorized the issuance of the outstanding old notes.
Consequently, both series of notes will be treated as a single
class of debt securities under the indenture.
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The exchange offer is not conditioned upon any minimum aggregate
principal amount of old notes being tendered for exchange.
As of the date of this prospectus, $150,000,000 aggregate
principal amount of the old notes are outstanding. There will be
no fixed record date for determining registered holders of old
notes entitled to participate in the exchange offer.
We intend to conduct the exchange offer in accordance with the
provisions of the Registration Rights Agreement, the applicable
requirements of the Securities Act and the Securities Exchange
Act of 1934, as amended (which we refer to as the Exchange
Act), and the rules and regulations of the SEC. Old notes
that are not tendered for exchange in the exchange offer will
remain outstanding and continue to accrue interest and will be
entitled to the rights and benefits such holders have under the
indenture relating to the old notes.
We will be deemed to have accepted for exchange properly
tendered old notes when we have given oral notice (which is
subsequently confirmed in writing) or written notice of the
acceptance to the exchange agent. The exchange agent will act as
agent for the tendering holders for the purposes of receiving
the new notes from us and delivering new notes to such holders.
Subject to the terms of the Registration Rights Agreement, we
expressly reserve the right to amend or terminate the exchange
offer, and not to accept for exchange any old notes not
previously accepted for exchange, upon the occurrence of any of
the conditions specified below under the caption
Certain Conditions to the Exchange Offer.
Holders who tender old notes in the exchange offer will not be
required to pay brokerage commissions or fees, or transfer taxes
with respect to the exchange of old notes. We will pay all
charges and expenses, other than those transfer taxes described
below, in connection with the exchange offer. It is important
that you read the section labeled Fees and
Expenses below for more details regarding fees and
expenses incurred in the exchange offer.
Expiration
Date; Extensions; Amendments
The exchange offer for the old notes will expire at
5:00 p.m., New York City time,
on ,
2009, unless we extend it in our sole discretion.
In order to extend the exchange offer, we will notify the
exchange agent orally or in writing of any extension. We will
notify in writing or by public announcement the registered
holders of old notes of the extension no later than
9:00 a.m., New York City time, on the business day after
the previously scheduled expiration date.
We reserve the right, in our sole discretion:
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to delay accepting for exchange any old notes in connection with
the extension of the exchange offer;
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to extend the exchange offer or to terminate the exchange offer
and to refuse to accept old notes not previously accepted if any
of the conditions set forth below under
Conditions to the Exchange Offer have
not been satisfied, by giving oral or written notice of such
delay, extension or termination to the exchange agent; or
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subject to the terms of the Registration Rights Agreement, to
amend the terms of the exchange offer in any manner, provided
that in the event of a material change in the exchange offer,
including the waiver of a material condition, we will extend the
exchange offer period, if necessary, so that at least five
business days remain in the exchange offer following notice of
the material change.
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Any such delay in acceptance, extension, termination or
amendment will be followed as promptly as practicable by written
notice or public announcement thereof to the registered holders
of old notes. If we amend the exchange offer in a manner that we
determine to constitute a material change, we will promptly
disclose such amendment in a manner reasonably calculated to
inform the holders of old notes of such amendment, provided that
in the event of a material change in the exchange offer,
including the waiver of a material condition, we will extend the
exchange offer period, if necessary, so that at least five
business days remain in the exchange offer following notice of
the material change. If we terminate this exchange offer as
provided in this prospectus before accepting any old notes for
exchange or if we amend the terms of this exchange offer in a
manner that constitutes a fundamental change in the information
set forth in the registration statement of which this prospectus
forms a
32
part, we will promptly file a post-effective amendment to the
registration statement of which this prospectus forms a part. In
addition, we will in all events comply with our obligation to
make prompt delivery of new notes for all old notes properly
tendered and accepted for exchange in the exchange offer.
Without limiting the manner in which we may choose to make
public announcements of any delay in acceptance, extension,
termination or amendment of the exchange offer, we shall have no
obligation to publish, advertise, or otherwise communicate any
such public announcement, other than by issuing a timely press
release to a financial news service.
Conditions
to the Exchange Offer
Despite any other term of the exchange offer, we will not be
required to accept for exchange, or exchange any new notes for,
any old notes, and we may terminate the exchange offer as
provided in this prospectus before accepting any old notes for
exchange if in our reasonable judgment:
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the exchange offer, or the making of any exchange by a holder of
old notes, would violate applicable law or any applicable
interpretation of the staff of the SEC; or
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any action or proceeding has been instituted or threatened in
any court or by or before any governmental agency with respect
to the exchange offer that, in our judgment, would reasonably be
expected to impair our ability to proceed with the exchange
offer.
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In addition, we will not be obligated to accept for exchange the
old notes of any holder that has not made:
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the representations described under Purpose
and Effect of the Exchange Offer,
Procedures for Tendering and Plan
of Distribution; and
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such other representations as may be reasonably necessary under
applicable SEC rules, regulations or interpretations to make
available to us an appropriate form for registration of the new
notes under the Securities Act.
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We expressly reserve the right, at any time or at various times
on or prior to the scheduled expiration date of the exchange
offer, to extend the period of time during which the exchange
offer is open. Consequently, we may delay acceptance of any old
notes by giving written notice of such extension to the
registered holders of the old notes. During any such extensions,
all old notes previously tendered will remain subject to the
exchange offer, and we may accept them for exchange unless they
have been previously withdrawn. We will return any old notes
that we do not accept for exchange for any reason without
expense to their tendering holder promptly after the expiration
or termination of the exchange offer.
We expressly reserve the right to amend or terminate the
exchange offer on or prior to the scheduled expiration date of
the exchange offer, and to reject for exchange any old notes not
previously accepted for exchange, upon the occurrence of any of
the conditions to termination of the exchange offer specified
above. We will give written notice or public announcement of any
extension, amendment, non-acceptance or termination to the
registered holders of the old notes as promptly as practicable.
In the case of any extension, such notice will be issued no
later than 9:00 a.m., New York City time on the business
day after the previously scheduled expiration date.
These conditions are for our sole benefit and we may, in our
sole discretion, assert them regardless of the circumstances
that may give rise to them or waive them in whole or in part at
any or at various times except that all conditions to the
exchange offer must be satisfied or waived by us prior to
acceptance of your notes. If we fail at any time to exercise any
of the foregoing rights, that failure will not constitute a
waiver of such right. Each such right will be deemed an ongoing
right that we may assert at any time or at various times prior
to the expiration of the exchange offer. Any waiver by us will
be made by written notice or public announcement to the
registered holders of the notes and any such waiver shall apply
to all the registered holders of the notes.
In addition, we will not accept for exchange any old notes
tendered, and will not issue new notes in exchange for any such
old notes, if at such time any stop order is threatened or in
effect with respect to the registration statement of which this
prospectus constitutes a part or the qualification of the
indenture under the Trust Indenture Act of 1939, as amended.
33
Procedures
for Tendering Old Notes
Only a holder of old notes may tender such old notes in the
exchange offer. If you are a DTC participant that has old notes
which are credited to your DTC account by book-entry and which
are held of record by DTCs nominee, as applicable, you may
tender your old notes by book-entry transfer as if you were the
record holder. Because of this, references herein to registered
or record holders include DTC.
If you are not a DTC participant, you may tender your old notes
by book-entry transfer by contacting your broker, dealer or
other nominee or by opening an account with a DTC participant,
as the case may be.
To tender old notes in the exchange offer:
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You must comply with DTCs Automated Tender Offer Program
(ATOP) procedures described below;
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The exchange agent must receive a timely confirmation of a
book-entry transfer of the old notes into its account at DTC
through ATOP pursuant to the procedure for book-entry transfer
described below, along with a properly transmitted agents
message, before the expiration date.
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Participants in DTCs ATOP program must electronically
transmit their acceptance of the exchange by causing DTC to
transfer the old notes to the exchange agent in accordance with
DTCs ATOP procedures for transfer. DTC will then send an
agents message to the exchange agent. With respect to the
exchange of the old notes, the term agents
message means a message transmitted by DTC, received by
the exchange agent and forming part of the book-entry
confirmation, which states that:
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DTC has received an express acknowledgment from a participant in
its ATOP that is tendering old notes that are the subject of the
book-entry confirmation;
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the participant has received and agrees to be bound by the terms
and subject to the conditions set forth in this
prospectus; and
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we may enforce the agreement against such participant.
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Delivery of an agents message will also constitute an
acknowledgment from the tendering DTC participant that the
representations described below in this prospectus are true and
correct and when received by the exchange agent will form a part
of a confirmation of book-entry transfer in which you
acknowledge and agree to be bound by the terms of the letter of
transmittal.
In addition, each broker-dealer that receives new notes for its
own account in exchange for old notes, where such old notes were
acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such
new notes. See Plan of Distribution.
Guaranteed
Delivery Procedures
If you desire to tender outstanding notes pursuant to the
exchange offer and (1) time will not permit your letter of
transmittal, certificates representing such outstanding notes
and all other required documents to reach the exchange agent on
or prior to the expiration date, or (2) the procedures for
book-entry transfer (including delivery of an agents
message) cannot be completed on or prior to the expiration date,
you may nevertheless tender such notes with the effect that such
tender will be deemed to have been received on or prior to the
expiration date if all the following conditions are satisfied:
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you must effect your tender through an eligible guarantor
institution;
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a properly completed and duly executed notice of guaranteed
delivery, substantially in the form provided by us herewith, or
an agents message with respect to guaranteed delivery that
is accepted by us, is received by the exchange agent on or prior
to the expiration date as provided below; and
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a book-entry confirmation of the transfer of such notes into the
exchange agent account at DTC as described above, together with
a letter of transmittal (or a manually signed facsimile of the
letter of transmittal) properly completed and duly executed,
with any signature guarantees and any other documents required
by the letter of transmittal or a properly transmitted
agents message, are received by the exchange agent within
three New York Stock Exchange, Inc. trading days after the date
of execution of the notice of guaranteed delivery.
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The notice of guaranteed delivery may be sent by hand delivery,
facsimile transmission or mail to the exchange agent and must
include a guarantee by an eligible guarantor institution in the
form set forth in the notice of guaranteed delivery.
Book-entry
Transfer
The exchange agent will make a request to establish an account
with respect to the old notes at DTC for purposes of the
exchange offer promptly after the date of this prospectus; and
any financial institution participating in DTCs system may
make book-entry delivery of old notes by causing DTC to transfer
such old notes into the exchange agents account at DTC in
accordance with DTCs procedures for transfer.
Withdrawal
Rights
Except as otherwise provided in this prospectus, you may
withdraw your tender of old notes at any time before
5:00 p.m., New York City time, on the expiration date.
To withdraw a tender of old notes in any exchange offer, the
applicable exchange agent must receive a letter or facsimile
notice of withdrawal at its address set forth below under
Exchange Agent before the time indicated
above. Any notice of withdrawal must:
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specify the name of the person who deposited the old notes to be
withdrawn,
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identify the old notes to be withdrawn including the certificate
number or numbers and aggregate principal amount of old notes to
be withdrawn or, in the case of old notes transferred by
book-entry transfer, the name and number of the account at DTC
to be credited and otherwise comply with the procedures of the
relevant book-entry transfer facility, and
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specify the name in which the old notes being withdrawn are to
be registered, if different from that of the person who
deposited the notes.
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We will determine in our sole discretion all questions as to the
validity, form and eligibility, including time of receipt, of
notices of withdrawal. Our determination will be final and
binding on all parties. Any old notes withdrawn in this manner
will be deemed not to have been validly tendered for purposes of
the exchange offer. We will not issue new notes for such
withdrawn old notes unless the old notes are validly retendered.
We will return to you any old notes that you have tendered but
that we have not accepted for exchange without cost as soon as
practicable after withdrawal, rejection of tender or termination
of the exchange offer. You may retender properly withdrawn old
notes by following one of the procedures described above at any
time before the expiration date.
Exchange
Agent
We have appointed U.S. Bank National Association as
exchange agent for the exchange offer of old notes.
You should direct questions and requests for assistance and
requests for additional copies of this prospectus to the
exchange agent addressed as follows:
U.S. Bank, National Association
100 Wall Street,
16th Floor
New York, NY 10005
Attn: Corporate Trust Services
Telephone:
(800) 934-6802
Fax:
(651) 495-8158
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Fees and
Expenses
We will bear the expenses of soliciting tenders. The principal
solicitation is being made by mail, however, we may make
additional solicitations by telegraph, telephone or in person by
our officers and regular employees and those of our affiliates.
We have not retained any dealer-manager in connection with the
exchange offer and will not make any payments to broker-dealers
or others soliciting acceptances of the exchange offer. We will,
however, pay the exchange agent reasonable and customary fees
for its services and reimburse it for its related reasonable
out-of-pocket expenses.
Our expenses in connection with the exchange offer include:
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SEC registration fees;
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fees and expenses of the exchange agent and trustee;
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accounting and legal fees and printing costs; and
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related fees and expenses.
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Transfer
Taxes
We will pay all transfer taxes, if any, applicable to the
exchange of old notes under the exchange offer. The tendering
holder, however, will be required to pay any transfer taxes,
whether imposed on the registered holder or any other person, if:
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certificates representing old notes for principal amounts not
tendered or accepted for exchange are to be delivered to, or are
to be issued in the name of, any person other than the
registered holder of old notes tendered; or
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a transfer tax is imposed for any reason other than the exchange
of old notes under the exchange offer.
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If satisfactory evidence of payment of such taxes is not
submitted, the amount of such transfer taxes will be billed to
that tendering holder.
Consequences
of Failure to Exchange
Holders of old notes who do not exchange their old notes for new
notes under the exchange offer, including as a result of failing
to timely deliver old notes to the exchange agent, together with
all required documentation, will remain subject to the
restrictions on transfer of such old notes:
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as set forth in the legend printed on the old notes as a
consequence of the issuance of the old notes pursuant to the
exemptions from, or in transactions not subject to, the
registration requirements of the Securities Act and applicable
state securities laws; and
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otherwise as set forth in the offering memorandum distributed in
connection with the private offering of the old notes.
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In addition, holders of old notes who do not exchange their old
notes for new notes under the exchange offer will no longer have
any registration rights or be entitled to additional interest
with respect to the old notes.
In general, you may not offer or sell the old notes unless they
are registered under the Securities Act, or if the offer or sale
is exempt from registration under the Securities Act and
applicable state securities laws. Except as required by the
Registration Rights Agreement, we do not intend to register
resales of the old notes under the Securities Act. Based on
interpretations of the SEC staff, new notes issued pursuant to
the exchange offer may be offered for resale, resold or
otherwise transferred by their holders, other than any such
holder that is our affiliate within the meaning of
Rule 405 under the Securities Act, without compliance with
the registration and prospectus delivery provisions of the
Securities Act, provided that the holders acquired the new notes
in the ordinary course of the holders business and the
holders have no arrangement or
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understanding with respect to the distribution of the new notes
to be acquired in the exchange offer. Any holder who tenders old
notes in the exchange offer for the purpose of participating in
a distribution of the new notes:
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cannot rely on the applicable interpretations of the
SEC; and
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must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a
secondary resale transaction.
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After the exchange offer is consummated, if you continue to hold
any old notes, you may have difficulty selling them because
there will be fewer old notes outstanding.
Accounting
Treatment
We will record the new notes in our accounting records at the
same carrying value as the old notes, as reflected in our
accounting records on the date of exchange. Accordingly, we will
not recognize any gain or loss for accounting purposes in
connection with the exchange offer.
Other
Participation in the exchange offer is voluntary, and you should
carefully consider whether to accept. You are urged to consult
your financial and tax advisors in making your own decision on
what action to take.
We may in the future seek to acquire untendered old notes in the
open market or privately negotiated transactions, through
subsequent exchange offers or otherwise. We have no present
plans to acquire any old notes that are not tendered in the
exchange offer or to file a registration statement to permit
resales of any untendered old notes.
USE OF
PROCEEDS
This exchange offer is intended to satisfy our obligations under
the Registration Rights Agreement. We will not receive any
proceeds from the exchange offer. You will receive, in exchange
for old notes tendered by you and accepted by us in the exchange
offer, new notes in the same principal amount. The old notes
surrendered in exchange for the new notes will be retired and
cancelled and cannot be reissued. Accordingly, the issuance of
the new notes will not result in any increase of our outstanding
debt.
DESCRIPTION
OF CERTAIN INDEBTEDNESS
The following discussion provides summary information about some
of our indebtedness and does not purport to be a complete
description of all the information that might be important to
you. For a more complete understanding of such indebtedness, we
encourage you to review the more detailed summary of our
indebtedness under the heading Managements
Discussion and Analysis of Financial Condition and Results of
Operations Liquidity and Capital Resources
and in the notes to our consolidated financial statements,
each contained in our Annual Report on
Form 10-K
for the fiscal year 2008 and our Quarterly Report on
Form 10-Q
for the first quarter of fiscal year 2009 and incorporated by
reference in this prospectus.
Domestic
Revolving Credit Facility
On August 15, 2008, we entered into our current domestic
revolving credit facility. Our domestic revolving credit
facility amended and restated our prior domestic revolving
credit facility.
Our domestic revolving credit facility provides for a revolving
credit facility of up to $175 million which may be used to
refinance existing funded debt, to fund working capital, to fund
future acquisitions and for general corporate purposes. The
total amount of availability under our domestic revolving credit
facility is limited to a borrowing base consisting of specified
percentages of eligible categories of assets. The administrative
agent has certain discretion to determine eligibility and to
establish reserves with respect to the
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calculation of borrowing base availability. Our domestic
revolving credit facility is scheduled to mature on
August 15, 2013.
Under our domestic revolving credit facility, we may request
base rate advances or LIBOR advances. Base rate advances accrue
interest at floating rates equal to the higher of
(i) SunTrust Banks prime lending rate or
(ii) the federal funds rate plus 50 basis points.
LIBOR advances accrue interest at LIBOR plus an applicable
margin. We are also charged fees for letters of credit which are
issued under our domestic revolving credit facility and fees
related to the unused portion of the facility. The applicable
margin on LIBOR advances and the letter of credit fees are
determined from a pricing grid which is based on the average
unused availability under our domestic revolving credit
facility. Interest rate margins on LIBOR advances and standby
letter of credit fees range from 175 basis points to
225 basis points, while the letter of credit fees for trade
letters of credit range from 100 basis points to
150 basis points. Unused line fees are calculated at a per
annum rate of 30 basis points.
Our obligations under our domestic revolving credit facility are
secured by a first-priority security interest in our and our
guarantors accounts receivable (other than royalty
payments in respect of trademark licenses), inventory,
investment property (including the equity interests of certain
subsidiaries subject to certain limitations), general
intangibles (other than trademarks, trade names and related
rights), deposit accounts, inter-company obligations, equipment
and fixtures, goods, documents, contracts, books and records and
other personal property. Our obligations under our domestic
revolving credit facility are also secured by a
second-priority
security interest in our and our guarantors
U.S. registered trademarks and certain related rights and
will be secured by a second-priority security interest in
certain owned real property acquired by us and the guarantors
following the issue date of the Notes.
U.K.
Revolving Credit Facility
Our U.K. revolving credit facility, which accrues interest at
the banks base rate plus 1.35% (1.85% at May 2,
2009), requires interest payments monthly with principal payable
on demand and is collateralized by substantially all of the
United Kingdom assets of Ben Sherman.
Availability,
Restrictions and Covenants
Our credit facilities are used to finance trade letters of
credit, as well to provide funding for other operating
activities, capital expenditures and acquisitions. As of
May 2, 2009, approximately $19.5 million of trade
letters of credit and other limitations on availability in
aggregate were outstanding against our domestic revolving credit
facility and the U.K. revolving credit facility. On May 2,
2009 we had approximately $122.8 million and
$9.1 million in unused availability under our domestic
revolving credit facility and the U.K. revolving credit
facility, respectively, subject to the respective limitations on
borrowings set forth in our domestic revolving credit facility
and the U.K. revolving credit facility and the indenture
governing the
87/8% Notes.
Our credit facilities are subject to a number of affirmative
covenants regarding the delivery of financial information,
compliance with law, maintenance of property, insurance and
conduct of business. Also, our credit facilities are subject to
certain negative covenants or other restrictions including,
among other things, limitations on our ability to (i) incur
debt, (ii) guaranty certain obligations, (iii) grant
liens, (iv) pay dividends to shareholders,
(v) repurchase shares of our common stock, (vi) make
investments, (vii) sell assets or stock of subsidiaries,
(viii) acquire assets or businesses, (ix) merge or
consolidate with other companies, or (x) prepay, retire,
repurchase or redeem debt. A breach of the covenants related to
our indebtedness could result in an event of default under those
instruments, in some cases allowing the holders of that
indebtedness to declare such indebtedness immediately due and
payable and exercise other remedies.
Our domestic revolving credit facility contains a financial
covenant that applies only if unused availability under our
domestic revolving credit facility for three consecutive
business days is less than the greater of
(i) $26.25 million or (ii) 15% of the total
revolving commitments. In such case, our fixed charge coverage
ratio must not be less than 1.0 to 1.0 for the immediately
preceding 12 fiscal months for which financial statements have
been delivered. This financial covenant continues to apply until
we have maintained
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unused availability under our domestic revolving credit facility
for thirty consecutive days of more than the greater of
(i) $26.25 million or (ii) 15% of the total
revolving commitments.
We believe that the affirmative covenants, negative covenants,
financial covenants and other restrictions are customary for, or
more favorable than, those included in similar facilities. As of
May 2, 2009, no financial covenant testing was required
pursuant to our domestic revolving credit facility as the
availability was greater than the amount specified in order for
the fixed charge coverage ratio to apply. As of May 2, 2009
we were compliant with all covenants related to our credit
facilities.
DESCRIPTION
OF THE NOTES
The old notes were issued and the new notes will be issued under
an indenture, dated June 30, 2009, among us, as issuer, the
Guarantors set forth below and U.S. Bank National
Association, as Trustee (the Indenture). The
terms of the Notes include those stated in the Indenture and
those made a part of the Indenture by reference to the
Trust Indenture Act of 1939. Unless the context requires
otherwise, all references to the Notes in this
Description of the Notes include the old notes and
the new notes. The old notes and the new notes will be treated
as a single class for all purposes of the Indenture.
For definitions of certain capitalized terms used in the
following summary, see Certain
Definitions. For purposes of this Description of the
Notes, references to Oxford, we,
our, and us refer only to Oxford
Industries, Inc. and not its subsidiaries.
When issued, the Notes will be a new issue of securities with no
established trading market. No assurance can be given as to the
liquidity of the trading market for the Notes.
Maturity,
Principal and Interest
The Notes will mature on July 15, 2015, will be in the
aggregate principal amount of $150,000,000, subject to our
ability to issue additional Notes (Additional
Notes) in an unlimited principal amount to the extent
permitted by Certain Covenants
Limitation on Indebtedness and Certain
Covenants Limitation on Liens. The Notes and
any Additional Notes will be substantially identical other than
the issuance dates, offering price, transfer restrictions and,
in certain circumstances, the date from which interest will
accrue. The Notes and any Additional Notes will be treated as a
single class of Notes under the Indenture. The Additional Notes
will be secured, equally and ratably with the Notes and any
Permitted Additional Pari Passu Obligations, by the Note Lien on
the Collateral described below under the caption
Security.
The Notes are senior secured obligations of Oxford. Each Note
will bear interest at 11.375% per annum from June 30, 2009
or from the most recent interest payment date on which interest
has been paid, payable semiannually in arrears on January 15 and
July 15 of each year, beginning on January 15, 2010.
Oxford will pay interest to the person in whose name the Note
(or any predecessor Note) is registered at the close of business
on the January 1 or July 1 immediately preceding the relevant
interest payment date. Interest will be computed on the basis of
a 360-day
year comprised of twelve
30-day
months.
The Notes will be issued only in fully registered form without
coupons, in denominations of $2,000 and any integral multiple of
$1,000 in excess thereof. No service charge will be made for any
registration of transfer, exchange or redemption of Notes,
except in certain circumstances for any tax or other
governmental charge that may be imposed.
Settlement for the Notes will be made in
same-day
funds. All payments of principal and interest will be made by
Oxford in same day funds. The Notes will trade in the
Same-Day
Funds Settlement System of The Depository Trust Company
(the Depositary or DTC)
until maturity, and secondary market trading activity for the
Notes will therefore settle in same day funds.
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Guarantees
Payment of the Notes will be guaranteed by the Guarantors
jointly and severally, absolutely, fully and unconditionally, on
a senior secured basis. All of the direct and indirect domestic
Wholly Owned Restricted Subsidiaries of Oxford that were
obligors under the Credit Agreement on the Issue Date will
guarantee the Notes. Following the Issue Date, additional
Restricted Subsidiaries of Oxford will be required to become
Guarantors to the extent set forth under
Certain Covenants Additional
Guarantees.
If Oxford defaults in the payment of the principal of, premium,
if any, or interest on the Notes, each of the Guarantors will be
absolutely, fully, unconditionally, jointly and severally
obligated to pay the principal of, premium, if any, and interest
on the Notes.
The obligations of each Guarantor under its Guarantee are
limited to the maximum amount which, after giving effect to all
other contingent and fixed liabilities of such Guarantor, and
after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or
pursuant to its contribution obligations under the Indenture,
will result in the obligations of such Guarantor under its
Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under Federal or state law.
Notwithstanding the foregoing, in certain circumstances a
Guarantee of a Guarantor may be released pursuant to the
provisions of subsection (b) under
Certain Covenants Additional
Guarantees. Upon any release of a Guarantor from its
Guarantee, such Guarantor shall also be automatically and
unconditionally released from its obligations under the Security
Documents. Oxford also may, at any time at its option, cause any
Restricted Subsidiary to become a Guarantor.
Ranking
The Notes and the Guarantees are senior secured obligations of
Oxford and the Guarantors and rank:
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pari passu with any senior indebtedness of Oxford and the
Guarantors (except to the extent of the value of the Collateral);
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senior to any indebtedness of Oxford and the Guarantors that is
expressly subordinated to the Notes and the Guarantees;
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effectively senior to any unsecured indebtedness or indebtedness
with a junior lien to the lien securing the Notes and the
Guarantees to the extent of the value of the Collateral for the
Notes and the Guarantees;
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effectively junior to any secured indebtedness which is either
secured by assets that are not Collateral for the Notes and the
Guarantees or which are secured by a prior lien in the
Collateral for the Notes and the Guarantees, in each case, to
the extent of the value of the assets securing such indebtedness;
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effectively junior to Oxfords and the Guarantors
obligations under Oxfords Credit Agreement to the extent
Oxfords and the Guarantors assets secure such
obligations on a first-priority basis; and
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effectively junior to all obligations of Oxfords
Subsidiaries that are not Guarantors.
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As of June 30, 2009, Oxford and the Guarantors had
$182.0 million of secured indebtedness outstanding
(excluding $21.6 million of outstanding secured letters of
credit) and had no unsecured senior indebtedness outstanding.
As of May 2, 2009, Oxfords non-Guarantor Subsidiaries
had $32.3 million of indebtedness and other liabilities,
including trade payables, outstanding (excluding amounts payable
to Oxford and the Guarantors).
These amounts do not include amounts that Oxford had available
for borrowing under the Credit Agreement, all of which would be
ABL Obligations.
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Security
The obligations of Oxford with respect to the Notes, the
obligations of the Guarantors under the Guarantees, and the
performance of all other obligations of Oxford and the
Guarantors under the Senior Secured Note Documents are secured
equally and ratably (together with any other Permitted
Additional Pari Passu Obligations) by (i) second-priority
security interests, subject to Permitted Liens, in the ABL
Priority Collateral (other than Excluded Assets) and
(ii) first-priority security interests, subject to
Permitted Liens, in the following assets of Oxford and the
Guarantors, in each case whether now owned or hereafter acquired
(other than Excluded Assets) (the Notes Priority
Collateral and, together with the ABL Priority
Collateral, the Collateral):
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all U.S. registered trademarks and certain related rights;
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any real property owned in fee simple (but excluding fixtures)
acquired by Oxford or any Guarantor after the Issue Date with a
Fair Market Value (measured at the time of acquisition thereof)
in excess of $5.0 million (except to the extent subject to
a Lien permitted by clauses (d), (g), (j) or (p) (as it
relates to any of the foregoing) of the definition of Permitted
Liens to the extent the documentation relating to such Lien
prohibits the granting of a Lien thereon to secure the Indenture
Obligations and any Permitted Additional Pari Passu Obligations);
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supporting obligations (as defined in Article 9 of the UCC)
and certain commercial tort claims (as defined in Article 9
of the UCC), in each case, relating to the foregoing;
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the Collateral Account and all Trust Monies; and
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all proceeds of any and all of the foregoing.
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Excluded Assets include, among other things,
the following assets of Oxford and the Guarantors:
(i) assets located outside the United States to the extent
a Lien on such assets cannot be perfected by the filing of UCC
financing statements in the jurisdictions of organization of
Oxford and the Guarantors;
(ii) to the extent not constituting collateral for the ABL
Obligations, assets subject to Liens pursuant to clauses (a),
(d), (g), (j) or (p) (as it relates to any of the
foregoing) of the definition of Permitted Liens to
the extent the documentation relating to such Liens prohibit
such assets from being Collateral;
(iii) (w) the voting Capital Stock of Foreign
Subsidiaries in excess of 65% of the voting rights of all such
Capital Stock in each such Foreign Subsidiary, (x) any
Capital Stock of Patch Licensing LLC, (y) any Capital Stock
of an Excluded Subsidiary and (z) to the extent not
constituting collateral for the ABL Obligations, any Capital
Stock of a Person that is not a Subsidiary of Oxford to the
extent that a pledge of such Capital Stock is prohibited by such
Persons organization documents or any shareholders
agreement or joint venture agreement relating to such Capital
Stock;
(iv) all of Oxfords right, title and interest in
(x) the real properties owned by Oxford and the Guarantors
on the Issue Date and (y) any leasehold or other non-fee
simple interest in any real property of Oxford or any Guarantor
(whether owned on the Issue Date or acquired following the Issue
Date);
(v) motor vehicles, aircraft and other assets subject to
certificates of title to the extent that a Lien therein cannot
be perfected by the filing of UCC financing statements in the
jurisdictions of organization of Oxford and the Guarantors;
(vi) to the extent not constituting collateral for the ABL
Obligations, any contract, lease, license or other agreement to
the extent that the grant of a security interest therein would
violate applicable law, result in the invalidation thereof or
provide any party thereto with a right of termination or any
other remedy that materially increases the costs or burden of
Oxford or any Guarantor thereunder with respect thereto (in each
case, after giving effect to applicable provisions of the UCC);
(vii) any Capital Stock or other securities of any
Subsidiary of Oxford in excess of the maximum amount of such
Capital Stock or securities that could be included in the
Collateral without creating a
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requirement pursuant to
Rule 3-16
of
Regulation S-X
under the Securities Act for separate financial statements of
such Subsidiary to be included in filings by Oxford with the SEC;
(viii) any trademarks and related rights other than to the
extent set forth in the preceding paragraph (including, without
limitation, foreign registered trademarks of the Tommy
Bahama name); and
(ix) proceeds and products of any and all of the foregoing
excluded assets described in clauses (i) through
(viii) above only to the extent such proceeds and products
would constitute property or assets of the type described in
clauses (i) through (viii) above.
The Collateral is pledged pursuant to a security agreement by
and among Oxford, the Guarantors and the Trustee, in its
capacity as Collateral Agent (the Security
Agreement), and, if applicable, one or more mortgages,
deeds of trust or deeds to secure debt (the
Mortgages) or other grants or transfers for
security executed and delivered by Oxford or the applicable
Guarantor to the Collateral Agent for the benefit of the
Collateral Agent, the Trustee, the holders of the Notes and the
holders of any Permitted Additional Pari Passu Obligations. For
the avoidance of doubt, no assets of any Subsidiary that is not
a Guarantor (including any Capital Stock owned by any such
Subsidiary) shall constitute Collateral.
So long as no Event of Default and no event of default under any
Permitted Additional Pari Passu Obligations has occurred and is
continuing, and subject to certain terms and conditions, Oxford
and the Guarantors are entitled to exercise any voting and other
consensual rights pertaining to all Capital Stock pledged
pursuant to the Security Agreement and to remain in possession
and retain exclusive control over the Collateral (other than as
set forth in the Security Documents), to operate the Collateral,
to alter or repair the Collateral and to collect, invest and
dispose of any income thereon. Upon the occurrence and during
the continuance of an Event of Default or an event of default
under any Permitted Additional Pari Passu Obligations (subject
to the standstill provisions in the Intercreditor Agreement
which generally will provide the ABL Facility Collateral Agent
with the sole right to control such enforcement actions) and to
the extent permitted by law and following notice by the
Collateral Agent to Oxford and the Guarantors:
(1) all of the rights of Oxford and the Guarantors to
exercise voting or other consensual rights with respect to all
Capital Stock included in the Collateral shall cease, and all
such rights shall become vested, subject to the terms of the
Intercreditor Agreement, in the Collateral Agent, which, to the
extent permitted by law, shall have the sole right to exercise
such voting and other consensual rights; and
(2) the Collateral Agent may, subject to the terms of the
Intercreditor Agreement, take possession of and sell the
Collateral or any part thereof in accordance with the terms of
the Security Documents.
Upon the occurrence and during the continuance of an Event of
Default or an event of default under any Permitted Additional
Pari Passu Obligations, the Collateral Agent will be permitted,
subject to applicable law and the terms of the Intercreditor
Agreement, to exercise remedies and sell the Collateral under
the Security Documents only at the direction of the holders of a
majority of the Notes and any Permitted Additional Pari Passu
Obligations voting as a single class.
The Indenture and the Security Documents generally do not
require Oxford and the Guarantors to take certain actions to
perfect the liens of the Collateral Agent in the Collateral,
including entering into control agreements and identifying
commercial tort claims below certain thresholds. As a result,
the Note Liens may not attach or be perfected in certain of the
Collateral, which could adversely affect the rights of the
holders with respect to such Collateral.
Intercreditor
Agreement
The Collateral Agent (in its capacity as Trustee and Collateral
Agent), on behalf of the holders of Notes and the holders of any
Permitted Additional Pari Passu Obligations, the ABL Facility
Collateral Agent, on behalf of the holders of the ABL
Obligations, Oxford and the Guarantors entered into an
intercreditor agreement dated as of June 30, 2009 (the
Intercreditor Agreement) that sets forth the
relative priority of the ABL Liens and the Note Liens, as well
as certain other rights, priorities and interests of the holders
of the
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Notes and any Permitted Additional Pari Passu Obligations and
the holders of the ABL Obligations. The Intercreditor Agreement
provides, among other things:
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Lien Priority and Similar
Liens. Notwithstanding the time, order or method
of creation or perfection of any ABL Obligations, ABL Liens,
obligations under the Notes or any Permitted Additional Pari
Passu Obligations or the Note Liens (or the enforceability of
any such Liens), (i) the ABL Liens on the ABL Priority
Collateral will rank senior to any Note Liens on the ABL
Priority Collateral and (ii) the Note Liens on the Notes
Priority Collateral will rank senior to any ABL Liens on the
Notes Priority Collateral. Except as specified in
clause (vii) of the definition of Excluded Assets, the
collateral of Oxford and the Guarantors for the ABL Obligations
and the Notes and any Permitted Additional Pari Passu
Obligations will at all times be the same.
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Prohibition on Contesting Liens and
Obligations. No holder of any Note or Permitted
Additional Pari Passu Obligations may contest the validity or
enforceability of the ABL Liens or the ABL Obligations, and no
holder of any ABL Obligations may contest the validity or
enforceability of the Note Liens, the Notes or any Permitted
Additional Pari Passu Obligations.
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Exercise of Remedies and Release of Liens. For
a period of 270 days (subject to extension for any period
during which the ABL Facility Collateral Agent is diligently
pursuing remedies against the ABL Priority Collateral or is
prohibited by applicable law from pursuing such remedies)
commencing on the later of (x) the acceleration of
obligations under the Notes or any Permitted Additional Pari
Passu Obligations and (y) the ABL Facility Collateral Agent
receiving notice of the relevant default from the Collateral
Agent, the ABL Priority Agent will have the sole power to
exercise remedies against the ABL Priority Collateral (subject
to the right of the Collateral Agent and the holders of Notes
and Permitted Additional Pari Passu Obligations to take limited
protective measures with respect to the Note Liens and to take
certain actions that would be permitted to be taken by unsecured
creditors) and to foreclose upon and dispose of the ABL Priority
Collateral. For a period of 270 days (subject to extension
for any period during which the Collateral Agent is diligently
pursuing remedies against the Notes Priority Collateral or is
prohibited by applicable law from pursuing such remedies)
commencing on the later of (x) the acceleration of the ABL
Obligations and (y) the Collateral Agent receiving notice
of the relevant default from the ABL Facility Collateral Agent,
the Collateral Agent will have the sole power to exercise
remedies against the Notes Priority Collateral (subject to the
right of the ABL Facility Collateral Agent and the holders of
ABL Obligations to take limited protective measures and certain
actions permitted to be taken by unsecured creditors) and to
foreclose upon and dispose of the Notes Priority Collateral.
Upon (x) any disposition of any ABL Priority Collateral in
connection with any enforcement action or (y) any
disposition of ABL Priority Collateral permitted by the
documents governing the ABL Obligations, the Indenture, any
agreement governing Permitted Additional Pari Passu Obligations
and the Security Documents, in each case, which results in the
release of the ABL Lien on such item of ABL Priority Collateral,
the Note Lien on such item of ABL Priority Collateral will be
automatically released. Upon (x) any disposition of any
Notes Priority Collateral in connection with any enforcement
action or (y) any disposition of Notes Priority Collateral
permitted by the documents governing the ABL Obligations, the
Indenture, any agreement governing Permitted Additional Pari
Passu Obligations and the Security Documents, in each case,
which results in the release of the Note Lien on such item of
Notes Priority Collateral, the ABL Lien on such item of Notes
Priority Collateral will be automatically released.
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ABL Facility Collateral Agents Access and Use
Rights. The Collateral Agent will permit the ABL
Facility Collateral Agent to have access to and use of certain
items of Notes Priority Collateral (including, without
limitation, trademarks) prior to, and for a period of up to
270 days (subject to extension during periods when the ABL
Facility Collateral Agent is prohibited by law from exercising
such rights) following the foreclosure upon such item of Notes
Priority Collateral by the Collateral Agent in order to
facilitate the ABL Facility Collateral Agents exercise of
remedies with respect to the ABL Priority Collateral.
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Tracing of Collateral and Treatment of
Cash. Prior to the issuance of a notice of
default by the ABL Facility Collateral Agent or the Collateral
Agent or an insolvency or liquidation proceeding, whether any
asset was acquired with proceeds (within the meaning
of the UCC) of ABL Priority Collateral or Notes Priority
Collateral will be disregarded for purposes of determining
whether such asset constitutes ABL Priority Collateral or Notes
Priority Collateral.
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Application of Proceeds and Turn-Over
Provisions. In connection with any enforcement
action with respect to the Collateral or any insolvency or
liquidation proceeding, all proceeds of (x) ABL Priority
Collateral will first be applied to the repayment of all ABL
Obligations before being applied to any obligations under the
Notes or any Permitted Additional Pari Passu Obligations and
(y) Notes Priority Collateral will first be applied to the
repayment of all obligations under the Notes and any Permitted
Additional Pari Passu Obligations before being applied to any
ABL Obligations. If any holder of a Note, Permitted Additional
Pari Passu Obligation or ABL Obligation receives any proceeds of
Collateral in contravention of the foregoing, such proceeds will
be turned over to the Collateral Agent or ABL Priority
Collateral Agent, as applicable, for application in accordance
with the foregoing.
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Amendment and Refinancings. The ABL
Obligations, the Indenture Obligations and any Permitted
Additional Pari Passu Obligations may be amended or refinanced
subject to continuing rights and obligations of the holders of
such refinancing Indebtedness under the Intercreditor Agreement.
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Certain Matters in Connection with Liquidation and Insolvency
Proceedings.
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Debtor-in-Possession
Financings. In connection with any insolvency or
liquidation proceeding of Oxford or any Guarantor, the ABL
Facility Collateral Agent may consent to certain
debtor-in-possession
financings secured by a Lien on the ABL Priority Collateral
ranking prior to the Note Lien on such ABL Priority Collateral
or to the use of cash collateral constituting proceeds of ABL
Priority Collateral without the consent of any holder of Notes
or Permitted Additional Pari Passu Obligations, and no holder of
a Note or Permitted Additional Pari Passu Obligation shall be
entitled to object to such use of cash collateral or
debtor-in-possession
financing or seek adequate protection in connection
therewith (other than in the form of a junior lien on any
additional items of collateral for the ABL Obligations which are
granted in connection with such debtor-in possession financing
or use of cash collateral).
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Relief from Automatic Stay; Bankruptcy Sales and
Post-Petition Interest. No holder of a Note or
any Permitted Additional Pari Passu Obligation may (x) seek
relief from the automatic stay with respect to any ABL Priority
Collateral, (y) object to any sale of any ABL Priority
Collateral or any motion seeking relief from the automatic stay
in any insolvency or liquidation proceeding, in each case which
has been supported by the holders of ABL Obligations or
(z) object to any claim of any holder of ABL Obligations to
post-petition interest to the extent of its ABL Lien on the ABL
Priority Collateral. No holder of any ABL Obligation may
(x) seek relief from the automatic stay with respect to any
Notes Priority Collateral, (y) object to any sale of any
Notes Priority Collateral or any motion seeking relief from the
automatic stay with respect to the Notes Priority Collateral in
any insolvency or liquidation proceeding, in each case, which is
supported by the holders of the Notes and Permitted Additional
Pari Passu Obligations or (z) object to any claim of any
holder of Notes or Permitted Additional Pari Passu Obligations
to post-petition interest to the extent of its Note Lien on the
Notes Priority Collateral.
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Adequate Protection. No holder of a Note or
any Permitted Additional Pari Passu Obligations may
(i) except as expressly provided above, seek adequate
protection on account of its Note Lien on the ABL Priority
Collateral other than in the form of junior priority liens or
(ii) object to any request by the holders of ABL
Obligations for adequate protection on account of the ABL
Priority Collateral. No holder of any ABL Obligation may
(i) seek adequate protection on account of its ABL Lien on
the Notes Priority Collateral other than in the form of junior
priority liens or (ii) object to any request by the holders
of Notes or Permitted Additional Pari Passu Obligations for
adequate protection on account of the ABL Priority Collateral.
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Plans of Reorganization. Neither the ABL
Facility Collateral Agent, the Collateral Agent nor any holder
of any ABL Obligations, Notes or Permitted Additional Pari Passu
Obligations may support any plan of reorganization in any
insolvency or liquidation proceeding which contravenes the
intercreditor provisions described above (unless consented to by
the ABL Facility Collateral Agent or the Collateral Agent, as
applicable, representing the holders of the Liens entitled to
the benefit of such contravened intercreditor provisions).
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Use and
Release of Collateral
Unless an Event of Default shall have occurred and be continuing
and the Collateral Agent shall have commenced enforcement of
remedies under the Security Documents, except as noted below
with respect to Trust Monies or to the extent otherwise
provided in the Credit Agreement or other documentation
governing the ABL Obligations, Oxford will have the right to
remain in possession and retain exclusive control of the
Collateral, to freely operate the Collateral and to collect,
invest and dispose of any income thereon.
Release of Collateral. The Indenture and the
Security Documents provide that the Note Liens will
automatically and without the need for any further action by any
Person be released:
(1) in whole or in part, as applicable, as to all or any
portion of property subject to such Note Liens which has been
taken by eminent domain, condemnation or other similar
circumstances;
(2) in whole upon:
(a) satisfaction and discharge of the Indenture as set
forth below under Satisfaction and
Discharge; or
(b) a legal defeasance or covenant defeasance of the
Indenture as described below under Defeasance
or Covenant Defeasance of Indenture;
(3) in part, as to any property that (a) is sold,
transferred or otherwise disposed of by Oxford or any Guarantor
(other than to Oxford or another Guarantor) in a transaction not
prohibited by the Indenture at the time of such sale, transfer
or disposition or (b) is owned or at any time acquired by a
Guarantor that has been released from its Guarantee pursuant to
paragraph (b) of Certain
Covenants Additional Guarantees, concurrently
with the release of such Guarantee;
(4) as to property that constitutes all or substantially
all of the Collateral securing the Notes, with the consent of
each holder of the Notes;
(5) as to property that constitutes less than all or
substantially all of the Collateral securing the Notes, with the
consent of the holders of at least a majority in aggregate
principal amount of the Notes then outstanding; and
(6) in part, in accordance with the applicable provisions
of the Security Documents and as described above with respect to
the Intercreditor Agreement.
Use of Trust Monies. All
Trust Monies shall be held by (or held in an account
subject to the control of) the Collateral Agent as a part of the
Notes Priority Collateral securing the Notes and any Additional
Pari Passu Obligations and ABL Obligations, may, subject to
certain conditions set forth in the Indenture, at the written
direction of Oxford be applied by the Collateral Agent from time
to time in accordance with the covenant described below under
Limitation on Sale of Assets, as
applicable, or to the payment of the principal of, premium, if
any, and interest on any Notes and any Additional Pari Passu
Obligations at maturity or upon redemption or retirement, or to
the purchase of Notes and any Additional Pari Passu Obligations
upon tender or in the open market or otherwise, in each case in
compliance with the Indenture or to any reinvestment permitted
by the Indenture or as otherwise required by the Intercreditor
Agreement.
Certain Bankruptcy Limitations. The right of
the Collateral Agent to take possession and dispose of the
Collateral following an Event of Default is likely to be
significantly impaired by applicable bankruptcy law if a
bankruptcy proceeding were to be commenced by or against Oxford
or the Guarantors prior to the Trustee having taken possession
and disposed of the Collateral. Under the U.S. Bankruptcy
Code, a secured creditor is
45
prohibited from taking its security from a debtor in a
bankruptcy case, or from disposing of security taken from such
debtor, without bankruptcy court approval. Moreover, the
U.S. Bankruptcy Code permits the debtor in certain
circumstances to continue to retain and to use collateral owned
as of the date of the bankruptcy filing (and the proceeds,
products, offspring, rents or profits of such Collateral) even
though the debtor is in default under the applicable debt
instruments; provided that the secured creditor is given
adequate protection. The meaning of the term
adequate protection may vary according to
circumstances. In view of the lack of a precise definition of
the term adequate protection and the broad
discretionary powers of a bankruptcy court, it is impossible to
predict how long payments under the Notes could be delayed
following commencement of a bankruptcy case, whether or when the
Collateral Agent could repossess or dispose of the Collateral,
or whether or to what extent holders would be compensated for
any delay in payment or loss of value of the Collateral through
the requirement of adequate protection.
Furthermore, in the event a bankruptcy court determines the
value of the Collateral (after giving effect to any prior Liens)
is not sufficient to repay all amounts due on the Notes and any
other Permitted Additional Pari Passu Obligations, the holders
of the Notes and such other Permitted Additional Pari Passu
Obligations would hold secured claims to the extent of the value
of the Collateral, and would hold unsecured claims with respect
to any shortfall. Applicable Federal bankruptcy laws permit the
payment
and/or
accrual of post-petition interest, costs and attorneys
fees during a debtors bankruptcy case only to the extent
the claims are oversecured or the debtor is solvent at the time
of reorganization. In addition, if Oxford or the Guarantors were
to become the subject of a bankruptcy case, the bankruptcy
court, among other things, may avoid certain prepetition
transfers made by the entity that is the subject of the
bankruptcy filing, including, without limitation, transfers held
to be preferences or fraudulent conveyances.
Optional
Redemption
At any time prior to July 15, 2012, Oxford may redeem all
or a portion of the Notes, on not less than 30 nor more than
60 days prior notice, in amounts of $1,000 or an
integral multiple thereof, at a price equal to the greater of:
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100% of the aggregate principal amount of the Notes to be
redeemed, together with accrued and unpaid interest, if any, to
the date of redemption, and
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as determined by an Independent Investment Banker, the sum of
the present values of 105.688% of the principal of the Notes
being redeemed plus scheduled payments of interest (not
including any portion of such payments of interest accrued as of
the date of redemption) from the date of redemption to
July 15, 2012 discounted to the redemption date on a
semiannual basis (assuming a
360-day year
consisting of twelve
30-day
months) at the Adjusted Treasury Rate plus 50 basis points,
together with accrued and unpaid interest, if any, to the date
of redemption.
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For purposes of calculating the redemption price, the following
terms have the meanings set forth below:
Adjusted Treasury Rate means the rate per
annum equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of the
principal amount) equal to the Comparable Treasury Price for the
redemption date, calculated in accordance with standard market
practice.
Comparable Treasury Issue means the
U.S. treasury security selected by an Independent
Investment Banker that would be used, at the time of selection
and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity
to the remaining term of the Notes (assuming the Notes matured
on July 15, 2012).
Comparable Treasury Price means either
(1) the average of the Reference Treasury Dealer Quotations
for the redemption date, after excluding the highest and lowest
of such Reference Treasury Dealer Quotations or (2) if the
Trustee obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all quotations obtained.
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Independent Investment Banker means one of
the Reference Treasury Dealers that Oxford appoints.
Reference Treasury Dealer means each of Banc
of America Securities LLC (and its successors) and any other
nationally recognized investment banking firm specified from
time to time by Oxford that is a primary U.S. government
securities dealer.
Reference Treasury Dealer Quotations means,
with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury
Dealer as of 3:30 p.m., New York time, on the third
business day preceding the redemption date.
On or after July 15, 2012, Oxford may redeem all or a
portion of the Notes, on not less than 30 nor more than
60 days prior notice, in amounts of $1,000 or an
integral multiple thereof at the following redemption prices
(expressed as percentages of the principal amount), together
with accrued and unpaid interest, if any, to the redemption
date, if redeemed during the
12-month
period beginning July 15 of the years indicated below:
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Redemption
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Year
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Price
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2012
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105.688
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%
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2013
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102.844
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%
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2014 and thereafter
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100.000
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%
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In addition, at any time prior to July 15, 2012, Oxford, at
its option, may use the net proceeds of one or more Equity
Offerings to redeem up to an aggregate of 35% of the aggregate
principal amount of Notes originally issued under the Indenture
at a redemption price equal to 111.375% of the aggregate
principal amount of the Notes redeemed, plus accrued and unpaid
interest, if any, to the redemption date; provided that
at least 65% of the initial aggregate principal amount of Notes
must remain outstanding immediately after the occurrence of such
redemption and Oxford must complete such redemption within
90 days of the closing of the Equity Offering.
If less than all of the Notes are to be redeemed, the Trustee
shall select the Notes to be redeemed in compliance with the
requirements of the principal national security exchange, if
any, on which the Notes are listed, or if the Notes are not
listed, on a pro rata basis, by lot or by any other method the
Trustee shall deem fair and reasonable. Notes redeemed in part
must be redeemed only in integral multiples of $1,000 and no
Note with a principal amount of less than $2,000 will be
redeemed in part.
In addition to Oxfords rights to redeem the Notes as set
forth above, Oxford may purchase Notes in open-market
transactions, tender offers or otherwise.
Sinking
Fund
The Notes will not be entitled to the benefit of any sinking
fund.
Purchase
of Notes Upon a Change of Control
If a Change of Control occurs, each holder of Notes will have
the right to require Oxford to purchase all or any part (in
integral multiples of $1,000 except that no partial redemption
will be permitted that would result in a Note having a remaining
principal amount of less than $2,000) of such holders
Notes pursuant to a Change of Control offer. In the Change of
Control offer, Oxford will offer to purchase all of the Notes,
at a purchase price in cash in an amount equal to 101% of the
principal amount of such Notes, plus accrued and unpaid
interest, if any, to the date of purchase (subject to the rights
of holders of record on relevant record dates to receive
interest due on an interest payment date).
Within 30 days of any Change of Control or, at
Oxfords option, prior to such Change of Control but after
it is publicly announced, Oxford must notify the Trustee and
give written notice of the Change of
47
Control to each holder of Notes, by first-class mail, postage
prepaid, at his address appearing in the security register. The
notice must state, among other things,
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that a Change of Control has occurred or will occur and the date
of such event;
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the purchase price and the purchase date which shall be fixed by
Oxford on a business day no earlier than 30 days nor later
than 60 days from the date the notice is mailed, or such
later date as is necessary to comply with requirements under the
Exchange Act; provided that the purchase date may not occur
prior to the Change of Control;
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that any Note not tendered will continue to accrue interest;
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that, unless Oxford defaults in the payment of the Change of
Control purchase price, any Notes accepted for payment pursuant
to the Change of Control offer shall cease to accrue interest
after the Change of Control purchase date; and
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other procedures that a holder of Notes must follow to accept a
Change of Control offer or to withdraw acceptance of the Change
of Control offer.
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If a Change of Control offer is made, Oxford may not have
available funds sufficient to pay the Change of Control purchase
price for all of the Notes that might be delivered by holders of
the Notes seeking to accept the Change of Control offer. The
failure of Oxford to make or consummate the Change of Control
offer or pay the Change of Control purchase price when due will
give the Trustee and the holders of the Notes the rights
described under Events of Default.
In addition to the obligations of Oxford under the Indenture
with respect to the Notes in the event of a Change of Control,
Oxfords Credit Agreement also contains an event of default
upon a Change of Control as defined therein. Upon such a
default, the lenders under the Credit Agreement could elect to
declare any amounts outstanding under the Credit Agreement
immediately due and payable.
The definition of Change of Control includes the sale, lease,
transfer, conveyance or other disposition of all or
substantially all of the assets of Oxford and its
subsidiaries. The term all or substantially all as
used in the definition of Change of Control has not
been interpreted under New York law (which is the governing law
of the Indenture) to represent a specific quantitative test.
Therefore, if holders of the Notes elected to exercise their
rights under the Indenture and Oxford elected to contest such
election, it is not clear how a court interpreting New York law
would interpret the phrase.
The existence of a holders right to require Oxford to
repurchase such holders Notes upon a Change of Control may
deter a third party from acquiring Oxford in a transaction which
constitutes a Change of Control.
The provisions of the Indenture may not afford holders of the
Notes the right to require Oxford to repurchase the Notes in the
event of a highly leveraged transaction or certain
reorganization, restructuring, merger or other similar
transactions (including, in certain circumstances, an
acquisition of Oxford by management or its affiliates) involving
Oxford that may adversely affect holders of the Notes, if such
transaction is not a transaction defined as a Change of Control.
Oxford will comply with the applicable tender offer rules,
including
Rule 14e-1
under the Exchange Act, and any other applicable securities laws
or regulations in connection with a Change of Control Offer.
Oxford will not be required to make a Change of Control offer
upon a Change of Control if a third party makes the Change of
Control offer in the manner, at the times and otherwise in
compliance with the requirements described in the Indenture
applicable to a Change of Control offer made by Oxford and
purchases all Notes validly tendered and not withdrawn under
such Change of Control offer.
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Certain
Covenants
The Indenture contains, among others, the following covenants:
Limitation
on Indebtedness
(a) Oxford will not, and will not cause or permit any of
its Restricted Subsidiaries to, create, issue, incur, assume,
guarantee or otherwise in any manner become directly or
indirectly liable for, contingently or otherwise (collectively,
incur), any Indebtedness (including any Acquired
Indebtedness), unless such Indebtedness is incurred by Oxford or
any Guarantor or constitutes Acquired Indebtedness of Oxford or
a Restricted Subsidiary and, in each case, Oxfords
Consolidated Fixed Charge Coverage Ratio for the most recent
four full fiscal quarters for which consolidated financial
statements are available immediately preceding the incurrence of
such Indebtedness taken as one period is at least equal to or
greater than 2.0:1.0.
(b) Notwithstanding the foregoing, Oxford and the
Restricted Subsidiaries may incur the following (collectively,
the Permitted Indebtedness):
(1) Indebtedness of Oxford and the Guarantors under any
Credit Facility in an aggregate principal amount at any one time
outstanding not to exceed the greater of:
(a) $275.0 million, less, without duplication,
(i) any permanent repayment thereof or permanent reduction
in commitments thereunder from the proceeds of one or more asset
sales which are used to repay a Credit Facility pursuant to
clause (b)(i) of Limitation on Sale of
Assets and (ii) the amount of Indebtedness
outstanding at the date of determination pursuant to
clause (9) below; or
(b) (i) 85% of accounts receivable of Oxford and its
Restricted Subsidiaries (excluding any Receivables and Related
Assets sold, conveyed or otherwise transferred to a
Securitization Entity in connection with a Qualified
Securitization Transaction) as of the end of the most recently
ended fiscal quarter for which consolidated financial statements
are available, plus (ii) 60% of inventory of Oxford and its
Restricted Subsidiaries as of the end of the most recently ended
fiscal quarter for which consolidated financial statements are
available;
(2) Indebtedness pursuant to (A) the old notes
(excluding any Additional Notes) and any Guarantee of the old
notes, and (B) any new notes issued in exchange for the old
notes pursuant to the Registration Rights Agreement and any
Guarantee of the new notes;
(3) Indebtedness of Oxford or any Restricted Subsidiary
outstanding on the Issue Date other than Indebtedness referred
to in clause (1), (2) or (11)(y) of this definition of
Permitted Indebtedness;
(4) Indebtedness of Oxford owing to a Restricted Subsidiary;
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provided that any Indebtedness of Oxford owing to a
Restricted Subsidiary that is not a Guarantor incurred after the
Issue Date is unsecured and is subordinated in right of payment
to the Notes;
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provided, further, that any disposition or
transfer of any such Indebtedness to a person (other than to a
Restricted Subsidiary) shall be deemed to be an incurrence of
such Indebtedness by Oxford or other obligor not permitted by
this clause (4);
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(5) Indebtedness of a Restricted Subsidiary owing to Oxford
or another Restricted Subsidiary; provided that any
disposition or transfer of any such Indebtedness to a person
(other than a disposition or transfer to Oxford or a Restricted
Subsidiary or a person that becomes a Restricted Subsidiary)
shall be deemed to be an incurrence of such Indebtedness by the
obligor not permitted by this clause (5);
(6) guarantees by Oxford or any Restricted Subsidiary of
Indebtedness of Oxford or any of its Restricted Subsidiaries
(other than guarantees by Oxford or any Guarantor of Acquired
Indebtedness incurred in reliance on paragraph (a) of this
Section of any Person that does not become a Guarantor that is
acquired by Oxford or any Restricted Subsidiary other than
guarantees of such Acquired Indebtedness by any other Person so
acquired in connection therewith) which Indebtedness is
permitted to be incurred under the Indenture;
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(7) Indebtedness of Oxford or any Restricted Subsidiary
pursuant to any:
(a) Interest Rate Agreements,
(b) Currency Hedging Agreements and
(c) Commodity Price Protection Agreements;
(8) Indebtedness of Oxford or any Restricted Subsidiary
represented by Capital Lease Obligations or Purchase Money
Obligations or other Indebtedness in connection with the
acquisition or development of real or personal, movable or
immovable, property, in each case incurred or assumed for the
purpose of financing or refinancing all or any part of the
purchase price or cost of construction or improvement of
property used in the business of Oxford or such Restricted
Subsidiary, in an aggregate principal amount not to exceed
$20 million outstanding at any one time;
(9) Indebtedness incurred by a Securitization Entity in
connection with a Qualified Securitization Transaction that is
Non-recourse Indebtedness with respect to Oxford and its
Restricted Subsidiaries; provided, however, that in the event
such Securitization Entity ceases to qualify as a Securitization
Entity or such Indebtedness ceases to constitute such
Non-recourse Indebtedness, such Indebtedness will be deemed, in
each case, to be incurred at such time;
(10) Indebtedness of Oxford or any of its Restricted
Subsidiaries in connection with surety, performance, appeal or
similar bonds, completion guarantees or similar instruments
entered into in the ordinary course of business or from letters
of credit or other obligations in respect of self-insurance and
workers compensation obligations or similar arrangements;
provided that, in each case contemplated by this clause (10),
upon the drawing of such instrument, such obligations are
reimbursed within 30 days following such drawing;
(11) (x) Indebtedness of Foreign Subsidiaries
(including Foreign Subsidiaries formed under the laws of the
United Kingdom) in an aggregate principal amount of up to
$10 million outstanding at any one time and (y) in
addition to Indebtedness permitted by the foregoing subclause
(x), Indebtedness of Foreign Subsidiaries formed under the laws
of the United Kingdom in the aggregate principal amount of up to
£12 million outstanding at any one time;
(12) Indebtedness of Oxford or any of its Restricted
Subsidiaries arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts such
amount need not be inadvertent) drawn against insufficient funds
in the ordinary course of business; provided however, that such
Indebtedness is extinguished within three business days of
receipt by Oxford or any Restricted Subsidiary of notice of such
insufficient funds;
(13) Indebtedness of Oxford or any Restricted Subsidiary to
the extent the net proceeds thereof are promptly deposited to
defease the Indenture as described below under
Defeasance or Covenant Defeasance of
Indenture or to a satisfaction and discharge of the
Indenture as described below under
Satisfaction and Discharge;
(14) Indebtedness of Oxford or any Restricted Subsidiary
arising from agreements for indemnification or purchase price
adjustment obligations or similar obligations, or from
guarantees or letters of credit, surety bonds or performance
bonds securing any obligation of Oxford or a Restricted
Subsidiary pursuant to such an agreement, in each case, incurred
or assumed in connection with the acquisition or disposition of
any business, assets or properties;
(15) any renewals, extensions, substitutions, refundings,
refinancing or replacements (collectively, a
refinancing) of any Indebtedness incurred pursuant
to paragraph (a) of this section and clauses (2) and
(3) of this definition of Permitted
Indebtedness, including any successive refinancing so long
as Indebtedness of Oxford or a Guarantor may only be refinanced
with Indebtedness of Oxford or a Guarantor and the aggregate
principal amount of Indebtedness refinanced is not increased by
such refinancing except by an amount equal to the lesser of
(a) the stated amount of any premium or other payment
contractually required to be paid in connection with such a
refinancing pursuant to the terms of
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the Indebtedness being refinanced or (b) the amount of
premium or other payment actually paid at such time to refinance
the Indebtedness, plus, in either case, the amount of expenses
of Oxford incurred in connection with such refinancing and
(1) in the case of any refinancing of Indebtedness that is
Subordinated Indebtedness, such new Indebtedness is made
subordinated to the Notes at least to the same extent as the
Indebtedness being refinanced and (2) in the case of Pari
Passu Indebtedness or Subordinated Indebtedness, as the case may
be, such refinancing does not reduce the Average Life to Stated
Maturity or the Stated Maturity of such Indebtedness;
(16) Permitted Additional Pari Passu Obligations in an
amount not to exceed $50 million; and
(17) Indebtedness of Oxford or any Restricted Subsidiary in
addition to that described in clauses (1) through
(16) above, and any refinancing of such Indebtedness, so
long as the aggregate principal amount of all such Indebtedness
shall not exceed $20 million outstanding at any one time.
For purposes of determining compliance with this
Limitation on Indebtedness covenant:
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In the event that an item of Indebtedness meets the criteria of
more than one of the categories of Permitted Indebtedness, or is
permitted to be incurred pursuant to clause (a) of this
covenant, Oxford will be permitted to classify such item of
Indebtedness on the date of its incurrence, or subject to the
following bullet, later reclassify all or a portion of such item
of Indebtedness, in any manner that complies with this covenant;
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Indebtedness under the Credit Agreement which is in existence or
available on or prior to the Issue Date, and any renewals,
extensions, substitutions, refundings, refinancing or
replacements thereof, will be deemed to have been incurred on
such date under clause (1) of the definition of
Permitted Indebtedness above, and Oxford will not be
permitted to reclassify any portion of such Indebtedness
thereafter;
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Indebtedness permitted by this covenant need not be permitted
solely by reference to one provision permitting such
Indebtedness but may be permitted in part by one such provision
and in part by one or more other provisions of this covenant
permitting such Indebtedness;
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Accrual of interest, accretion or amortization of original issue
discount and the payment of interest on any Indebtedness in the
form of additional Indebtedness with the same terms, and the
payment of dividends on any Redeemable Capital Stock or
Preferred Stock in the form of additional shares of the same
class of Redeemable Capital Stock or Preferred Stock will not be
deemed to be an incurrence of Indebtedness for purposes of this
covenant; provided, in each such case, that the amount thereof
as accrued is included in Consolidated Fixed Charge Coverage
Ratio of Oxford;
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With respect to any dollar-denominated restriction on the
incurrence of Indebtedness denominated in a foreign currency,
the dollar-equivalent principal amount of such Indebtedness
incurred pursuant thereto shall be calculated based on the
relevant currency exchange rate in effect on the date that such
Indebtedness was incurred;
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The outstanding principal amount of any particular Indebtedness
shall be counted only once and any obligations arising under any
guarantee, Lien, letter of credit or similar instrument
supporting such Indebtedness shall not be double
counted; and
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The amount of Indebtedness issued at a price less than the
amount of the liability thereof shall be determined in
accordance with GAAP.
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Limitation
on Restricted Payments
(a) Oxford will not, and will not cause or permit any
Restricted Subsidiary to, directly or indirectly (each a
Restricted Payment):
(i) declare or pay any dividend on, or make any
distribution to holders of, any shares of Oxfords Capital
Stock (other than dividends or distributions payable solely in
shares of its Qualified Capital Stock or in options, warrants or
other rights to acquire shares of such Qualified Capital Stock);
51
(ii) purchase, redeem, defease or otherwise acquire or
retire for value, directly or indirectly, shares of
Oxfords Capital Stock or any Capital Stock of any
Subsidiary of Oxford (other than Capital Stock of any Restricted
Subsidiary of Oxford);
(iii) make any principal payment on, or repurchase, redeem,
defease, retire or otherwise acquire for value, prior to any
scheduled principal payment, sinking fund payment or maturity,
any Subordinated Indebtedness (other than (x) Indebtedness
permitted under clause (4) or (5) of the definition of
Permitted Indebtedness or (y) the purchase,
repurchase or other acquisition of such Subordinated
Indebtedness purchased in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in
each case due within one year of the date of purchase,
repurchase or acquisition);
(iv) declare or pay any dividend or distribution on any
Capital Stock of any Restricted Subsidiary to any person (other
than (a) dividends or distributions payable solely in
shares of Capital Stock of such Restricted Subsidiary or in
options, warrants or other rights to acquire shares of such
Capital Stock, (b) to Oxford or any of its Restricted
Subsidiaries or (c) dividends or distributions made by a
Restricted Subsidiary on a pro rata basis to all stockholders of
such Restricted Subsidiary); or
(v) make any Investment (other than any Permitted
Investments)
(the amount of any such Restricted Payment, if other than cash,
shall be the Fair Market Value of the assets proposed to be
transferred), unless
(1) at the time of and after giving effect to such proposed
Restricted Payment, no Default or Event of Default shall have
occurred and be continuing;
(2) at the time of and after giving effect to such
Restricted Payment, Oxford could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under the
provisions described under paragraph (a) of
Limitation on Indebtedness; and
(3) after giving effect to the proposed Restricted Payment,
the aggregate amount of all such Restricted Payments (other than
Permitted Payments described in clauses (2) through
(9) of clause (b) below) declared (with respect to
dividends) or made after March 1, 2003 and all Designation
Amounts does not exceed the sum of:
(A) 50% of the aggregate Consolidated Net Income of Oxford
accrued on a cumulative basis during the period beginning on
March 1, 2003 and ending on the last day of Oxfords
last fiscal quarter ending prior to the date of the Restricted
Payment (or, if such aggregate cumulative Consolidated Net
Income shall be a loss, minus 100% of such loss);
(B) 100% of the aggregate Net Cash Proceeds received after
March 1, 2003 by Oxford either (1) as capital
contributions in the form of nonredeemable equity to Oxford or
(2) from the issuance or sale (other than to any of its
Subsidiaries) of Qualified Capital Stock of Oxford or any
options, warrants or rights to purchase such Qualified Capital
Stock of Oxford, plus 100% of the Fair Market Value as of the
date of issuance of any Qualified Capital Stock issued by Oxford
since March 1, 2003 as consideration for the purchase by
Oxford or any of its Restricted Subsidiaries (including by means
of a merger, consolidation or other business combination
permitted under the Indenture) of any assets or properties of,
or a majority of the Voting Stock of, any person whose primary
business is, a Permitted Business (except, in each case, to the
extent such proceeds are used to purchase, redeem or otherwise
retire Capital Stock or Subordinated Indebtedness as set forth
below in clause (2) or (3) of paragraph
(b) below) (excluding the Net Cash Proceeds from the
issuance of Qualified Capital Stock financed, directly or
indirectly, using funds borrowed from Oxford or any Subsidiary
until and to the extent such borrowing is repaid);
(C) 100% of the aggregate Net Cash Proceeds received after
March 1, 2003 by Oxford (other than from any of its
Subsidiaries) upon the exercise of any options, warrants or
rights to purchase Qualified Capital Stock of Oxford (excluding
the Net Cash Proceeds from the exercise of any options, warrants
or rights to purchase Qualified Capital Stock financed, directly
or indirectly, using funds borrowed from Oxford or any
Subsidiary until and to the extent such borrowing is repaid);
52
(D) 100% of the aggregate Net Cash Proceeds received after
March 1, 2003 by Oxford from the conversion or exchange, if
any, of debt securities or Redeemable Capital Stock of Oxford or
its Restricted Subsidiaries into or for Qualified Capital Stock
of Oxford plus, to the extent such debt securities or Redeemable
Capital Stock so converted or exchanged were issued after
March 1, 2003, the aggregate of Net Cash Proceeds from
their original issuance (excluding the Net Cash Proceeds from
the conversion or exchange of debt securities or Redeemable
Capital Stock financed, directly or indirectly, using funds
borrowed from Oxford or any Subsidiary until and to the extent
such borrowing is repaid);
(E) (a) in the case of the disposition or repayment of
any Investment constituting a Restricted Payment made after the
Issue Date, an amount (to the extent not included in
Consolidated Net Income) equal to the lesser of the return of
capital with respect to such Investment and the initial amount
of such Investment, in either case, less the cost of the
disposition of such Investment and net of taxes, and (b) in
the case of the designation of an Unrestricted Subsidiary as a
Restricted Subsidiary (as long as the designation of such
Subsidiary as an Unrestricted Subsidiary was deemed a Restricted
Payment), the Fair Market Value of Oxfords interest in
such Subsidiary as of the date of such designation, provided
that such amount shall not in any case exceed the amount of
the Restricted Payment deemed made at the time the Subsidiary
was designated as an Unrestricted Subsidiary;
(F) any amount which previously qualified as a Restricted
Payment on account of any guarantee entered into by Oxford or
any Restricted Subsidiary; provided that such guarantee
has not been called upon and the obligation arising under such
guarantee no longer exists; and
(G) $5 million.
As of May 2, 2009, the amount available for Restricted
Payments pursuant to clauses (A) through (F) would
have been approximately $95 million.
(b) The foregoing provisions shall not prohibit the
following Restricted Payments (each a Permitted
Payment):
(1) (x) the payment of any dividend or redemption of
any Capital Stock within 60 days after the date of
declaration thereof or call for redemption, if at such date of
declaration or call for redemption such payment or redemption
was permitted by the provisions of paragraph (a) of this
covenant (the declaration of such payment will be deemed a
Restricted Payment under paragraph (a) of this covenant as
of the date of declaration, and the payment itself will be
deemed to have been paid on such date of declaration and will
not also be deemed a Restricted Payment under paragraph
(a) of this covenant) (it being understood that any
Restricted Payment made in reliance on this clause (1)(x) shall
reduce the amount available for Restricted Payments pursuant to
clause (a)(3) above only once) and (y) the declaration and
payment of dividends on Oxfords common stock in an amount
not to exceed $6.5 million during any twelve month period;
(2) the repurchase, redemption, or other acquisition or
retirement for value of any shares of any class of Capital Stock
of Oxford in exchange for (including any such exchange pursuant
to the exercise of a conversion right or privilege in connection
with which cash is paid in lieu of the issuance of fractional
shares or scrip), or out of the Net Cash Proceeds of a
substantially concurrent issuance and sale for cash (other than
to a Subsidiary) of, Qualified Capital Stock of Oxford;
provided that the Net Cash Proceeds from the issuance of
such shares of Qualified Capital Stock are excluded from clause
(3)(B) of paragraph (a) of this covenant;
(3) the repurchase, redemption, defeasance, retirement or
acquisition for value or payment of principal of any
Subordinated Indebtedness in exchange for, or out of the Net
Cash Proceeds of, a substantially concurrent issuance and sale
for cash (other than to any Subsidiary) of any Qualified Capital
Stock of Oxford, provided that the Net Cash Proceeds from
the issuance of such shares of Qualified Capital Stock are
excluded from clause (3)(B) of paragraph (a) of this
covenant;
53
(4) the repurchase, redemption, defeasance, retirement, or
acquisition for value of any Subordinated Indebtedness (other
than Redeemable Capital Stock) (a
refinancing) in exchange for, or out of the
Net Cash Proceeds of, the substantially concurrent issuance of
new Subordinated Indebtedness of Oxford, provided that
any such new Subordinated Indebtedness
(a) shall be in a principal amount that does not exceed the
principal amount so refinanced, plus the amount of premium or
other payment reasonably determined as necessary to refinance
the Indebtedness, plus the amount of expenses of Oxford incurred
in connection with such refinancing;
(b) has an Average Life to Stated Maturity equal to or
greater than the remaining Average Life to Stated Maturity of
the Subordinated Indebtedness being refinanced;
(c) has a Stated Maturity for its final scheduled principal
payment later than the Stated Maturity for the final scheduled
principal payment of the Subordinated Indebtedness being
refinanced; and
(d) is expressly subordinated in right of payment to the
Notes at least to the same extent as the Subordinated
Indebtedness to be refinanced;
(5) the repurchase of Capital Stock deemed to occur upon
(a) exercise of stock options to the extent that shares of
such Capital Stock represent a portion of the exercise price of
such options and (b) the withholding of a portion of the
Capital Stock granted or awarded to an employee to pay taxes
associated therewith;
(6) the payment of cash in lieu of the issuance of
fractional shares in connection with the exercise of warrants,
options or other securities convertible into or exercisable for
Capital Stock of Oxford;
(7) the repurchase, redemption, or other acquisition or
retirement for value of Redeemable Capital Stock of Oxford made
by exchange for, or out of the proceeds of the sale of,
Redeemable Capital Stock;
(8) so long as no default or event of default exists or
would occur, the repurchase, redemption, or other acquisition or
retirement for value of any shares of Capital Stock of Oxford
from employees, former employees, directors or former directors
of Oxford or any Restricted Subsidiary or their authorized
representatives upon the death, disability or termination of
employment of such employees, former employees, directors or
former directors, in an amount of up to $3 million in the
aggregate during any fiscal year of Oxford (with unused amounts
from any fiscal year available in any of the next two succeeding
years); and
(9) so long as no default or event of default exists or
would occur, payments or distributions to stockholders pursuant
to appraisal rights required under applicable law in connection
with any consolidation, merger or transfer of assets, that
complies with the covenant described under
Consolidation, Merger, Sale of Assets.
For clarity purposes, all payments made pursuant to
clauses (2) through (9) of this paragraph
(b) shall not reduce the amount that would otherwise be
available for Restricted Payments under paragraph (a) of
this covenant.
Limitation
on Transactions with Affiliates
Oxford will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into
any transaction or series of related transactions (including,
without limitation, the sale, purchase, exchange or lease of
assets, property or services) with or for the benefit of any
Affiliate of Oxford (other than Oxford or a Restricted
Subsidiary, including any person that becomes a Restricted
Subsidiary as a result of such transaction) unless:
(1) such transaction or series of related transactions is
on terms that are no less favorable to Oxford or such Restricted
Subsidiary, as the case may be, than those that would be
available in a comparable transaction in arms-length
dealings with an unrelated third party,
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(2) with respect to any transaction or series of related
transactions involving aggregate value in excess of
$2.5 million, Oxford delivers an officers certificate
to the Trustee certifying that such transaction or series of
related transactions complies with clause (1)
above, and
(3) with respect to any transaction or series of related
transactions involving aggregate value in excess of
$10 million, either
(a) such transaction or series of related transactions has
been approved by a majority of the Disinterested Directors of
the board of directors of Oxford, or in the event there is only
one Disinterested Director, by such Disinterested
Director, or
(b) Oxford delivers to the Trustee a written opinion of an
investment banking firm of national standing or other recognized
independent expert stating that the transaction or series of
related transactions is fair to Oxford or such Restricted
Subsidiary from a financial point of view;
provided, however, that this provision shall not
apply to:
(i) directors fees, consulting fees, employee
salaries, bonuses or employment agreements, incentive
arrangements, compensation or employee benefit arrangements with
any officer, director or employee of Oxford or a Subsidiary of
Oxford, including under any stock option or stock incentive
plans, customary indemnification arrangements with officers,
directors or employees of Oxford or a Subsidiary of Oxford, in
each case entered into in the ordinary course of business;
(ii) any Restricted Payments or Permitted Payments made in
compliance with the Limitation on Restricted
Payments covenant above;
(iii) any Qualified Securitization Transaction;
(iv) any issuance or sale of Qualified Capital Stock of
Oxford to Affiliates;
(v) transactions among Oxford
and/or any
Restricted Subsidiary
and/or any
Related Business Entity;
(vi) loans or advances to employees or consultants of
Oxford in the ordinary course of business for bona fide business
purposes of Oxford and its Restricted Subsidiaries (including
travel, entertainment and moving expenses) made in compliance
with applicable law; and
(vii) any transactions undertaken pursuant to any
agreements in existence on the Issue Date (as in effect on the
Issue Date) and any renewals, replacements or modifications of
such contracts (pursuant to new transactions or otherwise) on
terms no less favorable in any material respect to the holders
of the Notes than those in effect on the Issue Date.
Limitation
on Liens
Oxford will not, and will not permit any of its Restricted
Subsidiaries, directly or indirectly, to enter into, create,
incur, assume or suffer to exist any Liens of any kind, on or
with respect to any of its properties to secure Indebtedness of
Oxford or any of its Restricted Subsidiaries other than
Permitted Liens. Additionally, Oxford will not, and will not
permit any Guarantor, to grant or suffer to exist any Lien
(other than pursuant to clause (a), (d), (j) or (p) of
the definition of Permitted Liens) on any real
property of Oxford or any Guarantor owned in fee simple on the
Issue Date for purposes of securing any Indebtedness for money
borrowed unless Oxford shall have granted a first-priority Lien
on such fee owned real property to the Collateral Agent for the
benefit of the holders of Notes and the holders of Permitted
Additional Pari Passu Obligations.
Limitation
on Sale of Assets
(a) Oxford will not, and will not cause or permit any of
its Restricted Subsidiaries to, directly or indirectly,
consummate an Asset Sale unless (1) at least 75% of the
consideration from such Asset Sale is received in cash, Cash
Equivalents or Replacement Assets, (2) Oxford or such
Restricted Subsidiary receives consideration at the time of such
Asset Sale at least equal to the Fair Market Value of the shares
or assets
55
subject to such Asset Sale, (3) if such Asset Sale involves
the disposition of Collateral, Oxford or such Restricted
Subsidiary has complied with the provisions of the Indenture and
the Security Documents, and (4) if such Asset Sale involves
the disposition of Notes Priority Collateral or, after the
Discharge of ABL Obligations, the disposition of ABL Priority
Collateral, the Net Cash Proceeds thereof shall be paid directly
by the purchaser of the Collateral to the Collateral Agent for
deposit into the Collateral Account pending application in
accordance with the provisions described below, and, if any
property other than cash or Cash Equivalents is included in such
Net Cash Proceeds, such property shall be made subject to the
Note Liens.
For purposes of Section (a)(1) of this covenant, the following
will be deemed to be cash:
(A) the amount of any liabilities (other than Subordinated
Indebtedness) of Oxford or any Restricted Subsidiary that is
actually assumed by the transferee in such Asset Sale and from
which Oxford and the Restricted Subsidiaries are fully and
unconditionally released (excluding any liabilities that are
incurred in connection with or in anticipation of such Asset
Sale and contingent liabilities);
(B) the amount of any notes, securities or other similar
obligations received by Oxford or any Restricted Subsidiary from
such transferee that is converted, sold or exchanged within
90 days of the related Asset Sale by Oxford or the
Restricted Subsidiaries into cash in an amount equal to the net
cash proceeds realized upon such conversion, sale or
exchange; and
(C) the amount of any Designated Non-cash Consideration
received by Oxford or any of its Restricted Subsidiaries in the
Asset Sale; provided that the aggregate of such Designated
Non-cash Consideration received in connection with Asset Sales
(and still held) shall not exceed $5 million at any one
time (with the Fair Market Value in each case being measured at
the time received and without giving effect to subsequent
changes in value).
(b) All or a portion of the Net Cash Proceeds of any Asset
Sale may be applied by Oxford or a Restricted Subsidiary, to the
extent Oxford or such Restricted Subsidiary elects (or is
required by the terms of any Indebtedness under the Credit
Agreement or any Credit Facility):
(i) to the extent such Net Cash Proceeds constitute
proceeds from the sale of Collateral (other than Tommy Bahama
Collateral) or assets that are not Collateral, to repay
permanently any Indebtedness under the Credit Agreement or any
other Credit Facility or Indebtedness of any non-Guarantor with
respect to the proceeds from the sale of assets of any
non-Guarantor then outstanding as required by the terms thereof
(and in the case of any such Indebtedness under the Credit
Agreement or any other Credit Facility, effect a permanent
reduction in the availability under the Credit Agreement or any
other Credit Facility);
(ii) to acquire all or substantially all of the assets of,
or a majority of the Voting Stock of, a Permitted Business (or
in the case of an Asset Sale of ABL Priority Collateral or Notes
Priority Collateral other than Tommy Bahama Collateral, to
acquire additional Collateral); provided that to the extent such
Net Cash Proceeds are received in respect of Tommy Bahama
Collateral, such Net Cash Proceeds are applied to acquire assets
that constitute Notes Priority Collateral;
(iii) to make a capital expenditure; provided that to the
extent such Net Cash Proceeds are received in respect of Notes
Priority Collateral, such expenditures shall relate to
Collateral (and to the extent such Net Cash Proceeds are
received in respect of Tommy Bahama Collateral, such
expenditures shall relate to Notes Priority Collateral); or
(iv) to invest the Net Cash Proceeds (or enter into a
legally binding agreement to invest) in Replacement Assets;
provided that to the extent such Net Cash Proceeds are received
in respect of Notes Priority Collateral, such Replacement Assets
constitute Collateral (and to the extent such Net Cash Proceeds
are received in respect of Tommy Bahama Collateral, such
Collateral shall be Notes Priority Collateral).
Pending the final application of any such Net Cash Proceeds
(other than Trust Monies), Oxford may temporarily reduce
Indebtedness or otherwise invest such Net Cash Proceeds in any
manner that is not prohibited by the Indenture. If any such
legally binding agreement to invest such Net Cash Proceeds is
56
terminated, Oxford shall, within 90 days of such
termination or within 365 days of such Asset Sale,
whichever is later, invest such Net Cash Proceeds as provided in
clauses (i) through (iv) above (without regard to the
first parenthetical contained in clause (iv)). The amount of
such Net Cash Proceeds not used or invested in accordance with
the preceding clauses (i) through (iv) within
365 days of the Asset Sale constitutes Excess
Proceeds.
When the aggregate amount of Excess Proceeds exceeds
$15.0 million, within thirty days thereof, Oxford will make
an offer (an Offer) to all holders of Notes
and (x) in the case of Net Cash Proceeds from an Asset Sale
of Notes Priority Collateral, to the holders of any other
Permitted Additional Pari Passu Obligations containing
provisions similar to those set forth in the Indenture with
respect to asset sales or (y) in the case of any other Net
Cash Proceeds, to all holders of other Pari Passu Indebtedness
containing provisions similar to those set forth in the
Indenture with respect to assets sales, in each case, equal to
the Excess Proceeds. The offer price in any Offer to Purchase
will be equal to 100% of the principal amount of the Notes (and
100% of the principal amount or, if different, the accreted
value of any Permitted Additional Pari Passu Obligations or Pari
Passu Indebtedness) plus accrued and unpaid interest to the date
of purchase, and will be payable in cash. If any Excess Proceeds
remain after consummation of an Offer to Purchase, the Company
may use those Excess Proceeds for any purpose not otherwise
prohibited by the Indenture and such remaining amount shall not
be added to any subsequent Excess Proceeds for any purpose under
the Indenture. If the aggregate principal of the Notes and
principal amount or, if different, accreted value of other
Permitted Additional Pari Passu Obligations (in the case of Net
Cash Proceeds from Notes Priority Collateral) or Notes and other
Pari Passu Indebtedness (in the case of any other Net Cash
Proceeds) tendered into such Offer to Purchase exceeds the
amount of Excess Proceeds, the Trustee will select the Notes and
other Permitted Additional Pari Passu Obligations or other Pari
Passu Indebtedness, as the case may be, to be purchased on a
pro rata basis. Upon completion of each Offer, the amount
of Excess Proceeds will be reset at zero.
(c) The Indenture provides that Oxford will comply with the
applicable tender offer rules, including
Rule 14e-1
under the Exchange Act, and any other applicable securities laws
or regulations in connection with an Offer.
Additional
Guarantees
(a) Oxford will cause any Restricted Subsidiary formed or
acquired after the Issue Date (other than a Foreign Subsidiary,
a Securitization Subsidiary or an Excluded Subsidiary) to
execute and deliver a supplemental indenture to the Indenture
providing for a Guarantee of the Notes and supplements to the
applicable Security Documents in order to grant a Lien in the
Collateral owned by such Restricted Subsidiary.
(b) Notwithstanding the foregoing, any Guarantee by a
Restricted Subsidiary of the Notes shall provide by its terms
that it (and all Liens securing the same) shall be automatically
and unconditionally released and discharged upon:
(1) such Subsidiary ceasing to constitute a Restricted
Subsidiary in a transaction that complies with the Indenture
(whether upon a sale, exchange, transfer or disposition of
Capital Stock in such Restricted Subsidiary (including by way of
merger or consolidation), or the designation of such Restricted
Subsidiary as an Unrestricted Subsidiary), or
(2) the merger or dissolution of a Guarantor into Oxford or
another Guarantor or the transfer or sale of all or
substantially all of the assets of a Guarantor to Oxford or
another Guarantor.
Limitation
on Subsidiary Preferred Stock
(a) Oxford will not permit any Restricted Subsidiary of
Oxford to issue, sell or transfer any Preferred Stock of such
Restricted Subsidiary, except for (1) Preferred Stock
issued or sold to, held by or transferred to Oxford or a
Restricted Subsidiary, and (2) Preferred Stock issued by a
person prior to the time (A) such person becomes a
Restricted Subsidiary, (B) such person consolidates or
merges with or into Oxford or a Restricted Subsidiary or
(C) a Restricted Subsidiary consolidates or merges with or
into such person; provided that such Preferred Stock was
not issued or incurred by such person in anticipation of the
type of transaction
57
contemplated by subclause (A), (B) or (C). This
clause (a) shall not apply upon the acquisition by a third
party of all the outstanding Capital Stock of such Restricted
Subsidiary in accordance with the terms of the Indenture.
(b) Oxford will not permit any person (other than Oxford or
a Restricted Subsidiary) to acquire Preferred Stock of any
Restricted Subsidiary from Oxford or any Restricted Subsidiary,
except upon the acquisition of all the outstanding Capital Stock
of such Restricted Subsidiary in accordance with the terms of
the Indenture.
Limitation
on Dividend and Other Payment Restrictions Affecting
Subsidiaries
(a) Oxford will not, and will not cause or permit any of
its Restricted Subsidiaries to, directly or indirectly, create
or otherwise cause to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(1) pay dividends or make any other distributions on its
Capital Stock,
(2) pay any Indebtedness owed to Oxford or any other
Restricted Subsidiary,
(3) make any Investment in Oxford or any other Restricted
Subsidiary or
(4) transfer any of its properties or assets to Oxford or
any other Restricted Subsidiary.
(b) However, paragraph (a) will not prohibit any:
(1) encumbrance or restriction pursuant to an agreement or
instrument (including the Credit Agreement, the Notes, the
Indenture, the Guarantees and the Security Documents) in effect
on the Issue Date (or in respect of the Credit Agreement on the
date of the Credit Agreement);
(2) encumbrance or restriction with respect to a Restricted
Subsidiary that is not a Restricted Subsidiary of Oxford on the
Issue Date, in existence at the time such person becomes a
Restricted Subsidiary of Oxford and not incurred in connection
with, or in contemplation of, such person becoming a Restricted
Subsidiary, provided that such encumbrances and
restrictions are not applicable to Oxford or any Restricted
Subsidiary or the properties or assets of Oxford or any
Restricted Subsidiary other than such Subsidiary which is
becoming a Restricted Subsidiary;
(3) encumbrance or restriction pursuant to any agreement
governing any Indebtedness represented by Capital Lease
Obligations or Purchase Money Obligations permitted to be
incurred under the provisions of the covenant described above
under the caption Limitation on
Indebtedness;
(4) encumbrance or restriction contained in any Acquired
Indebtedness or other agreement of any person or related to
assets acquired (whether by merger, consolidation or otherwise)
by Oxford or any Restricted Subsidiaries, so long as such
encumbrance or restriction (A) was not entered into in
contemplation of the acquisition, merger or consolidation
transaction, and (B) is not applicable to any person, or
the properties or assets of any person, other than the person,
or the property or assets of the person, so acquired, so long as
the agreement containing such restriction does not violate any
other provision of the Indenture;
(5) encumbrance or restriction existing under applicable
law or any requirement of any regulatory body;
(6) in the case of clause (4) of paragraph
(a) above, Liens securing Indebtedness otherwise permitted
to be incurred under the provisions of the covenant described
above under the caption Limitation on
Liens that limit the right of the debtor to dispose of the
assets subject to such Liens;
(7) customary non-assignment provisions in leases, licenses
or contracts;
(8) customary restrictions contained in (A) asset sale
agreements permitted to be incurred under the provisions of the
covenant described above under the caption
Limitation on Sale of Assets that limit
the transfer of such assets pending the closing of such sale and
(B) any other agreement for the sale or
58
other disposition of a Restricted Subsidiary that restricts
distributions by that Restricted Subsidiary pending its sale or
other disposition;
(9) customary restrictions imposed by the terms of
shareholders, partnership or joint venture agreements
entered into in the ordinary course of business in connection
with a joint venture arrangement which is permitted pursuant to
clause (7) of the definition of Permitted Investment;
provided, however, that such restrictions do not
apply to any Restricted Subsidiaries other than the applicable
company, partnership or joint venture;
(10) restrictions contained in Indebtedness of Foreign
Subsidiaries permitted to be incurred under clause (11) of
the definition of Permitted Indebtedness, so long as such
restrictions or encumbrances are customary for Indebtedness of
the type incurred;
(11) encumbrance or restriction with respect to a
Securitization Entity in connection with a Qualified
Securitization Transaction; provided, however,
that such encumbrances and restrictions are customarily required
by the institutional sponsor or arranger of such Qualified
Securitization Transaction in similar types of documents
relating to the purchase of similar receivables in connection
with the Financing thereof;
(12) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the
ordinary course of business;
(13) encumbrance or restriction under any agreement that
amends, extends, renews, refinances or replaces the agreements
containing the encumbrances or restrictions in the foregoing
clauses (1) through (12), or in this clause (13),
provided that the terms and conditions of any such
encumbrances or restrictions are no more restrictive in any
material respect than those under or pursuant to the agreement
evidencing the Indebtedness so extended, renewed, refinanced or
replaced.
Limitation
on Unrestricted Subsidiaries
Oxford may designate after the Issue Date any Subsidiary as an
Unrestricted Subsidiary under the Indenture
only if:
(a) no Default shall have occurred and be continuing at the
time of or after giving effect to such designation;
(b) Oxford would be permitted to make an Investment (other
than a Permitted Investment) at the time of designation
(assuming the effectiveness of such designation) pursuant to
paragraph (a) of Limitation on Restricted
Payments above in an amount (the Designation
Amount) equal to the Fair Market Value of
Oxfords and its Restricted Subsidiaries Investments
in such Subsidiary (including any guarantee of the obligations
of such Unrestricted Subsidiary but excluding any amounts
attributable to Investments made prior to the Issue Date);
(c) such Unrestricted Subsidiary does not own any Capital
Stock in any Restricted Subsidiary of Oxford which is not
simultaneously being designated an Unrestricted Subsidiary;
(d) such Unrestricted Subsidiary is not liable, directly or
indirectly, with respect to any Indebtedness other than
Non-Recourse Indebtedness, provided that an Unrestricted
Subsidiary may provide a Guarantee for the Notes; and
(e) such Unrestricted Subsidiary is not a party to any
agreement, contract, arrangement or understanding at such time
with Oxford or any Restricted Subsidiary unless the terms of any
such agreement, contract, arrangement or understanding are no
less favorable to Oxford or such Restricted Subsidiary than
those that might be obtained at the time from persons who are
not Affiliates of Oxford or, in the event such condition is not
satisfied, the value of such agreement, contract, arrangement or
understanding to such Unrestricted Subsidiary from and after the
date of designation shall be deemed a Restricted Payment.
59
In the event of any such designation, Oxford shall be deemed to
have made an Investment constituting a Restricted Payment
pursuant to the covenant Limitation on
Restricted Payments for all purposes of the Indenture in
the Designation Amount.
For purposes of the foregoing, the designation of a Subsidiary
of Oxford as an Unrestricted Subsidiary shall be deemed to be
the designation of all of the Subsidiaries of such Subsidiary as
Unrestricted Subsidiaries. Unless so designated as an
Unrestricted Subsidiary, any person that becomes a Subsidiary of
Oxford will be classified as a Restricted Subsidiary.
Oxford may revoke any designation of a Subsidiary as an
Unrestricted Subsidiary if:
(a) no Default shall have occurred and be continuing at the
time of and after giving effect to such revocation;
(b) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such revocation
would, if incurred at such time, have been permitted to be
incurred for all purposes of the Indenture; and
(c) unless such redesignated Subsidiary shall not have any
Indebtedness outstanding (other than Indebtedness that would be
Permitted Indebtedness), (x) if prior to such revocation
Oxford could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to the covenant described under
Limitation on Indebtedness, immediately
after giving effect to such proposed revocation, and after
giving pro forma effect to the incurrence of any such
Indebtedness of such redesignated Subsidiary as if such
Indebtedness was incurred on the date of the revocation, Oxford
could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to the covenant described under
Limitation on Indebtedness or
(y) if prior to such revocation Oxford could not incur
$1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to the covenant described under
Limitation on Indebtedness,
Oxfords Consolidated Fixed Charge Coverage Ratio does not
decline as a result of such revocation.
All designations and revocations must be evidenced by a
resolution of the board of directors of Oxford delivered to the
Trustee certifying compliance with the foregoing provisions.
Provision
of Financial Statements
Whether or not Oxford is subject to Section 13(a) or 15(d)
of the Exchange Act, Oxford will, to the extent permitted under
the Exchange Act, file with the SEC the annual reports,
quarterly reports and other documents which Oxford would have
been required to file with the SEC pursuant to
Section 13(a) or 15(d) if Oxford were so subject, such
documents to be filed with the SEC on or prior to the date (the
Required Filing Date) by which Oxford would
have been required so to file such documents if Oxford were so
subject.
Oxford will also in any event within 15 days of each
Required Filing Date (a) file with the Trustee copies of
the annual reports, quarterly reports and other documents which
Oxford filed with the SEC or would have been required to file
with the SEC pursuant to Section 13(a) or 15(d) of the
Exchange Act if Oxford were subject to either of such Sections
and (b) if filing such reports and documents by Oxford with
the SEC is not accepted by the SEC or is not permitted under the
Exchange Act, transmit by mail to all holders of the Notes, as
their names and addresses appear in the security register,
without cost to such holders, copies of such reports and
documents.
The Indenture also provides that, so long as any of the Notes
remain outstanding, Oxford will make available to any
prospective purchaser of Notes or beneficial owner of Notes in
connection with any sale thereof the information required by
Rule 144A(d)(4) under the Securities Act, until such time
as Oxford has either exchanged the Notes for securities
identical in all material respects which have been registered
under the Securities Act or until such time as the holders
thereof have disposed of such Notes pursuant to an effective
registration statement under the Securities Act.
60
Additional
Covenants
The Indenture also contains covenants with respect to the
following matters: (1) payment of principal, premium and
interest; (2) maintenance of an office or agency in The
City of New York; (3) arrangements regarding the handling
of money held in trust; (4) maintenance of corporate
existence; (5) payment of taxes and other claims; and
(6) maintenance of properties.
Consolidation,
Merger, Sale of Assets
Oxford will not, in a single transaction or through a series of
related transactions, consolidate with or merge with or into any
other person or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its properties
and assets to any person or group of persons, or permit any of
its Restricted Subsidiaries to enter into any such transaction
or series of transactions, if such transaction or series of
transactions, in the aggregate, would result in a sale,
assignment, conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of Oxford and its
Restricted Subsidiaries on a consolidated basis to any other
person or group of persons, unless at the time and after giving
effect thereto
(1) either (a) Oxford will be the continuing
corporation or (b) the person formed by or surviving such
consolidation or merger or the person which acquires by sale,
assignment, conveyance, transfer, lease or disposition all or
substantially all of the properties and assets of Oxford and its
Restricted Subsidiaries on a Consolidated basis (the
Surviving Entity) (i) shall be a
corporation duly organized and validly existing under the laws
of the United States of America, any state thereof or the
District of Columbia, (ii) shall expressly assume by a
supplemental indenture, in a form reasonably satisfactory to the
Trustee, all the obligations of Oxford under the Notes and the
Indenture and the Registration Rights Agreement, as the case may
be, and the Notes and the Indenture and the Registration Rights
Agreement will remain in full force and effect as so
supplemented (and any Guarantees will be confirmed as applying
to such Surviving Entitys obligations) and
(iii) shall expressly assume the due and punctual
performance of the covenants and obligations of Oxford under the
Security Documents;
(2) after giving effect to such transaction, no Default or
Event of Default exists;
(3) after giving effect to such transaction, Oxford (or the
Surviving Entity if Oxford is not the continuing obligor under
the Indenture) could incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) under the provisions of
Certain Covenants Limitation on
Indebtedness;
(4) at the time of the transaction, each Guarantor, if any,
unless it is the other party to the transactions described
above, will have by supplemental indenture confirmed that its
Guarantee shall apply to such persons obligations under
the Indenture and the Notes;
(5) at the time of the transaction, Oxford or the Surviving
Entity will have delivered, or caused to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the
Trustee, an officers certificate and an opinion of
counsel, each to the effect that such consolidation, merger,
transfer, sale, assignment, conveyance, transfer, lease or other
transaction and the supplemental indenture in respect thereof
comply with the Indenture and that all conditions precedent
therein provided for relating to such transaction have been
complied with;
(6) Oxford or the Surviving Entity, as applicable, promptly
causes such amendments, supplements or other instruments to be
executed, delivered, filed and recorded, as applicable, in such
jurisdictions as may be required by applicable law to preserve
and protect the Lien of the Security Documents on the Collateral
owned by or transferred to Oxford or the Surviving
Entity; and
(7) the Collateral owned by or transferred to Oxford or the
Surviving Entity, as applicable, shall (a) continue to
constitute Collateral under the Indenture and the Security
Documents, (b) be subject to the Lien in favor of the
Collateral Agent for the benefit of the Trustee and the holders
of the Notes, and (c) not be subject to any Lien other than
Permitted Liens.
Notwithstanding the foregoing clause (3), (1) any
Restricted Subsidiary may consolidate with, merge into or
transfer all or part of its properties and assets to another
Restricted Subsidiary and (2) Oxford may merge
61
with an Affiliate that has no significant assets or liabilities
and was formed solely for the purpose of changing Oxfords
jurisdiction of organization to another state of the United
States, provided that the surviving entity assumes, by
supplemental indenture in form reasonably satisfactory to the
Trustee, Oxfords obligation under the Indenture and the
Registration Rights Agreement.
Each Guarantor will not, and Oxford will not permit a Guarantor
to, in a single transaction or through a series of related
transactions, consolidate with or merge with or into any other
person (other than Oxford or any Guarantor) or sell, assign,
convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any person or
group of persons (other than Oxford or any Guarantor) or permit
any of its Restricted Subsidiaries to enter into any such
transaction or series of transactions if such transaction or
series of transactions, in the aggregate, would result in a
sale, assignment, conveyance, transfer, lease or disposition of
all or substantially all of the properties and assets of the
Guarantor and its Restricted Subsidiaries on a Consolidated
basis to any other person or group of persons (other than Oxford
or any Guarantor), unless at the time and after giving effect
thereto:
(1) either (a) the Guarantor will be the continuing
corporation in the case of a consolidation or merger involving
the Guarantor or (b) the person formed by or surviving such
consolidation or merger or the person which acquires by sale,
assignment, conveyance, transfer, lease or disposition all or
substantially all of the properties and assets of the Guarantor
and its Restricted Subsidiaries on a Consolidated basis (the
Surviving Guarantor Entity) will be a
corporation, limited liability company, limited liability
partnership, partnership or trust duly organized and validly
existing under the laws of the United States of America, any
state thereof or the District of Columbia and such person
(i) expressly assumes, by a supplemental indenture, in a
form reasonably satisfactory to the Trustee, all the obligations
of such Guarantor under its Guarantee of the Notes and the
Indenture and the Registration Rights Agreement and such
Guarantee, Indenture and Registration Rights Agreement will
remain in full force and effect; (ii) shall expressly
assume the due and punctual performance of the covenants and
obligations of the applicable Guarantor under the Security
Documents;
(2) after giving effect to such transaction, no Default or
Event of Default exists;
(3) at the time of the transaction such Guarantor or the
Surviving Guarantor Entity will have delivered, or caused to be
delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an officers certificate and
an opinion of counsel, each to the effect that such
consolidation, merger, transfer, sale, assignment, conveyance,
lease or other transaction and the supplemental indenture in
respect thereof comply with the Indenture and that all
conditions precedent therein provided for relating to such
transaction have been complied with;
(4) the Guarantor or the Surviving Guarantor Entity, as
applicable, promptly causes such amendments, supplements or
other instruments to be executed, delivered, filed and recorded,
as applicable, in such jurisdictions as may be required by
applicable law to preserve and protect the Lien of the Security
Documents on the Collateral owned by or transferred to the
Guarantor or the Surviving Guarantor Entity;
(5) the Collateral owned by or transferred to the Guarantor
or the Surviving Guarantor Entity, as applicable, shall
(a) continue to constitute Collateral under the Indenture
and the Security Documents, (b) be subject to the Lien in
favor of the Collateral Agent for the benefit of the Trustee and
the holders of the Notes, and (c) not be subject to any
Lien other than Permitted Liens; and
(6) the property and assets of the person which is merged
or consolidated with or into the Guarantor or the Surviving
Guarantor Entity, as applicable, to the extent that they are
property or assets of the types which would constitute
Collateral under the Security Documents, shall be treated as
after-acquired property and the Guarantor or the Surviving
Guarantor Entity shall take such action as may be reasonably
necessary to cause such property and assets to be made subject
to the Lien of the Security Documents in the manner and to the
extent required in the Indenture;
provided, however, that this paragraph shall not
apply to any Guarantor whose Guarantee of the Notes is
unconditionally released and discharged in accordance with
paragraph (b) under the provisions of Certain
Covenants Additional Guarantees.
62
In the event of any transaction (other than a lease) described
in and complying with the conditions listed in the two
immediately preceding paragraphs in which Oxford or any
Guarantor, as the case may be, is not the continuing
corporation, the successor person formed or remaining or to
which such transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, Oxford or such
Guarantor, as the case may be, and Oxford or any Guarantor, as
the case may be, would be discharged from all obligations and
covenants under the Indenture and the Notes or its Guarantee, as
the case may be, the Registration Rights Agreement and the
Security Documents.
An assumption by any person of Oxfords obligations under
the Notes, the Indenture and the Security Documents or of a
Guarantors obligations under its Guarantee of the Notes,
the Indenture and the Security Documents might be deemed for
United States federal income tax purposes to be an exchange of
the Notes for new Notes by the holders thereof, resulting in
recognition of gain or loss for such purposes and possibly other
adverse tax consequences to the holders. Holders should consult
their own tax advisors regarding the tax consequences of such an
assumption.
Events of
Default
An Event of Default will occur under the Indenture if:
(1) there shall be a default in the payment of any interest
on any Note when it becomes due and payable, and such default
shall continue for a period of 30 days;
(2) there shall be a default in the payment of the
principal of (or premium, if any, on) any Note at its Maturity
(upon acceleration, optional redemption, required repurchase or
otherwise);
(3) (a) there shall be a default in the performance,
or breach, of any covenant or agreement of Oxford or any
Guarantor under the Indenture, any Guarantee or any Security
Document (other than a default in the performance, or breach, of
a covenant or agreement which is specifically dealt with in
clause (1) or (2) above or in clause (b), (c) or
(d) of this clause (3)) and such default or breach shall
continue for a period of 30 days with respect to defaults
or breaches of the items set forth under
Certain Covenants, and 60 days in
all other cases, in each case after written notice has been
given, by certified mail, (1) to Oxford by the Trustee or
(2) to Oxford and the Trustee by the holders of at least
25% in aggregate principal amount of the outstanding Notes;
(b) there shall be a default in the performance or breach
of the provisions described in Consolidation,
Merger, Sale of Assets; (c) Oxford shall have failed
to make or consummate an Offer in accordance with the provisions
of Certain Covenants Limitation on
Sale of Assets; or (d) Oxford shall have failed to
make or consummate a Change of Control Offer in accordance with
the provisions of Purchase of Notes Upon a
Change of Control;
(4) (a) any default in the payment of the principal or
premium, if any, on any Indebtedness when due under any of the
agreements, indentures or instruments under which Oxford, any
Guarantor or any Restricted Subsidiary then has outstanding
Indebtedness in excess of $15 million (Material
Indebtedness) and such default shall have continued
after giving effect to any applicable grace period and shall not
have been cured or waived and, if not already matured at its
final maturity in accordance with its terms, the holder of such
Indebtedness shall have the right to accelerate such
Indebtedness or (b) an event of default as defined in any
of the agreements, indentures or instruments described in
clause (a) of this clause (4) shall have occurred and
the Indebtedness thereunder, if not already matured at its final
maturity in accordance with its terms, shall have been
accelerated;
(5) any Guarantee of any Significant Subsidiary or any
group of Restricted Subsidiaries which collectively (as of the
latest audited consolidated financial statements for Oxford)
would constitute a Significant Subsidiary shall for any reason
cease to be, or shall for any reason be asserted in writing by
any Guarantor or Oxford not to be, in full force and effect and
enforceable in accordance with its terms, except to the extent
permitted by the Indenture and any such Guarantee;
(6) one or more final, non-appealable judgments or orders
of any court or regulatory or administrative agency for the
payment of money in excess of $15 million (net of any
amounts to the
63
extent that they are covered by insurance), either individually
or in the aggregate, shall be rendered against Oxford, any
Guarantor or any Subsidiary which has not been discharged, fully
bonded or stayed for a period of 60 consecutive days;
(7) the occurrence of certain events of bankruptcy,
insolvency or reorganization with respect to Oxford or any
Significant Subsidiary or any group of Restricted Subsidiaries
which collectively (as of the latest audited consolidated
financial statements for Oxford and its Restricted Subsidiaries)
would constitute a Significant Subsidiary; or
(8) unless all of the Collateral has been released from the
Note Liens in accordance with the provisions of the Security
Documents, (x) default by Oxford or any Subsidiary in the
performance of the Security Documents which materially adversely
affects the enforceability, validity, perfection or priority of
the Note Liens on a material portion of the Collateral,
(y) the repudiation or disaffirmation by Oxford or any
Guarantor of its material obligations under the Security
Documents or (z) the determination in a judicial proceeding
that the Security Documents are unenforceable or invalid against
Oxford or any Guarantor party thereto for any reason with
respect to a material portion of the Collateral and, in the case
of any event described in subclause (x) through (z), such
default, repudiation, disaffirmation or determination is not
rescinded, stayed, or waived by the Persons having such
authority pursuant to the Security Documents) or otherwise cured
within 60 days after Oxford receives written notice thereof
specifying such occurrence from the Trustee or the holders of at
least 25% of the outstanding principal amount of the Notes and
demanding that such default be remedied.
If an Event of Default (other than as specified in
clause (7) of the prior paragraph with respect to Oxford)
shall occur and be continuing with respect to the Indenture, the
Trustee or the holders of not less than 25% in aggregate
principal amount of the Notes then outstanding may, and the
Trustee at the request of such holders shall, declare all unpaid
principal of, premium, if any, and accrued interest on all Notes
to be due and payable immediately, by a notice in writing to
Oxford (and to the Trustee if given by the holders of the Notes)
and upon any such declaration, such principal, premium, if any,
and interest shall become due and payable immediately. If an
Event of Default specified in clause (7) of the prior
paragraph with respect to Oxford occurs and is continuing, then
all the Notes shall automatically become and be due and payable
immediately in an amount equal to the principal amount of the
Notes, together with accrued and unpaid interest, if any, to the
date the Notes become due and payable, without any declaration
or other act on the part of the Trustee or any holder.
Thereupon, the Trustee may, at its discretion, proceed to
protect and enforce the rights of the holders of Notes by
appropriate judicial proceedings.
After a declaration of acceleration, but before a judgment or
decree for payment of the money due has been obtained by the
Trustee, the holders of a majority in aggregate principal amount
of Notes outstanding by written notice to Oxford and the
Trustee, may rescind and annul such declaration and its
consequences if:
(a) Oxford has paid or deposited with the Trustee a sum
sufficient to pay (1) all sums paid or advanced by the
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, (2) all overdue interest on all Notes then
outstanding, (3) the principal of, and premium, if any, on
any Notes then outstanding which have become due otherwise than
by such declaration of acceleration and interest thereon at the
rate borne by the Notes and (4) to the extent that payment
of such interest is lawful, interest upon overdue interest at
the rate borne by the Notes; and
(b) all Events of Default, other than the non-payment of
principal of, premium, if any, and interest on the Notes which
have become due solely by such declaration of acceleration, have
been cured or waived as provided in the Indenture.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
The holders of not less than a majority in aggregate principal
amount of the Notes outstanding may on behalf of the holders of
all outstanding Notes waive any past default under the Indenture
and its consequences, except a default (1) in the payment
of the principal of, premium, if any, or interest on any Note
(which may only be waived with the consent of each holder of
Notes affected) or (2) in respect of a covenant or
provision
64
which under the Indenture cannot be modified or amended without
the consent of the holder of each Note affected by such
modification or amendment.
No holder of any of the Notes has any right to institute any
proceedings with respect to the Indenture or any remedy
thereunder, unless (a) such holder has previously given
notice to the Trustee of a continuing Event of Default;
(b) the holders of at least 25% in aggregate principal
amount of the outstanding Notes have made written request to the
Trustee to institute proceedings in respect of such Event of
Default in its own name as trustee under the Indenture and the
Notes; (c) such holder or holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee has failed to institute such proceeding
within 15 days after receipt of such notice; and
(e) the Trustee, within such
15-day
period, has not received directions inconsistent with such
written request by holders of a majority in aggregate principal
amount of the outstanding Notes. Such limitations do not,
however, apply to a suit instituted by a holder of a Note for
the enforcement of the payment of the principal of, premium, if
any, or interest on such Note on or after the respective due
dates expressed in such Note.
Oxford is required to notify the Trustee within five business
days of the date it becomes aware of the occurrence of any
Default. Oxford is required to deliver to the Trustee, on or
before a date not more than 60 days after the end of each
fiscal quarter and not more than 120 days after the end of
each fiscal year, a written statement as to compliance with the
Indenture, including whether or not any Default has occurred.
The Trustee is under no obligation to exercise any of the rights
or powers vested in it by the Indenture at the request or
direction of any of the holders of the Notes unless such holders
offer to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might
be incurred thereby.
The Trust Indenture Act contains limitations on the rights
of the Trustee, should it become a creditor of Oxford or any
Guarantor, if any, to obtain payment of claims in certain cases
or to realize on certain property received by it in respect of
any such claims, as security or otherwise. The Trustee is
permitted to engage in other transactions, but if it acquires
any conflicting interest it must eliminate such conflict upon
the occurrence of an Event of Default or else resign.
No
Personal Liability of Directors, Officers, Employees and
Stockholders
No director, officer, employee, member or stockholder of Oxford
or any Guarantor, as such, will have any liability for any
obligations of Oxford or the Guarantors under the Notes, the
Indenture, the 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 Oxford
and each Guarantor from 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.
Defeasance
or Covenant Defeasance of Indenture
Oxford may, at its option and at any time, elect to have the
obligations of Oxford, any Guarantor and any other obligor upon
the Notes discharged with respect to the outstanding Notes
(defeasance). Such defeasance means that
Oxford, any such Guarantor and any other obligor under the
Indenture shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, except for
(1) the rights of holders of such outstanding Notes to
receive payments in respect of the principal of, premium, if
any, and interest on such Notes when such payments are due,
(2) Oxfords obligations with respect to the Notes
concerning issuing temporary Notes, registration of Notes,
mutilated, destroyed, lost or stolen Notes, and the maintenance
of an office or agency for payment and money for security
payments held in trust,
(3) the rights, powers, trusts, duties and immunities of
the Trustee, and
(4) the defeasance provisions of the Indenture. In
addition, Oxford may, at its option and at any time, elect to
have the obligations of Oxford and any Guarantor released with
respect to certain covenants that are
65
described in the Indenture (covenant
defeasance) and thereafter any omission to comply with
such obligations shall not constitute a Default or an Event of
Default with respect to the Notes. In the event covenant
defeasance occurs, certain events (not including non-payment,
bankruptcy and insolvency events) described under
Events of Default will no longer
constitute an Event of Default with respect to the Notes.
In order to exercise either defeasance or covenant defeasance,
(a) Oxford must irrevocably deposit with the Trustee, in
trust, for the benefit of the holders of the Notes, cash in
United States dollars, U.S. Government Obligations (as
defined in the Indenture), or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants or a
nationally recognized investment banking firm, to pay and
discharge the principal of, premium, if any, and interest on the
outstanding Notes on the Stated Maturity or, to the extent
Oxford has previously provided a notice of redemption with
respect to the outstanding Notes, on the applicable redemption
date;
(b) in the case of defeasance, Oxford shall have delivered
to the Trustee an opinion of independent counsel in the United
States stating that (A) Oxford has received from, or there
has been published by, the Internal Revenue Service a ruling or
(B) since the Issue Date, there has been a change in the
applicable federal income tax law, in either case to the effect
that, and based thereon such opinion of independent counsel in
the United States shall confirm that, the holders of the
outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance and
will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the
case if such defeasance had not occurred;
(c) in the case of covenant defeasance, Oxford shall have
delivered to the Trustee an opinion of independent counsel in
the United States to the effect that the holders of the
outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and
be continuing on the date of such deposit or insofar as
clause (7) under the first paragraph under
Events of Default is concerned, at any
time during the period ending on the 91st day after the
date of deposit;
(e) such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a Default under, the
Indenture or any other material agreement or instrument to which
Oxford or any Restricted Subsidiary is a party or by which it is
bound;
(f) Oxford will have delivered to the Trustee an opinion of
independent counsel in the United States to the effect that
(assuming no holder of the Notes would be considered an insider
of Oxford or any Guarantor under any applicable bankruptcy or
insolvency law and assuming no intervening bankruptcy or
insolvency of Oxford or any Guarantor between the date of
deposit and the 91st day following the deposit) after the
91st day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors rights
generally;
(g) no event or condition shall exist that would prevent
Oxford from making payments of the principal of, premium, if
any, and interest on the Notes on the date of such deposit or at
any time ending on the 91st day after the date of such
deposit; and
(h) Oxford will have delivered to the Trustee an
officers certificate and an opinion of independent
counsel, each stating that all conditions precedent to either
the defeasance or the covenant defeasance, as the case may be,
have been complied with.
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Satisfaction
and Discharge
The Indenture will be discharged and will cease to be of further
effect (except as to surviving rights of registration of
transfer or exchange of the Notes as expressly provided for in
the Indenture) as to all outstanding Notes under the Indenture
when
(a) either
(1) all such Notes theretofore authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced
or paid or Notes whose payment has been deposited in trust or
segregated and held in trust by Oxford and thereafter repaid to
Oxford or discharged from such trust as provided for in the
Indenture) have been delivered to the Trustee for
cancellation or
(2) all Notes not theretofore delivered to the Trustee for
cancellation (a) have become due and payable, (b) will
become due and payable at their Stated Maturity within one year,
or (c) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of Oxford;
(b) Oxford or any Guarantor has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust
an amount in United States dollars sufficient to pay and
discharge the entire indebtedness on the Notes not theretofore
delivered to the Trustee for cancellation, including principal
of, premium, if any, and accrued interest at such Maturity,
Stated Maturity or redemption date;
(c) after giving effect thereto, no default or event of
default shall have occurred and be continuing under any
Indebtedness of Oxford or any Restricted Subsidiary on the date
of such deposit;
(d) such satisfaction and discharge will not result in a
breach or violation of, or constitute a default under any other
material agreement or instrument to which Oxford or any
Restricted Subsidiary is a party or by which Oxford or any
Restricted Subsidiary is bound;
(e) Oxford or any Guarantor has paid or caused to be paid
all other sums payable under the Indenture by Oxford; and
(f) Oxford has delivered to the Trustee an officers
certificate and an opinion of independent counsel each stating
that all conditions precedent under the Indenture relating to
the satisfaction and discharge of such Indenture have been
complied with.
Modifications
and Amendments
Modifications and amendments of any of the Indenture
and/or the
Security Documents may be made by Oxford, each Guarantor party
thereto, if any, and the Trustee with the consent of the holders
of at least a majority in aggregate principal amount of the
Notes then outstanding (including consents obtained in
connection with a tender offer or exchange offer for Notes);
provided, however, that no such modification or
amendment may, without the consent of the holder of each
outstanding Note affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of interest on, or change to an earlier date any
redemption date of, or waive a default in the payment of the
principal of, premium, if any, or interest on, any such Note or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
change the coin or currency in which the principal of any such
Note or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any
such payment after the Stated Maturity thereof (or, in the case
of redemption, on or after the redemption date);
(2) amend, change or modify the obligation of Oxford to
make and consummate a Change of Control Offer in the event of a
Change of Control in accordance with Purchase
of Notes Upon a Change of Control, including amending,
changing or modifying any definitions related thereto;
67
(3) reduce the percentage in principal amount of such
outstanding Notes, the consent of whose holders is required for
any such supplemental indenture, or the consent of whose holders
is required for any waiver or compliance with certain provisions
of the Indenture;
(4) modify any of the provisions relating to supplemental
indentures requiring the consent of holders or relating to the
waiver of past defaults or relating to the waiver of certain
covenants, except to increase the percentage of such outstanding
Notes required for such actions or to provide that certain other
provisions of the Indenture cannot be modified or waived without
the consent of the holder of each such Note affected thereby;
(5) 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 Indebtedness of Oxford or which
subordinates any Guarantee in right of payment to any other
Indebtedness of the Guarantor issuing any such Guarantee;
(6) release any Guarantee except in compliance with the
terms of the Indenture; or
(7) release all or substantially all of the Collateral
other than in accordance with the Indenture.
Notwithstanding the foregoing, without the consent of any
holders of the Notes, Oxford, any Guarantor, any other obligor
under the Notes and the Trustee may modify or amend the
Indenture and the Security Documents:
(1) to evidence the succession of another person to Oxford
or a Guarantor, and the assumption by any such successor of the
covenants of Oxford or such Guarantor in the Indenture, the
Notes, any Guarantee and the Security Documents in accordance
with Consolidation, Merger, Sale of
Assets;
(2) to add to the covenants of Oxford, any Guarantor or any
other obligor upon the Notes for the benefit of the holders of
the Notes or to surrender any right or power conferred upon
Oxford or any Guarantor or any other obligor upon the Notes, as
applicable, in the Indenture, the Notes, any Guarantee or any
Security Document;
(3) to cure any ambiguity, or to correct or supplement any
provision in the Indenture, the Notes, any Guarantee or any
Security Document which may be defective or inconsistent with
any other provision in the Indenture, the Notes, any Guarantee
or any Security Document or make any other provisions with
respect to matters or questions arising under the Indenture, the
Notes, any Guarantee or any Security Document; provided
that, in each case, such provisions shall not adversely
affect the interest of the holders of the Notes in any material
respect;
(4) to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the
Trust Indenture Act;
(5) to add to the Collateral securing the Notes or to add a
Guarantor under the Indenture;
(6) to evidence and provide the acceptance of the
appointment of a successor Trustee or Collateral Agent under the
Indenture and the Security Documents;
(7) to mortgage, pledge, hypothecate or grant a Lien in
favor of the Collateral Agent for the benefit of the holders of
the Notes as additional security for the payment and performance
of Oxfords and any Guarantors obligations under the
Indenture, in any property, or assets, including any of which
are required to be mortgaged, pledged or hypothecated, or in
which a security interest is required to be granted to or for
the benefit of the Trustee or the Collateral Agent pursuant to
the Indenture, any of the Security Documents or otherwise;
(8) to provide for the release of Collateral from the Lien
of the Indenture and the Security Documents when permitted or
required by any of the Security Documents, the Intercreditor
Agreement or the Indenture;
(9) to secure any Permitted Additional Pari Passu
Obligations under the Security Documents and to appropriately
include the same in the Intercreditor Agreement; or
68
(10) in the sole discretion of Oxford, to conform any
provision of the Indenture to the provisions of the
Description of the Notes contained in the offering
memorandum related to the offering of the old notes to the
extent such provision was intended to be a verbatim recital of a
provision contained herein.
The holders of a majority in aggregate principal amount of the
Notes outstanding may waive compliance with certain restrictive
covenants and provisions of the Indenture.
Governing
Law
The Indenture, the Security Agreement, the Intercreditor
Agreement, the Notes and any Guarantee will be governed by, and
construed in accordance with, the laws of the State of New York,
without giving effect to the conflicts of law principles thereof.
Concerning
the Trustee
The Indenture contains certain limitations on the rights of the
Trustee, should it become a creditor of Oxford, to obtain
payment of claims in certain cases, or to realize on certain
property received in respect of any such claim as security or
otherwise. The Trustee will be permitted to engage in other
transactions; however, if it acquires any conflicting interest
it must eliminate such conflict within 90 days, apply to
the SEC for permission to continue as Trustee with such
conflict or resign as Trustee.
The holders of a majority in principal amount of the then
outstanding Notes will have the right to direct the time, method
and place of conducting any proceeding for exercising any remedy
available to the Trustee, subject to certain exceptions. The
Indenture provides that in case an Event of Default occurs
(which has not been cured), the Trustee will be required, in the
exercise of its power, to use the degree of care of a prudent
man in the conduct of his own affairs. Subject to such
provisions, the Trustee will be under no obligation to exercise
any of its rights or powers under the Indenture at the request
of any holder of Notes unless such holder shall have offered to
the Trustee security and indemnity satisfactory to it against
any loss, liability or expense.
The Indenture provides that neither the Trustee nor the
Collateral Agent shall be responsible for the existence,
genuineness, value or protection of any Collateral (except for
the safe custody of Collateral in its possession and the
accounting for Trust Monies actually received), for the
legality, effectiveness or sufficiency of any Security Document,
or for the creation, perfection, priority, sufficiency or
protection of any Note Lien.
Certain
Definitions
ABL Facility Collateral Agent means Sun
Trust, as administrative agent under the Credit Agreement, and
its successors
and/or
assigns in such capacity.
ABL Liens means all Liens in favor of the ABL
Facility Collateral Agent on Collateral securing the ABL
Obligations.
ABL Obligations means (x) the
Indebtedness and other obligations which are secured by a Lien
on the Collateral permitted by clause (b) of the definition
of Permitted Liens (or to the extent designated by
the Company, clause (q) of the definition of
Permitted Liens) and (y) obligations in respect
of Bank Products (as defined in the Intercreditor
Agreement) that are permitted to be secured pursuant to the
definition of Permitted Liens.
ABL Priority Collateral is defined in the
Intercreditor Agreement and includes all collateral for the ABL
Obligations other than Notes Priority Collateral. The collateral
for the ABL Obligations that is not Notes Priority Collateral
pursuant to the security documents for the ABL Obligations
consists principally of the following property of Oxford and the
Guarantors whether now owned or hereafter acquired (but
excluding certain categories of Excluded Property described
under Security):
(a) accounts, other than accounts which arise from the
sale, license, assignment or other disposition of Notes Priority
Collateral;
69
(b) inventory;
(c) investment property, including (i) the Capital
Stock of each Subsidiary of Oxford or any Guarantor (other than
Foreign Subsidiaries and Excluded Subsidiaries) and (ii) up
to 65% of the Capital Stock of each direct Foreign Subsidiary of
Oxford or any Guarantor;
(d) deposit accounts (other than the Collateral Account and
Trust Monies);
(e) equipment and fixtures;
(d) intellectual property (other than trademarks and
related rights);
(h) general intangibles (other than trademarks and related
rights);
(i) money and cash;
(j) commercial tort claims (other than those arising from
trademarks and related rights);
(k) books and records;
(j) supporting obligations; and
(l) proceeds of the foregoing.
Terms used above that are defined in the UCC generally have the
meanings given such terms by the UCC.
Acquired Indebtedness means, with respect to
any specified person, Indebtedness of any other person
(1) existing at the time such other person is consolidated
or merged with or into, or became a Subsidiary of, such
specified person, whether or not such Indebtedness is incurred
in connection with, or in contemplation of, such other person
consolidating or merging with or into, or becoming a Subsidiary
of, such specified person, or (2) assumed in connection
with the acquisition of assets from such other person, in each
case, whether or not such Indebtedness is incurred in connection
with, or in contemplation of such acquisition, as the case may
be. Notwithstanding the foregoing, Acquired Indebtedness shall
not include Indebtedness of such other person that is
extinguished, retired or repaid concurrently with such other
person becoming a Restricted Subsidiary of, or at the time it is
consolidated or merged with or into, such specified person.
Affiliate means, with respect to any
specified person: (1) any other person directly or
indirectly controlling or controlled by or under direct or
indirect common control with such specified person; (2) any
other person that owns, directly or indirectly, 10% or more of
any class or series of such specified persons (or any of
such persons direct or indirect parents) Capital
Stock or any officer or director of any such specified person or
other person or, with respect to any natural person, any person
having a relationship with such person by blood, marriage or
adoption not more remote than first cousin; or (3) any
other person 10% or more of the Voting Stock of which is
beneficially owned or held directly or indirectly by such
specified person. For the purposes of this definition,
control when used with respect to any specified
person means the power to direct the management and policies of
such person, directly or indirectly, whether through ownership
of voting securities, by contract or otherwise; and the terms
controlling and controlled have meanings
correlative to the foregoing.
Asset Sale means any sale, issuance,
conveyance, transfer, lease or other disposition (including,
without limitation, by way of merger, consolidation or sale and
leaseback transaction) (collectively, a
transfer), directly or indirectly, in one or
a series of related transactions, of:
(1) any Capital Stock of any Restricted Subsidiary;
(2) all or substantially all of the properties and assets
of any division or line of business of Oxford or any Restricted
Subsidiary; or
(3) any other properties or assets (including any transfer
by written contract by Oxford or any Restricted Subsidiary to
any other person of any of their rights to receive all or a
portion of the proceeds
70
from the sale by the Company or any Restricted Subsidiary of any
such asset or properties) of Oxford or any Restricted Subsidiary
other than in the ordinary course of business.
For the purposes of this definition, the term Asset
Sale shall not include any transfer of properties and
assets
(A) that is governed by the provisions described under
Consolidation, Merger, Sale of Assets,
(B) that is by Oxford to any Restricted Subsidiary or by
any Restricted Subsidiary to Oxford or any Restricted Subsidiary
in accordance with the terms of the Indenture; provided that no
transfer of Notes Priority Collateral to a Restricted Subsidiary
that is not a Guarantor shall be included in the exception
created by this clause (B),
(C) that would be within the definition of a
Restricted Payment under the Limitation on
Restricted Payments covenant and would be permitted to be
made as a Restricted Payment under such covenant,
(D) that is a disposition of Receivables and Related Assets
in a Qualified Securitization Transaction for the Fair Market
Value thereof including cash or Cash Equivalents in an amount at
least equal to 75% of the Fair Market Value thereof,
(E) that are obsolete, damaged or worn out equipment or
otherwise unsuitable for use in the ordinary course of business,
(F) that is the disposition of Capital Stock of an
Unrestricted Subsidiary,
(G) that is the sale or other disposition of cash or Cash
Equivalents,
(H) that is the issuance of Capital Stock by a Restricted
Subsidiary to Oxford or to another Restricted Subsidiary (other
than a Securitization Entity),
(I) that is the sale, transfer or disposition deemed to
occur in connection with creating or granting any Liens pursuant
to the provisions described under Certain
Covenants Limitation on Liens,
(J) that is the transfer of assets in connection with the
Investment permitted by clause (8) or clause (13) of
the definition of Permitted Investment,
(K) the Fair Market Value of which in the aggregate does
not exceed $5 million in any transaction or series of
related transactions; or
(L) consisting of the licensing of any intellectual
property in the ordinary course of business of Oxford and its
Restricted Subsidiaries.
Average Life to Stated Maturity means, as of
the date of determination with respect to any Indebtedness, the
quotient obtained by dividing (1) the sum of the product of
(a) the number of years from the date of determination to
the date or dates of each successive scheduled principal payment
of such Indebtedness multiplied by (b) the amount of each
such principal payment by (2) the sum of all such principal
payments.
Bankruptcy Law means Title 11, United
States Bankruptcy Code of 1978, as amended, or any similar
United States federal or state law or foreign law relating to
bankruptcy, insolvency, receivership, winding up, liquidation,
reorganization or relief of debtors or any amendment to,
succession to or change in any such law.
Capital Lease Obligation of any person means
any obligation of such person and its Restricted Subsidiaries on
a Consolidated basis under any capital lease of (or other
agreement conveying the right to use) real or personal property
which, in accordance with GAAP, is required to be recorded as a
capitalized lease obligation.
Capital Stock of any person means any and all
shares, interests, participations, rights in or other
equivalents (however designated) of such persons capital
stock, other equity interests whether outstanding on the Issue
Date or issued after the Issue Date, partnership interests
(whether general or limited), limited liability company
interests, any other interest or participation that confers on a
person that right to receive a share of
71
the profits and losses of, or distributions of assets of, the
issuing person, including any Preferred Stock, and any rights
(other than debt securities convertible into Capital Stock),
warrants or options exchangeable for or convertible into such
Capital Stock.
Cash Equivalents means
(1) any evidence of Indebtedness issued or directly and
fully guaranteed or insured by the United States or any agency
or instrumentality thereof,
(2) deposits, certificates of deposit or acceptances of any
financial institution that is a member of the Federal Reserve
System and whose senior unsecured debt is rated at least
A-1
by Standard & Poors Ratings Services, a division
of The McGraw-Hill Companies, Inc.
(S&P), or at least
P-1
by Moodys Investors Service, Inc.
(Moodys) or any respective successor
agency,
(3) commercial paper with a maturity of 365 days or
less issued by a corporation (other than an Affiliate of Oxford)
organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia and rated
at least
A-1
by S&P and at least
P-1
by Moodys or any respective successor agency,
(4) repurchase agreements and reverse repurchase agreements
relating to marketable direct obligations issued or
unconditionally guaranteed by the United States or issued by any
agency thereof and backed by the full faith and credit of the
United States maturing within 365 days from the date of
acquisition,
(5) demand and time deposits with a domestic commercial
bank that is a member of the Federal Reserve System that are
FDIC insured, and
(6) money market funds which invest substantially all of
their assets in securities described in the preceding
clauses (1) through (5).
Change of Control means the occurrence of any
of the following events:
(1) any person or group (as such
terms are used in Sections 13(d) and 14(d) of the Exchange
Act), is or becomes the beneficial owner (as defined
in
Rules 13d-3
and 13d-5
under the Exchange Act, except that a person shall be deemed to
have beneficial ownership of all shares that such person has the
right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of
more than 50% of the total outstanding Voting Stock of Oxford;
(2) during any period of two consecutive years, individuals
who at the beginning of such period constituted the board of
directors of Oxford (together with any new directors whose
election to such board or whose nomination for election by the
stockholders of Oxford was approved by a vote of a majority of
the directors then still in office who were either directors at
the beginning of such period or whose election or nomination for
election was previously so approved), cease for any reason to
constitute a majority of such board of directors then in office;
(3) Oxford consolidates with or merges with or into any
person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its and its
Restricted Subsidiaries assets to any person, or any
person consolidates with or merges into or with Oxford, in any
such event pursuant to a transaction in which the outstanding
Voting Stock of Oxford is converted into or exchanged for cash,
securities or other property, other than any such transaction
where
(A) the outstanding Voting Stock of Oxford is converted
into or exchanged for (1) Voting Stock of the surviving
corporation which is not Redeemable Capital Stock or
(2) cash, securities and other property (other than Capital
Stock of the surviving corporation) in an amount which could be
paid by Oxford as a Restricted Payment as described under
Certain Covenants Limitation on
Restricted Payments (and such amount shall be treated as a
Restricted Payment subject to the provisions in the Indenture
described under Certain Covenants
Limitation on Restricted Payments) and
(B) immediately after such transaction, no
person or group, is the beneficial owner
(as defined in
Rules 13d-3
and 13d-5
under the Exchange Act, except that a person shall be deemed to
72
have beneficial ownership of all securities that such person has
the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or
indirectly, of more than 50% of the total outstanding Voting
Stock of the surviving corporation; or
(4) Oxford is liquidated or dissolved or adopts a plan of
liquidation or dissolution other than in a transaction which
complies with the provisions described under
Consolidation, Merger, Sale of Assets.
For purposes of this definition, any transfer of an equity
interest of an entity that was formed for the purpose of
acquiring voting stock of Oxford will be deemed to be a transfer
of such portion of such voting stock as corresponds to the
portion of the equity of such entity that has been so
transferred.
Collateral Account means the collateral
account established pursuant to the Indenture and the Security
Documents.
Collateral Agent means the Trustee, in its
capacity as Collateral Agent for the holders of Notes and
Permitted Additional Pari Passu Obligations together with its
successors in such capacity.
Commodity Price Protection Agreement means
any forward contract, commodity swap, commodity option or other
similar agreement or arrangement relating to, or the value of
which is dependent upon, fluctuations in commodity prices and
which do not increase the amount of Indebtedness or other
obligations of Oxford or any Restricted Subsidiary outstanding
other than as a result of fluctuations in commodity prices or by
reason of fees, indemnities and compensation payable thereunder.
Common Stock means Oxfords common
stock, $1 par value per share.
Company means Oxford Industries, Inc., a
corporation incorporated under the laws of Georgia, until a
successor person shall have become such pursuant to the
applicable provisions of the Indenture, and thereafter
Company shall mean such successor person.
Consolidated EBITDA means for any period, the
sum, without duplication, of Consolidated Net Income (Loss), and
(A) in each case to the extent deducted in computing
Consolidated Net Income (Loss) for such period,
(i) Consolidated Interest Expense, (ii) Consolidated
Income Tax Expense and (iii) Consolidated
Non-cash
Charges for such period, of such person all determined in
accordance with GAAP, less (B) (i) all non-cash items
increasing or decreasing Consolidated Net Income for such period
and (ii) all cash payments during such period relating to
Consolidated Non-cash Charges added back to Consolidated Net
Income pursuant to clause (A)(iii) or (B)(i) above in any prior
period for purposes of calculating Consolidated EBITDA for such
prior period; provided that Consolidated EBITDA shall
exclude (x) gain or loss on early retirement of
Indebtedness and (y) any charges incurred as a result of
LIFO adjustments.
Consolidated Fixed Charge Coverage Ratio of
any person means, for any period of the most recent four fiscal
quarters for which consolidated financial statements of Oxford
are available (the Four Quarter Period), the
ratio of
(a) Consolidated EBITDA for such Four Quarter Period to
(b) Consolidated Interest Expense for such Four Quarter
Period (but excluding from Consolidated Interest Expense for
this purpose (i) the amortization, expensing or write-off
of deferred financing fees relating to the incurrence of
Indebtedness and (ii) the accretion of original issue
discount on the Notes issued on the Issue Date),
in the case of each of clauses (a) and (b) after
giving pro forma effect to:
(1) the incurrence of the Indebtedness giving rise to the
need to make such calculation and (if applicable) the
application of the net proceeds therefrom, including to
refinance other Indebtedness, as if such Indebtedness was
incurred, and the application of such proceeds occurred, on the
first day of such Four Quarter Period;
(2) the incurrence, repayment or retirement of any other
Indebtedness by Oxford and its Restricted Subsidiaries since the
first day of such Four Quarter Period as if such Indebtedness
was incurred, repaid
73
or retired at the beginning of such Four Quarter Period (except
that, in making such computation, the amount of Indebtedness
under any revolving credit facility shall be computed based upon
the average daily balance of such Indebtedness during such Four
Quarter Period);
(3) in the case of Acquired Indebtedness or any acquisition
occurring at the time of the incurrence of such Indebtedness,
the related acquisition, assuming such acquisition had been
consummated on the first day of such Four Quarter
Period; and
(4) any acquisition or disposition by Oxford and its
Restricted Subsidiaries of any company or any business or any
assets out of the ordinary course of business, whether by
merger, stock purchase or sale or asset purchase or sale, or any
related repayment of Indebtedness, in each case since the first
day of such Four Quarter Period, and prior to the date of
determination, assuming such acquisition or disposition had been
consummated on the first day of such Four Quarter Period;
provided that
(1) in making such computation, the Consolidated Interest
Expense attributable to interest on any Indebtedness computed on
a pro forma basis and (A) bearing a floating
interest rate shall be computed as if the rate in effect on the
date of computation had been the applicable rate for the entire
Four Quarter Period and (B) which was not outstanding
during the Four Quarter Period which bears, at the option of
such person, a fixed or floating rate of interest, shall be
computed by applying at the option of such person either the
fixed or floating rate;
(2) in making such computation, the Consolidated Interest
Expense of such person attributable to interest on any
Indebtedness under a revolving credit facility computed on a pro
forma basis shall be computed based upon the average daily
balance of such Indebtedness during the applicable Four Quarter
Period; and
(3) whenever pro forma effect is to be given to an
acquisition or disposition, such pro forma calculation will be
determined in accordance with Article 11 of
Regulation S-X
under the Securities Act or any successor provision.
Consolidated Income Tax Expense of any person
means, for any period, the provision for federal, state, local
and foreign income taxes of such person and its Consolidated
Restricted Subsidiaries for such period as determined in
accordance with GAAP.
Consolidated Interest Expense of any person
means, without duplication, for any period, the sum of
(a) the interest expense of such person and its Restricted
Subsidiaries for such period, on a consolidated basis,
including, without limitation,
(1) amortization of debt discount,
(2) the net cost (benefit) associated with Interest Rate
Agreements (including amortization of discounts),
(3) the interest portion of any deferred payment obligation,
(4) all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers acceptance
Financing and
(5) accrued interest, plus
(b) (1) the interest component of the Capital Lease
Obligations paid, accrued
and/or
scheduled to be paid or accrued by such person and its
Restricted Subsidiaries during such period and
(2) all capitalized interest of such person and its
Restricted Subsidiaries plus
(c) the interest expense under any Guaranteed Debt of such
person and any Restricted Subsidiary to the extent not included
under clause (a)(4) above, whether or not paid by such person or
its Restricted Subsidiaries, plus
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(d) dividend requirements of Oxford with respect to
Redeemable Capital Stock and of any Restricted Subsidiary with
respect to Preferred Stock (except, in either case, dividends
payable solely in shares of Qualified Capital Stock of Oxford or
such Restricted Subsidiary, as the case may be).
Consolidated Net Income (Loss) of any person
means, for any period, the consolidated net income (or loss) of
such person and its Restricted Subsidiaries for such period on a
consolidated basis as determined in accordance with GAAP,
adjusted, to the extent included in calculating such net income
(or loss), by excluding, without duplication,
(1) all extraordinary gains or losses net of taxes (less
all fees and expenses relating thereto),
(2) the portion of net income (or loss) of such person and
its Restricted Subsidiaries on a consolidated basis allocable to
minority interests in unconsolidated persons or Unrestricted
Subsidiaries to the extent that cash dividends or distributions
have not actually been received by such person or one of its
consolidated Restricted Subsidiaries,
(3) any gain or loss, net of taxes, realized upon the
termination of any employee pension benefit plan,
(4) gains or losses, net of taxes (less all fees and
expenses relating thereto), in respect of dispositions of assets
other than in the ordinary course of business,
(5) the net income of any Restricted Subsidiary to the
extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is
not at the time permitted, directly or indirectly, by operation
of the terms of its charter, any agreement, or applicable law,
except to the extent of the amount of dividends or other
distributions actually paid to Oxford or any Restricted
Subsidiary,
(6) any net gain or loss arising from the acquisition of
any securities or extinguishment, under GAAP, of any
Indebtedness of such person,
(7) any non-cash goodwill or intangible asset impairment
charges resulting from the application of SFAS No. 142,
(8) any non-cash charges incurred relating to the
underfunded portion of any pension plan,
(9) any non-cash charges resulting from the application of
SFAS No. 123,
(10) all deferred Financing costs written off, and premiums
paid, in connection with any early extinguishment of
Indebtedness,
(11) any non-cash compensation charges or other non-cash
expenses or charges arising from the grant of or issuance or
repricing of stock, stock options or other equity-based awards
or any amendment, modification, substitution or change of any
such stock, stock options or other equity-based awards; and
(12) any non-cash impairment charges recorded with respect
to long-lived assets in connection with the application of
SFAS No. 144 and any non-cash write-downs attributable
to joint ventures held by Oxford or any of its Restricted
Subsidiaries under APB 19.
Consolidated Net Tangible Assets of any
person means, for any period, the total amount of assets (less
applicable reserves and other properly deductible items) after
deducting (1) all current liabilities and (2) all
goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other intangibles, all as set forth on
Oxfords most recent consolidated balance sheet and
computed in accordance with GAAP.
Consolidated Non-cash Charges of any person
means, for any period, the aggregate depreciation, amortization
and other non-cash charges of such person and its Restricted
Subsidiaries on a Consolidated basis for such period, as
determined in accordance with GAAP (excluding any non-cash
charge which requires an accrual or reserve for cash charges for
any future period).
Consolidated Total Debt means, as of any date
of determination, an amount equal to the aggregate principal
amount of all outstanding Indebtedness of Oxford and its
Restricted Subsidiaries that would be required to be reflected
on a consolidated balance sheet (excluding the notes thereto) of
Oxford as of such date.
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Consolidated Total Debt Ratio means, as of
any date of determination, the ratio of (a) Consolidated
Total Debt on the date of determination to (b) Consolidated
EBITDA of Oxford and its Restricted Subsidiaries for the most
recent four fiscal quarter period ending prior to such date for
which Oxford has consolidated financial statements available, in
each case with such pro forma adjustments to Consolidated
EBITDA as are consistent with the pro forma adjustment
provisions set forth in the definition of Consolidated Fixed
Charge Coverage Ratio.
Credit Agreement means the Second Amended and
Restated Credit Agreement, dated August 15, 2008, as
amended, among Oxford and certain of its subsidiaries, as
borrowers thereunder, Oxfords subsidiaries which are
guarantors thereof, certain lenders party thereto, and certain
agents party thereto, together with the related documents,
instruments and agreements executed in connection therewith
(including, without limitation, any guarantees, notes and
security documents), as such agreement, in whole or in part, in
one or more instances, may be amended, renewed, extended,
substituted, refinanced, restructured, replaced, supplemented or
otherwise modified from time to time (including increasing the
amount available for borrowing thereunder and including
refinancing with the same or different lenders or agents or any
agreement extending the maturity of, or increasing the
commitments to extend, Indebtedness or any commitment to extend
such Indebtedness, and any successor or replacement agreements
and whether by the same or any other agent, lender or group of
lenders).
Credit Facility means, one or more credit or
debt facilities (including, without limitation, any credit or
debt facilities provided under the Credit Agreement), commercial
paper facilities or other debt instruments, indentures or
agreements, providing for revolving credit loans, term loans,
letters of credit or other debt obligations, in each case, as
amended, restated, modified, renewed, refunded, restructured,
supplemented, replaced or refinanced in whole or in part from
time to time, including without limitation any amendment
increasing the amount of Indebtedness incurred or available to
be borrowed thereunder, extending the maturity of any
Indebtedness incurred thereunder or contemplated thereby or
deleting, adding or substituting one or more parties thereto
(whether or not such added or substituted parties are banks or
other lenders).
Currency Hedging Agreements means foreign
exchange contracts, currency swap agreements or other similar
agreements or arrangements designed to protect against the
fluctuations in currency values and that relate to
(1) Indebtedness of Oxford or any Restricted Subsidiary
and/or
(2) obligations to purchase or sell assets or properties;
provided, however, that such Currency Hedging
Agreements do not increase the Indebtedness or other obligations
of Oxford or any Restricted Subsidiary outstanding other than as
a result of fluctuations in foreign currency exchange rates or
by reason of fees, indemnities and compensation payable
thereunder.
Default means any event which is, or after
notice or passage of time or both would be, an Event of Default.
Designated Non-cash Consideration means the
Fair Market Value, as set forth in an officers
certificate, of non-cash consideration received by Oxford or any
of its Restricted Subsidiaries in connection with an Asset Sale.
Designation Amount has the meaning set forth
under Certain Covenants Limitation
on Unrestricted Subsidiaries.
Discharge of ABL Obligations has the meaning
provided in the Intercreditor Agreement and is generally defined
to mean (a) the payment in full in cash of all outstanding
ABL Obligations excluding contingent indemnity obligations with
respect to then unasserted claims but including, with respect to
amounts available to be drawn under outstanding letters of
credit issued thereunder (or indemnities or other undertakings
issued pursuant thereto in respect of outstanding letters of
credit), the cancellation of such letters of credit or the
delivery or provision of money or backstop letters of credit in
respect thereof in compliance with the terms of the Credit
Agreement (which shall not exceed an amount equal to 105% of the
aggregate undrawn amount of such letters of credit) and
(b) the termination of all commitments to extend credit
under the Credit Agreement and related loan documents;
provided that in connection with the amendment, renewal,
extension, substitution, refinancing, restructuring,
replacement, supplement or other modification from time to
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time of the Credit Agreement in connection with the incurrence
of additional ABL Obligations, the Discharge of ABL Obligations
shall be deemed to have not occurred and references to the
Credit Agreement above shall thereafter refer to the
agreement under which such additional ABL Obligations are
incurred.
Disinterested Director means, with respect to
any transaction or series of related transactions, a member of
the board of directors of Oxford who does not have any material
direct or indirect financial interest in or with respect to such
transaction or series of related transactions.
Equity Offering means any public offering or
private sale for cash of common stock (other than Redeemable
Capital Stock) of Oxford (other than public offerings with
respect to a registration statement on
Form S-4
(or any successor form covering substantially the same
transactions),
Form S-8
(or any successor form covering substantially the same
transactions) or otherwise relating to equity securities
issuable under any employee benefit plan of Oxford).
Exchange Act means the Securities Exchange
Act of 1934, as amended, or any successor statute, and the rules
and regulations promulgated by the SEC thereunder.
Excluded Subsidiary shall mean any Person
acquired or formed after August 15, 2008 which (i) is
a Subsidiary of Oxford, (ii) is not a Wholly Owned
Subsidiary of Oxford and (iii) is (or whose parent is)
contractually prohibited from becoming a Guarantor or granting a
Lien in favor of the Collateral Agent or having its Capital
Stock pledged to secure the Indenture Obligations and any
Permitted Additional Pari Passu Obligations; provided,
however, if such Subsidiary is not contractually prohibited
from taking all of the actions described in clause (iii)
above, then it shall be deemed an Excluded
Subsidiary only with respect to the actions which it or
its parent is contractually prohibited from taking.
Fair Market Value means, with respect to any
asset or property, the sale value that would be obtained 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. Fair Market Value shall be
determined by the board of directors of Oxford acting in good
faith.
Foreign Subsidiary means any Restricted
Subsidiary of Oxford that (x) is not organized under the
laws of the United States of America or any State thereof or the
District of Columbia, or (y) was organized under the laws
of the United States of America or any State thereof or the
District of Columbia that has no material assets other than
Capital Stock of one or more foreign entities of the type
described in clause (x) above and is not a guarantor of
Indebtedness under the Credit Agreement (including, without
limitation, Oxford Private Limited of Delaware, Inc.).
Generally Accepted Accounting Principles or
GAAP means generally accepted accounting
principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a
significant segment of the accounting profession, which were in
effect on the Issue Date.
Guarantee means the guarantee by any
Guarantor of Oxfords Indenture Obligations.
Guaranteed Debt of any person means, without
duplication, all Indebtedness of any other person referred to in
the definition of Indebtedness below guaranteed directly or
indirectly in any manner by such person, or in effect guaranteed
directly or indirectly by such person through an agreement
(1) to pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such Indebtedness,
(2) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness
against loss,
(3) to supply funds to, or in any other manner invest in,
the debtor (including any agreement to pay for property or
services without requiring that such property be received or
such services be rendered),
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(4) to maintain working capital or equity capital of the
debtor, or otherwise to maintain the net worth, solvency or
other financial condition of the debtor or to cause such debtor
to achieve certain levels of financial performance or
(5) otherwise to assure a creditor against loss;
provided that the term guarantee shall not
include endorsements for collection or deposit, in either case
in the ordinary course of business.
Guarantor means any Subsidiary which is a
guarantor of the Notes, including any person that is required
after the Issue Date to execute a guarantee of the notes
pursuant to the Additional Guarantees covenant until
a successor replaces such party pursuant to the applicable
provisions of the Indenture and, thereafter, shall mean such
successor.
Indebtedness means, with respect to any
person, without duplication,
(1) all indebtedness of such person for borrowed money or
for the deferred purchase price of property or services,
excluding any trade payables and other accrued current
liabilities arising in the ordinary course of business, but
including, without limitation, all obligations, contingent or
otherwise, of such person in connection with any letters of
credit issued under letter of credit facilities, acceptance
facilities or other similar facilities,
(2) all obligations of such person evidenced by bonds,
notes, debentures or other similar instruments,
(3) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect
to property acquired by such person (even if the rights and
remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such
property), but excluding trade payables arising in the ordinary
course of business,
(4) all obligations under Interest Rate Agreements,
Currency Hedging Agreements or Commodity Price Protection
Agreements of such person (the amount of any such obligations to
be equal at any time to the termination value of such agreement
or arrangement giving rise to such obligation that would be
payable by such person at such time),
(5) all Capital Lease Obligations of such person,
(6) all Indebtedness referred to in clauses (1)
through (5) above of other persons, the payment of which is
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any
Lien, upon or with respect to property (including, without
limitation, accounts and contract rights) owned by such person,
even though such person has not assumed or become liable for the
payment of such Indebtedness,
(7) all Guaranteed Debt of such person,
(8) all Redeemable Capital Stock issued by such person
valued at the greater of its voluntary or involuntary maximum
fixed repurchase price plus accrued and unpaid dividends,
(9) all amounts outstanding and other obligations of such
person in respect of a Qualified Securitization
Transaction, and
(10) attributable debt with respect to sale and leaseback
transactions.
For purposes hereof, the maximum fixed repurchase
price of any Redeemable Capital Stock which does not have
a fixed repurchase price shall be calculated in accordance with
the terms of such Redeemable Capital Stock as if such Redeemable
Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture,
and if such price is based upon, or measured by, the Fair Market
Value of such Redeemable Capital Stock, such Fair Market Value
to be determined in good faith by the board of directors of the
issuer of such Redeemable Capital Stock.
Indenture Obligations means the obligations
of Oxford and any other obligor under the Indenture or under the
Notes, including any Guarantor, to pay principal of, premium, if
any, and interest when due and
78
payable, and all other amounts due or to become due under or in
connection with the Indenture, the Notes and the performance of
all other obligations to the Trustee and the holders under the
Indenture and the Notes, according to the respective terms
thereof.
Interest Rate Agreements means interest rate
protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar agreements)
and/or other
types of interest rate hedging agreements or arrangements
designed to protect against or manage exposure to fluctuations
in interest rates in respect of Indebtedness of Oxford or any
Restricted Subsidiary.
Investment means, with respect to any person,
directly or indirectly, any advance, loan (including
guarantees), or other extension of credit or capital
contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for
the account or use of others), or any purchase, acquisition or
ownership by such person of any Capital Stock, bonds, notes,
debentures or other securities issued by any other person and
all other items that would be classified as investments on a
balance sheet prepared in accordance with GAAP.
Investment shall exclude direct or indirect 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 Oxfords or any
Restricted Subsidiarys balance sheet, endorsements for
collection or deposit arising in the ordinary course of business
and extensions of trade credit on commercially reasonable terms
in accordance with normal trade practices. If Oxford or any
Restricted Subsidiary of Oxford sells or otherwise disposes of
any Capital Stock of any direct or indirect Subsidiary of Oxford
such that, after giving effect to any such sale or disposition,
such person is no longer a Subsidiary of Oxford (other than the
sale of all of the outstanding Capital Stock of such
Subsidiary), Oxford will be deemed to have made an Investment on
the date of such sale or disposition equal to the Fair Market
Value of Oxfords Investments in such Subsidiary that were
not sold or disposed of in an amount determined as provided in
Certain Covenants Limitation on
Restricted Payments.
Issue Date means the original issue date of
the old notes under the Indenture.
Lien means any mortgage or deed of trust,
charge, pledge, lien (statutory or otherwise), privilege,
security interest, assignment, deposit, arrangement, easement,
hypothecation, claim, preference, priority or other encumbrance
upon or with respect to any property of any kind (including any
conditional sale, capital lease or other title retention
agreement, any leases in the nature thereof, and any agreement
to give any security interest), real or personal, movable or
immovable, now owned or hereafter acquired. A person will be
deemed to own subject to a Lien any property which it has
acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, Capital Lease Obligation
or other title retention agreement.
Maturity means, when used with respect to the
Notes, the date on which the principal of the Notes becomes due
and payable as therein provided or as provided in the Indenture,
whether at Stated Maturity, the Offer Date or the redemption
date and whether by declaration of acceleration, Offer in
respect of Excess Proceeds, Change of Control Offer in respect
of a Change of Control, call for redemption or otherwise.
Net Cash Proceeds means
(a) with respect to any Asset Sale by any person, the
proceeds thereof (without duplication in respect of all Asset
Sales) in the form of cash or Cash Equivalents including
payments in respect of deferred payment obligations when
received in the form of, or stock or other assets when disposed
of for, cash or Cash Equivalents (except to the extent that such
obligations are financed or sold with recourse to Oxford or any
Restricted Subsidiary) net of
(1) brokerage commissions and other reasonable fees and
expenses (including fees and expenses of counsel and investment
bankers) related to such Asset Sale,
(2) provisions for all taxes payable as a result of such
Asset Sale,
(3) except in the case of Liens ranking junior to the Liens
securing the Notes payments made to retire Indebtedness where
payment of such Indebtedness is secured by the assets or
properties the subject of such Asset Sale,
79
(4) in the case of an Asset Sale by a Restricted
Subsidiary, distributions and other payments required to be made
to minority shareholders, partners or members of such Restricted
Subsidiary as a result of such Asset Sale,
(5) amounts required to be paid to any person (other than
Oxford or any Restricted Subsidiary) owning a beneficial
interest in the assets subject to the Asset Sale,
(6) appropriate amounts to be provided by Oxford or any
Restricted Subsidiary, as the case may be, as a reserve, in
accordance with GAAP, against any liabilities associated with
such Asset Sale and retained by Oxford or any Restricted
Subsidiary, as the case may be, after such Asset Sale,
including, without limitation, pension and other post-employment
benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations
associated with such Asset Sale, all as reflected in an
officers certificate delivered to the Trustee; and
(b) with respect to any issuance or sale of Subordinated
Indebtedness, Capital Stock or options, warrants or rights to
purchase Capital Stock, or debt securities or Capital Stock that
have been converted into or exchanged for Capital Stock as
referred to under Certain Covenants
Limitation on Restricted Payments, the
proceeds of such issuance or sale in the form of cash or Cash
Equivalents including payments in respect of deferred payment
obligations when received in the form of, or stock or other
assets when disposed of for, cash or Cash Equivalents (except to
the extent that such obligations are financed or sold with
recourse to Oxford or any Restricted Subsidiary), net of
attorneys fees, accountants fees and brokerage,
consultation, underwriting and other fees and expenses actually
incurred in connection with such issuance or sale and net of
taxes paid or payable as a result thereof.
Non-recourse Indebtedness means, with respect
to any person, Indebtedness of such person as to which Oxford
and any Restricted Subsidiary may not be directly or indirectly
liable (by virtue of Oxford or any such Restricted Subsidiary
being the primary obligor on, guarantor of, or otherwise liable
in any respect to, such Indebtedness), and which, upon the
occurrence of a default with respect to such Indebtedness, does
not result in, or permit any holder of any Indebtedness of
Oxford or any Restricted Subsidiary to declare, a default on
such Indebtedness of Oxford or any Restricted Subsidiary or
cause the payment of Indebtedness of Oxford or any Restricted
Subsidiary to be accelerated or payable prior to its Stated
Maturity.
Note Liens means all Liens in favor of the
Collateral Agent on Collateral securing the Indenture
Obligations and any Permitted Additional Pari Passu Obligations.
Obligations means any principal, premium,
interest (including any interest accruing subsequent to the
filing of a petition in bankruptcy, reorganization or similar
proceeding at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed
claim under applicable state, federal or foreign law),
penalties, fees, indemnifications, reimbursements (including
reimbursement obligations with respect to letters of credit and
bankers acceptances), damages and other liabilities, and
guarantees of payment of such principal, interest, penalties,
fees, indemnifications, reimbursements, damages and other
liabilities, payable under the documentation governing any
Indebtedness.
Pari Passu Indebtedness means any
Indebtedness of Oxford that is not contractually subordinated to
the Notes.
Permitted Additional Pari Passu Obligations
means obligations under any Additional Notes or any other
Indebtedness (whether or not consisting of Additional Notes)
secured by the Note Liens; provided that if, after giving
effect to the Incurrence thereof the aggregate principal amount
of Permitted Additional Pari Passu Obligations issued following
the Issue Date would exceed $50 million (excluding any
Indebtedness secured by the Note Liens in reliance on
clause (q) of the definition of Permitted
Liens), then immediately after giving effect to the
incurrence of such Permitted Additional Pari Passu Obligations,
the Consolidated Total Debt Ratio of Oxford and its Restricted
Subsidiaries would be less than or equal to 3.25:1.0;
provided that (i) the trustee or agent under such
Permitted Additional Pari Passu Obligation executes a joinder
agreement to the Security Agreement in the form attached thereto
agreeing to be bound thereby and (ii) Oxford has designated
such Indebtedness as Permitted Additional Pari Passu
Obligations under the Security Agreement.
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Permitted Business means the business
conducted by Oxford and its Restricted Subsidiaries on the Issue
Date and the business reasonably related, complementary or
ancillary thereto, including reasonably related extensions or
expansions thereof.
Permitted Investment means
(1) Investments in Oxford or any Restricted Subsidiary
(other than a Securitization Entity and other than a transfer of
Notes Priority Collateral to a Restricted Subsidiary that is not
a Guarantor) or any person which, as a result of such
Investment, (a) becomes a Restricted Subsidiary (other than
a Securitization Entity) or (b) is merged or consolidated
with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, Oxford or any Restricted
Subsidiary (other than a Securitization Entity);
(2) Indebtedness of Oxford or a Restricted Subsidiary
described under clauses (3), (4), (5), (6) and (7) of
the definition of Permitted Indebtedness;
(3) Investments in any of the Notes;
(4) Investments in Cash Equivalents;
(5) Investments acquired by Oxford or any Restricted
Subsidiary in connection with an Asset Sale permitted under
Certain Covenants Limitation on
Sale of Assets to the extent such Investments are non-cash
proceeds as permitted under such covenant;
(6) Investments by Oxford or a Restricted Subsidiary in a
Securitization Entity in connection with a Qualified
Securitization Transaction, which Investment consists of a
retained interest in transferred Receivables and Related Assets;
(7) (x) Investments in existence on the Issue Date and
(y) an Investment in any person to the extent such
Investment replaces or refinances an Investment covered by
clause (x) above or this clause (y) in an amount not
exceeding the amount of the Investment being replaced or
refinanced; provided, however, that the Investment under
clause (y) is on terms and conditions no less favorable to
Oxford and its Restricted Subsidiaries taken as a whole than the
Investment being replaced or refinanced;
(8) Investments in a Related Business Entity in the
aggregate amount outstanding at any one time of up to 2.5% of
Oxfords Consolidated Net Tangible Assets;
(9) Investments in a person whose primary business is a
Permitted Business acquired in exchange for the issuance of
Capital Stock (other than Redeemable Capital Stock of Oxford or
a Restricted Subsidiary or Preferred Stock of a Restricted
Subsidiary) or acquired with the net cash proceeds received by
Oxford after the Issue Date from the issuance and sale of
Capital Stock (other than Redeemable Stock of Oxford or a
Restricted Subsidiary or Preferred Stock of a Restricted
Subsidiary); provided that such Net Cash Proceeds are used to
make such Investment within 30 days of the receipt thereof
and the amount of all such Net Cash Proceeds will be excluded
from clause (3)(B) of the first paragraph of the covenant
described under Certain Covenants
Limitation on Restricted Payments;
(10) Investments in prepaid expenses, negotiable
instruments held for collection and lease, utility and
workers compensation, performance and other similar
deposits provided to third parties in the ordinary course of
business;
(11) loans or advances to employees of Oxford in the
ordinary course of business for bona fide business purposes of
Oxford and its Restricted Subsidiaries (including travel,
entertainment and moving expenses) made in compliance with
applicable law;
(12) any Investments received in good faith in settlement
or compromise of obligations of trade creditors or customers
that were incurred in the ordinary course of business, including
pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of any trade creditor or
customer; and
(13) other Investments in the aggregate amount outstanding
at any one time of up to $15 million.
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In connection with any assets or property contributed or
transferred to any person as an Investment, such property and
assets shall be equal to the Fair Market Value (as determined by
Oxfords Board of Directors) at the time of Investment.
Permitted Lien means:
(a) any Lien existing as of the Issue Date on Indebtedness
existing on the Issue Date;
(b) any Lien with respect to the Credit Agreement or any
other Credit Facility so long as the aggregate principal amount
outstanding under the Credit Agreement or any successor Credit
Facility does not exceed the principal amount which could be
borrowed under clause (1) of the definition of Permitted
Indebtedness;
(c) any Lien arising by reason of
(1) any judgment, decree or order of any court, so long as
such Lien is promptly adequately bonded and any appropriate
legal proceedings which may have been duly initiated for the
review of such judgment, decree or order shall not have been
finally terminated or the period within which such proceedings
may be initiated shall not have expired;
(2) taxes not yet delinquent or which are being contested
in good faith;
(3) security for payment of workers compensation or
other insurance;
(4) good faith deposits in connection with tenders, leases,
contracts (other than contracts for the payment of money);
(5) zoning restrictions, easements, licenses, reservations,
title defects, rights of others for rights of way, utilities,
sewers, electric lines, telephone or telegraph lines, and other
similar purposes, provisions, covenants, conditions, waivers,
restrictions on the use of property or minor irregularities of
title (and with respect to leasehold interests, mortgages,
obligations, liens and other encumbrances incurred, created,
assumed or permitted to exist and arising by, through or under a
landlord or owner of the leased property, with or without
consent of the lessee), none of which materially impairs the use
of any parcel of property material to the operation of the
business of Oxford or any Subsidiary or the value of such
property for the purpose of such business;
(6) deposits to secure public or statutory obligations, or
in lieu of surety or appeal bonds; or
(7) operation of law in favor of mechanics, carriers,
warehousemen, landlords, materialmen, laborers, employees or
suppliers, incurred in the ordinary course of business for sums
which are not yet delinquent or are being contested in good
faith by negotiations or by appropriate proceedings which
suspend the collection thereof;
(d) any Lien securing Acquired Indebtedness created prior
to (and not created in connection with, or in contemplation of)
the incurrence of such Indebtedness by Oxford or any Subsidiary
and which does not extend to any assets other than the assets
acquired;
(e) any Lien to secure the performance bids, trade
contracts, leases (including, without limitation, statutory and
common law landlords liens), statutory obligations, surety
and appeal bonds, letters of credit and other obligations of a
like nature and incurred in the ordinary course of business of
Oxford or any Subsidiary;
(f) any Lien securing obligations under Interest Rate
Agreements, Commodity Price Protection Agreements and Currency
Hedging Agreements;
(g) any Lien securing Capital Lease Obligations or Purchase
Money Obligations incurred in accordance with the Indenture
(including clause (8) of the definition of Permitted
Indebtedness);
(h) leases and subleases of real property which do not
materially interfere with the ordinary conduct of the business
of Oxford or any of its Restricted Subsidiaries;
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(i) bankers Liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds
maintained with a depositary institution; provided that:
(1) such deposit account is not a dedicated cash collateral
account and is not subject to restrictions against access by
Oxford in excess of those set forth by regulations promulgated
by the Federal Reserve Board or other applicable law; and
(2) such deposit account is not intended by Oxford or any
Restricted Subsidiary to provide collateral to the depository
institution;
(j) Liens on property, assets or shares of stock of a
person at the time such person becomes a Restricted Subsidiary;
provided, however, that such Liens are not
created, incurred or assumed in connection with, or in
contemplation of, such other person becoming a Restricted
Subsidiary; provided further, that any such Lien may not
extend to any other property owned by Oxford or any Restricted
Subsidiary and assets fixed or appurtenant thereto;
(k) Liens securing Indebtedness or other obligations of a
Restricted Subsidiary owing to Oxford or another Restricted
Subsidiary (other than a Securitization Entity);
(l) Liens securing the Notes and the Guarantees issued on
the Issue Date (and any exchange Notes and related Guarantees
issued in exchange therefor);
(m) Liens on assets transferred to a Securitization Entity
or on assets of a Securitization Entity, in either case incurred
in connection with a Qualified Securitization Transaction;
(n) Liens on property of any Foreign Subsidiary securing
Indebtedness of a Foreign Subsidiary permitted by
Certain Covenants Limitation on
Indebtedness;
(o) Liens securing Permitted Additional Pari Passu
Obligations;
(p) any extension, renewal, refinancing or replacement, in
whole or in part, of any Lien described in the foregoing
clauses (a) through (m) and this clause (p) so
long as no additional collateral is granted as security
thereby; and
(q) in addition to the items referred to in
clauses (a) through (p) above, Liens of Oxford and its
Restricted Subsidiaries on Indebtedness in an aggregate amount
which, when taken together with the aggregate amount of all
other Liens on Indebtedness incurred pursuant to this
clause (q) and then outstanding will not exceed 7.5% of
Oxfords Consolidated Net Tangible Assets at any one time
outstanding.
Preferred Stock means, with respect to any
person, any Capital Stock of any class or classes (however
designated) which is preferred as to the payment of dividends or
distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such
person, over the Capital Stock of any other class in such person.
Purchase Money Obligation means any
Indebtedness secured by a Lien on assets related to the business
of Oxford and any additions and accessions thereto, which are
purchased or constructed by Oxford at any time after the Issue
Date; provided that
(1) the security agreement or conditional sales or other
title retention contract pursuant to which the Lien on such
assets is created (collectively a Purchase Money Security
Agreement) shall be entered into within 360 days
after the purchase or substantial completion of the construction
of such assets and shall at all times be confined solely to the
assets so purchased or acquired, any additions and accessions
thereto and any proceeds therefrom,
(2) at no time shall the aggregate principal amount of the
outstanding Indebtedness secured thereby be increased, except in
connection with the purchase of additions and accessions thereto
and except in respect of fees and other obligations in respect
of such Indebtedness and
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(3) (A) the aggregate outstanding principal amount of
Indebtedness secured thereby (determined on a per asset basis in
the case of any additions and accessions) shall not at the time
such Purchase Money Security Agreement is entered into exceed
100% of the purchase price to Oxford of the assets subject
thereto or (B) the Indebtedness secured thereby shall be
with recourse solely to the assets so purchased or acquired, any
additions and accessions thereto and any proceeds therefrom.
Qualified Capital Stock of any person means
any and all Capital Stock of such person other than Redeemable
Capital Stock.
Qualified Securitization Transaction means
any transaction or series of transactions that may be entered
into by Oxford or any Restricted Subsidiary pursuant to which
(a) Oxford or any Restricted Subsidiary may sell, convey or
otherwise transfer to a Securitization Entity its interests in
Receivables and Related Assets and (b) such Securitization
Entity transfers to any other person, or grants a security
interest in, such Receivables and Related Assets, pursuant to a
transaction customary in the industry which is used to achieve a
transfer of financial assets under GAAP.
Receivables and Related Assets means any
account receivable (whether now existing or arising thereafter)
of Oxford or any Restricted Subsidiary, and any assets related
thereto including all collateral securing such accounts
receivable, all contracts and contract rights and all Guarantees
or other obligations in respect of such accounts receivable,
proceeds of such accounts receivable and other assets which are
customarily transferred or in respect of which security interest
are customarily granted in connection with asset securitization
transaction involving accounts receivable.
Redeemable Capital Stock means any Capital
Stock that, either by its terms or by the terms of any security
into which it is convertible or exchangeable (at the option of
the holders thereof), is or upon the happening of an event or
passage of time would be, required to be redeemed (at the option
of the holders thereof) prior to the Maturity of the Notes
(other than upon a change of control of or sale of assets by
Oxford in circumstances where the holders of the notes would
have similar rights), or is convertible into or exchangeable for
debt securities at any time prior to the Maturity of the Notes
at the option of the holder thereof.
Related Business Entity means
(1) any corporation at least 35% of the outstanding voting
power of the Voting Stock of which is owned or controlled,
directly or indirectly, by Oxford, or
(2) any other person in which Oxford, directly or
indirectly, has at least 35% of the outstanding partnership,
equity or other similar interests,
which, in the case of (1) or (2) above, conducts its
principal business in a Permitted Business.
Replacement Assets means properties or assets
to replace the properties or assets that were the subject of an
Asset Sale or properties and assets that will be used in
businesses of Oxford or its Restricted Subsidiaries, as the case
may be, existing at the time such assets are sold or in Capital
Stock of a person, the principal portion of whose assets consist
of such property or assets; provided that in the case of
a sale of Notes Priority Collateral such replacement properties
or assets constitute Collateral (and in the case of a sale of
Tommy Bahama Collateral, such properties or assets constitute
Notes Priority Collateral).
Restricted Subsidiary means any Subsidiary of
Oxford that has not been designated by the board of directors of
Oxford by a board resolution delivered to the Trustee as an
Unrestricted Subsidiary pursuant to and in compliance with the
covenant described under Certain
Covenants Limitation on Unrestricted
Subsidiaries.
Securities Act means the Securities Act of
1933, as amended, or any successor statute, and the rules and
regulations promulgated by the SEC thereunder.
Securitization Entity means a Wholly Owned
Restricted Subsidiary (or another person in which Oxford or any
Subsidiary of Oxford makes an Investment and to which Oxford or
any Subsidiary of Oxford transfers Receivables and Related
Assets) that, in the case of a Wholly Owned Restricted
Subsidiary, engages in no
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activities other than in connection with the Financing of
Receivables and Related Assets and that is designated by the
Board of Directors of Oxford (as provided below) as a
Securitization Entity and:
(a) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which:
(1) is guaranteed by Oxford or any Restricted Subsidiary
(excluding Guarantees (other than the principal of, and interest
on, Indebtedness) pursuant to Standard Securitization
Undertakings);
(2) is recourse to or obligates Oxford or any Restricted
Subsidiary (other than such Securitization Entity) in any way
other than pursuant to Standard Securitization
Undertakings; or
(3) subjects any property or asset of Oxford or any
Restricted Subsidiary (other than such Securitization Entity),
directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to Standard
Securitization Undertakings;
(b) with which neither Oxford nor any Restricted Subsidiary
(other than such Securitization Entity) has any material
contract, agreement, arrangement or understanding other than on
terms no less favorable to Oxford or such Restricted Subsidiary
than those that might be obtained at the time from persons that
are not Affiliates of Oxford, other than fees payable in the
ordinary course of business in connection with servicing
accounts receivable of such entity;
(c) to which neither Oxford nor any Restricted Subsidiary
(other than such Securitization Entity) has any obligation to
maintain or preserve such entitys financial condition or
cause such entity to achieve certain levels of operating
results; and
(d) such entity is a Qualified Special Purpose Entity in
accordance with GAAP.
Any designation of a Subsidiary as a Securitization Entity shall
be evidenced to the Trustee by filing with the Trustee a
certified copy of the resolution of the board of directors of
Oxford giving effect to the designation and an Officers
Certificate certifying that the designation complied with the
preceding conditions and was permitted by the Indenture.
Security Agreement means the security
agreement to be dated as of the Issue Date between the
Collateral Agent, Oxford and the Guarantors as amended,
modified, restated, supplemented or replaced from time to time
in accordance with its terms.
Security Documents means the Security
Agreement, the Intercreditor Agreement and all of the security
agreements, pledges, collateral assignments, mortgages, deeds of
trust, trust deeds or other instruments evidencing or creating
or purporting to create any security interests in favor of the
Collateral Agent for its benefit and for the benefit of the
Trustee and the holders of the Notes and the holders of any
Permitted Additional Pari Passu Obligations, in all or any
portion of the Collateral, as amended, modified, restated,
supplemented or replaced from time to time.
Senior Secured Note Documents means the
Indenture, the Notes, the Guarantees and the Security Documents.
Significant Subsidiary means, at any time,
any Restricted Subsidiary that qualifies at such time as a
significant subsidiary within the meaning of
Regulation S-X
promulgated by the SEC (as in effect on the Issue Date).
Standard Securitization Undertakings means
representations, warranties, covenants and indemnities entered
into by Oxford or any Restricted Subsidiary that are reasonably
customary in an accounts receivable securitization transaction.
Stated Maturity means, when used with respect
to any Indebtedness or any installment of interest thereon, the
dates specified in such Indebtedness as the fixed date on which
the principal of such Indebtedness or such installment of
interest, as the case may be, is due and payable.
Subordinated Indebtedness means Indebtedness
of Oxford or a Guarantor that is contractually subordinated in
right of payment to the Notes or a Guarantee, as the case may be.
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Subsidiary of a person means
(1) any corporation more than 50% of the outstanding voting
power of the Voting Stock of which is owned or controlled,
directly or indirectly, by such person or by one or more other
Subsidiaries of such person, or by such person and one or more
other Subsidiaries thereof, or
(2) any limited partnership of which such person or any
Subsidiary of such person is a general partner, or
(3) any other person in which such person, or one or more
other Subsidiaries of such person, or such person and one or
more other Subsidiaries, directly or indirectly, has more than
50% of the outstanding partnership or similar interests or has
the power, by contract or otherwise, to direct or cause the
direction of the policies, management and affairs thereof.
Tommy Bahama Collateral means any Notes
Priority Collateral (i) consisting of the Tommy Bahama
trademarks and related rights or (ii) which was acquired
with the proceeds of the Net Cash Proceeds from any Asset Sale
of Notes Priority Collateral described in clause (i).
Trust Indenture Act means the
Trust Indenture Act of 1939, as amended, or any successor
statute.
Trust Monies means all cash and Cash
Equivalents:
(1) received by the Company upon the release of Collateral
from the Lien of the Indenture or the Security Documents in
connection with any Asset Sale; or
(2) received by the Collateral Agent as proceeds of any
sale or other disposition of all or any part of the Collateral
by or on behalf of the Collateral Agent or any collection,
recovery, receipt, appropriation or other realization of or from
all or any part of the Collateral pursuant to the Indenture or
any of the Security Documents;
provided, however, that Trust Monies shall in
no event include any property deposited with the Trustee for any
redemption, legal defeasance or covenant defeasance of Notes,
for the satisfaction and discharge of the Indenture or to pay
the purchase price of notes and any Permitted Additional Pari
Passu Obligations pursuant to an Offer in accordance with the
terms of the Indenture and shall not include any cash received
or applicable by the Trustee in payment of its fees and expenses
(or, prior to the Discharge of ABL Obligations, any amounts
attributable to ABL Priority Collateral).
UCC means the Uniform Commercial Code as in
effect from time to time in the State of New York;
provided, however, that, at any time, if by reason
of mandatory provisions of law, any or all of the perfection or
priority of the Collateral Agents security interest in any
item or portion of the Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other that the
State of New York, the term UCC shall mean the
Uniform Commercial Code as in effect, at such time, in such
other jurisdiction for purposes of the provisions hereof
relating to such perfection or priority and for purposes of
definitions relating to such provisions.
Unrestricted Subsidiary means any Subsidiary
of Oxford (other than a Guarantor) designated as such pursuant
to and in compliance with the covenant described under
Certain Covenants Limitation on
Unrestricted Subsidiaries.
Voting Stock of a person means Capital Stock
of such person of the class or classes pursuant to which the
holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of
directors, managers or trustees of such person (irrespective of
whether or not at the time Capital Stock of any other class or
classes shall have or might have voting power by reason of the
happening of any contingency).
Wholly Owned Restricted Subsidiary means a
Restricted Subsidiary all the Capital Stock of which is owned by
Oxford or another Wholly Owned Restricted Subsidiary (other than
directors qualifying shares).
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BOOK-ENTRY
SETTLEMENT AND CLEARANCE
The
Global Notes
The new notes will be issued in the form of one or more
registered notes in global form, without interest coupons (the
global notes). Upon issuance, each of the global
notes will be deposited with the trustee as custodian for The
Depository Trust Company (DTC) and registered
in the name of Cede & Co., as nominee of DTC.
Ownership of beneficial interests in each global note will be
limited to persons who have accounts with DTC (DTC
participants) or persons who hold interests through DTC
participants. We expect that under procedures established by DTC:
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upon deposit of each global note with DTCs custodian, DTC
will credit portions of the principal amount of the global note
to the accounts of the DTC participants; and
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ownership of beneficial interests in each global note will be
shown on, and transfer of ownership of those interests will be
effected only through, records maintained by DTC (with respect
to interests of DTC participants) and the records of DTC
participants (with respect to other owners of beneficial
interests in the global note).
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Beneficial interests in the global notes may not be exchanged
for notes in physical, certificated form except in the limited
circumstances described below.
Book-entry
Procedures for the Global Notes
All interests in the global notes will be subject to the
operations and procedures of DTC. We provide the following
summaries of those operations and procedures solely for the
convenience of investors. The operations and procedures of DTC
are controlled by DTC and may be changed at any time. Neither we
nor the initial purchasers are responsible for those operations
or procedures.
DTC has advised us that it is:
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a limited purpose trust company organized under the laws of the
State of New York;
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a banking organization within the meaning of the New
York State Banking Law;
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a member of the Federal Reserve System;
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a clearing corporation within the meaning of the
Uniform Commercial Code; and
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a clearing agency registered under Section 17A
of the Securities Exchange Act of 1934, as amended (the
Exchange Act).
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DTC was created to hold securities for its participants and to
facilitate the clearance and settlement of securities
transactions between its participants through electronic
book-entry changes to the accounts of its participants.
DTCs participants include securities brokers and dealers,
including the initial purchasers; banks and trust companies;
clearing corporations and other organizations. Indirect access
to DTCs system is also available to others such as banks,
brokers, dealers and trust companies; these indirect
participants clear through or maintain a custodial relationship
with a DTC participant, either directly or indirectly. Investors
who are not DTC participants may beneficially own securities
held by or on behalf of DTC only through DTC participants or
indirect participants in DTC.
So long as DTCs nominee is the registered owner of a
global note, that nominee will be considered the sole owner or
holder of the notes represented by that global note for all
purposes under the indenture. Except as provided below, owners
of beneficial interests in a global note:
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will not be entitled to have notes represented by the global
note registered in their names;
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will not receive or be entitled to receive physical,
certificated notes; and
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will not be considered the owners or holders of the notes under
the indenture for any purpose, including with respect to the
giving of any direction, instruction or approval to the trustee
under the indenture.
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As a result, each investor who owns a beneficial interest in a
global note must rely on the procedures of DTC to exercise any
rights of a holder of notes under the indenture (and, if the
investor is not a participant or an indirect participant in DTC,
on the procedures of the DTC participant through which the
investor owns its interest).
Payments of principal, premium (if any) and interest with
respect to the notes represented by a global note will be made
by the trustee to DTCs nominee as the registered holder of
the global note. Neither we nor the trustee will have any
responsibility or liability for the payment of amounts to owners
of beneficial interests in a global note, for any aspect of the
records relating to or payments made on account of those
interests by DTC, or for maintaining, supervising or reviewing
any records of DTC relating to those interests.
Payments by participants and indirect participants in DTC to the
owners of beneficial interests in a global note will be governed
by standing instructions and customary industry practice and
will be the responsibility of those participants or indirect
participants and DTC.
Transfers between participants in DTC will be effected under
DTCs procedures and will be settled in
same-day
funds. If the laws of a jurisdiction require that certain
persons take physical delivery of securities in definitive form,
the ability to transfer beneficial interests in a global note to
such persons may be limited. Because DTC can only act on behalf
of participants, who in turn act on behalf of indirect
participants and certain banks, the ability of a person holding
a beneficial interest in a global note to pledge its interest to
a person or entity that does not participate in the DTC system,
or otherwise take actions in respect of its interest, may be
affected by the lack of a physical security.
DTC has agreed to the above procedures to facilitate transfers
of interests in the global notes among participants in DTC.
However, DTC is not obligated to perform these procedures and
may discontinue or change these procedures at any time. Neither
we nor the trustee will have any responsibility for the
performance by DTC or its participants or indirect participants
of their obligations under the rules and procedures governing
its operations.
Certificated
Notes
New notes in physical, certificated form will be issued and
delivered to each person that DTC identifies as a beneficial
owner of the related notes only if:
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DTC notifies us at any time that it is unwilling or unable to
continue as depositary for the global notes and a successor
depositary is not appointed within 90 days;
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DTC ceases to be registered as a clearing agency under the
Exchange Act and a successor depositary is not appointed within
90 days;
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we, at our option, notify the trustee that we elect to cause the
issuance of certificated notes; or
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certain other events provided in the indenture should occur.
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U.S.
FEDERAL INCOME TAX CONSEQUENCES OF THE EXCHANGE OFFER
The exchange of old notes for new notes in the exchange offer
will not constitute a taxable event to holders for
U.S. federal income tax purposes. Consequently, no gain or
loss will be recognized by a holder upon receipt of a new note,
the holding period of the new note will include the holding
period of the old note exchanged therefor, and the basis of the
new note will be the same as the basis of the old note
immediately before the exchange.
In any event, persons considering the exchange of old notes for
new notes should consult their own tax advisors concerning the
U.S. federal income tax consequences in light of their
particular situations as well as any consequences arising under
the laws of any other taxing jurisdiction.
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PLAN OF
DISTRIBUTION
Until 90 days after the date of this prospectus, all
dealers effecting transactions in the new notes, whether or not
participating in this distribution, may be required to deliver a
prospectus. This is in addition to the obligation of dealers to
deliver a prospectus when acting as underwriters and with
respect to their unsold allotments or subscriptions.
Each broker-dealer that receives new notes for its own account
pursuant to the exchange offer must, in the absence of an
exemption, comply with the registration and prospectus delivery
requirements of the Securities Act in connection with secondary
resales of new notes and cannot rely on the position of the
staff of the Commission set forth in Exxon Capital Holdings
Corporation, Morgan Stanley & Co., Incorporated or
similar no-action letters. This prospectus, as it may be amended
or supplemented from time to time, may be used by a
broker-dealer in connection with resales of new notes received
in exchange for old notes only where such old notes were
acquired as a result of market-making activities or other
trading activities. We have agreed that, for a period of
180 days from the date on which the exchange offer is
consummated, we will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in
connection with any such resale. In addition,
until ,
2009, all dealers effecting transactions in the new notes may be
required to deliver a prospectus.
We will not receive any proceeds from any sale of new notes by
broker-dealers. New notes received by broker-dealers for their
own account pursuant to the exchange offer may be sold from time
to time in one or more transactions in the
over-the-counter
market, in negotiated transactions, through the writing of
options on the new notes or a combination of such methods of
resale, at prices related to such prevailing market prices or at
negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any
such broker-dealer or the purchasers of any new notes. Any
broker-dealer that resells new notes that were received by it
for its own account pursuant to the exchange offer and any
broker or dealer that participates in a distribution of such new
notes may be deemed to be an underwriter within the
meaning of the Securities Act and any profit on any such resale
of new notes and any commissions or concessions received by any
such persons may be deemed to be underwriting compensation under
the Securities Act.
For a period of 180 days from the date on which the
exchange offer is consummated, we will promptly send additional
copies of this prospectus and any amendment or supplement to
this prospectus to any
broker-dealer
that requests such documents. We have agreed to pay all expenses
incident to the exchange offer, other than commissions or
concessions of any broker-dealers and will indemnify the holders
of the notes, including any broker-dealers, against certain
liabilities, including liabilities under the Securities Act.
LEGAL
MATTERS
The validity of the new notes will be passed upon for us by
King & Spalding LLP, New York, New York.
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
Ernst & Young LLP, an independent registered public
accounting firm, has audited our consolidated financial
statements and schedule included in our Annual Report on
Form 10-K
for the year ended January 31, 2009, and the effectiveness
of our internal control over financial reporting as of
January 31, 2009 as set forth in their reports, which are
incorporated by reference in this prospectus and elsewhere in
the registration statement. Our financial statements and
schedule are incorporate by reference in reliance on
Ernst & Young LLPs reports, given on their
authority as experts in accounting and auditing.
INCORPORATION
OF CERTAIN DOCUMENTS
This prospectus incorporates important financial information
about us that is not included in or delivered with this
prospectus. The information incorporated by reference is
considered to be part of this prospectus. Any statement
contained in this prospectus or in a document incorporated by
reference herein will be deemed
89
to be modified or superseded for purposes of this prospectus to
the extent that a statement contained herein or in any other
subsequently filed document that is also incorporated by
reference herein modifies or supersedes such statement. Any
statement so modified or superseded will not be deemed, except
as so modified or superseded, to constitute a part of this
prospectus. The following documents filed by us under the
Exchange Act, and any future filings we make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
(other than Current Reports furnished under Item 2.02 or
Item 7.01 (including any financial statements or exhibits
relating thereto furnish pursuant to Item 9.01) of
Form 8-K),
are incorporated by reference into this prospectus as of their
respective dates of filing:
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Our Annual Report on
Form 10-K
for the fiscal year ended January 31, 2009;
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Our Quarterly Report on
Form 10-Q
for the fiscal quarter ended May 2, 2009;
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Our Proxy Statement related to the annual meeting held on
June 15, 2009, filed on May 11,2009; and
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Our Current Reports on
Form 8-K
filed on March 27, 2009, June 17, 2009 and
July 1, 2009;
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As explained below in Where You Can Find More
Information, these incorporated documents (as well as
other documents filed by us under the Exchange Act) are
available at the SEC and may be accessed in a number of ways,
including online via the Internet. In addition, we will provide
without charge to each recipient of this prospectus, upon
written request, a copy of any or all of the documents
incorporated herein by reference. Requests should be directed to:
Investor Relations Department
Oxford Industries, Inc.
222 Piedmont Avenue, N.E.
Atlanta, GA 30308
info@oxfordinc.com
(404) 659-2424
Statements contained in this prospectus as to the contents of
any contract or other document referred to in this prospectus do
not purport to be complete and, where reference is made to the
particular provisions of such contract or other document, such
provisions are qualified in all respects to all of the
provisions of such contract or other document.
You should rely only on the information provided in this
document or incorporated into this document by reference. We
have not authorized anyone to provide you with different
information. You should not assume that the information in this
document is accurate as of any date other than that on the front
cover of this document. You should not assume that the
information in the documents incorporated by reference is
accurate as of any date other than their respective dates.
We are subject to the information requirements of the Exchange
Act, which means that we are required to file reports, proxy
statements, and other information, all of which are available at
the Public Reference Section of the SEC at Room 1580, 100
F. Street, NE, Washington, D.C. 20549. You may also obtain
copies of the reports, proxy statements, and other information
from the Public Reference Section of the SEC, at prescribed
rates, by calling
1-800-SEC-0330.
The SEC maintains an Internet website at
http://www.sec.gov
where you can access reports, proxy, information and
registration statements, and other information regarding
registrants that file electronically with the SEC through the
IDEA system.
We also maintain an Internet website at
http://www.oxfordinc.com,
which provides additional information about us through which you
can also access our SEC filings. The information set forth
on our website is not part of this prospectus.
90
Each person receiving this prospectus acknowledges that he has
been afforded an opportunity to request from us, and to review,
and has received, all information considered by him to be
necessary to consider whether or not to purchase the Notes
offered hereby. We will provide, without charge, to each person
to whom this prospectus is delivered, upon that persons
written or oral request, a copy of the Indenture
and/or any
other agreement or document related to the Notes or referred to
or incorporated by reference in this prospectus. Any such
request should be delivered to:
Investor Relations Department
Oxford Industries, Inc.
222 Piedmont Avenue, N.E.
Atlanta, GA 30308
info@oxfordinc.com
(404) 659-2424
91
Offer to Exchange
Up to $150,000,000 aggregate
principal amount
of our 11.375% Senior
Secured Notes due 2015
and the guarantees thereof
which have been registered
under the Securities Act of
1933, as amended,
for a like amount of our
outstanding
11.375% Senior Secured
Notes due 2015
and the guarantees
thereof.
PROSPECTUS
Until the date that is 90 days after the date of this
prospectus, all dealers that effect transactions in these
securities, whether or not participating in this offering, may
be required to deliver a prospectus. This is in addition to the
dealers obligation to deliver a prospectus when acting as
underwriters and with respect to their unsold allotments or
subscriptions.
PART II:
INFORMATION NOT REQUIRED IN THE PROSPECTUS
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Item 20.
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Indemnification
of Directors and Officers.
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Registrants
incorporated in Delaware
With respect to the registrants incorporated in Delaware,
Section 145(a) of the Delaware General Corporation Law (the
DGCL) provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative, other than an action by or in the right of the
corporation, by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by the
person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the persons
conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware
corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation
to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth above,
against expenses (including attorneys fees) actually and
reasonably incurred by such person in connection with the
defense or settlement of such action or suit if the person acted
in good faith and in a manner the person reasonably believed to
be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation, unless and only to the
extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Further subsections of DGCL Section 145 provide that:
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to the extent a present or former director or officer of a
corporation has been successful on the merits or otherwise in
the defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145 or in the
defense of any claim, issue or matter therein, such person shall
be indemnified against expenses, including attorneys fees,
actually and reasonably incurred by such person in connection
therewith;
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the indemnification and advancement of expenses provided for
pursuant to Section 145 shall not be deemed exclusive of
any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or
otherwise; and
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the corporation shall have the power to purchase and maintain
insurance of behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against any liability
asserted against such person and incurred by such person in any
such capacity, or arising out of such persons status as
such, whether or not the corporation would have the power to
indemnify such person against such liability under
Section 145.
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As used in this Item 20, the term proceeding
means any threatened, pending, or completed action, suit, or
proceeding, whether or not by or in the right of Registrant, and
whether civil, criminal, administrative, investigative or
otherwise.
Section 145 of the DGCL makes provision for the
indemnification of officers and directors in terms sufficiently
broad to indemnify officers and directors of each of the
registrants incorporated in Delaware under certain circumstances
from liabilities (including reimbursement for expenses incurred)
arising under the
II-1
Securities Act of 1933, as amended (the Act). Each
of the registrants incorporated in Delaware may, in their
discretion, similarly indemnify their employees and agents. The
Bylaws of each of the registrants incorporated in Delaware
provide, in effect, that, to the fullest extent and under the
circumstances permitted by Section 145 of the DGCL, each of
the registrants incorporated in Delaware will indemnify any and
all of its officers, directors, employees and agents. In
addition, the Certificate of Incorporation of each of the
registrants incorporated in Delaware relieves its directors from
monetary damages to it or its stockholders for breach of such
directors fiduciary duty as a director to the fullest
extent permitted by the DGCL. Under Section 102(b)(7) of
the DGCL, a corporation may relieve its directors from personal
liability to such corporation or its stockholders for monetary
damages for any breach of their fiduciary duty as directors
except (i) for a breach of the duty of loyalty,
(ii) for failure to act in good faith, (iii) for
intentional misconduct or knowing violation of law,
(iv) for willful or negligent violations of certain
provisions in the DGCL imposing certain requirements with
respect to stock repurchases, redemptions and dividends, or
(v) for any transactions from which the director derived an
improper personal benefit.
Tommy
Bahama Beverages, LLC
Section 18-108
of the Delaware Limited Liability Company Act provides that,
subject to such standards and restrictions, if any, as are set
forth in its limited liability company agreement, a Delaware
limited liability company may, and has the power to, indemnify
and hold harmless any member or manager or other person from and
against any and all claims and demands whatsoever.
The operating agreement of Tommy Bahama Beverages, LLC provides
that the company shall indemnify and hold harmless, and may
advance expenses to each member, director and officer from and
against all claims and demands incurred in connection with the
good faith discharge of such individuals obligations under
the agreement. However, no indemnification shall be made is a
final adjudication adverse to such individual establishes that
either (i) the individuals acts were committed in bad
faith or were the result of active and deliberate dishonesty or
(ii) the individual personally gained a financial profit or
other advantage to which they were not legally entitled.
Oxford
Industries, Inc., Ben Sherman Clothing, Inc. and Oxford
International, Inc.
With respect to the registrants incorporated in Georgia,
Section 14-2-851
of the Georgia Business Corporation Code (the GBCC)
empowers us to indemnify a director (including a former director
and including a director who is or was serving at our request as
a director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan or other entity) against
liability incurred: (i) in a civil proceeding (a) if,
in the case of conduct in such directors capacity as a
director, the conduct was in good faith and reasonably believed
by such director to be in the best interests of the corporation,
and (b) if, in all other cases, the conduct was in good
faith and was at least not opposed to the best interests of the
corporation; and (ii) in a criminal proceeding, if the
director had no reasonable cause to believe such conduct was
unlawful. Subsection (d) of
Section 14-2-851
of the GBCC provides that a corporation may not indemnify a
director in connection with a proceeding by or in the right of
the corporation, except for reasonable expenses incurred in
connection with the proceeding if it is determined that the
director has met the relevant standard of conduct under
Section 14-2-851,
or in connection with any proceeding with respect to conduct for
which such director was adjudged liable on the basis that
personal benefit was improperly received by such director,
whether or not involving action in such directors capacity
as a director.
In addition,
Section 14-2-856
of the GBCC permits our articles of incorporation, our bylaws, a
contract or a resolution approved or ratified by our
shareholders to authorize us to indemnify a director against
claims to which the director was a party, including claims by us
or in our right (e.g., shareholder derivative action). However,
we may not indemnify the director for liability to us or if the
director is subjected to injunctive relief in our favor for
(i) any misappropriation of a business opportunity
belonging to us, (ii) intentional misconduct or knowing
violation of the law, (iii) unlawful distributions or
(iv) receipt of an improper benefit.
II-2
Section 14-2-852
of the GBCC provides for mandatory indemnification against
reasonable expenses incurred by a director who is wholly
successful, on the merits or otherwise, in defending an action
to which the director was a party due to his or her status as
our director.
Section 14-2-854
allows a court, upon application by a director, to order
indemnification
and/or
advancement of expenses if it determines that the director is
entitled to indemnification under the GBCC or it determines that
indemnification is fair and reasonable even if, among other
things, the director has failed to meet the statutory standard
of conduct provided under
Section 14-2-851.
However, the court may not order indemnification in excess of
reasonable expenses for liability to us or for receipt of an
improper benefit.
Section 14-2-857
of the GBCC permits us to indemnify an officer (including a
former officer and including an officer who is or was serving at
our request as a director, officer, partner, trustee, employee
or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan or
other entity) to the same extent as a director. We may indemnify
an officer who is not a director to a further extent by means of
our articles of incorporation, bylaws, board resolutions, or by
contract. However, we may not indemnify an officer for liability
arising from conduct involving misappropriation of a business
opportunity of ours, intentional misconduct or knowing violation
of the law, unlawful distributions, or receipt of an improper
benefit. An officer who is not a director is also entitled to
mandatory indemnification and may apply for court-ordered
indemnification.
Section 14-2-858
of the GBCC permits us to purchase and maintain insurance on
behalf of our directors and officers against liability incurred
by them in their capacities or arising out of their status as
our directors and officers, regardless of whether we would have
the power to indemnify or advance expenses to the director or
officer for the same liability under the GBCC.
The Bylaws of Oxford Industries, Inc. provide, in effect, that,
to the fullest extent and under the circumstances permitted by
the GBCC, Oxford Industries, Inc. will indemnify any and all of
its officers and directors. The Bylaws of the Ben Sherman
Clothing, Inc. and Oxford International, Inc. do not contain
provisions regarding indemnification.
In addition, Oxford Industries, Inc. carries director and
officer liability insurance on behalf of its officer and
directors.
Oxford of
South Carolina, Inc.
With respect to Oxford of South Carolina, Inc., which is
incorporated under the laws of the State of South Carolina,
Article 5 of the South Carolina Business Corporation Act of
1988 provides that a corporation may indemnify a past or present
director or officer against liability incurred in a proceeding
if (a) he acted in good faith, (b) he reasonably
believed (i) in the case of conduct in his official
capacity with the corporation, that his conduct was in the
corporations best interest, and (ii) in all other
cases, that his conduct was at least not opposed to the
corporations best interest, and (c) in the case of
any criminal proceeding, the director or officer had no
reasonable cause to believe his conduct was unlawful. Unless
limited by its articles of incorporation, a corporation shall
indemnify an officer or director who is wholly successful, on
the merits or otherwise, in the defense of any proceeding to
which the officer or director is a party (in such capacity)
against reasonable expenses incurred in connection with such
proceeding. Corporations may not indemnify officers or directors
(a) in connection with a proceeding by or in the right of
the corporation in which the officer or director is adjudged
liable to the corporation, or (b) in connection with any
other proceeding charging improper personal benefit to the
officer or director, whether or not involving action in such
persons official capacity, in which the officer or
director is adjudged liable on the basis that personal benefit
was improperly received by the officer or director.
The Bylaws of Oxford of South Carolina, Inc. do not contain
provisions regarding indemnification.
Viewpoint
Marketing, Inc.
With respect to Viewpoint Marketing, Inc., which is incorporated
under the laws of the State of Florida, Section 607.0850 of
the Florida Business Corporations Act, as amended (the
FBCA), provides that, in
II-3
general, a business corporation may indemnify any person who is
or was party to any proceeding, other than an action by, or in
the right of, the corporation, by reason of the fact that he or
she is or was a director or officer of the corporation, against
liability incurred in connection with such proceeding, including
any appeal thereof, provided certain standards are met,
including that such officer or director acted in good faith and
in a manner he or she reasonably believed to be in, or not
opposed to, the best interest of the corporation, and provided
further that, with respect to any criminal action or proceeding,
the officer or director had no reasonable cause to believe his
or her conduct was unlawful. In the case of proceedings by or in
the right of the corporation, the FBCA provides that, in
general, a corporation may indemnify any person who was or is a
party to any such proceeding by reason of the fact that he or
she is or was a director or officer of the corporation against
and amounts paid in settlement actually and reasonably incurred
in connection with the defense or settlement of such proceeding,
including any appeal thereof, provided that such person acted in
good faith and in a manner he or she reasonably believed to be
in, or not opposed to, the best interests of the corporation,
except that no indemnification shall be made with respect to any
claim as to which such person is adjudged liable, unless a court
of competent jurisdiction determines upon application that such
person is fairly and reasonably entitled to indemnity. To the
extent that any officer or director is successful on the merits
or otherwise in the defense of any such proceedings, the FBCA
provides that the corporation is required to indemnify such
officer or director against expenses actually and reasonably
incurred in connection therewith. However, the FBCA further
provides that, in general, indemnification or advancement of
expenses shall not be made to or on behalf of any officer or
director if a judgment or other final adjudication establishes
that his or her actions, or omissions to act, were material to
the cause of action so adjudicated and constitute: (i) a
violation of the criminal law, unless the director or officer
had reasonable cause to believe his or her conduct was lawful or
had no reasonable cause to believe that it was unlawful;
(ii) a transaction from which the director or officer
derived an improper personal benefit; (iii) in the case of
a director, a circumstance under which the director has voted
for or assented to a distribution made in violation of the FBCA
or the corporations articles of incorporation or
(iv) willful misconduct or a conscious disregard for the
best interests of the corporation in a proceeding by or in the
right of the corporation to procure a judgment in its favor or
in a proceeding by or in the right of a stockholder.
The Bylaws of Viewpoint Marketing, Inc. provide, in effect,
that, to the fullest extent and under the circumstances
permitted by the FBCA, it will indemnify any and all of its
officers or directors.
Tommy
Bahama Texas Beverages, LLC
With respect to Tommy Bahama Texas Beverages, which was an
entity formed under the Texas Business Organizations Code (the
TBOC), Section 8.051 of the TBOC states that:
(a) An enterprise shall indemnify a governing person,
former governing person, or delegate against reasonable expenses
actually incurred by the person in connection with a proceeding
in which the person is a respondent because the person is or was
a governing person or delegate if the person is wholly
successful, on the merits or otherwise, in the defense of the
proceeding. (b) A court that determines, in a suit for
indemnification, that a governing person, former governing
person, or delegate is entitled to indemnification under this
section shall order indemnification and award to the person the
expenses incurred in securing the indemnification.
Section 8.052 states that (a) On application of a
governing person, former governing person, or delegate and after
notice is provided as required by the court, a court may order
an enterprise to indemnify the person to the extent the court
determines that the person is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances.
(b) This section applies without regard to whether the
governing person, former governing person, or delegate applying
to the court satisfies the requirements of Section 8.101 or
has been found liable: (1) to the enterprise; or
(2) because the person improperly received a personal
benefit, without regard to whether the benefit resulted from an
action taken in the persons official capacity.
(c) The indemnification ordered by the court under this
section is limited to reasonable expenses if the governing
person, former governing person, or delegate is found liable:
(1) to the enterprise; or (2) because the person
improperly received a personal benefit, without regard to
whether the benefit resulted from an action taken in the
persons official capacity.
II-4
Section 8.101 states that (a) An enterprise may
indemnify a governing person, former governing person, or
delegate who was, is, or is threatened to be made a respondent
in a proceeding to the extent permitted by Section 8.102 if
it is determined in accordance with Section 8.103 that:
(1) the person: (A) acted in good faith;
(B) reasonably believed: (i) in the case of conduct in
the persons official capacity, that the persons
conduct was in the enterprises best interests; and
(ii) in any other case, that the persons conduct was
not opposed to the enterprises best interests; and
(C) in the case of a criminal proceeding, did not have a
reasonable cause to believe the persons conduct was
unlawful; (2) with respect to expenses, the amount of
expenses other than a judgment is reasonable; and
(3) indemnification should be paid. (b) Action taken
or omitted by a governing person or delegate with respect to an
employee benefit plan in the performance of the persons
duties for a purpose reasonably believed by the person to be in
the interest of the participants and beneficiaries of the plan
is for a purpose that is not opposed to the best interests of
the enterprise. (c) Action taken or omitted by a delegate
to another enterprise for a purpose reasonably believed by the
delegate to be in the interest of the other enterprise or its
owners or members is for a purpose that is not opposed to the
best interests of the enterprise. (d) A person does not
fail to meet the standard under Subsection (a)(1) solely because
of the termination of a proceeding by: (1) judgment;
(2) order; (3) settlement; (4) conviction; or
(5) a plea of nolo contendere or its equivalent.
Section 8.102 states that (a) Subject to
Subsection (b), an enterprise may indemnify a governing person,
former governing person, or delegate against: (1) a
judgment; and (2) expenses, other than a judgment, that are
reasonable and actually incurred by the person in connection
with a proceeding. (b) Indemnification under this
subchapter of a person who is found liable to the enterprise or
is found liable because the person improperly received a
personal benefit: (1) is limited to reasonable expenses
actually incurred by the person in connection with the
proceeding; (2) does not include a judgment, a penalty, a
fine, and an excise or similar tax, including an excise tax
assessed against the person with respect to an employee benefit
plan; and (3) may not be made in relation to a proceeding
in which the person has been found liable for: (A) willful
or intentional misconduct in the performance of the
persons duty to the enterprise; (B) breach of the
persons duty of loyalty owed to the enterprise; or
(C) an act or omission not committed in good faith that
constitutes a breach of a duty owed by the person to the
enterprise. (c) A governing person, former governing
person, or delegate is considered to have been found liable in
relation to a claim, issue, or matter only if the liability is
established by an order, including a judgment or decree of a
court, and all appeals of the order are exhausted or foreclosed
by law.
The limited liability agreement of Tommy Bahama Texas Beverages,
LLC provides, in effect, that, to the fullest extent and under
the circumstances permitted by the TBOC, it will indemnify any
and all of its members, managers and officers.
The exhibits listed below in the Index to Exhibits
are part of this Registration Statement on
Form S-4
and are numbered in accordance with Item 601 of
Regulation S-K.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually of in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the
II-5
changes in volume and price represent no more than 20% change in
the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(2) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrants
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(4) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(5) That, for purposes of determining liability under the
Securities Act of 1933 to any purchaser:
(i) Each prospectus filed pursuant to Rule 424(b) as
part of the registration statement relating to an offering,
other than registration statements relying on Rule 430B or
other than prospectuses filed in reliance on Rule 430A,
shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness.
Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such date of first use.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of securities:
The undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
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Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the act and will be governed by the final adjudication of such
issue.
To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b),
11, or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first
class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the
effective date of the registration statement through the date of
responding to the request.
To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired
involved therein, that was not the subject of and included in
the registration statement when it became effective.
II-7
Signatures
Pursuant to the requirements of the Securities Act, the
undersigned registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Atlanta, State of
Georgia, on the
13th day
of July 2009.
Oxford Industries, Inc.
J. Hicks Lanier
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas E. Campbell, Mary
Margaret Heaton and Suraj A. Palakshappa and each of them, his
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for such person and in his name,
place and stead, in any and all capacities, to sign any and all
amendments to this registration statement, and to file the same
with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the
premises, as fully and to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, and any of them, or their
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons
in the capacities set forth opposite their names and on the
13th day
of July 2009.
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Signature
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Title
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/s/ J.
Hicks Lanier
J.
Hicks Lanier
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Chairman and Chief Executive Officer
(Principal Executive Officer)
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/s/ K.
Scott Grassmyer
K.
Scott Grassmyer
|
|
Senior Vice President,
Chief Financial Officer and Controller
(Principal Financial and Accounting Officer)
|
|
|
|
/s/ Cecil
D. Conlee
Cecil
D. Conlee
|
|
Director
|
|
|
|
/s/ George
C. Guynn
George
C. Guynn
|
|
Director
|
|
|
|
/s/ John
R. Holder
John
R. Holder
|
|
Director
|
|
|
|
/s/ J.
Reese Lanier
J.
Reese Lanier
|
|
Director
|
|
|
|
/s/ Dennis
M. Love
Dennis
M. Love
|
|
Director
|
II-8
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Clarence
H. Smith
Clarence
H. Smith
|
|
Director
|
|
|
|
/s/ Helen
B. Weeks
Helen
B. Weeks
|
|
Director
|
|
|
|
/s/ E.
Jenner Wood III
E.
Jenner Wood III
|
|
Director
|
II-9
Signatures
Pursuant to the requirements of the Securities Act, each of the
undersigned registrants has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Atlanta, State of
Georgia, on the
13th day
of July 2009.
Ben Sherman Clothing, Inc.
Oxford International, Inc.
Oxford Lockbox, Inc.
Oxford of South Carolina, Inc.
SFI of Oxford Acquisition Corporation
Tommy Bahama Group, Inc.
Tommy Bahama R&R Holdings, Inc.
Viewpoint Marketing, Inc.
J. Hicks Lanier
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas E. Campbell, Mary
Margaret Heaton and Suraj A. Palakshappa and each of them, his
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for such person and in his name,
place and stead, in any and all capacities, to sign any and all
amendments to this registration statement, and to file the same
with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the
premises, as fully and to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, and any of them, or their
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons
in the capacities set forth opposite their names and on the
13th day
of July 2009.
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ J.
Hicks Lanier
J.
Hicks Lanier
|
|
President
(Principal Executive Officer) and Director
|
|
|
|
/s/ K.
Scott Grassmyer
K.
Scott Grassmyer
|
|
Vice President
(Principal Financial and Accounting Officer)
|
|
|
|
/s/ Thomas
C. Chubb III
Thomas
C. Chubb III
|
|
Director
|
II-10
Signatures
Pursuant to the requirements of the Securities Act, each of the
undersigned registrants has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Atlanta, State of
Georgia, on the
13th day
of July 2009.
Lionshead Clothing Company
Oxford Caribbean, Inc.
Piedmont Apparel Corporation
Oxford Garment, Inc.
J. Hicks Lanier
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas E. Campbell, Mary
Margaret Heaton and Suraj A. Palakshappa and each of them, his
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for such person and in his name,
place and stead, in any and all capacities, to sign any and all
amendments to this registration statement, and to file the same
with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the
premises, as fully and to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, and any of them, or their
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons
in the capacities set forth opposite their names and on the
13th day
of July 2009.
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ J.
Hicks Lanier
J.
Hicks Lanier
|
|
President
(Principal Executive Officer)
|
|
|
|
/s/ K.
Scott Grassmyer
K.
Scott Grassmyer
|
|
Vice President
(Principal Financial and Accounting Officer)
|
|
|
|
/s/ Mary
Margaret Heaton
Mary
Margaret Heaton
|
|
Director
|
|
|
|
Donald
McLamb
|
|
Director
|
|
|
|
/s/ Suraj
A. Palakshappa
Suraj
A. Palakshappa
|
|
Director
|
II-11
Signatures
Pursuant to the requirements of the Securities Act, the
undersigned registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Atlanta, State of
Georgia, on the
13th day
of July 2009.
Tommy Bahama Beverages, LLC
|
|
|
|
By:
|
Tommy Bahama R&R Holdings, Inc.,
|
as Sole Member
J. Hicks Lanier
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas E. Campbell, Mary
Margaret Heaton and Suraj A. Palakshappa and each of them, his
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for such person and in his name,
place and stead, in any and all capacities, to sign any and all
amendments to this registration statement, and to file the same
with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the
premises, as fully and to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, and any of them, or their
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons
in the capacities set forth opposite their names and on the
13th day
of July 2009.
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ J.
Hicks Lanier
J.
Hicks Lanier
|
|
President
(Principal Executive Officer)
|
|
|
|
/s/ K.
Scott Grassmyer
K.
Scott Grassmyer
|
|
Vice President
(Principal Financial and Accounting Officer)
of Tommy Bahama R&R Holdings, Inc.,
Sole Member of the registrant
|
|
|
|
Tommy Bahama R&R Holdings, Inc., as Sole Member
|
|
|
|
|
|
/s/ J.
Hicks Lanier
J.
Hicks Lanier
|
|
President
|
II-12
Signatures
Pursuant to the requirements of the Securities Act, the
undersigned registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Atlanta, State of
Georgia, on the
13th day
of July 2009.
Tommy Bahama Texas Beverages, LLC
|
|
|
|
By:
|
Tommy Bahama Beverages, LLC,
|
as Sole Member
J. Hicks Lanier
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas E. Campbell, Mary
Margaret Heaton and Suraj A. Palakshappa and each of them, his
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for such person and in his name,
place and stead, in any and all capacities, to sign any and all
amendments to this registration statement, and to file the same
with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the
premises, as fully and to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, and any of them, or their
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons
in the capacities set forth opposite their names and on the
13th day
of July 2009.
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ J.
Hicks Lanier
J.
Hicks Lanier
|
|
President
(Principal Executive Officer)
of Tommy Bahama Beverages, LLC,
Sole Member of the registrant
|
|
|
|
/s/ K.
Scott Grassmyer
K.
Scott Grassmyer
|
|
Vice President
(Principal Financial and Accounting Officer)
of Tommy Bahama R&R Holdings, Inc.,
Sole Member of Tommy Bahama Beverages, LLC,
Sole Member of the registrant
|
|
|
|
Tommy Bahama Beverages, LLC, as Sole Member
|
|
|
|
|
|
/s/ J.
Hicks Lanier
J.
Hicks Lanier
|
|
President
|
II-13
INDEX TO
EXHIBITS
|
|
|
|
|
Exhibit
|
|
|
No.
|
|
|
|
|
2
|
.1
|
|
Purchase Agreement, dated as of May 1, 2006, by and between The
Millwork Trading Co., Ltd., d/b/a Li & Fung USA, and Oxford
Industries, Inc. Incorporated by reference to Exhibit 2(a) to
the Companys Form 10-K for the fiscal year ended June 2,
2006.
|
|
2
|
.2
|
|
Letter Agreement, dated as of June 1, 2006, by and between The
Millwork Trading Co., Ltd., d/b/a Li & Fung USA, and Oxford
Industries, Inc. Incorporated by reference to Exhibit 2(b) to
the Companys Form 10-K for the fiscal year ended June 2,
2006.
|
|
3
|
.1
|
|
Restated Articles of Incorporation of Oxford Industries, Inc.
(the Company). Incorporated by reference to Exhibit
3.1 to the Companys Form 10-Q for the fiscal quarter ended
August 29, 2003.
|
|
3
|
.2
|
|
By-laws of Oxford Industries, Inc., as amended. Incorporated by
reference to Exhibit 3(b) to the Companys Form 8-K
dated June 15, 2009.
|
|
4
|
.1*
|
|
Indenture, dated as of June 30, 2009, among Oxford Industries,
Inc., the guarantors party thereto and U.S. Bank National
Association.
|
|
4
|
.2*
|
|
Form of 11.375% Senior Secured Exchange Note due 2014
(included in Exhibit 4.1 hereto).
|
|
4
|
.3*
|
|
Form of Subsidiary Guarantee (included in Exhibit 4.1 hereto).
|
|
4
|
.4
|
|
Registration Rights Agreement, dated as of June 30, 2009, among
the Company, the guarantors party thereto, Banc of America
Securities LLC, SunTrust Robinson Humphrey, Inc., Credit Suisse
Securities (USA) LLC, BB&T Capital Markets, a Division of
Scott & Stringfellow, LLC, Morgan Keegan & Company,
Inc., Barclays Capital Inc. and PNC Capital Markets LLC.
Incorporated by reference to exhibit 10.2 of the Companys
Current Report on Form 8-K dated June 30, 2009.
|
|
5
|
.1*
|
|
Opinion of King & Spalding LLP regarding legality of
securities being offered.
|
|
5
|
.2*
|
|
Opinion of Parker Poe Adams & Bernstein LLP, South Carolina
counsel to the Company.
|
|
5
|
.3*
|
|
Opinion of Gray Robinson, P.A., Florida counsel to the Company.
|
|
12
|
.1*
|
|
Statement re: Computation of Ratio of Earnings to Fixed Charges.
|
|
23
|
.1*
|
|
Consent of King & Spalding LLP (included as part of its
opinion filed as Exhibit 5.1 hereto).
|
|
23
|
.2*
|
|
Consent of Parker Poe Adams & Bernstein LLP (included as
part of its opinion filed as Exhibit 5.2).
|
|
23
|
.3*
|
|
Consent of Gray Robinson, P.A. (included as part of its opinion
filed as Exhibit 5.3).
|
|
23
|
.4*
|
|
Consent of independent registered public accounting firm.
|
|
23
|
.5*
|
|
Consent of Valuation Research Corporation.
|
|
24
|
.1*
|
|
Powers of Attorney (included on signature pages).
|
|
25
|
.1*
|
|
Form T-1, Statement of Eligibility and Qualification of Trustee.
|
|
99
|
.1*
|
|
Form of Letter of Transmittal.
|
|
99
|
.2*
|
|
Form of Notice of Guaranteed Delivery.
|
EX-4.1 INDENTURE
Exhibit 4.1
INDENTURE
Dated as of June 30, 2009
Among
OXFORD INDUSTRIES, INC.,
THE GUARANTORS NAMED ON SCHEDULE I HERETO,
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
11.375% SENIOR SECURED NOTES DUE 2015
CROSS-REFERENCE TABLE*
|
|
|
Trust Indenture Act Section |
|
Indenture Section |
310 (a)(1) |
|
7.10 |
(a)(2) |
|
7.10 |
(a)(3) |
|
N.A. |
(a)(4) |
|
N.A. |
(a)(5) |
|
7.10 |
(b) |
|
7.10 |
(c) |
|
N.A. |
311 (a) |
|
7.11 |
(b) |
|
7.11 |
(c) |
|
N.A. |
312 (a) |
|
2.05 |
(b) |
|
15.03 |
(c) |
|
15.03 |
313 (a) |
|
7.06 |
(b)(1) |
|
N.A. |
(b)(2) |
|
7.06; 7.07 |
(c) |
|
7.06; 15.02 |
(d) |
|
7.06; 15.02 |
314 (a) |
|
4.03; 15.02; 15.05 |
(b) |
|
11.05 |
(c)(1) |
|
15.04 |
(c)(2) |
|
15.04 |
(c)(3) |
|
N.A. |
(d) |
|
11.05 |
(e) |
|
14.05 |
(f) |
|
N.A. |
315 (a) |
|
7.01 |
(b) |
|
7.05; 15.02 |
(c) |
|
7.01 |
(d) |
|
7.01 |
(e) |
|
6.14 |
316 (a)(last sentence) |
|
2.09 |
(a)(1)(A) |
|
6.05 |
(a)(1)(B) |
|
6.04 |
(a)(2) |
|
N.A. |
(b) |
|
6.07 |
(c) |
|
2.12; 9.04 |
317 (a)(1) |
|
6.08 |
(a)(2) |
|
6.12 |
(b) |
|
2.04 |
318 (a) |
|
15.01 |
(b) |
|
N.A. |
(c) |
|
15.01 |
|
|
|
N.A. means not applicable. |
|
* |
|
This Cross-Reference Table is not part of the Indenture. |
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
Page |
|
ARTICLE 1
|
|
|
|
|
|
DEFINITIONS AND INCORPORATION BY REFERENCE
|
|
|
|
|
|
Section 1.01 Definitions |
|
|
1 |
|
Section 1.02 Other Definitions |
|
|
27 |
|
Section 1.03 Incorporation by Reference of Trust Indenture Act |
|
|
27 |
|
Section 1.04 Rules of Construction |
|
|
28 |
|
Section 1.05 Acts of Holders |
|
|
28 |
|
|
|
|
|
|
ARTICLE 2
|
|
|
|
|
|
THE NOTES
|
|
|
|
|
|
Section 2.01 Form and Dating; Terms |
|
|
29 |
|
Section 2.02 Execution and Authentication |
|
|
30 |
|
Section 2.03 Registrar and Paying Agent |
|
|
31 |
|
Section 2.04 Paying Agent to Hold Money in Trust |
|
|
31 |
|
Section 2.05 Holder Lists |
|
|
32 |
|
Section 2.06 Transfer and Exchange |
|
|
32 |
|
Section 2.07 Replacement Notes |
|
|
45 |
|
Section 2.08 Outstanding Notes |
|
|
45 |
|
Section 2.09 Treasury Notes |
|
|
46 |
|
Section 2.10 Temporary Notes |
|
|
46 |
|
Section 2.11 Cancellation |
|
|
46 |
|
Section 2.12 Defaulted Interest |
|
|
46 |
|
Section 2.13 CUSIP and ISIN Numbers |
|
|
47 |
|
|
|
|
|
|
ARTICLE 3
|
|
|
|
|
|
REDEMPTION
|
|
|
|
|
|
Section 3.01 Notices to Trustee |
|
|
47 |
|
Section 3.02 Selection of Notes to Be Redeemed or Purchased |
|
|
47 |
|
Section 3.03 Notice of Redemption |
|
|
48 |
|
Section 3.04 Effect of Notice of Redemption |
|
|
48 |
|
Section 3.05 Deposit of Redemption or Purchase Price |
|
|
49 |
|
Section 3.06 Notes Redeemed or Purchased in Part |
|
|
49 |
|
Section 3.07 Optional Redemption |
|
|
49 |
|
Section 3.08 Mandatory Redemption |
|
|
50 |
|
|
|
|
|
|
ARTICLE 4
|
|
|
|
|
|
COVENANTS
|
|
|
|
|
|
Section 4.01 Payment of Principal, Premium and Interest |
|
|
50 |
|
-i-
|
|
|
|
|
|
|
|
Page |
|
Section 4.02 Corporate Existence |
|
|
50 |
|
Section 4.03 Payment of Taxes and Other Claims |
|
|
51 |
|
Section 4.04 Maintenance of Properties |
|
|
51 |
|
Section 4.05 Limitation on Indebtedness |
|
|
51 |
|
Section 4.06 Limitation on Restricted Payments |
|
|
55 |
|
Section 4.07 Limitation on Transactions with Affiliates |
|
|
58 |
|
Section 4.08 Limitation on Liens |
|
|
59 |
|
Section 4.09 Limitation on Sale of Assets |
|
|
60 |
|
Section 4.10 Additional Guarantees |
|
|
61 |
|
Section 4.11 Purchase of Notes upon a Change of Control |
|
|
62 |
|
Section 4.12 Limitation on Subsidiary Preferred Stock |
|
|
63 |
|
Section 4.13 Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries |
|
|
64 |
|
Section 4.14 Limitation on Unrestricted Subsidiaries |
|
|
65 |
|
Section 4.15 Provision of Financial Information |
|
|
67 |
|
Section 4.16 Statement by Officers as to Default |
|
|
67 |
|
|
|
|
|
|
ARTICLE 5
|
|
|
|
|
|
SUCCESSORS
|
|
|
|
|
|
Section 5.01 Consolidation, Merger or Sale of Assets |
|
|
68 |
|
Section 5.02 Successor Substituted |
|
|
70 |
|
|
|
|
|
|
ARTICLE 6
|
|
|
|
|
|
DEFAULTS AND REMEDIES
|
|
|
|
|
|
Section 6.01 Events of Default |
|
|
70 |
|
Section 6.02 Acceleration |
|
|
72 |
|
Section 6.03 Other Remedies |
|
|
73 |
|
Section 6.04 Waiver of Past Defaults |
|
|
73 |
|
Section 6.05 Control by Majority |
|
|
73 |
|
Section 6.06 Limitation on Suits |
|
|
74 |
|
Section 6.07 Rights of Holders of Notes to Receive Payment |
|
|
74 |
|
Section 6.08 Collection Suit by Trustee |
|
|
74 |
|
Section 6.09 Restoration of Rights and Remedies |
|
|
74 |
|
Section 6.10 Rights and Remedies Cumulative |
|
|
74 |
|
Section 6.11 Delay or Omission Not Waiver |
|
|
75 |
|
Section 6.12 Trustee May File Proofs of Claim |
|
|
75 |
|
Section 6.13 Priorities |
|
|
75 |
|
Section 6.14 Undertaking for Costs |
|
|
76 |
|
|
|
|
|
|
ARTICLE 7
|
|
|
|
|
|
TRUSTEE
|
|
|
|
|
|
Section 7.01 Duties of Trustee |
|
|
76 |
|
Section 7.02 Rights of Trustee |
|
|
77 |
|
Section 7.03 Individual Rights of Trustee |
|
|
78 |
|
-ii-
|
|
|
|
|
|
|
|
Page |
|
Section 7.04 Trustees Disclaimer |
|
|
78 |
|
Section 7.05 Notice of Defaults |
|
|
78 |
|
Section 7.06 Reports by Trustee to Holders of the Notes |
|
|
78 |
|
Section 7.07 Compensation and Indemnity |
|
|
79 |
|
Section 7.08 Replacement of Trustee |
|
|
80 |
|
Section 7.09 Successor Trustee by Merger, etc |
|
|
80 |
|
Section 7.10 Eligibility; Disqualification |
|
|
81 |
|
Section 7.11 Preferential Collection of Claims Against Issuer |
|
|
81 |
|
|
|
|
|
|
ARTICLE 8
|
|
|
|
|
|
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
|
|
|
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 |
|
|
82 |
|
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions |
|
|
83 |
|
Section 8.06 Repayment to Issuer |
|
|
84 |
|
Section 8.07 Reinstatement |
|
|
84 |
|
|
|
|
|
|
ARTICLE 9
|
|
|
|
|
|
AMENDMENT, SUPPLEMENT AND WAIVER
|
|
|
|
|
|
Section 9.01 Without Consent of Holders of Notes |
|
|
84 |
|
Section 9.02 With Consent of Holders of Notes |
|
|
85 |
|
Section 9.03 Compliance with Trust Indenture Act |
|
|
86 |
|
Section 9.04 Revocation and Effect of Consents |
|
|
86 |
|
Section 9.05 Notation on or Exchange of Notes |
|
|
87 |
|
Section 9.06 Trustee to Sign Amendments, etc |
|
|
87 |
|
|
|
|
|
|
ARTICLE 10
|
|
|
|
|
|
INTERCREDITOR AGREEMENT
|
|
|
|
|
|
Section 10.01 Intercreditor Agreement |
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88 |
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ARTICLE 11
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COLLATERAL
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Section 11.01 Security Documents |
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88 |
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Section 11.02 Collateral Agent |
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88 |
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Section 11.03 Authorization of Actions to Be Taken |
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89 |
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Section 11.04 Release of Collateral |
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89 |
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Section 11.05 Filing, Recording and Opinions |
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90 |
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Section 11.06 Powers Exercisable by Receiver or Trustee |
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90 |
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Page |
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ARTICLE 12 |
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APPLICATION OF TRUST MONIES
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Section 12.01 Collateral Account |
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91 |
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Section 12.02 Withdrawal of Net Cash Proceeds in Connection with Reinvestments |
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91 |
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Section 12.03 Withdrawal of Net Cash Proceeds to Fund an Offer or Release Following an Offer |
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92 |
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Section 12.04 Investment of Trust Monies |
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92 |
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Section 12.05 Application of other Trust Monies |
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93 |
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ARTICLE 13
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GUARANTEES
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Section 13.01 Guarantee |
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93 |
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Section 13.02 Limitation on Guarantor Liability |
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94 |
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Section 13.03 Execution and Delivery |
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95 |
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Section 13.04 Subrogation |
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95 |
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Section 13.05 Benefits Acknowledged |
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95 |
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Section 13.06 Release of Guarantees |
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95 |
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ARTICLE 14
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SATISFACTION AND DISCHARGE
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Section 14.01 Satisfaction and Discharge |
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96 |
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Section 14.02 Application of Trust Money |
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96 |
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ARTICLE 15
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MISCELLANEOUS |
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Section 15.01 Trust Indenture Act Controls |
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97 |
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Section 15.02 Notices |
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97 |
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Section 15.03 Communication by Holders of Notes with Other Holders of Notes |
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98 |
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Section 15.04 Certificate and Opinion as to Conditions Precedent |
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98 |
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Section 15.05 Statements Required in Certificate or Opinion |
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98 |
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Section 15.06 Rules by Trustee and Agents |
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99 |
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Section 15.07 No Personal Liability of Directors, Officers, Employees and Stockholders |
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99 |
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Section 15.08 Governing Law |
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99 |
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Section 15.09 Force Majeure |
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99 |
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Section 15.10 Successors |
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99 |
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Section 15.11 Severability |
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99 |
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Section 15.12 Counterpart Originals |
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100 |
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Section 15.13 Table of Contents, Headings, etc |
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100 |
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Section 15.14 Qualification of Indenture |
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100 |
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Section 15.15 USA Patriot Act |
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100 |
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SCHEDULES |
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Schedule I Guarantors |
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EXHIBITS |
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Exhibit A Form of Note |
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Exhibit B Form of Certificate of Transfer |
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Exhibit B-1 Form of Certificate for Acquiring Institutional Accredited Investor |
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Exhibit C Form of Certificate of Exchange |
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Exhibit D Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors |
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-i-
INDENTURE, dated as of June 30, 2009, among Oxford Industries, Inc., a Georgia corporation
(the Issuer), the Guarantors (as defined herein) listed on the signature pages hereto,
and U.S. Bank National Association, a national banking association duly organized and existing
under the laws of the United States of America, as Trustee.
W I T N E S S E T H
WHEREAS, the Issuer has duly authorized the creation of an issue of $150,000,000 aggregate
principal amount of 11.375% Senior Secured Notes due 2015 (the Initial Notes);
WHEREAS, the Issuer and each of the Guarantors has duly authorized the execution and delivery
of this Indenture;
WHEREAS, all things necessary (i) to make the Notes, when executed by the Issuer and
authenticated and delivered hereunder and duly issued by the Issuer, the valid obligations of the
Company, and (ii) to make this Indenture a valid agreement of the Issuer, all in accordance with
their respective terms, have been done; and
NOW, THEREFORE, the Issuer, the Guarantors and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the Notes.
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
attached hereto, as the case may be, bearing the Global Note Legend, the OID 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 144A.
ABL Obligations means (x) the Indebtedness and other obligations which are secured
by a Lien on the Collateral permitted by clause (b) of the definition of Permitted Liens (or to
the extent designated to the Trustee in an Officers Certificate of the Issuer, clause (q) of the
definition of Permitted Liens) and (y) obligations in respect of Bank Products (as defined in
the Intercreditor Agreement) that are permitted to be secured pursuant to the definition of
Permitted Liens.
ABL Priority Collateral has the meaning set forth in the Intercreditor
Agreement.
Acquired Indebtedness means, with respect to any specified Person, Indebtedness of
any other Person (1) existing at the time such other Person is consolidated or merged with or into,
or became a Subsidiary of, such specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person consolidating or merging with or into,
or becoming a Subsidiary of, such specified Person, or (2) assumed in connection with the
acquisition of assets from such other Person, in each case, whether or not such Indebtedness is
incurred in connection with, or in contemplation of such acquisition, as the case may be.
Notwithstanding the foregoing, Acquired Indebtedness shall not include Indebtedness of such other
Person that is extinguished, retired or repaid concurrently with such other Person becoming a
Restricted Subsidiary of, or at the time it is consolidated or merged with or into, such specified
Person.
Additional Interest means all additional interest then owing pursuant to the
Registration Rights Agreement.
Additional Notes means additional Notes (other than the Initial Notes and other than
Exchange Notes issued in exchange for such Initial Notes) issued from time to time under this
Indenture in accordance with Sections 2.01, 4.05 and 4.08, it being understood that any Notes
issued in exchange for or replacement of any Notes shall not be Additional Notes.
Adjusted Treasury Rate means the rate per annum equal to the semiannual equivalent
yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of the principal amount) equal to the Comparable Treasury Price
for the redemption date, calculated in accordance with standard market practice.
Affiliate means, with respect to any specified Person: (1) any other Person
directly or indirectly controlling or controlled by or under direct or indirect common control with
such specified Person; (2) any other Person that owns, directly or indirectly, 10% or more of any
class or series of such specified Persons (or any of such Persons direct or indirect parents)
Capital Stock or any officer or director of any such specified Person or other Person or, with
respect to any natural person, any Person having a relationship with such Person by blood, marriage
or adoption not more remote than first cousin; or (3) any other Person 10% or more of the Voting
Stock of which is beneficially owned or held directly or indirectly by such specified Person. For
the purposes of this definition, control when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly or indirectly,
whether through ownership of voting securities, by contract or otherwise; and the terms
controlling and controlled have meanings correlative to the foregoing.
Agent means any Registrar or Paying Agent.
Applicable Procedures means, with respect to any transfer or exchange of or for
beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear
and/or Clearstream that apply to such transfer or exchange.
Asset Sale means any sale, issuance, conveyance, transfer, lease or other
disposition (including, without limitation, by way of merger, consolidation or sale and leaseback
transaction) (collectively, a transfer), directly or indirectly, in one or a series of
related transactions, of:
(1) any Capital Stock of any Restricted Subsidiary;
(2) all or substantially all of the properties and assets of any division or line of
business of the Issuer or any Restricted Subsidiary; or
(3) any other properties or assets (including any transfer by written contract by the
Issuer or any Restricted Subsidiary to any other Person of any of its rights to receive all
or a portion of the proceeds from the sale by the Issuer or any Restricted Subsidiary of any
such asset or properties) of the Issuer or any Restricted Subsidiary other than in the
ordinary course of business.
For the purposes of this definition, the term Asset Sale shall not include any transfer of
properties and assets
(A) that is governed by the provisions of Section 5.01;
-2-
(B) that is by the Issuer to any Restricted Subsidiary or by any Restricted Subsidiary
to the Issuer or any Restricted Subsidiary in accordance with the terms of this Indenture;
provided that no transfer of Note Priority Collateral to a Restricted Subsidiary
that is not a Guarantor shall be included in the exception created by this clause (B),
(C) that would be within the definition of Restricted Payment in Section 4.06 and
would be permitted to be made as a Restricted Payment under Section 4.06,
(D) that is a disposition of Receivables and Related Assets in a Qualified
Securitization Transaction for the Fair Market Value thereof including cash or Cash
Equivalents in an amount at least equal to 75% of the Fair Market Value thereof,
(E) that are obsolete, damaged or worn out equipment or otherwise unsuitable for use in
the ordinary course of business,
(F) that is the disposition of Capital Stock of an Unrestricted Subsidiary,
(G) that is the sale or other disposition of cash or Cash Equivalents,
(H) that is the issuance of Capital Stock by a Restricted Subsidiary to the Issuer or
to another Restricted Subsidiary (other than a Securitization Entity),
(I) that is the sale, transfer or disposition deemed to occur in connection with
creating or granting any Liens permitted by Section 4.08,
(J) that is the transfer of assets in connection with an Investment permitted by clause
(8) or clause (13) of the definition of Permitted Investment,
(K) the Fair Market Value of which in the aggregate does not exceed $5 million in any
transaction or series of related transactions, or
(L) consisting of the licensing of any intellectual property in the ordinary course of
business of the Issuer and its Restricted Subsidiaries.
Average Life to Stated Maturity means, as of the date of determination with respect
to any Indebtedness, the quotient obtained by dividing (1) the sum of the product of (a) the number
of years from the date of determination to the date or dates of each successive scheduled principal
payment of such Indebtedness multiplied by (b) the amount of each such principal payment by (2) the
sum of all such principal payments.
Bankruptcy Law means Title 11, United States Bankruptcy Code of 1978, as amended, or
any similar United States federal or state law or foreign law relating to bankruptcy, insolvency,
receivership, winding up, liquidation, reorganization or relief of debtors or any amendment to,
succession to or change in any such law.
Board of Directors means the board of directors or comparable governing body of the
Issuer or any Guarantor, as the case may be, or any duly authorized committee of such board or
comparable governing body.
Business Day means each day which is not a Saturday, a Sunday or a day on which
banking institutions in The City of New York, the city in which the principal corporate trust
office of the
-3-
Trustee is located or at a place of payment are authorized or required by law, regulation or
executive order to remain closed.
Capital Lease Obligation of any Person means any obligation of such Person and its
Restricted Subsidiaries on a Consolidated basis under any capital lease of (or other agreement
conveying the right to use) real or personal property which, in accordance with GAAP, is required
to be recorded as a capitalized lease obligation.
Capital Stock of any Person means any and all shares, interests, participations,
rights in or other equivalents (however designated) of such Persons capital stock, other equity
interests whether now outstanding or issued after the Issue Date, partnership interests (whether
general or limited), limited liability company interests, any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person, including any Preferred Stock, and any rights (other than debt
securities convertible into Capital Stock), warrants or options exchangeable for or convertible
into such Capital Stock.
Cash Equivalents means
(1) any evidence of Indebtedness issued or directly and fully guaranteed or insured by
the United States or any agency or instrumentality thereof,
(2) deposits, certificates of deposit or acceptances of any financial institution that
is a member of the Federal Reserve System and whose senior unsecured debt is rated at least
A-1 by S&P, or at least P-1 by Moodys or any respective successor agency,
(3) commercial paper with a maturity of 365 days or less issued by a corporation (other
than an Affiliate of the Issuer) organized and existing under the laws of the United States
of America, any state thereof or the District of Columbia and rated at least A-1 by S&P
and at least P-1 by Moodys or any respective successor agency,
(4) repurchase agreements and reverse repurchase agreements relating to marketable
direct obligations issued or unconditionally guaranteed by the United States or issued by
any agency thereof and backed by the full faith and credit of the United States maturing
within 365 days from the date of acquisition,
(5) demand and time deposits with a domestic commercial bank that is a member of the
Federal Reserve System that are FDIC insured, and
(6) money market funds which invest substantially all of their assets in securities
described in the preceding clauses (1) through (5).
Change of Control means the occurrence of any of the following events:
(1) any person or group (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a Person shall be deemed to have beneficial ownership of
all shares that such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more than 50% of
the total outstanding Voting Stock of the Issuer;
-4-
(2) during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Issuer (together with any new
directors whose election to such board or whose nomination for election by the stockholders
of the Issuer was approved by a vote of a majority of the directors then still in office who
were either directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a majority of such
Board of Directors then in office;
(3) the Issuer consolidates with or merges with or into any Person or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially all of its and its
Restricted Subsidiaries assets to any Person, or any Person consolidates with or merges
into or with the Issuer, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Issuer is converted into or exchanged for cash, securities
or other property, other than any such transaction where
(A) the outstanding Voting Stock of the Issuer is converted into or exchanged
for (1) Voting Stock of the surviving corporation which is not Redeemable Capital
Stock or (2) cash, securities and other property (other than Capital Stock of the
surviving corporation) in an amount which could be paid by the Issuer as a
Restricted Payment under Section 4.06 (and such amount shall be treated as a
Restricted Payment for purposes of Section 4.06) and
(B) immediately after such transaction, no person or group is the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except
that a Person shall be deemed to have beneficial ownership of all securities that
such Person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of more than 50% of the
total outstanding Voting Stock of the surviving corporation; or
(4) the Issuer is liquidated or dissolved or adopts a plan of liquidation or
dissolution other than in a transaction which complies with Section 5.01.
For purposes of this definition, any transfer of an equity interest of an entity that was formed
for the purpose of acquiring Voting Stock of the Issuer will be deemed to be a transfer of such
portion of such Voting Stock as corresponds to the portion of the equity of such entity that has
been so transferred.
Clearstream means Clearstream Banking, Société Anonyme.
Collateral means, collectively, all of the property and assets that are from time to
time subject to the Lien of (i) the Security Documents (other than the Intercreditor Agreement) or
(ii) the last sentence of Section 5.4(a) of the Intercreditor Agreement, including the Liens, if
any, required pursuant to the provisions of this Indenture.
Collateral Account means the collateral account established pursuant to Section
12.01.
Collateral Agent means the Trustee, in its capacity as Collateral Agent for the
holders of Notes and Permitted Additional Pari Passu Obligations, together with its successors in
such capacity.
Commodity Price Protection Agreement means any forward contract, commodity swap,
commodity option or other similar agreement or arrangement relating to, or the value of which is
dependent upon, fluctuations in commodity prices and which does not increase the amount of Indebtedness
-5-
or other obligations of the Issuer or any Restricted Subsidiary outstanding other than as
a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation
payable thereunder.
Comparable Treasury Issue means the U.S. Treasury security selected by an
Independent Investment Banker that would be used, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes (assuming the Notes matured on July 15, 2012).
Comparable Treasury Price means either (1) the average of the Reference Treasury
Dealer Quotations for the redemption date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations or (2) if the Trustee obtains fewer than three such Reference Treasury
Dealer Quotations, the average of all quotations obtained.
Consolidated EBITDA means for any period, the sum, without duplication, of
Consolidated Net Income (Loss), and (A) in each case to the extent deducted in computing
Consolidated Net Income (Loss) for such period, (i) Consolidated Interest Expense, (ii)
Consolidated Income Tax Expense and (iii) Consolidated Non-cash Charges for such period, of such
Person all determined in accordance with GAAP, less (B) (i) all non-cash items increasing or
decreasing Consolidated Net Income for such period and (ii) all cash payments during such period
relating to Consolidated Non-cash Charges added back to Consolidated Net Income (Loss) pursuant to
clause (A)(iii) or (B)(i) above in any prior period for purposes of calculating Consolidated EBITDA
for such prior period; provided that Consolidated EBITDA shall exclude (x) gain or loss on
early retirement of Indebtedness and (y) any charges incurred as a result of LIFO adjustments.
Consolidated Fixed Charge Coverage Ratio of any Person means, for any period of the
most recent four fiscal quarters for which consolidated financial statements of the Issuer are
available (the Four Quarter Period), the ratio of
(a) Consolidated EBITDA for such Four Quarter Period to
(b) Consolidated Interest Expense for such Four Quarter Period (but excluding from
Consolidated Interest Expense for this purpose (i) the amortization, expensing or write-off
of deferred financing fees relating to the incurrence of Indebtedness and (ii) the accretion
of original issue discount on the Initial Notes and any Exchange Notes issued in exchange
therefor),
in the case of each of clauses (a) and (b) after giving pro forma effect to:
(1) the incurrence of the Indebtedness giving rise to the need to make such calculation
and (if applicable) the application of the net proceeds therefrom, including to refinance
other Indebtedness, as if such Indebtedness was incurred, and the application of such
proceeds occurred, on the first day of such Four Quarter Period;
(2) the incurrence, repayment or retirement of any other Indebtedness by the Issuer and
its Restricted Subsidiaries since the first day of such Four Quarter Period as if such
Indebtedness was incurred, repaid or retired at the beginning of such Four Quarter Period
(except that, in making such computation, the amount of Indebtedness under any revolving
credit facility shall be computed based upon the average daily balance of such Indebtedness
during such Four Quarter Period);
-6-
(3) in the case of Acquired Indebtedness or any acquisition occurring at the time of
the incurrence of such Indebtedness, the related acquisition, assuming such acquisition had
been consummated on the first day of such Four Quarter Period; and
(4) any acquisition or disposition by the Issuer and its Restricted Subsidiaries of any
company or any business or any assets out of the ordinary course of business, whether by
merger, stock purchase or sale or asset purchase or sale, or any related repayment of
Indebtedness, in each case since the first day of such Four Quarter Period and prior to the
date of determination, assuming such acquisition or disposition had been consummated on the
first day of such Four Quarter Period;
provided that
(1) in making such computation, the Consolidated Interest Expense attributable to
interest on any Indebtedness computed on a pro forma basis and (A) bearing a floating
interest rate shall be computed as if the rate in effect on the date of computation had been
the applicable rate for the entire Four Quarter Period and (B) which was not outstanding
during the Four Quarter Period which bears, at the option of such Person, a fixed or
floating rate of interest, shall be computed by applying at the option of such Person either
the fixed or floating rate;
(2) in making such computation, the Consolidated Interest Expense of such Person
attributable to interest on any Indebtedness under a revolving credit facility computed on a
pro forma basis shall be computed based upon the average daily balance of such Indebtedness
during the applicable Four Quarter Period; and
(3) whenever pro forma effect is to be given to an acquisition or disposition, such pro
forma calculation will be determined in accordance with Article 11 of Regulation S-X under
the Securities Act or any successor provision.
Consolidated Income Tax Expense of any Person means, for any period, the provision
for federal, state, local and foreign income taxes of such Person and its consolidated Restricted
Subsidiaries for such period as determined in accordance with GAAP.
Consolidated Interest Expense of any Person means, without duplication, for any
period, the sum of
(a) the interest expense of such Person and its Restricted Subsidiaries for such
period, on a consolidated basis, including, without limitation,
(1) amortization of debt discount,
(2) the net cost (benefit) associated with Interest Rate Agreements (including
amortization of discounts),
(3) the interest portion of any deferred payment obligation,
(4) all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers acceptance financing and
(5) accrued interest, plus
-7-
(b) (1) the interest component of the Capital Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such
period and
(2) all capitalized interest of such Person and its Restricted Subsidiaries, plus
(c) the interest expense under any Guaranteed Debt of such Person and any Restricted
Subsidiary to the extent not included under clause (a)(4) above, whether or not paid by such
Person or its Restricted Subsidiaries, plus
(d) dividend requirements of the Issuer with respect to Redeemable Capital Stock and of
any Restricted Subsidiary with respect to Preferred Stock (except, in either case, dividends
payable solely in shares of Qualified Capital Stock of the Issuer or such Restricted
Subsidiary, as the case may be).
Consolidated Net Income (Loss) of any Person means, for any period, the consolidated
net income (or loss) of such Person and its Restricted Subsidiaries for such period on a
consolidated basis as determined in accordance with GAAP, adjusted, to the extent included in
calculating such net income (or loss), by excluding, without duplication,
(1) all extraordinary gains or losses net of taxes (less all fees and expenses relating
thereto),
(2) the portion of net income (or loss) of such Person and its Restricted Subsidiaries
on a consolidated basis allocable to minority interests in unconsolidated Persons or
Unrestricted Subsidiaries to the extent that cash dividends or distributions have not
actually been received by such Person or one of its consolidated Restricted Subsidiaries,
(3) any gain or loss, net of taxes, realized upon the termination of any employee
pension benefit plan,
(4) gains or losses, net of taxes (less all fees and expenses relating thereto), in
respect of dispositions of assets other than in the ordinary course of business,
(5) the net income of any Restricted Subsidiary to the extent that the declaration of
dividends or similar distributions by that Restricted Subsidiary of that income is not at
the time permitted, directly or indirectly, by operation of the terms of its charter, any
agreement or applicable law, except to the extent of the amount of dividends or other
distributions actually paid to the Issuer or any Restricted Subsidiary,
(6) any net gain or loss arising from the acquisition of any securities or
extinguishment, under GAAP, of any Indebtedness of such Person,
(7) any non-cash goodwill or intangible asset impairment charges resulting from the
application of SFAS No. 142,
(8) any non-cash charges incurred relating to the underfunded portion of any pension
plan,
(9) any non-cash charges resulting from the application of SFAS No. 123,
-8-
(10) all deferred financing costs written off, and premiums paid, in connection with
any early extinguishment of Indebtedness,
(11) any non-cash compensation charges or other non-cash expenses or charges arising
from the grant of or issuance or repricing of stock, stock options or other equity-based
awards or any amendment, modification, substitution or change of any such stock, stock
options or other equity-based awards, and
(12) any non-cash impairment charges recorded with respect to long-lived assets in
connection with the application of SFAS No. 144 and any non-cash write-downs attributable to
joint ventures held by the Issuer or any of its Restricted Subsidiaries under APB 19.
Consolidated Net Tangible Assets of any Person means, for any period, the total
amount of assets (less applicable reserves and other properly deductible items) after deducting (1)
all current liabilities and (2) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other intangibles, all as set forth on the Issuers most recent
consolidated balance sheet and computed in accordance with GAAP.
Consolidated Non-cash Charges of any Person means, for any period, the aggregate
depreciation, amortization and other non-cash charges of such Person and its Restricted
Subsidiaries on a Consolidated basis for such period, as determined in accordance with GAAP
(excluding any non-cash charge which requires an accrual or reserve for cash charges for any future
period).
Consolidated Total Debt means, as of any date of determination, an amount equal to
the aggregate principal amount of all outstanding Indebtedness of the Issuer and its Restricted
Subsidiaries that would be required to be reflected on a consolidated balance sheet (excluding the
notes thereto) of the Issuer as of such date.
Consolidated Total Debt Ratio means, as of any date of determination, the ratio of
(a) Consolidated Total Debt on the date of determination to (b) Consolidated EBITDA of the Issuer
and its Restricted Subsidiaries for the most recent four fiscal quarter period, ending prior to
such date for which the Issuer has consolidated financial statements available, in each case with
such pro forma adjustments to Consolidated EBITDA as are consistent with the pro forma adjustment
provisions set forth in the definition of Consolidated Fixed Charge Coverage Ratio.
Corporate Trust Office of the Trustee shall be at the address of the Trustee
specified in Section 15.02 or such other address as to which the Trustee may give notice to the
Holders and the Issuer.
Credit Agreement means the Second Amended and Restated Credit Agreement, dated
August 15, 2008, as amended, among the Issuer and certain of its Subsidiaries, as borrowers
thereunder, the Issuers Subsidiaries which are guarantors thereof, certain lenders party thereto,
and certain agents party thereto, together with the related documents, instruments and agreements
executed in connection therewith (including, without limitation, any guarantees, notes and security
documents), as such agreement, in whole or in part, in one or more instances, may be amended,
renewed, extended, substituted, refinanced, restructured, replaced, supplemented or otherwise
modified from time to time (including increasing the amount available for borrowing thereunder and
including refinancing with the same or different lenders or agents or any agreement extending the
maturity of, or increasing the commitments to extend, Indebtedness or any commitment to extend such
Indebtedness, and any successor or replacement agreements and whether by the same or any other
agent, lender or group of lenders).
-9-
Credit Facility means one or more credit or debt facilities (including, without
limitation, any credit or debt facilities provided under the Credit Agreement), commercial paper
facilities or other debt instruments, indentures or agreements providing for revolving credit
loans, term loans, letters of credit or other debt obligations, in each case, as amended, restated,
modified, renewed, refunded, restructured, supplemented, replaced or refinanced in whole or in part
from time to time, including without limitation any amendment increasing the amount of Indebtedness
incurred or available to be borrowed thereunder, extending the maturity of any Indebtedness
incurred thereunder or contemplated thereby or deleting, adding or substituting one or more parties
thereto (whether or not such added or substituted parties are banks or other lenders).
Currency Hedging Agreements means foreign exchange contracts, currency swap
agreements or other similar agreements or arrangements designed to protect against the fluctuations
in currency values and that relate to (1) Indebtedness of the Issuer or any Restricted Subsidiary
and/or (2) obligations to purchase or sell assets or properties; provided, however,
that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the
Issuer or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign
currency exchange rates or by reason of fees, indemnities and compensation payable thereunder.
Custodian means the Paying Agent and Registrar, as custodian with respect to the
Notes in global form, or any successor entity thereto.
Default means any event which is, or after notice or passage of time or both would
be, an Event of Default.
Definitive Note means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 2.06(c), (e) or (f), 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 2.03 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 this Indenture.
Designated Non-cash Consideration means the Fair Market Value, as set forth in an
Officers Certificate, of non-cash consideration received by the Issuer or any of its Restricted
Subsidiaries in connection with an Asset Sale.
Discharge of ABL Obligations has the meaning provided in the Intercreditor
Agreement.
Disinterested Director means, with respect to any transaction or series of related
transactions, a member of the Board of Directors of the Issuer who does not have any material
direct or indirect financial interest in or with respect to such transaction or series of related
transactions.
Equity Offering means any public offering or private sale for cash of common stock
(other than Redeemable Capital Stock) of the Issuer (other than public offerings with respect to a
registration statement on Form S-4 (or any successor form covering substantially the same
transactions), Form S-8 (or any successor form covering substantially the same transactions) or
otherwise relating to equity securities issuable under any employee benefit plan of the Issuer).
-10-
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, or any successor
statute, and the rules and regulations promulgated by the SEC thereunder.
Exchange Notes means any notes issued in exchange for the Notes pursuant to Section
2.06(f).
Exchange Offer has the meaning set forth in the Registration Rights Agreement.
Exchange Offer Registration Statement has the meaning set forth in the Registration
Rights Agreement.
Excluded Subsidiary shall mean any Person acquired or formed after August 15, 2008
which (i) is a Subsidiary of the Issuer, (ii) is not a wholly owned Subsidiary of the Issuer and
(iii) is (or whose parent is) contractually prohibited from becoming a Guarantor or granting a Lien
in favor of the Collateral Agent or having its Capital Stock pledged to secure the Indenture
Obligations and any Permitted Additional Pari Passu Obligations; provided, however,
if such Subsidiary is not contractually prohibited from taking all of the actions described in
clause (iii) above, then it shall be deemed an Excluded Subsidiary only with respect to the
actions which it or its parent is contractually prohibited from taking.
Fair Market Value means, with respect to any asset or property, the sale value that
would be obtained 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. Fair Market Value
shall be determined by the Board of Directors of the Issuer acting in good faith.
Foreign Subsidiary means any Restricted Subsidiary of the Issuer that (x) is not
organized under the laws of the United States or any state thereof or the District of Columbia, or
(y) was organized under the laws of the United States or any state thereof or the District of
Columbia and that has no material assets other than Capital Stock of one or more foreign entities
of the type described in clause (x) above and is not a guarantor of Indebtedness under the Credit
Agreement (including, without limitation, Oxford Private Limited of Delaware, Inc.).
GAAP means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect on the Issue Date.
Global Note Legend means the legend set forth in Section 2.06(g)(ii), which is
required to be placed on all Global Notes issued under this Indenture.
Global Notes means, individually and collectively, each of the Restricted Global
Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A hereto,
issued in accordance with Section 2.01, 2.06(b), 2.06(d), 2.06(f) or 2.06(j).
Government Securities means securities that are:
(1) direct obligations of the United States of America for the timely payment of which
its full faith and credit is pledged; or
-11-
(2) obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of
America,
which, in either case, are not callable or redeemable at the option of the issuers thereof, and
shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any such Government Securities or a specific payment
of principal of or interest on any such Government Securities held by such custodian for the
account of the holder of such depository receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of the Government
Securities or the specific payment of principal of or interest on the Government Securities
evidenced by such depository receipt.
Guarantee means the guarantee by any Guarantor of the Issuers Indenture Obligations
made pursuant to Article 13.
Guaranteed Debt of any Person means, without duplication, all Indebtedness of any
other Person referred to in the definition of Indebtedness below guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such
Person through an agreement
(1) to pay or purchase such Indebtedness or to advance or supply funds for the payment
or purchase of such Indebtedness,
(2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss,
(3) to supply funds to, or in any other manner invest in, the debtor (including any
agreement to pay for property or services without requiring that such property be received
or such services be rendered),
(4) to maintain working capital or equity capital of the debtor, or otherwise to
maintain the net worth, solvency or other financial condition of the debtor or to cause such
debtor to achieve certain levels of financial performance or
(5) otherwise to assure a creditor against loss;
provided that the term guarantee shall not include endorsements for collection or
deposit, in either case in the ordinary course of business.
Guarantor means any Subsidiary which is a Guarantor of the Notes, including any
Person that is required after the Issue Date to execute a Guarantee of the Notes pursuant to
Section 4.10, until a successor replaces such party pursuant to Section 5.01 and, thereafter, shall
mean such successor.
Holder means the Person in whose name a Note is registered in the Note Register.
IAI Global Note means a Global Note substantially in the form of Exhibit A
hereto bearing the Global Note Legend, the Private Placement Legend, and the OID 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 to Institutional
Accredited Investors.
-12-
Indebtedness means, with respect to any Person, without duplication,
(1) all indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services, excluding any trade payables and other accrued current
liabilities arising in the ordinary course of business, but including, without limitation,
all obligations, contingent or otherwise, of such Person in connection with any letters of
credit issued under letter of credit facilities, acceptance facilities or other similar
facilities,
(2) all obligations of such Person evidenced by bonds, notes, debentures or other
similar instruments,
(3) all indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even if the rights and
remedies of the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), but excluding trade payables arising in the ordinary
course of business,
(4) all obligations under Interest Rate Agreements, Currency Hedging Agreements or
Commodity Price Protection Agreements of such Person (the amount of any such obligations to
be equal at any time to the termination value of such agreement or arrangement giving rise
to such obligation that would be payable by such Person at such time),
(5) all Capital Lease Obligations of such Person,
(6) all Indebtedness referred to in clauses (1) through (5) above of other Persons, the
payment of which is secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or with respect to property
(including, without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such Indebtedness,
(7) all Guaranteed Debt of such Person,
(8) all Redeemable Capital Stock issued by such Person valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid dividends,
(9) all amounts outstanding and other obligations of such Person in respect of a
Qualified Securitization Transaction, and
(10) attributable debt with respect to sale and leaseback transactions.
For purposes hereof, the maximum fixed repurchase price of any Redeemable Capital Stock
which does not have a fixed repurchase price shall be calculated in accordance with the terms of
such Redeemable Capital Stock as if such Redeemable Capital Stock were purchased on any date on
which Indebtedness shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the Fair Market Value of such Redeemable Capital Stock, such Fair
Market Value to be determined in good faith by the Board of Directors of the issuer of such
Redeemable Capital Stock.
Indenture means this Indenture, as amended or supplemented from time to time.
Indenture Obligations means the obligations of the Issuer and any other obligor
under this Indenture or under the Notes, including any Guarantor, to pay principal of, premium, if
any, and interest when due and payable, and all other amounts due or to become due under or in
connection with this
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Indenture, the Notes and the performance of all other obligations to the
Trustee and the Holders under this Indenture and the Notes, according to the respective terms
thereof.
Independent Investment Banker means one of the Reference Treasury Dealers that the
Issuer appoints.
Indirect Participant means a Person who holds a beneficial interest in a Global Note
through a Participant.
Initial Notes has the meaning set forth in the recitals hereto.
Initial Purchasers means Banc of America Securities LLC, SunTrust Robinson Humphrey,
Credit Suisse Securities (USA) LLC and the other initial purchasers party to the purchase agreement
related to the Notes.
Insolvency or Liquidation Proceeding means:
(1) any case commenced by or against the Issuer or any Guarantor under any Bankruptcy
Law for the relief of debtors, any other proceeding for the reorganization, recapitalization
or adjustment or marshalling of the assets or liabilities of the Issuer or any Guarantor,
any receivership or assignment for the benefit of creditors relating to the Issuer or any
Guarantor or any similar case or proceeding relative to the Issuer or any Guarantor or its
creditors, as such, in each case whether or not voluntary;
(2) any liquidation, dissolution, marshalling of assets or liabilities or other winding
up of or relating to the Issuer or any Guarantor, in each case whether or not voluntary and
whether or not involving bankruptcy or insolvency; or
(3) any other proceeding of any type or nature in which substantially all claims of
creditors of the Issuer or any Guarantor are determined and any payment or distribution is
or may be made on account of such claims.
Institutional Accredited Investor means an institution that is an accredited
investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who is not also a
QIB.
Intercreditor Agreement means the Intercreditor Agreement dated as of June 30, 2009
by and among SunTrust Bank, as initial ABL Agent, U.S. Bank National Association, as notes agent,
the Trustee, the Issuer and the Guarantors, as amended, modified, restated, supplemented or
replaced from time to time.
Interest Payment Date means January 15 and July 15 of each year to Maturity.
Interest Rate Agreements means interest rate protection agreements (including,
without limitation, interest rate swaps, caps, floors, collars and similar agreements) and/or other
types of interest rate hedging agreements or arrangements designed to protect against or manage
exposure to fluctuations in interest rates in respect of Indebtedness of the Issuer or any
Restricted Subsidiary.
Investment means, with respect to any Person, directly or indirectly, any advance,
loan (including guarantees) or other extension of credit or capital contribution to (by means of
any transfer of cash or other property to others or any payment for property or services for the
account or use of others), or any purchase, acquisition or ownership by such Person of any Capital
Stock, bonds, notes, debentures
-14-
or other securities issued by, any other Person and all other items
that would be classified as investments on a balance sheet prepared in accordance with GAAP.
Investment shall exclude direct or indirect 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 Issuers or any Restricted Subsidiarys balance sheet, endorsements for
collection or deposit arising in the ordinary course of business and extensions of trade credit on
commercially reasonable terms in accordance with normal trade practices. If the Issuer or any
Restricted Subsidiary of the Issuer sells or otherwise disposes of any Capital Stock of any direct
or indirect Subsidiary of the Issuer such that, after giving effect to any such sale or
disposition, such Person is no longer a Subsidiary of the Issuer (other than the sale of all of the
outstanding Capital Stock of such Subsidiary), the Issuer will be deemed to have made an Investment
on the date of such sale or disposition equal to the Fair Market Value of the Issuers Investments
in such Subsidiary that were not sold or disposed of in an amount determined as provided in Section
4.09.
Issue Date means the original issue date of the Notes under this Indenture.
Issuer means Oxford Industries, Inc, a corporation incorporated under the laws of
the State of Georgia, until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter Issuer shall mean such successor Person.
Letter of Transmittal means the letter of transmittal to be prepared by the Issuer
and sent to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.
Lien means any mortgage or deed of trust, charge, pledge, lien (statutory or
otherwise), privilege, security interest, assignment, deposit, arrangement, easement,
hypothecation, claim, preference, priority or other encumbrance upon or with respect to any
property of any kind (including any conditional sale, capital lease or other title retention
agreement, any leases in the nature thereof, and any agreement to give any security interest), real
or personal, movable or immovable, now owned or hereafter acquired. A Person will be deemed to own
subject to a Lien any property which it has acquired or holds subject to the interest of a vendor
or lessor under any conditional sale agreement, Capital Lease Obligation or other title retention
agreement.
Maturity means, when used with respect to the Notes, the date on which the principal
of the Notes becomes due and payable as therein provided or as provided in this Indenture, whether
at Stated Maturity, the Offer Date or the redemption date and whether by declaration of
acceleration, Offer in respect of Excess Proceeds, Change of Control Offer in respect of a Change
of Control, call for redemption or otherwise.
Moodys means Moodys Investors Service, Inc. and any successor to its rating agency
business.
Net Cash Proceeds means
(a) with respect to any Asset Sale by any Person, the proceeds thereof (without
duplication in respect of all Asset Sales) in the form of cash or Cash Equivalents including
payments in respect of deferred payment obligations when received in the form of, or stock
or other assets when disposed of for, cash or Cash Equivalents (except to the extent that
such obligations are financed or sold with recourse to the Issuer or any Restricted
Subsidiary) net of
(1) brokerage commissions and other reasonable fees and expenses (including
fees and expenses of counsel and investment bankers) related to such Asset Sale,
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(2) provisions for all taxes payable as a result of such Asset Sale,
(3) except in the case of Liens ranking junior to the Liens securing the Notes,
payments made to retire Indebtedness where payment of such Indebtedness is secured
by the assets or properties the subject of such Asset Sale,
(4) in the case of an Asset Sale by a Restricted Subsidiary, distributions and
other payments required to be made to minority shareholders, partners or members of
such Restricted Subsidiary as a result of such Asset Sale,
(5) amounts required to be paid to any Person (other than the Issuer or any
Restricted Subsidiary) owning a beneficial interest in the assets subject to the
Asset Sale and
(6) appropriate amounts to be provided by the Issuer or any Restricted
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any
liabilities associated with such Asset Sale and retained by the Issuer or any
Restricted Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as reflected in an Officers
Certificate delivered to the Trustee; and
(b) with respect to any issuance or sale of Subordinated Indebtedness, Capital Stock or
options, warrants or rights to purchase Capital Stock, or debt securities or Capital Stock
that have been converted into or exchanged for Capital Stock as referred to in Section 4.06,
the proceeds of such issuance or sale in the form of cash or Cash Equivalents including
payments in respect of deferred payment obligations when received in the form of, or stock
or other assets when disposed of for, cash or Cash Equivalents (except to the extent that
such obligations are financed or sold with recourse to the Issuer or any Restricted
Subsidiary), net of attorneys fees, accountants fees and brokerage, consultation,
underwriting and other fees and expenses actually incurred in connection with such issuance
or sale and net of taxes paid or payable as a result thereof.
Non-recourse Indebtedness means, with respect to any Person, Indebtedness of such
Person as to which the Issuer and any Restricted Subsidiary may not be directly or indirectly
liable (by virtue of the Issuer or any such Restricted Subsidiary being the primary obligor on,
guarantor of, or otherwise liable in any respect to, such Indebtedness), and which, upon the
occurrence of a default with respect to such Indebtedness, does not result in, or permit any holder
of any Indebtedness of the Issuer or any Restricted Subsidiary to declare, a default on such
Indebtedness of the Issuer or any Restricted Subsidiary or cause the payment of Indebtedness of the
Issuer or any Restricted Subsidiary to be accelerated or payable prior to its Stated Maturity.
Non-U.S. Person means a Person who is not a U.S. Person.
Note Liens means all Liens in favor of the Collateral Agent on Collateral securing
the Indenture Obligations and any Permitted Additional Pari Passu Obligations.
Notes means any Note authenticated and delivered under this Indenture including
Initial Notes, Exchange Notes and any Additional Notes.
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Note Priority Collateral means Collateral constituting Note Priority Collateral
under the Intercreditor Agreement.
Obligations means any principal, premium, interest (including any interest accruing
subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the
rate provided for in the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable state, federal or foreign law), penalties, fees, indemnifications,
reimbursements (including reimbursement obligations with respect to letters of credit and bankers
acceptances), damages and other liabilities, and guarantees of payment of such principal, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the
documentation governing any Indebtedness.
Offering Memorandum means the offering memorandum, dated June 23, 2009, relating to
the sale of the Initial Notes.
Officer means the Chairman of the Board, the Chief Executive Officer, the President,
any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the
Secretary of the Issuer or a Guarantor, as applicable.
Officers Certificate means a certificate signed on behalf of the Issuer by an
Officer of the Issuer or on behalf of a Guarantor by an Officer of such Guarantor (or, if
applicable, such Guarantors sole member or general partner) as applicable, that meets the
requirements set forth in this Indenture.
OID Legend means the legend set forth in Section 2.06(g)(iv) to be placed on all
Notes issued under this Indenture that have more than a de minimis amount of original issue
discount for U.S. federal income tax purposes.
Opinion of Counsel means a written opinion from legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of or counsel to the Issuer or the
Trustee.
Pari Passu Indebtedness means any Indebtedness of the Issuer that is not
contractually subordinated to the Notes.
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 Pari Passu Obligations means obligations under any Additional
Notes or any other Indebtedness (whether or not consisting of Additional Notes) secured by the Note
Liens; provided that if, after giving effect to the Incurrence thereof, the aggregate
principal amount of Permitted Additional Pari Passu Obligations issued following the Issue Date
would exceed $50 million (excluding any Indebtedness secured by the Note Liens in reliance on
clause (q) of the definition of Permitted Liens), then immediately after giving effect to the
incurrence of such Permitted Additional Pari Passu Obligations, the Consolidated Total Debt Ratio
of the Issuer and its Restricted Subsidiaries would be less than or equal to 3.25:1.0;
provided that (i) the trustee or agent under such Permitted Additional Pari Passu
Obligation executes a joinder agreement to the Security Agreement in the form attached thereto
agreeing to be bound thereby and (ii) the Issuer has designated such Indebtedness as Permitted
Additional Pari Passu Obligations under the Security Agreement.
Permitted Business means the business conducted by the Issuer and its Restricted
Subsidiaries on the Issue Date and the business reasonably related, complementary or ancillary
thereto, including reasonably related extensions or expansions thereof.
-17-
Permitted Investment means
(1) Investments in the Issuer or any Restricted Subsidiary (other than a Securitization
Entity and other than a transfer of Note Priority Collateral to a Restricted Subsidiary that
is not a Guarantor) or any Person which, as a result of such Investment, (a) becomes a
Restricted Subsidiary (other than a Securitization Entity) or (b) is merged or consolidated
with or into, or transfers or conveys substantially all of its assets to, or is liquidated
into, the Issuer or any Restricted Subsidiary (other than a Securitization Entity);
(2) Indebtedness of the Issuer or a Restricted Subsidiary described under clauses (3),
(4), (5), (6) and (7) of the definition of Permitted Indebtedness;
(3) Investments in any of the Notes;
(4) Investments in Cash Equivalents;
(5) Investments acquired by the Issuer or any Restricted Subsidiary in connection with
an Asset Sale permitted by Section 4.09 to the extent such Investments are non-cash proceeds
as permitted thereunder;
(6) Investments by the Issuer or a Restricted Subsidiary in a Securitization Entity in
connection with a Qualified Securitization Transaction, which Investment consists of a
retained interest in transferred Receivables and Related Assets;
(7) (x) Investments in existence on the Issue Date and (y) an Investment in any Person
to the extent such Investment replaces or refinances an Investment covered by clause (x)
above or this clause (y) in an amount not exceeding the amount of the Investment being
replaced or refinanced; provided, however, that the Investment under clause
(y) is on terms and conditions no less favorable to the Issuer and its Restricted
Subsidiaries taken as a whole than the Investment being replaced or refinanced;
(8) Investments in a Related Business Entity in the aggregate amount outstanding at any
one time of up to 2.5% of the Issuers Consolidated Net Tangible Assets;
(9) Investments in a Person whose primary business is a Permitted Business acquired in
exchange for the issuance of Capital Stock (other than Redeemable Capital Stock of the
Issuer or a Restricted Subsidiary or Preferred Stock of a Restricted Subsidiary) or acquired
with the net cash proceeds received by the Issuer after the Issue Date from the issuance and
sale of Capital Stock (other than Redeemable Stock of the Issuer or a Restricted Subsidiary
or Preferred Stock of a Restricted Subsidiary); provided that such Net Cash Proceeds
are used to make such Investment within 30 days of the receipt thereof and the amount of all
such Net Cash Proceeds will be excluded from Section 4.06(a)(3)(B);
(10) Investments in prepaid expenses, negotiable instruments held for collection and
lease, utility and workers compensation, performance and other similar deposits provided to
third parties in the ordinary course of business;
(11) loans or advances to employees of the Issuer in the ordinary course of business
for bona fide business purposes of the Issuer and its Restricted Subsidiaries (including
travel, entertainment and moving expenses) made in compliance with applicable law;
-18-
(12) any Investments received in good faith in settlement or compromise of obligations
of trade creditors or customers that were incurred in the ordinary course of business,
including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy
or insolvency of any trade creditor or customer; and
(13) other Investments in the aggregate amount outstanding at any one time of up to $15
million.
In connection with any assets or property contributed or transferred to any Person as an
Investment, such property and assets shall be equal to the Fair Market Value at the time of
Investment.
Permitted Lien means:
(a) any Lien existing as of the Issue Date on Indebtedness existing on the Issue Date;
(b) any Lien with respect to the Credit Agreement or any other Credit Facility so long
as the aggregate principal amount outstanding under the Credit Agreement or any successor
Credit Facility does not exceed the principal amount which could be borrowed under clause
(1) of the definition of Permitted Indebtedness;
(c) any Lien arising by reason of
(1) any judgment, decree or order of any court, so long as such Lien is
promptly adequately bonded and any appropriate legal proceedings which may have been
duly initiated for the review of such judgment, decree or order shall not have been
finally terminated or the period within which such proceedings may be initiated
shall not have expired;
(2) taxes not yet delinquent or which are being contested in good faith;
(3) security for payment of workers compensation or other insurance;
(4) good faith deposits in connection with tenders, leases or contracts (other
than contracts for the payment of money);
(5) zoning restrictions, easements, licenses, reservations, title defects,
rights of others for rights of way, utilities, sewers, electric lines, telephone or
telegraph lines, and other similar purposes, provisions, covenants, conditions,
waivers, restrictions on the use of property or minor irregularities of title (and
with respect to leasehold interests, mortgages, obligations, liens and other
encumbrances incurred, created, assumed or permitted to exist and arising by,
through or under a landlord or owner of the leased property, with or without consent
of the lessee), none of which materially impairs the use of any parcel of property
material to the operation of the business of the Issuer or any Subsidiary or the
value of such property for the purpose of such business;
(6) deposits to secure public or statutory obligations, or in lieu of surety or
appeal bonds; or
(7) operation of law in favor of mechanics, carriers, warehousemen, landlords,
materialmen, laborers, employees or suppliers, incurred in the ordinary course of
-19-
business for sums which are not yet delinquent or are being contested in good
faith by negotiations or by appropriate proceedings which suspend the collection
thereof;
(d) any Lien securing Acquired Indebtedness created prior to (and not created in
connection with or in contemplation of) the incurrence of such Indebtedness by the Issuer or
any Subsidiary and which does not extend to any assets other than the assets acquired;
(e) any Lien to secure the performance bids, trade contracts, leases (including,
without limitation, statutory and common law landlords liens), statutory obligations,
surety and appeal bonds, letters of credit and other obligations of a like nature and
incurred in the ordinary course of business of the Issuer or any Subsidiary;
(f) any Lien securing obligations under Interest Rate Agreements, Commodity Price
Protection Agreements and Currency Hedging Agreements;
(g) any Lien securing Capital Lease Obligations or Purchase Money Obligations incurred
in accordance with this Indenture (including clause (8) of the definition of Permitted
Indebtedness);
(h) leases and subleases of real property which do not materially interfere with the
ordinary conduct of the business of the Issuer or any of its Restricted Subsidiaries;
(i) bankers Liens, rights of set-off or similar rights and remedies as to deposit
accounts or other funds maintained with a depositary institution; provided that:
(1) such deposit account is not a dedicated cash collateral account and is not
subject to restrictions against access by the Issuer in excess of those set forth by
regulations promulgated by the Federal Reserve Board or other applicable law; and
(2) such deposit account is not intended by the Issuer or any Restricted
Subsidiary to provide collateral to the depository institution;
(j) Liens on property, assets or shares of stock of a Person at the time such Person
becomes a Restricted Subsidiary; provided, however, that such Liens are not
created, incurred or assumed in connection with, or in contemplation of, such other Person
becoming a Restricted Subsidiary; provided, further, that any such Lien may
not extend to any other property owned by the Issuer or any Restricted Subsidiary and assets
fixed or appurtenant thereto;
(k) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing
to the Issuer or another Restricted Subsidiary (other than a Securitization Entity);
(l) Liens securing the Notes and the Guarantees issued on the Issue Date (and any
Exchange Notes and related Guarantees issued in exchange therefor);
(m) Liens on assets transferred to a Securitization Entity or on assets of a
Securitization Entity, in either case incurred in connection with a Qualified Securitization
Transaction;
(n) Liens on property of any Foreign Subsidiary securing Indebtedness of a Foreign
Subsidiary permitted by Section 4.05;
(o) Liens securing Permitted Additional Pari Passu Obligations;
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(p) any extension, renewal, refinancing or replacement, in whole or in part, of any
Lien described in the foregoing clauses (a) through (m) and this clause (p) so long as no
additional collateral is granted as security thereby; and
(q) in addition to the items referred to in clauses (a) through (p) above, Liens of the
Issuer and its Restricted Subsidiaries on Indebtedness in an aggregate amount which, when
taken together with the aggregate amount of all other Liens on Indebtedness incurred
pursuant to this clause (q) and then outstanding, will not exceed 7.5% of the Issuers
Consolidated Net Tangible Assets at any one time outstanding.
Person means any individual, corporation, limited liability company, partnership,
joint venture, association, joint stock company, trust, unincorporated organization, government or
any agency or political subdivision thereof or any other entity.
plan of reorganization means any plan of reorganization, plan of liquidation,
agreement for composition, or other type of plan of arrangement proposed in or in connection with
any Insolvency or Liquidation Proceeding.
Preferred Stock means, with respect to any Person, any Capital Stock of any class or
classes (however designated) which is preferred as to the payment of dividends or distributions, or
as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of
such Person, over the Capital Stock of any other class in such Person.
Private Placement Legend means the legend set forth in Section 2.06(g)(i) to be
placed on all Notes issued under this Indenture, except where otherwise permitted by the provisions
of this Indenture.
Purchase Money Obligation means any Indebtedness secured by a Lien on assets related
to the business of the Issuer and any additions and accessions thereto, which are purchased or
constructed by the Issuer at any time after the Issue Date; provided that
(1) the security agreement or conditional sales or other title retention contract
pursuant to which the Lien on such assets is created (collectively a Purchase Money
Security Agreement) shall be entered into within 360 days after the purchase or
substantial completion of the construction of such assets and shall at all times be confined
solely to the assets so purchased or acquired, any additions and accessions thereto and any
proceeds therefrom,
(2) at no time shall the aggregate principal amount of the outstanding Indebtedness
secured thereby be increased, except in connection with the purchase of additions and
accessions thereto and except in respect of fees and other obligations in respect of such
Indebtedness, and
(3) (A) the aggregate outstanding principal amount of Indebtedness secured thereby
(determined on a per asset basis in the case of any additions and accessions) shall not at
the time such Purchase Money Security Agreement is entered into exceed 100% of the purchase
price to the Issuer of the assets subject thereto or (B) the Indebtedness secured thereby
shall be with recourse solely to the assets so purchased or acquired, any additions and
accessions thereto and any proceeds therefrom.
Purchase Money Security Agreement has the meaning ascribed thereto under the
definition of Purchase Money Obligation.
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QIB means a qualified institutional buyer as defined in Rule 144A.
Qualified Capital Stock of any Person means any and all Capital Stock of such Person
other than Redeemable Capital Stock.
Qualified Securitization Transaction means any transaction or series of transactions
that may be entered into by the Issuer or any Restricted Subsidiary pursuant to which (a) the
Issuer or any Restricted Subsidiary may sell, convey or otherwise transfer to a Securitization
Entity its interests in Receivables and Related Assets and (b) such Securitization Entity transfers
to any other Person, or grants a security interest in, such Receivables and Related Assets,
pursuant to a transaction customary in the industry which is used to achieve a transfer of
financial assets under GAAP.
Receivables and Related Assets means any account receivable (whether now existing or
arising hereafter) of the Issuer or any Restricted Subsidiary, and any assets related thereto
including all collateral securing such accounts receivable, all contracts and contract rights and
all guarantees or other obligations in respect of such accounts receivable, proceeds of such
accounts receivable and other assets which are customarily transferred or in respect of which
security interests are customarily granted in connection with an asset securitization transaction
involving accounts receivable.
Record Date for the interest or Additional Interest, if any, payable on any
applicable Interest Payment Date means January 1 or July 1 (whether or not a Business Day) next
preceding such Interest Payment Date.
Redeemable Capital Stock means any Capital Stock that, either by its terms or by the
terms of any security into which it is convertible or exchangeable (at the option of the holders
thereof), is, or upon the happening of an event or passage of time would be, required to be
redeemed (at the option of the holders thereof) prior to the Maturity of the Notes (other than upon
a change of control of or sale of assets by the Issuer in circumstances where the Holders of the
Notes would have similar rights), or is convertible into or exchangeable for debt securities at any
time prior to the Maturity of the Notes at the option of the holder thereof.
Redemption Date when used with respect to any Note to be redeemed pursuant to any
provision in this Indenture means the date fixed for such redemption pursuant to this Indenture.
Reference Treasury Dealer means each of Banc of America Securities LLC (and its
successors) and any other nationally recognized investment banking firm specified from time to time
by the Issuer that is a primary U.S. government securities dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer as of 3:30 p.m., New
York time, on the third business day preceding the redemption date.
Registration Rights Agreement means the Registration Rights Agreement related to the
Notes, dated as of the Issue Date, among the Issuer, the Guarantors and the Initial Purchasers, 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 between the Issuer and the other
parties thereto, as such agreement(s) may be amended, modified or supplemented from time to time,
relating to rights given by the Issuer to the purchasers of Additional Notes to have the exchange
or resale of such Additional Notes registered under the Securities Act.
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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, the OID Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the Depositary or its
nominee, issued in a denomination equal to the outstanding principal amount of the Notes sold in
reliance on Regulation S.
Related Business Entity means
(1) any corporation at least 35% of the outstanding voting power of the Voting Stock of
which is owned or controlled, directly or indirectly, by the Issuer, or
(2) any other Person in which the Issuer, directly or indirectly, has at least 35% of
the outstanding partnership, equity or other similar interests,
which, in the case of (1) or (2) above, conducts its principal business as a Permitted Business.
Replacement Assets means properties or assets to replace the properties or assets
that were the subject of an Asset Sale or properties and assets that will be used in businesses of
the Issuer or its Restricted Subsidiaries, as the case may be, existing at the time such assets are
sold or Capital Stock of a Person, the principal portion of whose assets consist of such property
or assets; provided that in the case of a sale of Note Priority Collateral such replacement
properties or assets constitute Collateral (and in the case of a sale of Tommy Bahama Collateral,
such properties or assets constitute Note Priority Collateral).
Responsible Officer means, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee, including any managing director, director, vice
president, assistant vice president, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of such
Persons knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
Restricted Definitive Note means a Definitive Note bearing the Private Placement
Legend and the OID Legend.
Restricted Global Note means a Global Note bearing the Private Placement Legend and
the OID Legend.
Restricted Period means the 40-day distribution compliance period as defined in
Regulation S.
Restricted Subsidiary means any Subsidiary of the Issuer that has not been
designated by the Board of Directors of the Issuer by a board resolution delivered to the Trustee
as an Unrestricted Subsidiary pursuant to and in compliance with Section 4.14.
Rule 144 means Rule 144 promulgated under the Securities Act.
Rule 144A means Rule 144A promulgated under the Securities Act.
Rule 903 means Rule 903 promulgated under the Securities Act.
Rule 904 means Rule 904 promulgated under the Securities Act.
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S&P means Standard & Poors, a division of The McGraw-Hill Companies, Inc., and any
successor to its rating agency business.
SEC means the U.S. Securities and Exchange Commission.
Securities Act means the Securities Act of 1933, as amended, or any successor
statute, and the rules and regulations promulgated by the SEC thereunder.
Securitization Entity means a Wholly Owned Restricted Subsidiary (or another Person
in which the Issuer or any Subsidiary of the Issuer makes an Investment and to which the Issuer or
any Subsidiary of the Issuer transfers Receivables and Related Assets) that, in the case of a
Wholly Owned Restricted Subsidiary, engages in no activities other than in connection with the
financing of Receivables and Related Assets and that is designated by the Board of Directors of the
Issuer (as provided below) as a Securitization Entity and:
(a) no portion of the Indebtedness or any other obligations (contingent or otherwise)
of which:
(1) is guaranteed by the Issuer or any Restricted Subsidiary (excluding
Guarantees (other than the principal of, and interest on, Indebtedness) pursuant to
Standard Securitization Undertakings);
(2) is recourse to or obligates the Issuer or any Restricted Subsidiary (other
than such Securitization Entity) in any way other than pursuant to Standard
Securitization Undertakings; or
(3) subjects any property or asset of the Issuer or any Restricted Subsidiary
(other than such Securitization Entity), directly or indirectly, contingently or
otherwise, to the satisfaction thereof, other than pursuant to Standard
Securitization Undertakings;
(b) with which neither the Issuer nor any Restricted Subsidiary (other than such
Securitization Entity) has any material contract, agreement, arrangement or understanding
other than on terms no less favorable to the Issuer or such Restricted Subsidiary than those
that might be obtained at the time from Persons that are not Affiliates of the Issuer, other
than fees payable in the ordinary course of business in connection with servicing accounts
receivable of such entity;
(c) to which neither the Issuer nor any Restricted Subsidiary (other than such
Securitization Entity) has any obligation to maintain or preserve such entitys financial
condition or cause such entity to achieve certain levels of operating results; and
(d) such entity is a qualified special purpose entity in accordance with GAAP.
Any designation of a Subsidiary as a Securitization Entity shall be evidenced to the Trustee
by filing with the Trustee a certified copy of the resolution of the Board of Directors of the
Issuer giving effect to the designation and an Officers Certificate certifying that the
designation complied with the preceding conditions and was permitted by this Indenture.
Security Agreement means the Security Agreement, dated as of June 30, 2009, by and
among the Issuer, the Guarantors, the Trustee and the Collateral Agent, as the same may be amended,
modified, restated, supplemented or replaced from time to time in accordance with its terms.
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Security Documents means the Security Agreement, the Intercreditor Agreement and all
of the security agreements, pledges, collateral assignments, mortgages, deeds of trust, trust deeds
or other instruments evidencing or creating or purporting to create any security interests in favor
of the Collateral Agent for its benefit and for the benefit of the Trustee and the Holders of the
Notes and the holders of any Permitted Additional Pari Passu Obligations, in all or any portion of
the Collateral, as amended, modified, restated, supplemented or replaced from time to time.
Shelf Registration Statement means the Shelf Registration Statement as defined in
the Registration Rights Agreement.
Significant Subsidiary means, at any time, any Restricted Subsidiary that qualifies
at such time as a significant subsidiary within the meaning of Regulation S-X promulgated by the
SEC (as in effect on the Issue Date).
Standard Securitization Undertakings means representations, warranties, covenants
and indemnities entered into by the Issuer or any Restricted Subsidiary that are reasonably
customary in an accounts receivable securitization transaction.
Stated Maturity means, when used with respect to any Indebtedness or any installment
of interest thereon, the dates specified in such Indebtedness as the fixed date on which the
principal of such Indebtedness or such installment of interest, as the case may be, is due and
payable.
Subordinated Indebtedness means Indebtedness of the Issuer or a Guarantor that is
contractually subordinated in right of payment to the Notes or a Guarantee, as the case may be.
Subsidiary of a Person means
(1) any corporation more than 50% of the outstanding voting power of the Voting Stock
of which is owned or controlled, directly or indirectly, by such Person or by one or more
other Subsidiaries of such Person, or by such Person and one or more other Subsidiaries
thereof, or
(2) any limited partnership of which such Person or any Subsidiary of such Person is a
general partner, or
(3) any other Person in which such Person, or one or more other Subsidiaries of such
Person, or such Person and one or more other Subsidiaries, directly or indirectly, have more
than 50% of the outstanding partnership or similar interests or have the power, by contract
or otherwise, to direct or cause the direction of the policies, management and affairs
thereof.
Tommy Bahama Collateral means any Note Priority Collateral (i) consisting of the
Tommy Bahama trademarks and related rights or (ii) which was acquired with the proceeds of the Net
Cash Proceeds from any Asset Sale of Note Priority Collateral described in clause (i).
Transfer Agent means the Person specified in Section 2.03 as the Transfer Agent, and
any and all successors thereto, to receive on behalf of the Registrar any Notes or Exchange Notes
for transfer or exchange pursuant to this Indenture.
Trust Indenture Act means the Trust Indenture Act of 1939, as amended, or any
successor statute.
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Trustee means U.S. Bank National Association, as trustee, until a successor replaces
it in accordance with Section 7.08 and thereafter means the successor serving hereunder.
Trust Monies means all cash and Cash Equivalents:
(1) received by the Issuer upon the release of Collateral from the Lien of this
Indenture or the Security Documents in connection with any Asset Sale; or
(2) received by the Collateral Agent as proceeds of any sale or other disposition of
all or any part of the Collateral by or on behalf of the Collateral Agent or any collection,
recovery, receipt, appropriation or other realization of or from all or any part of the
Collateral pursuant to this Indenture or any of the Security Documents;
provided, however, that Trust Monies shall in no event include any property
deposited with the Trustee for any redemption, Legal Defeasance or Covenant Defeasance of Notes,
for the satisfaction and discharge of this Indenture or to pay the purchase price of Notes and any
Permitted Additional Pari Passu Obligations pursuant to an Offer in accordance with the terms of
this Indenture and shall not include any cash received or applicable by the Trustee in payment of
its fees and expenses (or, prior to the Discharge of ABL Obligations, any amounts attributable to
ABL Priority Collateral).
UCC means the Uniform Commercial Code as in effect from time to time in the State of
New York; provided, however, that, at any time, if by reason of mandatory
provisions of law, any or all of the perfection or priority of the Collateral Agents security
interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in
effect in a jurisdiction other that the State of New York, the term UCC shall mean the Uniform
Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the
provisions hereof relating to such perfection or priority and for purposes of definitions relating
to such provisions.
Unrestricted Definitive Note means one or more Definitive Notes that do not bear and
are not required to bear the Private Placement Legend.
Unrestricted Global Note means a permanent Global Note, substantially in the form of
Exhibit A attached hereto, that bears the Global Note Legend and the OID Legend and that
has the Schedule of Exchanges of Interests in the Global Note attached thereto, and that is
deposited with or on behalf of and registered in the name of the Depositary, representing Notes
that do not bear the Private Placement Legend.
Unrestricted Subsidiary means any Subsidiary of the Issuer (other than a Guarantor)
designated as such pursuant to and in compliance with Section 4.14.
U.S. Person means a U.S. person as defined in Rule 902(k) under the Securities Act.
Voting Stock of a Person means Capital Stock of such Person of the class or classes
pursuant to which the holders thereof have the general voting power under ordinary circumstances to
elect at least a majority of the Board of Directors, managers or trustees of such Person
(irrespective of whether or not at the time Capital Stock of any other class or classes shall have
or might have voting power by reason of the happening of any contingency).
Wholly Owned Restricted Subsidiary means a Restricted Subsidiary all the Capital
Stock of which is owned by the Issuer or another Wholly Owned Restricted Subsidiary (other than
directors qualifying shares).
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Section 1.02 Other Definitions.
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Term |
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Defined in Section |
Authentication Order |
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2.02 |
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Change of Control Offer |
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4.11 |
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Change of Control Purchase Date |
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4.11 |
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Change of Control Purchase Notice |
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4.11 |
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Change of Control Purchase Price |
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4.11 |
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Covenant Defeasance |
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8.03 |
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Designation Amount |
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4.14 |
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DTC |
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2.03 |
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Event of Default |
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6.01 |
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Excess Proceeds |
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4.09 |
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incur |
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4.05 |
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Legal Defeasance |
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8.02 |
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Note Register |
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2.03 |
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Offer |
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4.09 |
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Paying Agent |
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2.03 |
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Permitted Indebtedness |
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4.05 |
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Permitted Payment |
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4.06 |
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refinancing |
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4.05 |
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Registrar |
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2.03 |
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Required Filing Date |
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4.15 |
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Restricted Payment |
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4.06 |
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Surviving Entity |
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5.01 |
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Surviving Guarantor Entity |
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5.01 |
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Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is
incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act terms used in this Indenture have the following meanings:
indenture securities means the Notes;
indenture security holder means a Holder of a Note;
indenture to be qualified means this Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the Notes and the Guarantees means the Issuer and the Guarantors,
respectively, and any successor obligor upon the Notes and the Guarantees, respectively.
All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by
Trust Indenture Act reference to another statute or defined by SEC rule under the Trust Indenture
Act have the meanings so assigned to them.
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Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c) or is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) will shall be interpreted to express a command;
(f) provisions apply to successive events and transactions;
(g) references to sections of, or rules under, the Securities Act shall be deemed to
include substitute, replacement or successor sections or rules adopted by the SEC from time
to time;
(h) unless the context otherwise requires, any reference to an Article, Section or
clause refers to an Article, Section or clause, as the case may be, of this Indenture; and
(i) the words herein, hereof and hereunder and other words of similar import
refer to this Indenture as a whole and not any particular Article, Section, clause or other
subdivision.
Section 1.05 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to the Trustee and,
where it is hereby expressly required, to the Issuer. Proof of execution of any such instrument or
of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient
for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee
and the Issuer, if made in the manner provided in this Section 1.05.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by the certificate of any notary public
or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by or on behalf of any legal entity other than an individual, such certificate or affidavit
shall also constitute proof of the authority of the Person executing the same. The fact and date
of the execution of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner that the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
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(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by
the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note
issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of any action taken, suffered or omitted by the Trustee or the Issuer in reliance thereon,
whether or not notation of such action is made upon such Note.
(e) The Issuer may, in the circumstances permitted by the Trust Indenture Act, set a record
date for purposes of determining the identity of Holders entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other act, or to vote or consent to
any action by vote or consent authorized or permitted to be given or taken by Holders. Unless
otherwise specified, if not set by the Issuer prior to the first solicitation of a Holder made by
any Person in respect of any such action, or in the case of any such vote, prior to such vote, any
such record date shall be the later of 30 days prior to the first solicitation of such consent or
the date of the most recent list of Holders furnished to the Trustee prior to such solicitation.
(f) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard
to any particular Note may do so with regard to all or any part of the principal amount of such
Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or action taken by a
Holder or its agents with regard to different parts of such principal amount pursuant to this
paragraph shall have the same effect as if given or taken by separate Holders of each such
different part.
(g) Without limiting the generality of the foregoing, a Holder, including DTC, that is the
Holder of a Global Note may make, give or take, by a proxy or proxies duly appointed in writing,
any request, demand, authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders, and DTC, as the Holder of a Global Note, may
provide its proxy or proxies to the beneficial owners of interests in any such Global Note through
such depositarys standing instructions and customary practices.
(h) The Issuer may fix a record date for the purpose of determining the Persons who are
beneficial owners of interests in any Global Note held by DTC entitled under the procedures of such
depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other action provided in this
Indenture to be made, given or taken by Holders. If such a record date is fixed, the Holders on
such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled
to make, give or take such request, demand, authorization, direction, notice, consent, waiver or
other action, whether or not such Holders remain Holders after such record date. No such request,
demand, authorization, direction, notice, consent, waiver or other action shall be valid or
effective if made, given or taken more than 90 days after such record date.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating; Terms.
(a) General. The Notes and the Trustees certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rules or usage. Each Note shall be dated the date of
its authentication. The Notes shall be in minimum denominations of $2,000 and integral multiples
of $1,000 in excess thereof.
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(b) Global Notes. Notes issued in global form shall 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 shall be
substantially in the form of Exhibit A attached 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 shall represent such of the outstanding Notes as shall be specified in the
Schedule of Exchanges of Interests in the Global Note attached thereto and each shall provide
that it shall represent up to the aggregate principal amount of 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 applicable, to reflect exchanges and redemptions. Any
endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06.
(c) [Reserved]
(d) Terms. The aggregate principal amount of Notes that may be authenticated and
delivered under this Indenture is unlimited.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Issuer, the Guarantors and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be controlling.
The Notes shall be subject to repurchase by the Issuer pursuant to an Offer as provided in
Section 4.09 or a Change of Control Offer as provided in Section 4.11. The Notes shall not be
redeemable, other than as provided in Article 3.
Additional Notes ranking pari passu with the Initial Notes may be created and issued from time
to time by the Issuer without notice to or consent of the Holders and shall be consolidated with
and form a single class with the Initial Notes and shall have the same terms as to status,
redemption or otherwise (other than with respect to the purchase price thereof and the date from
which the interest accrues) as the Initial Notes; provided that the Issuers ability to
issue Additional Notes shall be subject to the Issuers compliance with Section 4.05 and Section
4.08. Except as described under Article 9, the Notes offered by the Issuer and any Additional
Notes subsequently issued under this Indenture will be treated as a single class for all purposes
under this Indenture, including waivers, amendments, redemptions and offers to purchase. Unless
the context requires otherwise, references to Notes for all purposes of this Indenture include
any Additional Notes that are actually issued. Any Additional Notes shall be issued with the
benefit of an indenture supplemental to this Indenture.
(e) Euroclear and Clearstream Procedures Applicable. The provisions of the Operating
Procedures of the Euroclear System and Terms and Conditions Governing Use of Euroclear and the
General Terms and Conditions of Clearstream Banking and Customer Handbook of Clearstream shall
be applicable to transfers of beneficial interests in the Regulation S Global Notes that are held
by Participants through Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
At least one Officer shall execute the Notes on behalf of the Issuer by manual or facsimile
signature.
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If an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid.
A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose until authenticated substantially in the form provided for in Exhibit A
attached hereto, by the manual signature of the Trustee. The signature shall be conclusive
evidence that the Note has been duly authenticated and delivered under this Indenture.
On the Issue Date, the Trustee shall, upon receipt of an issuer order (an Authentication
Order), authenticate and deliver the Initial Notes. In addition, at any time, from time to
time, the Trustee shall upon an Authentication Order authenticate and deliver any (i) Additional
Notes and (ii) Exchange Notes or private exchange notes for issue only in an Exchange Offer or a
private exchange, respectively, pursuant to a Registration Rights Agreement, for a like principal
amount of Initial Notes. Such Authentication Order shall specify the amount of the Notes to be
authenticated and, in the case of any issuance of Additional Notes pursuant to Section 2.01, shall
certify that such issuance is in compliance with Section 4.05 and Section 4.08.
The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of
the Issuer.
Section 2.03 Registrar and Paying Agent.
The Issuer shall maintain an office or agency where Notes may be presented for registration of
transfer or for exchange (Registrar) and an office or agency where Notes may be presented
for payment (Paying Agent), including an office or agency for such purposes in the City
of New York, which shall initially be the corporate trust office of the Trustee located in the City
of New York. The Registrar shall keep a register of the Notes (Note Register) and of
their transfer and exchange. The Issuer 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 Issuer may change any Paying Agent or Registrar
without prior notice to any Holder. The Issuer shall notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture. If the Issuer fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The Issuer or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Issuer initially appoints The Depository Trust Company (DTC) to act as
Depositary with respect to the Global Notes.
The Issuer initially appoints the Trustee to act as the Paying Agent, Registrar and Transfer
Agent for the Notes and the Registrar to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal, premium, if any, or Additional Interest, if any, or
interest on the Notes, and will notify the Trustee of any default by the Issuer 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 Issuer at any time may require a Paying Agent to pay all money held
by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer
or a Subsidiary) shall have no further
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liability for the money. If the Issuer or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the
Trustee shall serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with
Trust Indenture Act Section 312(a). If the Trustee is not the Registrar, the Issuer shall furnish
to the Trustee at least two Business Days before each Interest Payment Date and at such other times
as the Trustee may request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders of Notes and the Issuer shall
otherwise comply with Trust Indenture Act Section 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. Except as otherwise set forth in this
Section 2.06, a Global Note may be transferred, in whole and not in part, only to another nominee
of the Depositary or to a successor Depositary or a nominee of such successor Depositary. A
beneficial interest in a Global Note may not be exchanged for a Definitive Note unless (i) the
Depositary (x) notifies the Issuer that it is unwilling or unable to continue as Depositary for
such Global Note or (y) has ceased to be a clearing agency registered under the Exchange Act and,
in either case, a successor Depositary is not appointed by the Issuer within 90 days, (ii) there
shall have occurred and be continuing a Default with respect to the Notes or (iii) the Issuer in
its sole discretion executes and delivers an Officers Certificate stating that such Global Note
shall be so exchangeable. Upon the occurrence of any of the preceding events in (i), (ii) or (iii)
above, Definitive Notes delivered in exchange for any Global Note or beneficial interests therein
will be registered in the names, and issued in any approved denominations, requested by or on
behalf of the Depositary (in accordance with its customary procedures). Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10, shall be authenticated and delivered in the
form of, and shall be, a Global Note, except for Definitive Notes issued subsequent to any of the
preceding events in (i), (ii) or (iii) above and pursuant to Section 2.06(c), (e) or (f). A Global
Note may not be exchanged for another Note other than as provided in this Section 2.06(a);
provided, however, beneficial interests in a Global Note may be transferred and
exchanged as provided in Sections 2.06(b), (c), (f) and (j).
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer
and exchange of beneficial interests in the Global Notes shall be effected through the Depositary,
in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall 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 shall require compliance with either subparagraph (i) or (ii)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i) 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 (other than an Initial
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Purchaser). 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 2.06(b)(i).
(ii) 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 2.06(b)(i), the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) 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 (2) instructions given
in accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures 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 (2) 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; provided that in no event shall Definitive Notes be issued
upon the transfer or exchange of beneficial interests in the Regulation S Global Note prior
to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any
certificates required pursuant to Rule 903; provided, further, that in no
event shall a beneficial interest in an Unrestricted Global Note be credited, or an
Unrestricted Definitive Note be issued, to a Person who is an affiliate (as defined in Rule
144) of the Issuer. Upon consummation of an Exchange Offer by the Issuer in accordance with
Section 2.06(f), the requirements of this Section 2.06(b)(ii) 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 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 2.06(h).
(iii) 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 2.06(b)(ii) 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 B hereto, including the certifications in item (1) thereof;
(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 B hereto, including the certifications in item (2)
thereof; or
(C) if the transferee will take delivery in the form of a beneficial interest
in a IAI Global Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3)(d) of Exhibit B, if applicable.
(iv) 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
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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 2.06(b)(ii) 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
(1) a broker-dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Issuer;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
(D) the Registrar receives the following:
(1) 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 substantially
in the form of Exhibit C hereto, including the certifications in
item (1)(a) thereof; or
(2) 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 B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), 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; or
(E) such transfer is effected pursuant to an automatic exchange in accordance
with Section 2.06(j) of this Indenture.
If any such transfer is effected pursuant to subparagraph (B), (D) or (E) above at a
time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, 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
(B), (D) or (E) 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.
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(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) 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 the
occurrence of any of the events in paragraph (i), (ii) or (iii) of Section 2.06(a) and 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 certificate from such
holder substantially in the form of Exhibit C 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 substantially in the form of Exhibit B 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 substantially in
the form of Exhibit B 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
substantially in the form of Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such beneficial interest is being transferred to the Issuer or any of its
Restricted Subsidiaries, a certificate substantially in the form of Exhibit B
hereto, including the certifications in item (3)(b) thereof;
(F) if such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate substantially in the form of
Exhibit B hereto, including the certifications in item (3)(c) thereof, or
(G) if such beneficial interest is being transferred to an Institutional Accredited
Investor 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 B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3)(d) thereof, if applicable;
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h), and the Issuer shall execute and the Trustee shall
authenticate and mail to the Person designated in the instructions a Definitive Note in the
applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(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 mail 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 2.06(c)(i) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained therein.
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(ii) Beneficial Interests in Regulation S Global Note to Definitive Notes.
Notwithstanding Sections 2.06(c)(i)(A) and (C), a beneficial interest in the Regulation S Global
Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery
thereof in the form of a Definitive Note prior to the expiration of the Restricted Period.
(iii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive
Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such
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 upon the
occurrence of any of the events in subsection (i), (ii) or (iii) of Section 2.06(a) and 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 (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Issuer;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
(D) the Registrar receives the following:
(1) 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 substantially in the form of Exhibit C hereto,
including the certifications in item (1)(b) thereof; or
(2) 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 substantially in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), 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; or
(E) such transfer is effected pursuant to an automatic exchange in accordance with
Section 2.06(j) of this Indenture.
(iv) 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 the occurrence of
any of the events in subsection (i), (ii) or (iii) of Section 2.06(a) and satisfaction of the
conditions set forth in Section 2.06(b)(ii), the Trustee shall cause the aggregate principal amount
of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h), and the Issuer
shall execute and the Trustee shall authenticate and mail to
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the Person designated in the instructions a Definitive Note in the applicable principal
amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(iv) 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 or through the Depositary and the Participant or Indirect Participant. The
Trustee shall mail 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 2.06(c)(iv) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) 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 Note 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
substantially in the form of Exhibit C 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 substantially in the form of Exhibit B 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 substantially in
the form of Exhibit B 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 substantially in the form of Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to the Issuer or any of its
Restricted Subsidiaries, a certificate substantially in the form of Exhibit B
hereto, including the certifications in item (3)(b) thereof;
(F) if such Restricted Definitive Note is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate substantially in the form of
Exhibit B hereto, including the certifications in item (3)(c) thereof, or
(G) if such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor 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 B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)(d) thereof, if applicable;
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the
aggregate principal amount of, in the case of clause (A) above, the applicable Restricted Global
Note, in the case of clause (B) above, the applicable 144A Global Note, in the case of clause (C)
above, the applicable Regulation S Global Note and, in the case of clause (G) above, the applicable
IAI Global Note.
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(ii) 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 (1) a broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Issuer;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
(D) the Registrar receives the following:
(1) 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 substantially in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) 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 substantially in the form
of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), 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; or
(E) such transfer is effected pursuant to an automatic exchange in accordance with
Section 2.06(j) of this Indenture.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(ii),
the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(iii) 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 shall 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 subparagraph (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global Note
has not
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yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02, the Trustee shall 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
2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall 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 shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following provisions of this
Section 2.06(e):
(i) 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 to a QIB in accordance with Rule 144A, then
the transferor must deliver a certificate substantially in the form of
Exhibit B 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 B hereto,
including the certifications in item (2) thereof; or
(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 B hereto, including the certifications
required by item (3) thereof, if applicable.
(ii) 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 (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Issuer;
(B) any such transfer is effected pursuant to the Shelf Registration Statement
in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a broker-dealer pursuant to the Exchange
Offer Registration Statement in accordance with the Registration Rights Agreement;
(D) the Registrar receives the following:
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(1) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder substantially in the form of Exhibit C hereto, including
the certifications in item (1)(d) thereof; or
(2) 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
substantially in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), 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; or
(E) such transfer is effected pursuant to an automatic exchange in accordance
with Section 2.06(j) of this Indenture.
(iii) 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 an Exchange Offer in accordance with the
Registration Rights Agreement, the Issuer shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02, the Trustee shall authenticate 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. Concurrently with the
issuance of such Notes, the Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly, and the Issuer shall execute and the Trustee
shall authenticate and mail to the Persons designated by the Holders of Definitive Notes so
accepted Unrestricted Definitive Notes in the applicable principal amount. Any Notes that remain
outstanding after the consummation of an Exchange Offer, and Exchange Notes issued in connection
with an Exchange Offer, shall be treated as a single class of securities under this Indenture.
(g) Legends. The following legends shall appear on the face of all Global Notes and
Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable
provisions of this Indenture:
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive
Note (and all Notes issued in exchange therefor or substitution therefor) shall bear the
legend in substantially the following form:
THIS NOTE (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 NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
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OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE NOTE 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 NOTE
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT:
(A) SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY:
(i)(a) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A
NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 UNDER THE
SECURITIES ACT, (d) TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
501(a)(1),(2),(3) OR (7) OF THE SECURITIES ACT (AN INSTITUTIONAL ACCREDITED INVESTOR))
THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND,
IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN
$100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
AND OTHER CERTIFICATIONS AND DOCUMENTS IF THE ISSUER SO REQUESTS),
(ii) TO THE ISSUER, OR
(iii) 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 IN EACH CASE SUBJECT TO
ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF THIS NOTE BY THE HOLDER OR BY ANY
INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL; AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE.
(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant
to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii), (f) or (j)
of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof)
shall not bear the Private Placement Legend.
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(ii) Global Note Legend. Each Global Note shall 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 (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06(h) OF THE INDENTURE, (II) THIS GLOBAL NOTE
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE ISSUER. 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 ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(iii) IAI Note Legend. Each Definitive Note held by an Institutional
Accredited Investor shall bear a legend in substantially the following form:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
(iv) OID Legend. Each Note issued hereunder that has more than a de minimis
amount of original issue discount for U.S. Federal Income Tax purposes shall bear a legend
in substantially the following form:
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THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION
1271 ET SEQ. OF THE INTERNAL REVENUE CODE. A HOLDER MAY OBTAIN THE ISSUE
PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY
FOR SUCH NOTES BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO THE
ISSUER AT THE FOLLOWING ADDRESS: OXFORD INDUSTRIES, INC., 222 PIEDMONT
AVENUE, N.E., ATLANTA GEORGIA 30308, ATTENTION: GENERAL COUNSEL.
(v) ERISA Legend. Each Note issued hereunder shall bear shall bear a
legend in substantially the following form:
THIS NOTE MAY NOT BE ACQUIRED OR HELD WITH THE ASSETS OF (I) AN EMPLOYEE BENEFIT
PLAN (AS DEFINED IN THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(ERISA)) THAT IS SUBJECT TO ERISA, (II) A PLAN WHICH IS SUBJECT TO SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE), (III) ANY ENTITY
DEEMED UNDER ERISA TO HOLD PLAN ASSETS OF ANY OF THE FOREGOING BY REASON OF AN
EMPLOYEE BENEFIT PLANS OR PLANS INVESTMENT IN SUCH ENTITY, OR (IV) A GOVERNMENTAL
PLAN OR CHURCH PLAN SUBJECT TO APPLICABLE LAW THAT IS SIMILAR IN PURPOSE OR EFFECT
TO THE FIDUCIARY RESPONSIBILITY OR PROHIBITED TRANSACTION PROVISIONS OF ERISA OR
SECTION 4975 OF THE CODE (SIMILAR LAW), UNLESS THE ACQUISITION AND HOLDING OF THIS
NOTE BY THE PURCHASER OR TRANSFEREE, THROUGHOUT THE PERIOD THAT IT HOLDS THIS NOTE,
ARE EXEMPT FROM THE PROHIBITED TRANSACTION RESTRICTIONS UNDER ERISA AND SECTION 4975
OF THE CODE OR ANY PROVISIONS OF SIMILAR LAW, AS APPLICABLE, PURSUANT TO ONE OR MORE
PROHIBITED TRANSACTION STATUTORY OR ADMINISTRATIVE EXEMPTIONS. BY ITS ACQUISITION OR
HOLDING OF THIS NOTE, EACH PURCHASER AND TRANSFEREE WILL BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT THE FOREGOING REQUIREMENTS HAVE BEEN SATISFIED.
(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 shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11.
At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged
for 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 shall be reduced accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction. 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 shall
be increased accordingly and an endorsement shall 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.
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(i) To permit registrations of transfers and exchanges, the Issuer shall execute and the
Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication
Order in accordance with Section 2.02 or at the Registrars request.
(ii) No service charge shall 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 Issuer 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 2.07, 2.10, 3.06, 3.09, 3.10, 4.09, 4.11 and
9.05).
(iii) Neither the Registrar nor the Issuer shall be required to register the transfer of or
exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(v) The Issuer shall not 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 under Section 3.02 and ending at the close of business on the day
of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in part, or (C) to
register the transfer of or to exchange a Note between a Record Date and the next succeeding
Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any
Agent and the Issuer 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 premium, if
any) and interest (including Additional Interest, if any) on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.
(vii) Upon surrender for registration of transfer of any Note at the office or agency of the
Issuer designated pursuant to Section 4.02, the Issuer shall execute, and the Trustee shall
authenticate and mail, in the name of the designated transferee or transferees, one or more
replacement Notes of any authorized denomination or denominations of a like aggregate principal
amount.
(viii) At the option of the Holder, Notes may be exchanged for other Notes of any authorized
denomination or denominations of a like aggregate principal amount upon surrender of the Notes to
be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and mail,
the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled
to in accordance with the provisions of Section 2.02.
(ix) All certifications, certificates and Opinions of Counsel required to be submitted to the
Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
(j) Automatic Exchange from Restricted Global Note to Unrestricted Global Note. At
the option of the Issuer and upon compliance with the following procedures, beneficial interests in
a Restricted Global Note shall be exchanged for beneficial interests in an Unrestricted Global
Note. In
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order to effect such exchange, the Issuer shall provide written notice to the Trustee
instructing the Trustee to (i) direct the Depositary to transfer the specified amount of the
outstanding beneficial interests in a particular Restricted Global Note to an Unrestricted Global
Note and provide the Depositary with all such information as is necessary for the Depositary to
appropriately credit and debit the relevant Holder accounts and (ii) provide prior written notice
to all Holders of such exchange, which notice must include the date such exchange is proposed to
occur, the CUSIP number of the relevant Restricted Global Note and the CUSIP number of the
Unrestricted Global Note into which such Holders beneficial interests will be exchanged. As a
condition to any such exchange pursuant to this Section 2.06(j), the Trustee shall be entitled to
receive from the Issuer, and rely upon conclusively without any liability, an Officers Certificate
and an Opinion of Counsel, in form and in substance reasonably satisfactory to the Trustee, to the
effect that such transfer of beneficial interests to the Unrestricted Global Note shall be effected
in compliance with the Securities Act. The Issuer may request from Holders such information it
reasonably determines is required in order to be able to deliver such Officers Certificate and
Opinion of Counsel. Upon such exchange of beneficial interests pursuant to this Section 2.06(j),
the Registrar shall reflect on its books and records the date of such transfer and a decrease and
increase, respectively, in the principal amount of the applicable Restricted Global Note and the
Unrestricted Global Note, respectively, equal to the principal amount of beneficial interests
transferred. Following any such transfer pursuant to this Section 2.06(j) of all of the beneficial
interests in a Restricted Global Note, such Restricted Global Note shall be cancelled.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Issuer and the Trustee receives
evidence to its satisfaction of the ownership and destruction, loss or theft of any Note, the
Issuer shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement Note if the Trustees requirements are met. If required by the Trustee or the Issuer,
an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee
and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any
loss that any of them may suffer if a Note is replaced. The Issuer and/or the Trustee may charge
for their expenses in replacing a Note.
Every replacement Note is a contractual obligation of the Issuer and shall be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09, a Note does not
cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01, it ceases to be
outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Issuer, 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
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and after that date such Notes shall be deemed to be no longer outstanding and shall cease to
accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Issuer, or by any Affiliate of the Issuer,
shall be considered as though not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that
a Responsible Officer of the Trustee knows are so owned shall be so disregarded. Notes so owned
which have been pledged in good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgees right to deliver any such direction, waiver or consent
with respect to the Notes and that the pledgee is not the Issuer or any obligor upon the Notes or
any Affiliate of the Issuer or of such other obligor.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Issuer may prepare and the
Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary
Notes shall be substantially in the form of certificated Notes but may have variations that the
Issuer considers appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate
definitive Notes in exchange for temporary Notes.
Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to
all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this
Indenture.
Section 2.11 Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or
the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall destroy cancelled Notes (subject to the
record retention requirement of the Exchange Act). Certification of the destruction of all
cancelled Notes shall be delivered to the Issuer. The Issuer may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest to the Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes. The Issuer shall notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each Note and the date of the proposed payment, and at
the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such defaulted interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled to such defaulted
interest as provided in this Section 2.12. The Trustee shall fix or cause to be fixed each such
special record date and payment date; provided that no such special record date shall be
less
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than 10 days prior to the related payment date for such defaulted interest. The Trustee shall
promptly notify the Issuer of such special record date. At least 15 days before the special record
date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the
expense of the Issuer) shall mail or cause to be mailed, first-class postage prepaid, to each
Holder a notice at his or her address as it appears in the Note Register that states the special
record date, the related payment date and the amount of such interest to be paid.
Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note
delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of
any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note.
Section 2.13 CUSIP and ISIN Numbers
The Issuer in issuing the Notes may use CUSIP and/or ISIN numbers (if then generally in use)
and, if so, the Trustee shall use CUSIP and/or ISIN numbers in notices of redemption as a
convenience to Holders; provided, that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Notes or as contained in any
notice of redemption and that reliance may be placed only on the other identification numbers
printed on the Notes, and any such redemption shall not be affected by any defect in or omission of
such numbers. The Issuer will as promptly as practicable notify the Trustee of any change in the
CUSIP or ISIN numbers.
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to Section 3.07, it shall furnish to the
Trustee, at least 5 Business Days (or such shorter period as is agreed to by the Trustee) before
notice of redemption is required to be mailed or caused to be mailed to Holders pursuant to Section
3.03 but not more than 60 days before a Redemption Date, an Officers Certificate setting forth (i)
the paragraph or subparagraph of such Note and/or Section of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the principal amount of the Notes to be
redeemed and (iv) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any
time, the Registrar and Paying Agent shall select the Notes to be redeemed or purchased (a) 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, (b) or otherwise, on a pro
rata basis, by lot or by such other method in accordance with the procedures of the Depositary. In
the event of partial redemption or purchase by lot, the particular Notes to be redeemed or
purchased shall be selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Registrar and Paying Agent from the outstanding Notes not
previously called for redemption or purchase.
The Registrar and Paying Agent shall promptly notify the Issuer 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. No Notes of $2,000 or less
shall be redeemed in part, except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not $2,000 or a multiple of $1,000
in excess thereof, shall
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be redeemed. Except as provided in the preceding sentence, provisions of this Indenture that
apply to Notes called for redemption also apply to portions of Notes called for redemption.
Section 3.03 Notice of Redemption.
Subject to Sections 3.09 and 3.10, the Issuer shall mail or cause to be mailed by first-class
mail notices of redemption at least 30 days but not more than 60 days before the Redemption Date to
each Holder of Notes to be redeemed at such Holders registered address or otherwise in accordance
with the procedures of DTC, except that redemption notices may be mailed more than 60 days prior to
a Redemption Date if the notice is issued in connection with Article 8 or Article 14. Notices of
redemption may not be conditional.
The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the redemption price;
(c) if any Note is to be redeemed in part only, the portion of the principal amount of
that Note that is 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 of the
original Note representing the same indebtedness to the extent not redeemed will be issued
in the name of the Holder of the Notes upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
(f) that, unless the Issuer defaults in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the Redemption Date;
(g) the paragraph or subparagraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of the CUSIP
and/or ISIN number, if any, listed in such notice or printed on the Notes.
At the Issuers request, the Trustee shall give the notice of redemption in the Issuers name
and at its expense; provided that the Issuer shall have delivered to the Trustee, at least
5 Business Days before notice of redemption is required to be mailed or caused to be mailed to
Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee),
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, Notes called for
redemption become irrevocably due and payable on the Redemption Date at the redemption price. The
notice, if mailed in a manner herein provided, shall be conclusively presumed to have been given,
whether or not the Holder receives such notice. In any case, failure to give such notice by mail
or any defect in
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the notice to the Holder of any Note designated for redemption in whole or in part
shall not affect the validity of the proceedings for the redemption of any other Note. Subject to
Section 3.05, on and after the Redemption Date, interest ceases to accrue on Notes or portions
thereof called for redemption.
Section 3.05 Deposit of Redemption or Purchase Price.
Prior to 10:00 a.m. (New York City time) on the redemption or purchase date, the Issuer shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or
purchase price of and accrued and unpaid interest (including Additional Interest, if any) on all
Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent shall promptly
return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in
excess of the amounts necessary to pay the redemption price of, and accrued and unpaid interest on,
all Notes to be redeemed or purchased.
If the Issuer complies with the provisions of the preceding paragraph, on and after the
redemption or purchase date, interest shall 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 a Record Date
but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the
redemption or purchase date 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 shall not
be so paid upon surrender for redemption or purchase because of the failure of the Issuer 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 accrued to
the redemption or purchase date not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the Issuer shall issue and the
Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal in
principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the
same indebtedness to the extent not redeemed or purchased; provided that each new Note will
be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. It is
understood that, notwithstanding anything in this Indenture to the contrary, only an Authentication
Order and not an Opinion of Counsel or Officers Certificate is required for the Trustee to
authenticate such new Note.
Section 3.07 Optional Redemption.
(a) At any time prior to July 15, 2012, the Issuer may redeem all or a portion of the Notes,
on not less than 30 nor more than 60 days prior notice, in amounts of $1,000 or an integral
multiple thereof, at a price equal to the greater of: (x) 100% of the aggregate principal amount of
the Notes to be redeemed, together with accrued and unpaid interest, if any, to the date of
redemption, and (y) as determined by an Independent Investment Banker, the sum of the present
values of 105.688% of the principal of the Notes being redeemed plus scheduled payments of interest
(not including any portion of such payments of interest accrued as of the date of redemption) from
the Redemption Date to July 15, 2012 discounted to the Redemption Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate plus 50
basis points, together with accrued and unpaid interest, if any, to the Redemption Date.
(b) On or after July 15, 2012, the Issuer may redeem all or a portion of the Notes, on not
less than 30 nor more than 60 days prior notice, in amounts of $1,000 or an integral multiple
thereof at the following redemption prices (expressed as percentages of the principal amount),
together with
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accrued and unpaid interest, if any, to the Redemption Date, if redeemed during the 12-month
period beginning July 15 of the years indicated below:
|
|
|
|
|
|
|
Redemption |
Year |
|
Pice |
2012 |
|
|
105.688 |
% |
2013 |
|
|
102.844 |
% |
2014 and thereafter |
|
|
100.000 |
% |
(c) In addition, at any time prior to July 15, 2012, the Issuer, at its option, may use the
net proceeds of one or more Equity Offerings to redeem up to an aggregate of 35% of the aggregate
principal amount of Notes originally issued under this Indenture at a redemption price equal to
111.375% of the aggregate principal amount of the Notes redeemed, plus accrued and unpaid interest,
if any, to the redemption date; provided that at least 65% of the initial aggregate
principal amount of Notes must remain outstanding immediately after the occurrence of such
redemption and the Issuer must complete such redemption within 90 days of the closing of the Equity
Offering.
(d) In addition to the Issuers rights to redeem the Notes as set forth above, the Issuer may
purchase Notes in open-market transactions, tender offers or otherwise.
Section 3.08 Mandatory Redemption.
The Issuer will not be required to make any mandatory redemption or sinking fund payments with
respect to the Notes.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Principal, Premium and Interest.
The Issuer shall duly and punctually pay the principal of, premium, if any, and interest on
the Notes in accordance with the terms of the Notes and this Indenture.
Section 4.02 Corporate Existence.
Subject to Section 5.01, the Issuer shall do or cause to be done all things necessary to
preserve and keep in full force and effect the corporate existence and related rights and
franchises (charter and statutory) of the Issuer and each Restricted Subsidiary; provided,
however, that the Issuer shall not be required to preserve any such right or franchise or
the corporate existence of any such Restricted Subsidiary if the Board of Directors of the Issuer
shall determine that the preservation thereof is no longer necessary or desirable in the conduct of
the business of the Issuer and its Restricted Subsidiaries as a whole and that the loss thereof
could not reasonably be expected to have a material adverse effect on the ability of the Issuer to
perform its obligations hereunder; and provided, further, however, that the
foregoing shall not prohibit a sale, transfer or conveyance of a Restricted Subsidiary or any of
its assets in compliance with the terms of this Indenture.
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Section 4.03 Payment of Taxes and Other Claims.
The Issuer shall pay or discharge or cause to be paid or discharged, on or before the date the
same shall become due and payable, (a) all taxes, assessments and governmental charges levied or
imposed upon the Issuer or any of its Restricted Subsidiaries shown to be due on any return of the
Issuer or any of its Restricted Subsidiaries or otherwise assessed or upon the income, profits or
property of the Issuer or any of its Restricted Subsidiaries if failure to pay or discharge the
same could reasonably be expected to have a material adverse effect on the ability of the Issuer or
any Guarantor to perform its obligations hereunder and (b) all lawful claims for labor, materials
and supplies, which, if unpaid, would by law become a Lien upon the property of the Issuer or any
of its Restricted Subsidiaries, except for any Lien permitted to be incurred under Section 4.08, if
failure to pay or discharge the same could reasonably be expected to have a material adverse effect
on the ability of the Issuer or any Guarantor to perform its obligations hereunder;
provided, however, that the Issuer shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate proceedings properly
instituted and diligently conducted and in respect of which appropriate reserves (in the good faith
judgment of management of the Issuer) are being maintained in accordance with GAAP.
Section 4.04 Maintenance of Properties.
The Issuer shall cause all material properties owned by the Issuer and its Restricted
Subsidiaries or used or held for use in the conduct of its business or the business of any of its
Restricted Subsidiaries to be maintained and kept in good condition, repair and working order
(ordinary wear and tear excepted) and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in
the reasonable judgment of the Issuer may be necessary so that the business carried on in
connection therewith may be properly conducted at all times; provided, however,
that nothing in this Section shall prevent the Issuer from discontinuing the maintenance of any of
such properties if such discontinuance is in the ordinary course of business or, in the reasonable
judgment of the Issuer, desirable in the conduct of its business or the business of any of its
Restricted Subsidiaries and not reasonably expected to have a material adverse effect on the
ability of the Issuer to perform its obligations hereunder; and provided, further,
however, that the foregoing shall not prohibit a sale, transfer or conveyance of a
Restricted Subsidiary or any of its properties or assets in compliance with the terms of this
Indenture.
Section 4.05 Limitation on Indebtedness.
(a) The Issuer will not, and will not cause or permit any of its Restricted Subsidiaries to,
create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly
liable for, contingently or otherwise (collectively, incur), any Indebtedness (including
any Acquired Indebtedness), unless such Indebtedness is incurred by the Issuer or any Guarantor or
constitutes Acquired Indebtedness of the Issuer or a Restricted Subsidiary and, in each case, the
Issuers Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for
which consolidated financial statements are available immediately preceding the incurrence of such
Indebtedness taken as one period is at least equal to or greater than 2.0:1.0.
(b) Notwithstanding Section 4.05(a), the Issuer and the Restricted Subsidiaries may incur the
following (collectively, the Permitted Indebtedness):
(1) Indebtedness of the Issuer and the Guarantors under any Credit Facility in an
aggregate principal amount at any one time outstanding not to exceed the greater of:
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(A) $275.0 million, less, without duplication, (i) any permanent repayment
thereof or permanent reduction in commitments thereunder from the proceeds of one or
more asset sales which are used to repay a Credit Facility pursuant to Section
4.09(b)(i) and (ii) the amount of Indebtedness outstanding at the date of
determination pursuant to Section 4.05(b)(9); or
(B) (i) 85% of accounts receivable of the Issuer and its Restricted
Subsidiaries (excluding any Receivables and Related Assets sold, conveyed or
otherwise transferred to a Securitization Entity in connection with a Qualified
Securitization Transaction) as of the end of the most recently ended fiscal quarter
for which consolidated financial statements are available, plus (ii) 60% of
inventory of the Issuer and its Restricted Subsidiaries as of the end of the most
recently ended fiscal quarter for which consolidated financial statements are
available;
(2) Indebtedness pursuant to (A) the Notes (excluding any Additional Notes) and any
Guarantee of the Notes, and (B) any Exchange Notes issued in exchange for the Notes pursuant
to the Registration Rights Agreement and any Guarantee of the Exchange Notes;
(3) Indebtedness of the Issuer or any Restricted Subsidiary outstanding on the Issue
Date other than Indebtedness referred to in clauses (1) or (2) above or clause (11)(y) of
Section 4.05(b);
(4) Indebtedness of the Issuer owing to a Restricted Subsidiary; provided that
any Indebtedness of the Issuer owing to a Restricted Subsidiary that is not a Guarantor
incurred after the Issue Date is unsecured and is subordinated in right of payment to the
Notes; provided, further, that any disposition or transfer of any such
Indebtedness to a Person (other than to a Restricted Subsidiary) shall be deemed to be an
incurrence of such Indebtedness by the Issuer or other obligor not permitted by this clause
(4);
(5) Indebtedness of a Restricted Subsidiary owing to the Issuer or another Restricted
Subsidiary; provided that any disposition or transfer of any such Indebtedness to a
Person (other than a disposition or transfer to the Issuer or a Restricted Subsidiary or a
Person that becomes a Restricted Subsidiary) shall be deemed to be an incurrence of such
Indebtedness by the obligor not permitted by this clause (5);
(6) guarantees by the Issuer or any Restricted Subsidiary of Indebtedness of the Issuer
or any of its Restricted Subsidiaries (other than guarantees by the Issuer or any Guarantor
of Acquired Indebtedness incurred in reliance on Section 4.05(a) of any Person that does not
become a Guarantor that is acquired by the Issuer or any Restricted Subsidiary other than
guarantees of such Acquired Indebtedness by any other Person so acquired in connection
therewith) which Indebtedness is permitted to be incurred under this Section 4.05;
(7) Indebtedness of the Issuer or any Restricted Subsidiary pursuant to any:
(A) Interest Rate Agreements,
(B) Currency Hedging Agreements and
(C) Commodity Price Protection Agreements;
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(8) Indebtedness of the Issuer or any Restricted Subsidiary represented by Capital
Lease Obligations or Purchase Money Obligations or other Indebtedness in connection with the
acquisition or development of real or personal, movable or immovable, property, in each case
incurred or assumed for the purpose of financing or refinancing all or any part of the
purchase price or cost of construction or improvement of property used in the business of
the Issuer or such Restricted Subsidiary, in an aggregate principal amount not to exceed $20
million outstanding at any one time;
(9) Indebtedness incurred by a Securitization Entity in connection with a Qualified
Securitization Transaction that is Non-recourse Indebtedness with respect to the Issuer and
its Restricted Subsidiaries; provided, however, that in the event such
Securitization Entity ceases to qualify as a Securitization Entity or such Indebtedness
ceases to constitute such Non-recourse Indebtedness, such Indebtedness will be deemed, in
each case, to be incurred at such time;
(10) Indebtedness of the Issuer or any of its Restricted Subsidiaries in connection
with surety, performance, appeal or similar bonds, completion guarantees or similar
instruments entered into in the ordinary course of business or from letters of credit or
other obligations in respect of self-insurance and workers compensation obligations or
similar arrangements; provided that, in each case contemplated by this clause (10),
upon the drawing of such instrument, such obligations are reimbursed within 30 days
following such drawing;
(11) (x) Indebtedness of Foreign Subsidiaries (including Foreign Subsidiaries formed
under the laws of the United Kingdom) in an aggregate principal amount of up to $10 million
outstanding at any one time and (y) in addition to Indebtedness permitted by the foregoing
subclause (x), Indebtedness of Foreign Subsidiaries formed under the laws of the United
Kingdom in the aggregate principal amount of up to £12 million outstanding at any one time;
(12) Indebtedness of the Issuer or any of its Restricted Subsidiaries arising from the
honoring by a bank or other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts such amount need not be
inadvertent) drawn against insufficient funds in the ordinary course of business;
provided, however, that such Indebtedness is extinguished within three
business days of receipt by the Issuer or any Restricted Subsidiary of notice of such
insufficient funds;
(13) Indebtedness of the Issuer or any Restricted Subsidiary to the extent the net
proceeds thereof are promptly deposited effect a to Legal Defeasance or Covenant Defeasance
as described in Article 8 or to satisfy and discharge this Indenture pursuant to Section
14.01;
(14) Indebtedness of the Issuer or any Restricted Subsidiary arising from agreements
for indemnification or purchase price adjustment obligations or similar obligations, or from
guarantees or letters of credit, surety bonds or performance bonds securing any obligation
of the Issuer or a Restricted Subsidiary pursuant to such an agreement, in each case,
incurred or assumed in connection with the acquisition or disposition of any business,
assets or properties;
(15) any renewals, extensions, substitutions, refundings, refinancing or replacements
(collectively, a refinancing) of any Indebtedness incurred pursuant to Section
4.05(a) and clauses (2) and (3) of Section 4.05(b), including any successive refinancing so
long as Indebtedness of the Issuer or a Guarantor may only be refinanced with Indebtedness
of the Issuer or a Guarantor and the aggregate principal amount of Indebtedness refinanced
is not increased by such refinancing except by an amount equal to the lesser of (A) the
stated amount of any premium or other payment contractually required to be paid in
connection with such a refinancing pursuant to
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the terms of the Indebtedness being refinanced or (B) the amount of premium or other
payment actually paid at such time to refinance the Indebtedness, plus, in either case, the
amount of expenses of the Issuer incurred in connection with such refinancing and (1) in the
case of any refinancing of Indebtedness that is Subordinated Indebtedness, such new
Indebtedness is made subordinated to the Notes at least to the same extent as the
Indebtedness being refinanced and (2) in the case of Pari Passu Indebtedness or Subordinated
Indebtedness, as the case may be, such refinancing does not reduce the Average Life to
Stated Maturity or the Stated Maturity of such Indebtedness;
(16) Permitted Additional Pari Passu Obligations in an amount not to exceed $50
million; and
(17) Indebtedness of the Issuer or any Restricted Subsidiary in addition to that
described in clauses (1) through (16) above, and any refinancing of such Indebtedness, so
long as the aggregate principal amount of all such Indebtedness shall not exceed $20 million
outstanding at any one time.
(c) For purposes of determining compliance with this Section 4.05, in the event that an item
of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness, or
is permitted to be incurred pursuant to Section 4.05(a), the Issuer will be permitted to classify
such item of Indebtedness on the date of its incurrence or, subject to Section 4.05(d), later
reclassify all or a portion of such item of Indebtedness, in any manner that complies with this
covenant;
(d) Indebtedness under the Credit Agreement which is in existence or available on or prior to
the Issue Date, and any renewals, extensions, substitutions, refundings, refinancing or
replacements thereof, will be deemed to have been incurred on such date under clause (1) of the
definition of Permitted Indebtedness, and the Issuer will not be permitted to reclassify any
portion of such Indebtedness thereafter;
(e) Indebtedness permitted by this covenant need not be permitted solely by reference to one
provision permitting such Indebtedness but may be permitted in part by one such provision and in
part by one or more other provisions of this Section 4.05 permitting such Indebtedness;
(f) Accrual of interest, accretion or amortization of original issue discount and the payment
of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the
payment of dividends on any Redeemable Capital Stock or Preferred Stock in the form of additional
shares of the same class of Redeemable Capital Stock or Preferred Stock will not be deemed to be an
incurrence of Indebtedness for purposes of this Section 4.05; provided, in each such case,
that the amount thereof as accrued is included in Consolidated Fixed Charge Coverage Ratio of the
Issuer;
(g) For purposes of determining compliance with any dollar-denominated restriction on the
incurrence of Indebtedness denominated in a foreign currency, the dollar-equivalent principal
amount of such Indebtedness incurred pursuant thereto shall be calculated based on the relevant
currency exchange rate in effect on the date that such Indebtedness was incurred;
(h) For purposes of determining compliance with this Section 4.05 or other provisions of this
Indenture, the outstanding principal amount of any particular Indebtedness shall be counted only
once and any obligations arising under any guarantee, Lien, letter of credit or similar instrument
supporting such Indebtedness shall not be double counted; and
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(i) The amount of Indebtedness issued at a price less than the amount of the liability thereof
shall be determined in accordance with GAAP.
Section 4.06 Limitation on Restricted Payments.
(a) The Issuer will not, and will not cause or permit any Restricted Subsidiary to, directly
or indirectly (each a Restricted Payment):
(i) declare or pay any dividend on, or make any distribution to holders of, any shares
of the Issuers Capital Stock (other than dividends or distributions payable solely in
shares of its Qualified Capital Stock or in options, warrants or other rights to acquire
shares of such Qualified Capital Stock);
(ii) purchase, redeem, defease or otherwise acquire or retire for value, directly or
indirectly, shares of the Issuers Capital Stock or any Capital Stock of any Subsidiary of
the Issuer (other than Capital Stock of any Restricted Subsidiary of the Issuer);
(iii) make any principal payment on, or repurchase, redeem, defease, retire or
otherwise acquire for value, prior to any scheduled principal payment, sinking fund payment
or maturity, any Subordinated Indebtedness (other than (x) Indebtedness permitted under
clause (4) or (5) of the definition of Permitted Indebtedness or (y) the purchase,
repurchase or other acquisition of such Subordinated Indebtedness purchased in anticipation
of satisfying a sinking fund obligation, principal installment or final maturity, in each
case due within one year of the date of purchase, repurchase or acquisition);
(iv) declare or pay any dividend or distribution on any Capital Stock of any Restricted
Subsidiary to any Person (other than (a) dividends or distributions payable solely in shares
of Capital Stock of such Restricted Subsidiary or in options, warrants or other rights to
acquire shares of such Capital Stock, (b) to the Issuer or any of its Restricted
Subsidiaries or (c) dividends or distributions made by a Restricted Subsidiary on a pro rata
basis to all stockholders of such Restricted Subsidiary); or
(v) make any Investment (other than any Permitted Investments)
(the amount of any such Restricted Payment, if other than cash, shall be the Fair Market Value of
the assets proposed to be transferred), unless
(1) at the time of and after giving effect to such proposed Restricted Payment, no
Default or Event of Default shall have occurred and be continuing;
(2) at the time of and after giving effect to such Restricted Payment, the Issuer could
incur $1.00 of additional Indebtedness under Section 4.05(a); and
(3) after giving effect to the proposed Restricted Payment, the aggregate amount of all
such Restricted Payments (other than Permitted Payments described in clauses (2) through (9)
of clause (b) below) declared (with respect to dividends) or made after March 1, 2003 and
all Designation Amounts does not exceed the sum of:
(A) 50% of the aggregate Consolidated Net Income (Loss) of the Issuer accrued
on a cumulative basis during the period beginning on March 1, 2003 and ending on the
last day of the Issuers last fiscal quarter ending prior to the date of the
Restricted
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Payment (or, if such aggregate cumulative Consolidated Net Income (Loss) shall
be a loss, minus 100% of such loss);
(B) 100% of the aggregate Net Cash Proceeds received after March 1, 2003 by the
Issuer either (1) as capital contributions in the form of nonredeemable equity to
the Issuer or (2) from the issuance or sale (other than to any of its Subsidiaries)
of Qualified Capital Stock of the Issuer or any options, warrants or rights to
purchase such Qualified Capital Stock of the Issuer, plus 100% of the Fair Market
Value as of the date of issuance of any Qualified Capital Stock issued by the Issuer
since March 1, 2003 as consideration for the purchase by the Issuer or any of its
Restricted Subsidiaries (including by means of a merger, consolidation or other
business combination permitted under this Indenture) of any assets or properties of,
or a majority of the Voting Stock of, any Person whose primary business is, a
Permitted Business (except, in each case, to the extent such proceeds are used to
purchase, redeem or otherwise retire Capital Stock or Subordinated Indebtedness as
set forth in Section 4.06(b)(2) or (3)) (excluding the Net Cash Proceeds from the
issuance of Qualified Capital Stock financed, directly or indirectly, using funds
borrowed from the Issuer or any Subsidiary until and to the extent such borrowing is
repaid);
(C) 100% of the aggregate Net Cash Proceeds received after March 1, 2003 by the
Issuer (other than from any of its Subsidiaries) upon the exercise of any options,
warrants or rights to purchase Qualified Capital Stock of the Issuer (excluding the
Net Cash Proceeds from the exercise of any options, warrants or rights to purchase
Qualified Capital Stock financed, directly or indirectly, using funds borrowed from
the Issuer or any Subsidiary until and to the extent such borrowing is repaid);
(D) 100% of the aggregate Net Cash Proceeds received after March 1, 2003 by the
Issuer from the conversion or exchange, if any, of debt securities or Redeemable
Capital Stock of the Issuer or its Restricted Subsidiaries into or for Qualified
Capital Stock of the Issuer plus, to the extent such debt securities or Redeemable
Capital Stock so converted or exchanged were issued after March 1, 2003, the
aggregate of Net Cash Proceeds from their original issuance (excluding the Net Cash
Proceeds from the conversion or exchange of debt securities or Redeemable Capital
Stock financed, directly or indirectly, using funds borrowed from the Issuer or any
Subsidiary until and to the extent such borrowing is repaid);
(E) (a) in the case of the disposition or repayment of any Investment
constituting a Restricted Payment made after the Issue Date, an amount (to the
extent not included in Consolidated Net Income) equal to the lesser of the return of
capital with respect to such Investment and the initial amount of such Investment,
in either case, less the cost of the disposition of such Investment and net of
taxes, and (b) in the case of the designation of an Unrestricted Subsidiary as a
Restricted Subsidiary (as long as the designation of such Subsidiary as an
Unrestricted Subsidiary was deemed a Restricted Payment), the Fair Market Value of
the Issuers interest in such Subsidiary as of the date of such designation,
provided that such amount shall not in any case exceed the amount of the
Restricted Payment deemed made at the time the Subsidiary was designated as an
Unrestricted Subsidiary;
(F) any amount which previously qualified as a Restricted Payment on account of
any guarantee entered into by the Issuer or any Restricted Subsidiary;
provided
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that such guarantee has not been called upon and the obligation arising under
such guarantee no longer exists; and
(G) $5 million.
(b) The provisions of Section 4.06(a) shall not prohibit the following Restricted Payments
(each, a Permitted Payment):
(1) (x) the payment of any dividend or redemption of any Capital Stock within 60 days
after the date of declaration thereof or call for redemption, if at such date of declaration
or call for redemption such payment or redemption was permitted by the provisions of Section
4.06(a) (the declaration of such payment will be deemed a Restricted Payment under Section
4.06(a) as of the date of declaration, and the payment itself will be deemed to have been
paid on such date of declaration and will not also be deemed a Restricted Payment under
Section 4.06(a)) (it being understood that any Restricted Payment made in reliance on this
clause (x) shall reduce the amount available for Restricted Payments pursuant to Section
4.06(a)(3) above only once) and (y) declaration and the payment of dividends on the Issuers
common stock in an amount not to exceed $6.5 million during any twelve month period;
(2) the repurchase, redemption, or other acquisition or retirement for value of any
shares of any class of Capital Stock of the Issuer in exchange for (including any such
exchange pursuant to the exercise of a conversion right or privilege in connection with
which cash is paid in lieu of the issuance of fractional shares or scrip), or out of the Net
Cash Proceeds of a substantially concurrent issuance and sale for cash (other than to a
Subsidiary) of, Qualified Capital Stock of the Issuer; provided that the Net Cash
Proceeds from the issuance of such shares of Qualified Capital Stock are excluded from
Section 4.06(a)(3)(B);
(3) the repurchase, redemption, defeasance, retirement or acquisition for value or
payment of principal of any Subordinated Indebtedness in exchange for, or out of the Net
Cash Proceeds of, a substantially concurrent issuance and sale for cash (other than to any
Subsidiary) of any Qualified Capital Stock of the Issuer, provided that the Net Cash
Proceeds from the issuance of such shares of Qualified Capital Stock are excluded from
Section 4.06(a)(3)(B);
(4) the repurchase, redemption, defeasance, retirement or acquisition for value or
payment of principal of any Subordinated Indebtedness (other than Redeemable Capital Stock)
in exchange for, or out of the Net Cash Proceeds of, the substantially concurrent issuance
of new Subordinated Indebtedness of the Issuer, provided that any such new
Subordinated Indebtedness
(a) shall be in a principal amount that does not exceed the principal amount so
refinanced, plus the amount of premium or other payment reasonably determined as
necessary to refinance the Indebtedness, plus the amount of expenses of the Issuer
incurred in connection with such refinancing;
(b) has an Average Life to Stated Maturity equal to or greater than the
remaining Average Life to Stated Maturity of the Subordinated Indebtedness being
refinanced;
(c) has a Stated Maturity for its final scheduled principal payment later than
the Stated Maturity for the final scheduled principal payment of the Subordinated
Indebtedness being refinanced; and
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(d) is expressly subordinated in right of payment to the Notes at least to the
same extent as the Subordinated Indebtedness to be refinanced;
(5) the repurchase of Capital Stock deemed to occur upon (a) exercise of stock options
to the extent that shares of such Capital Stock represent a portion of the exercise price of
such options and (b) the withholding of a portion of the Capital Stock granted or awarded to
an employee to pay taxes associated therewith;
(6) the payment of cash in lieu of the issuance of fractional shares in connection with
the exercise of warrants, options or other securities convertible into or exercisable for
Capital Stock of the Issuer;
(7) the repurchase, redemption, or other acquisition or retirement for value of
Redeemable Capital Stock of the Issuer made by exchange for, or out of the proceeds of the
sale of, Redeemable Capital Stock;
(8) so long as no default or event of default exists or would occur, the repurchase,
redemption, or other acquisition or retirement for value of any shares of Capital Stock of
the Issuer from employees, former employees, directors or former directors of the Issuer or
any Restricted Subsidiary or their authorized representatives upon the death, disability or
termination of employment of such employees, former employees, directors or former
directors, in an amount of up to $3 million in the aggregate during any fiscal year of the
Issuer (with unused amounts from any fiscal year available in any of the next two succeeding
years); and
(9) so long as no default or event of default exists or would occur, payments or
distributions to stockholders pursuant to appraisal rights required under applicable law in
connection with any consolidation, merger or transfer of assets, that complies with Section
5.01.
For clarity purposes, all payments made pursuant to Sections 4.06(b)(2) through (9) shall not
reduce the amount that would otherwise be available for Restricted Payments under Section 4.06(a).
Section 4.07 Limitation on Transactions with Affiliates.
The Issuer will not, and will not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, enter into any transaction or series of related transactions (including,
without limitation, the sale, purchase, exchange or lease of assets, property or services) with or
for the benefit of any Affiliate of the Issuer (other than the Issuer or a Restricted Subsidiary,
including any Person that becomes a Restricted Subsidiary as a result of such transaction) unless:
(1) such transaction or series of related transactions is on terms that are no less
favorable to the Issuer or such Restricted Subsidiary, as the case may be, than those that
would be available in a comparable transaction in arms-length dealings with an unrelated
third party,
(2) with respect to any transaction or series of related transactions involving
aggregate value in excess of $2.5 million, the Issuer delivers an Officers Certificate to
the Trustee certifying that such transaction or series of related transactions complies with
clause (1) above, and
(3) with respect to any transaction or series of related transactions involving
aggregate value in excess of $10 million, either
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(A) such transaction or series of related transactions has been approved by a
majority of the Disinterested Directors of the Board of Directors of the Issuer, or
in the event there is only one Disinterested Director, by such Disinterested
Director, or
(B) the Issuer delivers to the Trustee a written opinion of an investment
banking firm of national standing or other recognized independent expert stating
that the transaction or series of related transactions is fair to the Issuer or such
Restricted Subsidiary from a financial point of view; provided,
however, that this provision shall not apply to:
(i) directors fees, consulting fees, employee salaries, bonuses or
employment agreements, incentive arrangements, compensation or employee
benefit arrangements with any officer, director or employee of the Issuer or
a Subsidiary of the Issuer, including under any stock option or stock
incentive plans, customary indemnification arrangements with officers,
directors or employees of the Issuer or a Subsidiary of the Issuer, in each
case entered into in the ordinary course of business;
(ii) any Restricted Payments or Permitted Payments made in compliance
with Section 4.06;
(iii) any Qualified Securitization Transaction;
(iv) any issuance or sale of Qualified Capital Stock of the Issuer to
Affiliates;
(v) transactions among the Issuer and/or any Restricted Subsidiary
and/or any Related Business Entity;
(vi) loans or advances to employees or consultants of the Issuer in the
ordinary course of business for bona fide business purposes of the Issuer
and its Restricted Subsidiaries (including travel, entertainment and moving
expenses) made in compliance with applicable law; and
(vii) any transactions undertaken pursuant to any agreements in
existence on the Issue Date (as in effect on the Issue Date) and any
renewals, replacements or modifications of such contracts (pursuant to new
transactions or otherwise) on terms no less favorable in any material
respect to the Holders of the Notes than those in effect on the Issue Date.
Section 4.08 Limitation on Liens.
The Issuer will not, and will not permit any of its Restricted Subsidiaries, directly or
indirectly, to enter into, create, incur, assume or suffer to exist any Liens of any kind, on or
with respect to any of its properties to secure Indebtedness of the Issuer or any of its Restricted
Subsidiaries other than Permitted Liens. Additionally, the Issuer will not, and will not permit
any Guarantor, to grant or suffer to exist any Lien (other than pursuant to clause (a), (d), (j) or
(p) of the definition of Permitted Liens) on any real property of the Issuer or any Guarantor
owned in fee simple on the Issue Date for purposes of securing any Indebtedness for money borrowed
unless the Issuer shall have granted a first-priority Lien on such fee owned real property to the
Collateral Agent for the benefit of the Holders of Notes and the holders of Permitted Additional
Pari Passu Obligations.
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Section 4.09 Limitation on Sale of Assets.
(a) The Issuer will not, and will not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, consummate an Asset Sale unless (1) at least 75% of the consideration from
such Asset Sale is received in cash, Cash Equivalents or Replacement Assets, (2) the Issuer or such
Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the
Fair Market Value of the shares or assets subject to such Asset Sale, (3) if such Asset Sale
involves the disposition of Collateral, the Issuer or such Restricted Subsidiary has complied with
the provisions of this Indenture and the Security Documents, and (4) if such Asset Sale involves
the disposition of Note Priority Collateral or, after the Discharge of ABL Obligations, the
disposition of ABL Priority Collateral, the Net Cash Proceeds thereof shall be paid directly by the
purchaser of the Collateral to the Collateral Agent for deposit into the Collateral Account pending
application in accordance with the provisions described below, and, if any property other than cash
or Cash Equivalents is included in such Net Cash Proceeds, such property shall be made subject to
the Note Liens.
For purposes of Section 4.09(a)(1) above, the following will be deemed to be cash:
(A) the amount of any liabilities (other than Subordinated Indebtedness) of the Issuer
or any Restricted Subsidiary that is actually assumed by the transferee in such Asset Sale
and from which the Issuer and the Restricted Subsidiaries are fully and unconditionally
released (excluding any liabilities that are incurred in connection with or in anticipation
of such Asset Sale and contingent liabilities);
(B) the amount of any notes, securities or other similar obligations received by the
Issuer or any Restricted Subsidiary from such transferee that is converted, sold or
exchanged within 90 days of the related Asset Sale by the Issuer or the Restricted
Subsidiaries into cash in an amount equal to the net cash proceeds realized upon such
conversion, sale or exchange; and
(C) the amount of any Designated Non-cash Consideration received by the Issuer or any
of its Restricted Subsidiaries in the Asset Sale; provided that the aggregate of
such Designated Non-cash Consideration received in connection with Asset Sales (and still
held) shall not exceed $5 million at any one time (with the Fair Market Value in each case
being measured at the time received and without giving effect to subsequent changes in
value).
(b) All or a portion of the Net Cash Proceeds of any Asset Sale may be applied by the Issuer
or a Restricted Subsidiary, to the extent the Issuer or such Restricted Subsidiary elects (or is
required by the terms of any Indebtedness under the Credit Agreement or any Credit Facility):
(i) to the extent such Net Cash Proceeds constitute proceeds from the sale of
Collateral (other than Tommy Bahama Collateral) or assets that are not Collateral, to repay
permanently any Indebtedness under the Credit Agreement or any other Credit Facility or
Indebtedness of any non-Guarantor with respect to the proceeds from the sale of assets of
any non-Guarantor then outstanding as required by the terms thereof (and in the case of any
such Indebtedness under the Credit Agreement or any other Credit Facility, effect a
permanent reduction in the availability under the Credit Agreement or any other Credit
Facility);
(ii) to acquire all or substantially all of the assets of, or a majority of the Voting
Stock of, a Permitted Business (or in the case of an Asset Sale of ABL Priority Collateral
or Note Priority Collateral other than Tommy Bahama Collateral, to acquire additional
Collateral); provided that to the extent such Net Cash Proceeds are received in
respect of Tommy Bahama Collateral, such Net Cash Proceeds are applied to acquire assets that constitute Note
Priority Collateral;
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(iii) to make a capital expenditure; provided that to the extent such Net Cash
Proceeds are received in respect of Note Priority Collateral, such expenditures shall relate
to Collateral (and to the extent such Net Cash Proceeds are received in respect of Tommy
Bahama Collateral, such expenditures shall relate to Note Priority Collateral); or
(iv) to invest the Net Cash Proceeds (or enter into a legally binding agreement to
invest) in Replacement Assets; provided that to the extent such Net Cash Proceeds
are received in respect of Note Priority Collateral, such Replacement Assets constitute
Collateral (and to the extent such Net Cash Proceeds are received in respect of Tommy Bahama
Collateral, such Collateral shall be Note Priority Collateral).
Pending the final application of any such Net Cash Proceeds (other than Trust Monies), the
Issuer may temporarily reduce Indebtedness or otherwise invest such Net Cash Proceeds in any manner
that is not prohibited by this Indenture. If any such legally binding agreement to invest such Net
Cash Proceeds is terminated, the Issuer shall, within 90 days of such termination or within 365
days of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in Section
4.09(b)(i) through (iv) (without regard to the first parenthetical contained in Section
4.09(b)(iv)). The amount of such Net Cash Proceeds not used or invested in accordance with the
preceding Section 4.09(b)(i) through (iv) within 365 days of the Asset Sale constitutes Excess
Proceeds.
(c) When the aggregate amount of Excess Proceeds exceeds $15.0 million, within 30 days
thereof, the Issuer will make an offer (an Offer) to all Holders of Notes and (x) in the
case of Net Cash Proceeds from an Asset Sale of Note Priority Collateral, to the holders of any
other Permitted Additional Pari Passu Obligations containing provisions similar to those set forth
in this Indenture with respect to asset sales or (y) in the case of any other Net Cash Proceeds, to
all holders of other Pari Passu Indebtedness containing provisions similar to those set forth in
this Section 4.09 with respect to asset sales, in each case, equal to the Excess Proceeds. The
offer price in any Offer to Purchase will be equal to 100% of the principal amount of the Notes
(and 100% of the principal amount or, if different, the accreted value of any Permitted Additional
Pari Passu Obligations or Pari Passu Indebtedness) plus accrued and unpaid interest to the date of
purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an
Offer, the Issuer may use those Excess Proceeds for any purpose not otherwise prohibited by this
Indenture and such remaining amount shall not be added to any subsequent Excess Proceeds for any
purpose under this Indenture. If the aggregate principal of the Notes and principal amount or, if
different, accreted value of other Permitted Additional Pari Passu Obligations (in the case of Net
Cash Proceeds from Note Priority Collateral) or Notes and other Pari Passu Indebtedness (in the
case of any other Net Cash Proceeds) tendered into such Offer to Purchase exceeds the amount of
Excess Proceeds, the Trustee will select the Notes and other Permitted Additional Pari Passu
Obligations or other Pari Passu Indebtedness, as the case may be, to be purchased on a pro rata
basis. Upon completion of each Offer, the amount of Excess Proceeds will be reset at zero.
(d) The Issuer will comply with the applicable tender offer rules, including Rule 14e-1 under
the Exchange Act, and any other applicable securities laws or regulations in connection with an
Offer and shall not be deemed to have violated the provisions of this Section 4.09 as a result of
such compliance.
Section 4.10 Additional Guarantees.
The Issuer will cause any Restricted Subsidiary formed or acquired after the Issue Date (other
than a Foreign Subsidiary, a Securitization Entity or an Excluded Subsidiary) to execute and
deliver a supplemental indenture to this Indenture in the form of Exhibit D hereto
providing for a Guarantee of the Notes and supplements to the applicable Security Documents in
order to grant a Lien in the Collateral
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owned by such Restricted Subsidiary. Guarantees shall be
released and discharged in accordance with Section 13.06.
Section 4.11 Purchase of Notes upon a Change of Control.
(a) If a Change of Control occurs, each Holder of Notes will have the right to require that
the Issuer purchase all or any part (in integral multiples of $1,000 except that no Note will be
purchased in part if the remaining amount of such Note would be less than $2,000) of such Holders
Notes pursuant to a Change of Control Offer. In the Change of Control Offer, the Issuer
will offer to purchase all of the Notes, at a purchase price (the Change of Control Purchase
Price) in cash in an amount equal to 101% of the principal amount of such Notes, plus accrued
and unpaid interest, if any, to the date of purchase (the Change of Control Purchase
Date) (subject to the rights of Holders of record on relevant Record Dates to receive interest
due on an Interest Payment Date).
(b) Within 30 days of any Change of Control or, at the Issuers option, prior to such Change
of Control but after it is publicly announced, the Issuer must notify the Trustee and give written
notice (a Change of Control Purchase Notice) of the Change of Control to each Holder of
Securities, by first-class mail, postage prepaid, at its address appearing in the Note Register.
The notice must state:
(i) that a Change of Control has occurred or will occur, the date of such event, and
that such Holder has the right to require the Issuer to repurchase such Holders Notes at
the Change of Control Purchase Price;
(ii) that the Change of Control Offer is being made pursuant to this Section 4.11 and
that all Notes properly tendered pursuant to the Change of Control Offer will be accepted
for payment at the Change of Control Purchase Price;
(iii) the Change of Control Purchase Date, which shall be fixed by the Issuer on a
Business Day no earlier than 30 days nor later than 60 days from the date such notice is
mailed, or such later date as is necessary to comply with requirements under the Exchange
Act; provided that the Change of Control Purchase Date may not occur prior to the
Change of Control;
(iv) the Change of Control Purchase Price;
(v) the names and addresses of the Paying Agent and the offices or agencies referred to
in Section 2.03;
(vi) that Notes must be surrendered on or prior to the Change of Control Purchase Date
to the Paying Agent at the office of the Paying Agent or to an office or agency referred to
in Section 2.03 to collect payment;
(vii) that the Change of Control Purchase Price for any Notes which has been properly
tendered and not withdrawn will be paid promptly following the Change of Control Purchase
Date;
(viii) that Holders electing to have any Notes purchased pursuant to a Change of
Control Offer will be required to surrender such Notes, with the form entitled Option of
Holder to Elect Purchase on the reverse of such Notes completed, to the Paying Agent
specified in the notice at the address specified in the notice prior to the close of
business on the third Business Day preceding the Change of Control Purchase Date;
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(ix) that Holders shall be entitled to withdraw their tendered Notes and their election
to require the Issuer to purchase such Notes, provided that the Paying Agent
receives, not later than the close of business on the 30th day following the date of the
Change of Control Purchase Notice, a facsimile transmission or letter setting forth the name
of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a
statement that such Holder is withdrawing its tendered Notes and its election to have such
Notes purchased;
(x) that any Note not tendered will continue to accrue interest; and
(xi) that, unless the Issuer defaults in the payment of the Change of Control Purchase
Price, any Notes accepted for payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Purchase Date.
(c) On the Change of Control Purchase Date, the Issuer shall, to the extent permitted by law,
(i) accept for payment all Notes issued by it or portions thereof properly tendered
pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the aggregate Change of Control
Purchase Price in respect of all Notes or portions thereof so tendered; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so
accepted together with an Officers Certificate to the Trustee stating that such Notes or
portions thereof have been tendered to and purchased by the Issuer.
(d) Subject to applicable escheat laws, the Trustee and the Paying Agent shall return to the
Issuer any cash that remains unclaimed, together with interest or dividends, if any, thereon, held
by them for the payment of the Change of Control Purchase Price; provided, however,
that, (x) to the extent that the aggregate amount of cash deposited by the Issuer pursuant to
clause (ii) of clause (c) above exceeds the aggregate Change of Control Purchase Price of the Notes
or portions thereof to be purchased, then the Trustee shall hold such excess for the Issuer and (y)
unless otherwise directed by the Issuer in writing, promptly after the Business Day following the
Change of Control Purchase Date the Trustee shall return any such excess to the Issuer together
with interest, if any, thereon.
(e) The Issuer shall comply, to the extent applicable, with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and any other applicable securities laws or
regulations in connection with a Change of Control Offer.
(f) Notwithstanding the foregoing, the Issuer will not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control Offer, in the manner,
at the times and otherwise in compliance with the requirements set forth in this Section 4.11
applicable to a Change of Control Offer made by the Issuer and purchases all the Notes validly
tendered and not withdrawn under such Change of Control Offer.
Section 4.12 Limitation on Subsidiary Preferred Stock.
(a) The Issuer will not permit any Restricted Subsidiary of the Issuer to issue, sell or
transfer any Preferred Stock of such Restricted Subsidiary, except for (1) Preferred Stock issued
or sold to, held by or transferred to the Issuer or a Restricted Subsidiary, and (2) Preferred
Stock issued by a Person prior to the time (A) such Person becomes a Restricted Subsidiary, (B)
such Person consolidates or
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merges with or into the Issuer or a Restricted Subsidiary or (C) a
Restricted Subsidiary consolidates or merges with or into such Person; provided that such
Preferred Stock was not issued or incurred by such Person in anticipation of the type of
transaction contemplated by Section 4.12(a)(2)(A), (B) or (C). This Section 4.12(a) shall not
apply upon the acquisition by a third party of all the outstanding Capital Stock of such Restricted
Subsidiary in accordance with the terms of this Indenture.
(b) The Issuer will not permit any Person (other than the Issuer or a Restricted Subsidiary)
to acquire Preferred Stock of any Restricted Subsidiary from the Issuer or any Restricted
Subsidiary, except upon the acquisition of all the outstanding Capital Stock of such Restricted
Subsidiary in accordance with the terms of this Indenture.
Section 4.13 Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) The Issuer will not, and will not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock,
(2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary,
(3) make any Investment in the Issuer or any other Restricted Subsidiary or
(4) transfer any of its properties or assets to the Issuer or any other Restricted
Subsidiary.
(b) However, Section 4.13(a) will not prohibit any:
(1) encumbrance or restriction pursuant to an agreement or instrument (including the
Credit Agreement, the Notes, this Indenture, the Guarantees and the Security Documents) in
effect on the Issue Date (or in respect of the Credit Agreement on the date of the Credit
Agreement);
(2) encumbrance or restriction with respect to a Restricted Subsidiary that is not a
Restricted Subsidiary of the Issuer on the Issue Date, in existence at the time such Person
becomes a Restricted Subsidiary of the Issuer and not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary, provided that such
encumbrances and restrictions are not applicable to the Issuer or any Restricted Subsidiary
or the properties or assets of the Issuer or any Restricted Subsidiary other than such
Subsidiary which is becoming a Restricted Subsidiary;
(3) encumbrance or restriction pursuant to any agreement governing any Indebtedness
represented by Capital Lease Obligations or Purchase Money Obligations permitted to be
incurred under Section 4.05;
(4) encumbrance or restriction contained in any Acquired Indebtedness or other
agreement of any Person or related to assets acquired (whether by merger, consolidation or
otherwise) by the Issuer or any Restricted Subsidiaries, so long as such encumbrance or
restriction (A) was not entered into in contemplation of the acquisition, merger or
consolidation transaction, and (B) is not applicable to any Person, or the properties or
assets of any Person, other than the
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Person, or the property or assets of the Person, so
acquired, so long as the agreement containing such restriction does not violate any other
provision of this Indenture;
(5) encumbrance or restriction existing under applicable law or any requirement of any
regulatory body;
(6) in the case of Section 4.13(a)(4), Liens securing Indebtedness otherwise permitted
to be incurred under Section 4.08 that limit the right of the debtor to dispose of the
assets subject to such Liens;
(7) customary non-assignment provisions in leases, licenses or contracts;
(8) customary restrictions contained in (A) asset sale agreements permitted to be
incurred under Section 4.09 that limit the transfer of such assets pending the closing of
such sale and (B) any other agreement for the sale or other disposition of a Restricted
Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or
other disposition;
(9) customary restrictions imposed by the terms of shareholders, partnership or joint
venture agreements entered into in the ordinary course of business in connection with a
joint venture arrangement which is permitted pursuant to clause (7) of the definition of
Permitted Investment; provided, however, that such restrictions do not
apply to any Restricted Subsidiaries other than the applicable company, partnership or joint
venture;
(10) restrictions contained in Indebtedness of Foreign Subsidiaries permitted to be
incurred under clause (11) of the definition of Permitted Indebtedness, so long as such
restrictions or encumbrances are customary for Indebtedness of the type incurred;
(11) encumbrance or restriction with respect to a Securitization Entity in connection
with a Qualified Securitization Transaction; provided, however, that such
encumbrances and restrictions are customarily required by the institutional sponsor or
arranger of such Qualified Securitization Transaction in similar types of documents relating
to the purchase of similar receivables in connection with the financing thereof;
(12) restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business;
(13) encumbrance or restriction under any agreement that amends, extends, renews,
refinances or replaces the agreements containing the encumbrances or restrictions in the
foregoing clauses (1) through (12) or in this clause (13), provided that the terms
and conditions of any such encumbrances or restrictions are no more restrictive in any
material respect than those under or pursuant to the agreement evidencing the Indebtedness
so extended, renewed, refinanced or replaced.
Section 4.14 Limitation on Unrestricted Subsidiaries.
The Issuer may designate after the Issue Date any Subsidiary as an Unrestricted Subsidiary
under this Indenture only if:
(a) no Default shall have occurred and be continuing at the time of or after giving
effect to such designation;
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(b) the Issuer would be permitted to make an Investment (other than a Permitted
Investment) at the time of designation (assuming the effectiveness of such designation)
pursuant to Section 4.06(a) in an amount (the Designation Amount) equal to the
Fair Market Value of the Issuers and its Restricted Subsidiaries Investments in such
Subsidiary (including any guarantee of the obligations of such Unrestricted Subsidiary but
excluding any amounts attributable to Investments made prior to the Issue Date);
(c) such Unrestricted Subsidiary does not own any Capital Stock in any Restricted
Subsidiary of the Issuer which is not simultaneously being designated an Unrestricted
Subsidiary;
(d) such Unrestricted Subsidiary is not liable, directly or indirectly, with respect to
any Indebtedness other than Non-Recourse Indebtedness, provided that an Unrestricted
Subsidiary may provide a Guarantee for the Notes; and
(e) such Unrestricted Subsidiary is not a party to any agreement, contract, arrangement
or understanding at such time with the Issuer or any Restricted Subsidiary unless the terms
of any such agreement, contract, arrangement or understanding are no less favorable to the
Issuer or such Restricted Subsidiary than those that might be obtained at the time from
persons who are not Affiliates of the Issuer or, in the event such condition is not
satisfied, the value of such agreement, contract, arrangement or understanding to such
Unrestricted Subsidiary from and after the date of designation shall be deemed a Restricted
Payment.
In the event of any such designation, the Issuer shall be deemed to have made an Investment
constituting a Restricted Payment pursuant to Section 4.06 for all purposes of this Indenture in
the Designation Amount.
For purposes of the foregoing, the designation of a Subsidiary of the Issuer as an
Unrestricted Subsidiary shall be deemed to be the designation of all of the Subsidiaries of such
Subsidiary as Unrestricted Subsidiaries. Unless so designated as an Unrestricted Subsidiary, any
person that becomes a Subsidiary of the Issuer will be classified as a Restricted Subsidiary.
The Issuer may revoke any designation of a Subsidiary as an Unrestricted Subsidiary if:
(a) no Default shall have occurred and be continuing at the time of and after giving
effect to such revocation;
(b) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding immediately
following such revocation would, if incurred at such time, have been permitted to be
incurred for all purposes of this Indenture; and
(c) unless such redesignated Subsidiary shall not have any Indebtedness outstanding
(other than Indebtedness that would be Permitted Indebtedness), (x) if prior to such
revocation the Issuer could incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant
to Section 4.05(a) immediately after giving effect to such proposed revocation, and
after giving pro forma effect to the incurrence of any such Indebtedness of such
redesignated Subsidiary as if such Indebtedness was incurred on the date of the revocation,
the Issuer could incur $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 4.05 or (y) if prior to such revocation the Issuer could not incur $1.00
of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.05(a),
the Issuers Consolidated Fixed Charge Coverage Ratio does not decline as a result of such
revocation.
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All designations and revocations must be evidenced by a resolution of the Board of Directors
of the Issuer delivered to the Trustee certifying compliance with the foregoing provisions
Section 4.15 Provision of Financial Information.
Whether or not the Issuer is subject to Section 13(a) or 15(d) of the Exchange Act, the Issuer
will, to the extent permitted under the Exchange Act, file with the SEC the annual reports,
quarterly reports and other documents which the Issuer would have been required to file with the
SEC pursuant to Section 13(a) or 15(d) if the Issuer were so subject, such documents to be filed
with the SEC on or prior to the date (the Required Filing Date) by which the Issuer would
have been required so to file such documents if the Issuer were so subject.
The Issuer will also in any event within 15 days of each Required Filing Date (a) file with
the Trustee copies of the annual reports, quarterly reports and other documents which the Issuer
filed with the SEC or would have been required to file with the SEC pursuant to Section 13(a) or
15(d) of the Exchange Act if the Issuer were subject to either of such Sections and (b) if filing
such reports and documents by the Issuer with the SEC is not accepted by the SEC or is not
permitted under the Exchange Act, transmit by mail to all Holders of the Notes, as their names and
addresses appear in the Note Register, without cost to such Holders, copies of such reports and
documents.
In addition, so long as any of the Notes remain outstanding, the Issuer will make available to
any prospective purchaser of Notes or beneficial owner of Notes in connection with any sale thereof
the information required by Rule 144A(d)(4) under the Securities Act, until such time as the Issuer
has either exchanged the Notes for securities identical in all material respects which have been
registered under the Securities Act or until such time as the Holders thereof have disposed of such
Notes pursuant to an effective registration statement under the Securities Act.
Section 4.16 Statement by Officers as to Default.
(a) The Issuer will deliver to the Trustee, on or before a date not more than 120 days after
the end of each fiscal year of the Issuer and 60 days after the end of each fiscal quarter, an
Officers Certificate, as to compliance herewith, including whether or not, after a review of the
activities of the Issuer during such year or such quarter and of the Issuers and each Guarantors
performance under this Indenture, to the best knowledge, based on such review, of the signers
thereof, the Issuer and each Guarantor have fulfilled all of their respective obligations and are
in compliance with all conditions and covenants under this Indenture throughout such year or
quarter, as the case may be, and, if there has been a Default specifying each Default and the
nature and status thereof and any actions being taken by the Issuer and the Guarantors with respect
thereto.
(b) When any Default or Event of Default has occurred and is continuing, the Issuer shall
deliver to the Trustee by registered or certified mail or facsimile transmission of an Officers
Certificate specifying such Default or Event of Default, within five Business Days after becoming
aware of the occurrence of such Default or Event of Default.
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ARTICLE 5
SUCCESSORS
Section 5.01 Consolidation, Merger or Sale of Assets.
(a) The Issuer will not, in a single transaction or through a series of related transactions,
consolidate with or merge with or into any other Person or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its properties and assets to any Person or group
of Persons, or permit any of its Restricted Subsidiaries to enter into any such transaction or
series of transactions, if such transaction or series of transactions, in the aggregate, would
result in a sale, assignment, conveyance, transfer, lease or disposition of all or substantially
all of the properties and assets of the Issuer and its Restricted Subsidiaries on a consolidated
basis to any other Person or group of Persons, unless at the time and after giving effect thereto
(1) either (a) the Issuer will be the continuing corporation or (b) the Person formed
by or surviving such consolidation or merger or the Person which acquires by sale,
assignment, conveyance, transfer, lease or disposition all or substantially all of the
properties and assets of the Issuer and its Restricted Subsidiaries on a consolidated basis
(the Surviving Entity) (i) shall be a corporation duly organized and validly
existing under the laws of the United States of America, any state thereof or the District
of Columbia, (ii) shall expressly assume by a supplemental indenture, in a form reasonably
satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this
Indenture and the Registration Rights Agreement, as the case may be, and the Notes and this
Indenture and the Registration Rights Agreement will remain in full force and effect as so
supplemented (and any Guarantees will be confirmed as applying to such Surviving Entitys
obligations) and (iii) shall expressly assume the due and punctual performance of the
covenants and obligations of the Issuer under the Security Documents;
(2) after giving effect to such transaction, no Default or Event of Default exists;
(3) after giving effect to such transaction, the Issuer (or the Surviving Entity if the
Issuer is not the continuing obligor under this Indenture) could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under the provisions of Section 4.05(a);
(4) at the time of the transaction, each Guarantor, if any, unless it is the other
party to the transactions described above, will have by supplemental indenture confirmed
that its Guarantee shall apply to such Persons obligations under this Indenture and the
Notes;
(5) at the time of the transaction, the Issuer or the Surviving Entity will have
delivered, or caused to be delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers Certificate and an Opinion of Counsel, each to the
effect that such consolidation, merger, transfer, sale, assignment, conveyance, transfer,
lease or other transaction and the supplemental indenture in respect thereof comply with
this Indenture and that all conditions provided for in this Section 5.01 relating to such
transaction have been complied with;
(6) the Issuer or the Surviving Entity, as applicable, promptly causes such amendments,
supplements or other instruments to be executed, delivered, filed and recorded, as
applicable, in such jurisdictions as may be required by applicable law to preserve and
protect the Lien of the Security Documents on the Collateral owned by or transferred to the
Issuer or the Surviving Entity; and
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(7) the Collateral owned by or transferred to the Issuer or the Surviving Entity, as
applicable, shall (a) continue to constitute Collateral under this Indenture and the
Security Documents, (b) be subject to the Lien in favor of the Collateral Agent for the
benefit of the Trustee and the holders of the Notes, and (c) not be subject to any Lien
other than Permitted Liens.
Notwithstanding Section 5.01(a)(3), (1) any Restricted Subsidiary may consolidate with, merge
into or transfer all or part of its properties and assets to the Issuer or another Restricted
Subsidiary and (2) the Issuer may merge with an Affiliate that has no significant assets or
liabilities and was formed solely for the purpose of changing the Issuers jurisdiction of
organization to another state of the United States, provided that the Surviving Entity
assumes, by supplemental indenture in form reasonably satisfactory to the Trustee, the Issuers
obligation under this Indenture and the Registration Rights Agreement.
(b) Each Guarantor will not, and the Issuer will not permit a Guarantor to, in a single
transaction or through a series of related transactions, consolidate with or merge with or into any
other Person (other than the Issuer or any Guarantor) or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its properties and assets to any Person or group
of Persons (other than the Issuer or any Guarantor) or permit any of its Restricted Subsidiaries to
enter into any such transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, conveyance, transfer, lease or
disposition of all or substantially all of the properties and assets of the Guarantor and its
Restricted Subsidiaries on a consolidated basis to any other Person or group of Persons (other than
the Issuer or any Guarantor), unless at the time and after giving effect thereto:
(1) either (a) the Guarantor will be the continuing corporation in the case of a
consolidation or merger involving the Guarantor or (b) the Person formed by or surviving
such consolidation or merger or the Person which acquires by sale, assignment, conveyance,
transfer, lease or disposition all or substantially all of the properties and assets of the
Guarantor and its Restricted Subsidiaries on a consolidated basis (the Surviving
Guarantor Entity) will be a corporation, limited liability company, limited liability
partnership, partnership or trust duly organized and validly existing under the laws of the
United States of America, any state thereof or the District of Columbia and such Person (i)
expressly assumes, by a supplemental indenture, in a form reasonably satisfactory to the
Trustee, all the obligations of such Guarantor under its Guarantee of the Notes and this
Indenture and the Registration Rights Agreement and such Guarantee, Indenture and
Registration Rights Agreement will remain in full force and effect; and (ii) shall expressly
assume the due and punctual performance of the covenants and obligations of the applicable
Guarantor under the Security Documents;
(2) after giving effect to such transaction, no Default or Event of Default exists;
(3) at the time of the transaction such Guarantor or the Surviving Guarantor Entity
will have delivered, or caused to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers Certificate and an Opinion of Counsel,
each to the effect that such consolidation, merger, transfer, sale, assignment, conveyance,
lease or other transaction and the supplemental indenture in respect thereof comply with
this Indenture and that all conditions precedent therein provided for relating to such
transaction have been complied with;
(4) the Guarantor or the Surviving Guarantor Entity, as applicable, promptly causes
such amendments, supplements or other instruments to be executed, delivered, filed and
recorded, as applicable, in such jurisdictions as may be required by applicable law to
preserve and protect the Lien of the Security Documents on the Collateral owned by or
transferred to the Guarantor or the Surviving Guarantor Entity;
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(5) the Collateral owned by or transferred to the Guarantor or the Surviving Guarantor
Entity, as applicable, shall (a) continue to constitute Collateral under this Indenture and
the Security Documents, (b) be subject to the Lien in favor of the Collateral Agent for the
benefit of the Trustee and the Holders of the Notes, and (c) not be subject to any Lien
other than Permitted Liens; and
(6) the property and assets of the Person which is merged or consolidated with or into
the Guarantor or the Surviving Guarantor Entity, as applicable, to the extent that they are
property or assets of the types which would constitute Collateral under the Security
Documents, shall be treated as after-acquired property and the Guarantor or the Surviving
Guarantor Entity shall take such action as may be reasonably necessary to cause such
property and assets to be made subject to the Lien of the Security Documents in the manner
and to the extent required in this Indenture;
provided, however, that this Section 5.01(b) shall not apply to any Guarantor whose
Guarantee of the Notes is unconditionally released and discharged in accordance with Section 13.06.
Section 5.02 Successor Substituted.
Upon any consolidation or merger, or any sale, assignment, conveyance, transfer, lease or
disposition of all or substantially all of the properties and assets of the Issuer or any
Guarantor, if any, in accordance with Section 5.01, the successor Person formed by such
consolidation or into which the Issuer or such Guarantor, as the case may be, is merged, or the
successor Person to which such sale, assignment, conveyance, transfer, lease or disposition is
made, shall succeed to, and be substituted for, and may exercise every right and power of, the
Issuer or such Guarantor, as the case may be, under this Indenture, the Notes and/or the related
Guarantee, as the case may be, and the Registration Rights Agreement, with the same effect as if
such successor had been named as the Issuer or such Guarantor, as the case may be, herein, in the
Notes and/or in the Guarantee, as the case may be, and the Registration Rights Agreement, and the
Issuer and such Guarantor, as the case may be, shall be discharged from all obligations and
covenants under this Indenture and the Notes or its Guarantee, as the case may be, and the
Registration Rights Agreement; provided that in the case of a transfer by lease, the
predecessor shall not be released from the payment of principal and interest on the Notes or its
Guarantee, as the case may be.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
An Event of Default wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(1) there shall be a default in the payment of any interest on any Note when it becomes
due and payable, and such default shall continue for a period of 30 days;
(2) there shall be a default in the payment of the principal of (or premium, if any,
on) any Note at its Maturity (upon acceleration, optional redemption, required repurchase or
otherwise);
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(3) (a) there shall be a default in the performance, or breach, of any covenant or
agreement of the Issuer or any Guarantor under this Indenture, any Guarantee or any Security
Document (other than a default in the performance, or breach, of a covenant or agreement
which is specifically dealt with in clause (1) or (2) above or subclause (b), (c) or (d) of
this clause (3) and such default or breach shall continue for a period of 30 days with
respect to defaults or breaches of the items set forth under Article 4, and 60 days in all
other cases, in each case after written notice has been given, by certified mail, (1) to the
Issuer by the Trustee or (2) to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the outstanding Notes; (b) there shall be a default in the
performance or breach of the provisions described in Section 5.01; (c) the Issuer shall have
failed to make or consummate an Offer in accordance with the provisions of Section 4.09; or
(d) the Issuer shall have failed to make or consummate a Change of Control Offer in
accordance with the provisions of Section 4.11;
(4) (a) any default in the payment of the principal or premium, if any, on any
Indebtedness when due under any of the agreements, indentures or instruments under which the
Issuer, any Guarantor or any Restricted Subsidiary then has outstanding Indebtedness in
excess of $15 million and such default shall have continued after giving effect to any
applicable grace period and shall not have been cured or waived and, if not already matured
at its final maturity in accordance with its terms, the holder of such Indebtedness shall
have the right to accelerate such Indebtedness or (b) an event of default as defined in any
of the agreements, indentures or instruments described in subclause (a) of this clause (4)
shall have occurred and the Indebtedness thereunder, if not already matured at its final
maturity in accordance with its terms, shall have been accelerated;
(5) any Guarantee of any Significant Subsidiary or any group of Restricted Subsidiaries
which collectively (as of the latest audited consolidated financial statements for the
Issuer) would constitute a Significant Subsidiary shall for any reason cease to be, or shall
for any reason be asserted in writing by any Guarantor or the Issuer not to be, in full
force and effect and enforceable in accordance with its terms, except to the extent
permitted by this Indenture and any such Guarantee;
(6) one or more final, non-appealable judgments or orders of any court or regulatory or
administrative agency for the payment of money in excess of $15 million (net of any amounts
to the extent that they are covered by insurance), either individually or in the aggregate,
shall be rendered against the Issuer, any Guarantor or any Subsidiary which has not been
discharged, fully bonded or stayed for a period of 60 consecutive days;
(7) there shall have been the entry of a decree or order that remains unstayed and in
effect for 60 consecutive days by a court of competent jurisdiction under any applicable
Bankruptcy Law (a) for relief in an involuntary case or proceeding in respect of the Issuer,
any Significant Subsidiary or any group of Restricted Subsidiaries which collectively (as of
the latest audited consolidated financial statements for the Issuer and its Restricted
Subsidiaries) would constitute a Significant Subsidiary or (b) adjudging the Issuer, any
Significant Subsidiary or any group of Restricted Subsidiaries which collectively (as of the
latest audited consolidated financial statements for the Issuer and its Restricted
Subsidiaries) would constitute a Significant Subsidiary bankrupt or insolvent or (c) seeking
reorganization, arrangement, adjustment or composition under any applicable federal or state
law of or in respect of the Issuer, any Significant Subsidiary or any group of Restricted
Subsidiaries which collectively (as of the latest audited consolidated financial statements
for the Issuer and its Restricted Subsidiaries) would constitute a Significant Subsidiary or
(d) appointing a custodian of the Issuer, any Significant Subsidiary or any group of
Restricted
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Subsidiaries which collectively (as of the latest audited consolidated financial
statements for the Issuer and its Restricted Subsidiaries) would constitute a Significant
Subsidiary or of substantially all of the assets of the Issuer or such Significant
Subsidiary, or ordering the winding up or liquidation of their affairs;
(8) the Issuer, any Significant Subsidiary or any group of Restricted Subsidiaries
which collectively (as of the latest audited consolidated financial statements for the
Issuer and its Restricted Subsidiaries) would constitute a Significant Subsidiary (i)
commences a voluntary case or proceeding in respect of the Issuer, such Significant
Subsidiary or such group of Restricted Subsidiaries under any applicable Bankruptcy Law or
any other case or proceeding to be adjudicated bankrupt or insolvent, (ii) consents to the
entry of a decree or order for debt relief in respect of the Issuer, such Significant
Subsidiary or such group of Restricted Subsidiaries in an involuntary case or proceeding
under any applicable Bankruptcy Law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, (iii) files a petition or answer or consent seeking
reorganization or debt relief in respect of the Issuer, such Significant Subsidiary or such
group of Restricted Subsidiaries under any Bankruptcy Law or applicable federal or state
insolvency law, (iv) consents to the filing of such petition for the appointment of, or
taking possession by, a custodian of the Issuer, such Significant Subsidiary or such group
of Restricted Subsidiaries or of substantially all of the assets of the Issuer or such
Significant Subsidiary, (v) makes an assignment for the benefit of creditors, (vi) admits in
writing its inability to pay its debts generally as they become due or (vii) takes any
corporate action to authorize any such actions in this clause (8); or
(9) unless all of the Collateral has been released from the Note Liens in accordance
with the provisions of the Security Documents, (x) default by the Issuer or any Subsidiary
in the performance of the Security Documents which materially adversely affects the
enforceability, validity, perfection or priority of the Note Liens on a material portion of
the Collateral, (y) the repudiation or disaffirmation by the Issuer or any Guarantor of its
material obligations under the Security Documents or (z) the determination in a judicial
proceeding that the Security Documents are unenforceable or invalid against the Issuer or
any Guarantor party thereto for any reason with respect to a material portion of the
Collateral and, in the case of any event described in subclauses (x) through (z), such
default, repudiation, disaffirmation or determination is not rescinded, stayed, or waived by
the Persons having such authority pursuant to the Security Documents) or otherwise cured
within 60 days after the Issuer receives written notice thereof specifying such occurrence
from the Trustee or the Holders of at least 25% of the outstanding principal amount of the
Notes and demanding that such default be remedied.
Section 6.02 Acceleration.
If an Event of Default (other than as specified in Section 6.01(a)(7) or (8) with respect to
the Issuer) shall occur and be continuing with respect to this Indenture, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Notes then outstanding may, and
the Trustee at the request of such Holders shall, declare all unpaid principal of, premium, if any,
and accrued interest on all Notes to be due and payable immediately, by a notice in writing to the
Issuer (and to the Trustee if given by the Holders of the Notes) and upon any such declaration,
such principal, premium, if any, and interest shall become due and payable immediately. If an
Event of Default specified in Section 6.01(a)(7) or (8) with respect to the Issuer occurs and is
continuing, then all the Notes shall automatically become and be due and payable immediately in an
amount equal to the principal amount of the Notes, together with accrued and unpaid interest, if
any, to the date the Notes become due and payable, without any declaration or other act on the part
of the Trustee or any Holder.
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After a declaration of acceleration, but before a judgment or decree for payment of the money
due has been obtained by the Trustee, the holders of a majority in aggregate principal amount of
Notes outstanding by written notice to the Issuer and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the Issuer has paid or deposited with the Trustee a sum sufficient to pay (1) all
sums paid or advanced by the Trustee under this Indenture and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, (2) all overdue
interest on all Notes then outstanding, (3) the principal of, and premium, if any, on any
Notes then outstanding which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Notes and (4) to the extent that
payment of such interest is lawful, interest upon overdue interest at the rate borne by the
Notes; and
(b) all Events of Default, other than the non-payment of principal of, premium, if any,
and interest on the Notes which have become due solely by such declaration of acceleration,
have been cured or waived.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes, this Indenture or any Security Document.
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 not less than a majority in aggregate principal amount of the Notes outstanding
may on behalf of the Holders of all outstanding Notes waive any past Default under this Indenture
and its consequences, except a Default (1) in the payment of the principal of, premium, if any, or
interest on any Note (which may only be waived with the consent of each Holder of Notes effected)
or (2) in respect of a covenant or provision which under this Indenture cannot be modified or
amended without the consent of the Holder of each Note affected by such modification or amendment.
Section 6.05 Control by Majority.
Subject to the terms of the Intercreditor Agreement, the Holders of a majority in principal
amount of the then total outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee. The Trustee, however, may refuse to follow any direction that conflicts with law or
this Indenture or that the Trustee determines is unduly prejudicial to the rights of any other
Holder of a Note or that would involve the Trustee in personal liability.
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Section 6.06 Limitation on Suits.
No Holder of any of the Notes has any right to institute any proceedings with respect to this
Indenture or any remedy thereunder, unless (a) such Holder has previously given notice to the
Trustee of a continuing Event of Default; (b) the holders of at least 25% in aggregate principal
amount of the outstanding Notes have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as trustee under this Indenture and the Notes;
(c) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request; (d) the Trustee has failed
to institute such proceeding within 15 days after receipt of such notice; and (e) the Trustee,
within such 15-day period, has not received directions inconsistent with such written request by
Holders of a majority in aggregate principal amount of the outstanding Notes. Such limitations do
not, however, apply to a suit instituted by a Holder of a Note for the enforcement of the payment
of the principal of, premium, if any, or interest on such Note on or after the respective due dates
expressed in such Note.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium, if any, and Additional Interest, if any, and interest on the
Note, on or after the respective due dates expressed in the Note (including in connection with an
Offer or a Change of Control Offer), 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 Issuer for the whole amount of principal of, premium, if any, and Additional Interest,
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 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceedings or any other proceedings, the Issuer, the Trustee and the
Holders shall be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies hereunder of the Trustee and the Holders shall continue as
though no such proceeding has been instituted.
Section 6.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.
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Section 6.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Trustee May File Proofs of Claim.
Subject to the Intercreditor Agreement, the Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial
proceedings relative to the Issuer (or any other obligor upon the Notes including the Guarantors),
its creditors or its property and shall be entitled and empowered to participate as a member in any
official committee of creditors appointed in such matter and to collect, receive and distribute any
money or other property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07. To the extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 out of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of 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 6.13 Priorities.
Subject to the Security Documents, if the Trustee collects any money pursuant to this Article
6 (including any amounts received from the Collateral Agent), it shall pay out the money in the
following order:
(i) to the Trustee, Paying Agent, Registrar, Transfer Agent, their agents and attorneys
for amounts due under Section 7.07, including payment of all compensation, expenses and
liabilities incurred, and all advances made, by the Trustee, Paying Agent, Registrar or
Transfer Agent and the costs and expenses of collection;
(ii) to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, and Additional Interest, 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 Additional Interest, if any, and interest, respectively; and
(iii) to the Issuer or to such party as a court of competent jurisdiction shall direct,
including a Guarantor, if applicable.
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The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.13.
Section 6.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.14 does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section 6.07, or a suit by Holders of more than
10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
its exercise, as a prudent person would exercise or use under the circumstances in the conduct of
such persons own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall examine
the certificates and opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own grossly negligent action, its
own grossly negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved in a court of competent jurisdiction that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.
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(d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee shall be under no obligation to exercise any of its rights or powers under
this Indenture at the request or direction of any of the Holders of the Notes unless the Holders
have offered to the Trustee indemnity or security reasonably satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Issuer, personally or by agent or attorney at the sole cost of the Issuer and shall
incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its selection and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within the rights or powers conferred upon it by this
Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.
(f) None of the provisions of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or indemnity satisfactory to it against such
risk or liability is not assured to it.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Notes and this Indenture
(h) In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective
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of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.
(i) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.
(j) In the event the Issuer is required to pay Additional Interest, the Issuer will provide
written notice to the Trustee of the Issuers obligation to pay Additional Interest no later than
15 days prior to the next Interest Payment Date, which notice shall set forth the amount of the
Additional Interest to be paid by the Issuer. The Trustee shall not at any time be under any duty
or responsibility to any Holders to determine whether the Additional Interest is payable and the
amount thereof.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would
have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee
is also subject to Sections 7.10 and 7.11.
Section 7.04 Trustees Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Issuers use of the
proceeds from the Notes or any money paid to the Issuer or upon the Issuers direction under any
provision of this Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default occurs and is continuing and if it is known to the Trustee, the Trustee shall
mail to Holders of Notes a notice of the Default within 90 days after it occurs. Except in the
case of a Default relating to the payment of principal, premium, if any, or interest on any Note,
the Trustee may withhold from the Holders notice of any continuing Default if and so long as a
committee of its Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes. The Trustee shall not be deemed to know of any Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice
of any event which is such a Default is received by the Trustee at the Corporate Trust Office of
the Trustee.
Section 7.06 Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15, beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of
the Notes a brief report dated as of such reporting date that complies with Trust Indenture Act
Section 313(a) (but if no event described in Trust Indenture Act Section 313(a) has occurred within
the twelve months preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with Trust Indenture
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Act Section 313(b)(2). The Trustee shall also transmit by mail all reports as required by
Trust Indenture Act Section 313(c).
A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to
the Issuer and filed with the SEC and each stock exchange on which the Notes are listed in
accordance with Trust Indenture Act Section 313(d). The Issuer shall promptly notify the Trustee
when, if applicable, the Notes are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
The Issuer and the Guarantors, jointly and severally, shall pay to the Trustee from time to
time such compensation for its acceptance of this Indenture and services hereunder as the parties
shall agree in writing from time to time. The Trustees compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Issuer and the Guarantors, jointly and
severally, shall reimburse the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation for its services.
Such expenses shall include the reasonable compensation, disbursements and expenses of the
Trustees agents and counsel.
The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee for, and
hold the Trustee harmless against, any and all loss, damage, claims, liability or expense
(including attorneys fees and expenses) incurred by it in connection with the acceptance or
administration of this trust and the performance of its duties hereunder (including the costs and
expenses of enforcing this Indenture against the Issuer or any of the Guarantors (including this
Section 7.07) or defending itself against any claim whether asserted by any Holder, the Issuer or
any Guarantor, or liability in connection with the acceptance, exercise or performance of any of
its powers or duties hereunder). The Trustee shall notify the Issuer promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the
Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee may have
separate counsel and the Issuer shall pay the fees and expenses of such counsel. The Issuer and
the Guarantors need not reimburse any expense or indemnify against any loss, liability or expense
incurred by the Trustee through the Trustees own willful misconduct, gross negligence or bad
faith.
The obligations of the Issuer under this Section 7.07 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the Trustee.
Notwithstanding anything contrary in Section 4.08 hereto, to secure the payment obligations of
the Issuer and the Guarantors in this Section 7.07, the Trustee shall have a Lien prior to the
Notes on all money or property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge
of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(6) or (7) occurs, the expenses and the compensation for the services (including the
fees and expenses of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Trustee shall comply with the provisions of Trust Indenture Act Section 313(b)(2) to the
extent applicable. As used in this Section 7.07, the term Trustee shall also include each of the
Paying Agent, Registrar, and Transfer Agent, as applicable.
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Section 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustees acceptance of appointment as provided in this Section
7.08. The Trustee may resign in writing at any time and the Registrar, Paying Agent and Transfer
Agent may resign with 90 days prior written notice and be discharged from the trust hereby created
by so notifying the Issuer. The Holders of a majority in principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing and may remove
the Registrar, Paying Agent or Transfer Agent by so notifying such Registrar, Paying Agent or
Transfer Agent, as applicable, with 90 days prior written notice. The Issuer may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Issuer shall promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes
may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee (at the Issuers expense), the Issuer or the Holders of at
least 10% in principal amount of the then outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee; provided all sums owing to the Trustee hereunder have been paid and
subject to the Lien provided for in Section 7.07. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Issuers obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
As used in this Section 7.08, the term Trustee shall also include each of the Paying Agent,
Registrar and Transfer Agent, as applicable.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation without any further
act shall be the successor Trustee.
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Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation or national banking
association organized and doing business under the laws of the United States of America or of any
state thereof that is authorized under such laws to exercise corporate trustee power, that is
subject to supervision or examination by federal or state authorities and that has a combined
capital and surplus of at least $50,000,000 as set forth in its most recent published annual report
of condition.
This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture
Act Sections 310(a)(1), (2) and (5). The Trustee is subject to Trust Indenture Act Section 310(b).
Section 7.11 Preferential Collection of Claims Against Issuer.
The Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor
relationship listed in Trust Indenture Act Section 311(b). A Trustee who has resigned or been
removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may, at its option and at any time, elect to have either Section 8.02 or 8.03
applied to all outstanding Notes upon compliance with the conditions set forth below in this
Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Issuers exercise under Section 8.01 of the option applicable to this Section 8.02,
the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in
Section 8.04, be deemed to have been discharged from their obligations with respect to all
outstanding Notes and Guarantees on the date the conditions set forth below are satisfied
(Legal Defeasance). For this purpose, Legal Defeasance means that the Issuer shall be
deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes,
which shall thereafter be deemed to be outstanding only for the purposes of Section 8.05 and the
other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all its
other obligations under such Notes and this Indenture including that of the Guarantors (and the
Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder:
(a) the rights of Holders of Notes to receive payments in respect of the principal of,
premium, if any, and interest on the Notes when such payments are due solely out of the
trust referred to in Section 8.05;
(b) the Issuers obligations with respect to Notes concerning issuing temporary Notes,
registration of such Notes, mutilated, destroyed, lost or stolen Notes and the maintenance
of an office or agency for payment and money for security payments held in trust;
(c) the rights, powers, trusts, duties and immunities of the Trustee, and the Issuers
obligations in connection therewith; and
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(d) this Section 8.02.
Subject to compliance with this Article 8, the Issuer may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.
Section 8.03 Covenant Defeasance.
Upon the Issuers exercise under Section 8.01 of the option applicable to this Section 8.03,
the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in
Section 8.04, be released from their obligations under the covenants contained in Sections 4.03,
4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 and 4.15, clauses (2) through (7) of
Section 5.01(a) and Sections 5.01(b) with respect to the outstanding Notes on and after the date
the conditions set forth in Section 8.04 are satisfied (Covenant Defeasance), and the
Notes shall thereafter be deemed not outstanding for the purposes of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any thereof) in connection with
such covenants, but shall continue to be deemed outstanding for all other purposes hereunder (it
being understood that such Notes shall not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Issuer may
omit to comply with and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of
this Indenture and such Notes shall be unaffected thereby. In addition, upon the Issuers exercise
under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of
the conditions set forth in Section 8.04, Sections 6.01(3) (as it relates to the covenants
specified above), 6.01(4), 6.01(5), 6.01(6), 6.01(7) (solely with respect to Restricted
Subsidiaries that are Significant Subsidiaries), 6.01(8) (solely with respect to Restricted
Subsidiaries that are Significant Subsidiaries) and 6.01(9) shall not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 8.02 or 8.03 to the
outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the Notes:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Notes, cash in U.S. dollars, Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants or a nationally recognized investment banking firm,
to pay the principal of, premium, if any, and interest due on the Notes on the Maturity
thereof or, to the extent the Issuer has previously provided a notice of redemption with
respect to the outstanding Notes, on the applicable Redemption Date, as the case may be, of
such principal, premium, if any, or interest on such Notes, and the Issuer must specify
whether such Notes are being defeased to Maturity or to a particular Redemption Date;
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an
Opinion of Counsel from independent counsel in the United States reasonably acceptable to
the Trustee confirming that, subject to customary assumptions and exclusions,
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(a) the Issuer has received from, or there has been published by, the United
States Internal Revenue Service a ruling, or
(b) since the issuance of the Notes, there has been a change in the applicable
U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that the Holders of the Notes will not recognize income, gain or loss for U.S. federal
income tax purposes, as applicable, as a result of such Legal Defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee
an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of
the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a
result of such Covenant Defeasance and will be subject to such tax on the same amounts, in
the same manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(4) no Default or Event of Default pursuant to Section 6.01(7) shall have occurred and
be continuing on the date of such deposit or at any time during the period ending on the
91st day after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under the Indenture or any other material agreement to
which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is
bound;
(6) the Issuer shall have delivered to the Trustee an Opinion of Counsel from
independent counsel in the United States to the effect that (assuming no Holder of the Notes
would be considered an insider of the Issuer or any Guarantor under any applicable
bankruptcy or insolvency law and assuming no intervening bankruptcy or insolvency of the
Issuer or any Guarantor between the date of deposit and the 91st day following the deposit)
after the 91st day following the deposit, the trust funds will not be subject to the effect
of any applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors rights generally;
(7) no event or condition shall exist that would prevent the Issuer from making
payments of the principal of, premium, if any, and interest on the Notes on the date of such
deposit or at any time ending on the 91st day after the date of such deposit; and
(8) the Issuer shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel each stating that all conditions precedent provided for or relating to
the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied
with.
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Section 8.05 |
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Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions. |
Subject to Section 8.06, all money and Government Securities (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the Trustee) pursuant to Section 8.04 in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or a
Guarantor acting as Paying
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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 and Additional Interest, if any, and interest,
but such money need not be segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or Government Securities deposited pursuant to Section 8.04 or the
principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Issuer from time to time upon the written request of the Issuer any money or Government
Securities held by it as provided in Section 8.04 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to
the Trustee (which may be the opinion delivered under Section 8.04(2)), 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 Issuer.
Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust
for the payment of the principal of, premium and Additional Interest, if any, or interest on any
Note and remaining unclaimed for two years after such principal, and premium and Additional
Interest, if any, or interest has become due and payable shall be paid to the Issuer on its request
or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note
shall thereafter look only to the Issuer for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee
thereof, shall thereupon cease.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or Government Securities in
accordance with Section 8.04 or 8.05, 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 Issuers obligations under this Indenture and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.04 or 8.05 until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section 8.04 or 8.05, as the
case may be; provided that, if the Issuer makes any payment of principal of, premium and
Additional Interest, if any, or interest on any Note following the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02, the Issuer, any Guarantor and the Trustee may amend or
supplement this Indenture, any Guarantee, any Security Document or Notes without the consent of any
Holder:
(1) to evidence the succession of another Person to the Issuer or a Guarantor, and the
assumption by any such successor of the covenants of the Issuer or such Guarantor in this
Indenture, the Notes, any Guarantee and the Security Documents in accordance with Section
5.01;
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(2) to add to the covenants of the Issuer, any Guarantor or any other obligor upon the
Notes for the benefit of the Holders of the Notes or to surrender any right or power
conferred upon the Issuer or any Guarantor or any other obligor upon the Notes, as
applicable, in this Indenture, the Notes, any Guarantee or any Security Document;
(3) to cure any ambiguity, or to correct or supplement any provision in this Indenture,
the Notes, any Guarantee or any Security Document which may be defective or inconsistent
with any other provision in this Indenture, the Notes, any Guarantee or any Security
Document or make any other provisions with respect to matters or questions arising under
this Indenture, the Notes, any Guarantee or any Security Document; provided that, in
each case, such provisions shall not adversely affect the interest of the Holders of the
Notes in any material respect;
(4) to comply with the requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act;
(5) to add to the Collateral securing the Notes or to add a Guarantor under this
Indenture;
(6) to evidence and provide the acceptance of the appointment of a successor Trustee or
Collateral Agent under this Indenture and the Security Documents;
(7) to mortgage, pledge, hypothecate or grant a Lien in favor of the Collateral Agent
for the benefit of the Holders of the Notes as additional security for the payment and
performance of the Issuers and any Guarantors obligations under this Indenture, in any
property, or assets, including any of which are required to be mortgaged, pledged or
hypothecated, or in which a security interest is required to be granted to or for the
benefit of the Trustee or the Collateral Agent pursuant to this Indenture, any of the
Security Documents or otherwise;
(8) to provide for the release of Collateral from the Lien of this Indenture and the
Security Documents when permitted or required by any of the Security Documents, the
Intercreditor Agreement or this Indenture;
(9) to secure any Permitted Additional Pari Passu Obligations under the Security
Documents and to appropriately include the same in the Intercreditor Agreement; or
(10) in the sole discretion of the Issuer, to conform any provision of this Indenture
to the provisions of the Description of the Notes contained in the Offering Memorandum to
the extent such provision was intended to be a verbatim recital of a provision contained
herein.
The Holders of a majority in aggregate principal amount of the Notes outstanding may waive
compliance with certain restrictive covenants and provisions of this Indenture.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Issuer and the Trustee may amend or
supplement this Indenture, the Notes, the Guarantees and any Security Document with the consent of
the Holders of at least a majority in principal amount of the Notes (including Additional Notes, if
any) then outstanding 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), and, subject to
Sections 6.04 and 6.07, any existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium and Additional Interest, if any, or interest on
the Notes, except a payment default
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resulting from an acceleration that has been rescinded) or compliance with any provision of this
Indenture, the Guarantees, the Security Documents or the Notes may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding Notes (including Additional
Notes, if any) voting as a single class (including consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes). Section 2.08 and Section 2.09 shall
determine which Notes are considered to be outstanding for the purposes of this Section 9.02.
Without the consent of each affected Holder of Notes, an amendment or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(1) change the Maturity of the principal of, or any installment of interest on, or
change to an earlier date any redemption date of, or waive a default in the payment of the
principal of, premium, if any, or interest on, any such Note or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the redemption thereof,
or change the coin or currency in which the principal of any such Note or any premium or the
interest thereon is payable, or impair the right to institute suit for the enforcement of
any such payment after the Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(2) amend, change or modify the obligation of the Issuer to make and consummate a
Change of Control Offer in the event of a Change of Control in accordance with Section 4.11,
including amending, changing or modifying any definitions related thereto;
(3) reduce the percentage in principal amount of such outstanding Notes, the consent of
whose Holders is required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver or compliance with certain provisions of this Indenture;
(4) modify any of the provisions relating to supplemental indentures requiring the
consent of Holders or relating to the waiver of past defaults or relating to the waiver of
certain covenants, except to increase the percentage of such outstanding Notes required for
such actions or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each such Note affected thereby;
(5) amend or modify any of the provisions of this Indenture in any manner which
subordinates the Notes issued thereunder in right of payment to any other Indebtedness of
the Issuer or which subordinates any Guarantee in right of payment to any other Indebtedness
of the Guarantor issuing any such Guarantee;
(6) release any Guarantee except in compliance with the terms of this Indenture; or
(7) release all or substantially all of the Collateral other than in accordance with
this Indenture.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended
or supplemental indenture that complies with the Trust Indenture Act 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
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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. An amendment, supplement or waiver becomes effective in
accordance with its terms and thereafter binds every Holder; provided that any amendment or waiver
that requires the consent of each affected Holder shall not become effective with respect to any
non-consenting Holder.
The Issuer may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement, or waiver. If a record
date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at
such record date (or their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether
or not such Persons continue to be Holders after such record date. No such consent shall be valid
or effective for more than 120 days after such record date unless the consent of the requisite
number of Holders has been obtained.
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 Issuer 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.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver 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 Issuer may not sign an amendment, supplement or waiver until the
Board of Directors approves it. In executing any amendment, supplement or waiver, the Trustee
shall be entitled to receive and (subject to Section 7.01) shall be fully protected in relying
upon, in addition to the documents required by Section 15.04, an Officers Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and that such amendment, supplement or waiver is the
legal, valid and binding obligation of the Issuer and any Guarantors party thereto, enforceable
against them in accordance with its terms, subject to customary exceptions, and complies with the
provisions hereof (including Section 9.03). Notwithstanding the foregoing, no Opinion of Counsel
will be required for the Trustee to execute any amendment or supplement adding a new Guarantor
under this Indenture.
It shall not be necessary for the consent of the Holders of Notes under this Article 9 to
approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such
consent approves the substance thereof. The consent of the Collateral Agent shall not be necessary
for any amendment, supplement or waiver to this Indenture, except for any amendment, supplement or
waiver to Article 10 or 11 or as to this sentence.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer
shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amended or supplemental
indenture or waiver.
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ARTICLE 10
INTERCREDITOR AGREEMENT
Section 10.01 Intercreditor Agreement.
Each Holder agrees that the Note Liens are subject to the terms of the Intercreditor
Agreement. The Holders hereby authorize the Trustee and the Collateral Agent to enter into the
Intercreditor Agreement on behalf of the Holders and agree that the Holders shall comply with the
provisions of the Intercreditor Agreement applicable to them in their capacities as such to the
same extent as if the Holders were parties thereto.
ARTICLE 11
COLLATERAL
Section 11.01 Security Documents.
The Indenture Obligations are secured as provided in the Security Documents and will be
secured by Security Documents hereafter delivered as required or permitted by this Indenture. The
Issuer shall, and shall cause each Guarantor to, and each Guarantor shall, do all filings
(including filings of continuation statements and amendments to UCC financing statements that may
be necessary to continue the effectiveness of such UCC financing statements) as are required by the
Security Documents to maintain (at the sole cost and expense of the Issuer and the Guarantors) the
security interest created by the Security Documents in the Collateral as a perfected security
interest, subject only to Permitted Liens.
Section 11.02 Collateral Agent.
(a) The Collateral Agent shall have all the rights and protections provided in the Security
Documents and, additionally, shall have all the rights and protections provided to the Trustee
under Article VII.
(b) Subject to Section 7.01, none of the Collateral Agent, Trustee, Paying Agent, Registrar or
Transfer Agent nor any of their respective officers, directors, employees, attorneys or agents will
be responsible or liable for the existence, genuineness, value or protection of any Collateral, for
the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the
creation, perfection, priority, sufficiency or protection of any Note Liens, or any defect or
deficiency as to any such matters.
(c) Except as required or permitted by the Security Documents, the Holders acknowledge that
the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any other Person, except
in accordance with the Security Documents;
(ii) to foreclose upon or otherwise enforce any Note Lien; or
(iii) to take any other action whatsoever with regard to any or all of the Note Liens,
Security Documents or Collateral.
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Section 11.03 Authorization of Actions to Be Taken.
(a) Each Holder of Notes, by its acceptance thereof, consents and agrees to the terms of each
Security Document, as originally in effect and as amended, supplemented or replaced from time to
time in accordance with its terms or the terms of this Indenture, authorizes and directs the
Collateral Agent to enter into the Security Documents to which it is a party, authorizes and
empowers the Collateral Agent to execute and deliver the Intercreditor Agreement and authorizes and
empowers the Collateral Agent to bind the Holders of Notes and other holders of Indenture
Obligations as set forth in the Security Documents to which the Collateral Agent is a party and the
Intercreditor Agreement and to perform its obligations and exercise its rights and powers
thereunder.
(b) The Trustee is authorized and empowered to receive for the benefit of the Holders of Notes
any funds collected or distributed to the Collateral Agent under the Security Documents to which
the Trustee is a party and, subject to the terms of the Security Documents, to make further
distributions of such funds to the Holders of Notes according to the provisions of this Indenture.
(c) Subject to the provisions of Section 7.01, Section 7.02, and the Security Documents, the
Trustee may, in its sole discretion and without the consent of the Holders, direct, on behalf of
the Holders, the Collateral Agent to take all actions it deems necessary or appropriate in order
to:
(i) foreclose upon or otherwise enforce any or all of the Note Liens;
(ii) enforce any of the terms of the Security Documents to which the Collateral Agent
is a party; or
(iii) collect and receive payment of any and all Obligations.
Subject to the Intercreditor Agreement and at the Issuers sole cost and expense, the Trustee
is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute
and maintain, such suits and proceedings as it may deem reasonably expedient to protect or enforce
the Note Liens or the Security Documents to which the Collateral Agent or Trustee is a party or to
prevent any impairment of Collateral by any acts that may be unlawful or in violation of the
Security Documents or this Indenture, and such suits and proceedings as the Trustee may deem
reasonably expedient, at the Issuers sole cost and expense, to preserve or protect its interests
and the interests of the Holders of Notes in the Collateral, including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or
other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would impair the Note Liens
or be prejudicial to the interests of Holders or the Trustee.
Section 11.04 Release of Collateral.
Collateral may be released from the Lien and security interest created by the Security
Documents at any time or from time to time in accordance with the provisions of the Security
Documents or the Intercreditor Agreement. In addition, upon the request of the Issuer pursuant to
an Officers Certificate and Opinion of Counsel certifying that all conditions precedent hereunder
have been met, the Issuer and the Guarantors will be entitled to the release of assets included in
the Collateral from the Liens securing the Notes, and the Trustee shall (or, if the Trustee is not
then the Collateral Agent, shall direct the Collateral Agent to) release the same from such Liens
at the Issuers sole cost and expense, under any one or more of the following circumstances:
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(1) in whole or in part, as applicable, as to all or any portion of property subject to
such Note Liens which has been taken by eminent domain, condemnation or other similar
circumstances;
(2) in whole upon (a) satisfaction and discharge of the Indenture in accordance with
Article 13 or (b) a Legal Defeasance or Covenant Defeasance under Article 8;
(3) in part, as to any property that (a) is sold, transferred or otherwise disposed of
by the Issuer or any Guarantor (other than to the Issuer or another Guarantor) in a
transaction not prohibited by this Indenture at the time of such sale, transfer or
disposition or (b) is owned or at any time acquired by a Guarantor that has been released
from its Guarantee pursuant to Section 13.06, concurrently with the release of such
Guarantee;
(4) as to property that constitutes all or substantially all of the Collateral securing
the Notes, with the consent of each Holder of the Notes;
(5) as to property that constitutes less than all or substantially all of the
Collateral securing the Notes, with the consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding; or
(6) in part, in accordance with the applicable provisions of the Security Documents.
Section 11.05 Filing, Recording and Opinions.
(a) The Issuer will comply with the provisions of Trust Indenture Act Sections 314(b) and
314(d), in each case following qualification of this Indenture pursuant to the Trust Indenture Act,
except to the extent not required as set forth in any SEC regulation or interpretation (including
any no-action letter issued by the Staff of the SEC, whether issued to the Issuer or any other
Person). Following such qualification, to the extent the Issuer is required to furnish to the
Trustee an Opinion of Counsel pursuant to Trust Indenture Act Section 314(b)(2), the Issuer will
furnish such opinion not more than 60 but not less than 30 days prior to each September 30.
(b) Any release of Collateral permitted by Section 11.04 will be deemed not to impair the
Liens under this Indenture and the Security Documents in contravention thereof and any person that
is required to deliver an Officers Certificate or Opinion of Counsel pursuant to Section 314(d) of
the Trust Indenture Act shall be entitled to rely upon the foregoing as a basis for delivery of
such certificate or opinion. The Trustee shall, to the extent permitted by Sections 7.01 and 7.02,
accept as conclusive evidence of compliance with the foregoing provisions the appropriate
statements contained in such Officers Certificate or Opinion of Counsel.
(c) If any Collateral is released in accordance with this Indenture or any Security Document,
the Trustee will determine whether it has received all documentation required by Trust Indenture
Act Section 314(d) in connection with such release and, based on such determination and the Opinion
of Counsel delivered pursuant to Section 11.04(a), will, upon request, deliver a certificate to the
Collateral Agent and the Issuer setting forth such determination.
Section 11.06 Powers Exercisable by Receiver or Trustee.
In case the Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article 11 upon the Issuer or a Guarantor with respect to
the release, sale or other disposition of such property may be exercised by such receiver or
trustee, and an instrument
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signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of
the Issuer or a Guarantor or of any officer or officers thereof required by the provisions of this
Article 11; and if the Trustee or the Collateral Agent shall be in the possession of the Collateral
under any provision of this Indenture, then such powers may be exercised by the Trustee or the
Collateral Agent, as the case may be.
ARTICLE 12
APPLICATION OF TRUST MONIES
Section 12.01 Collateral Account.
No later than 30 days following the first date on which the Issuer or any Guarantor receives
any Trust Monies, there shall be established and, at all times thereafter until this Indenture
shall have terminated, there shall be maintained with the Collateral Agent the Collateral Account.
The Collateral Account shall be established and maintained by the Collateral Agent at the office of
the Collateral Agent. For the avoidance of doubt, no other deposit account or securities account
shall be, or shall be deemed to be, the Collateral Account, and Trust Monies shall include only
cash and cash equivalents required to be deposited into the Collateral Account pursuant to the
terms of this Indenture. The Issuer shall cause all Trust Monies to be deposited in the Collateral
Account and any such Trust Monies shall be held by and under the dominion and control of the
Collateral Agent for its benefit and for the benefit of the Secured Parties (as defined in the
Security Agreement) as a part of the Collateral until released in accordance with this Article 12.
Section 12.02 Withdrawal of Net Cash Proceeds in Connection with
Reinvestments.
To the extent that any Trust Monies consist of Net Cash Proceeds of an Asset Sale, such Trust
Monies may be withdrawn by the Issuer and shall be paid by the Collateral Agent (upon the direction
of the Trustee) upon a written request by the Issuer delivered to the Trustee and the Collateral
Agent to reimburse the Issuer or Guarantor for expenditures made, or to pay costs to be incurred,
by the Issuer or such Guarantor in connection with a reinvestment of such Net Cash Proceeds or
repayment of Indebtedness with such Net Cash Proceeds, in each case complying with Section 4.09,
upon receipt by the Trustee and the Collateral Agent of the following:
(a) An Officers Certificate, dated not more then 30 days prior to the date of the
application for the withdrawal and payment of such Trust Monies to the effect that:
(A) such Net Cash Proceeds that have been (or will be within thirty (30)
Business Days of the requested date of release) applied in compliance with the
requirements of Section 4.09 (which Officers Certificate shall contain a brief
description of the amount and the manner of application of such Net Cash Proceeds);
and
(B) to the extent required by Section 4.09 the Issuer has taken (or will take
not later than thirty (30) Business Days following the application of such Net Cash
Proceeds) all steps, if any, required by the Security Documents in order to grant
and/or perfect the security interest of the Collateral Agent in any assets in which
such Net Cash Proceeds have been reinvested (which Officers Certificate shall
attach copies of (or forms of) any additional Security Documents or amendments
thereto or filings thereunder, if any, required to comply with the Security
Documents and Section 4.09); and
(b) An Opinion of Counsel to the effect that:
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(A) the instruments that have been or are therewith delivered to the Collateral
Agent comply as to form to the requirements of this Indenture, and that, upon the
basis thereof and the accompanying documents specified in this Section 12.02 and
assuming the correctness and accuracy of such documents, all conditions precedent
herein provided for such withdrawal and payment have been satisfied, and such
withdrawal and payment is permitted under this Section 12.02; and
(B) the relevant Security Documents create (or upon the execution, filing
and/or delivery, as applicable of any documents contemplated by clause (a), will
create) a valid, binding and enforceable Lien on and security interest in such
assets in favor of the Collateral Agent for the benefit of the Holders to the extent
required by Section 4.09.
Upon compliance with the foregoing provisions of this Section 12.02, the Collateral Agent shall,
upon receipt of a written request by the Issuer (which may be contained in the Officers
Certificate), pay an amount of Net Cash Proceeds constituting Trust Monies equal to the amount of
the expenditures or costs related to such assets as stated in the Officers Certificate required by
clause (a) of this Section 12.02 as directed by the Issuer.
Section 12.03 Withdrawal of Net Cash Proceeds to Fund an Offer or Release Following an Offer.
To the extent that any Trust Monies consist of Net Cash Proceeds received by the Collateral
Agent pursuant to the provisions of Section 4.09 and an Offer, as applicable, has been made in
accordance therewith, such Trust Monies may be withdrawn by the Issuer and shall be paid by the
Trustee to the Paying Agent for application in accordance with Section 4.09 upon written notice by
the Issuer to the Trustee and upon receipt by the Trustee and the Collateral Agent of the
following:
An Officers Certificate, dated not more than three (3) days prior to the Purchase
Date, setting forth the amount of Excess Proceeds, as applicable, subject to the Offer and
the date on which Notes and Permitted Additional Pari Passu Obligations are to be purchased,
and to the effect that:
(A) (x) such Trust Monies constitute Net Cash Proceeds and (y) pursuant to and
in accordance with Section 4.09, the Issuer has made an Offer; and
(B) all conditions precedent and covenants herein provided for such application
of Trust Monies have been satisfied.
Upon compliance with the foregoing provisions of this Section 12.03, the Collateral Agent
shall apply the Trust Monies as directed and specified by the Issuer, subject to Section 4.09
(including to return to the Issuer any such amount of Excess Proceeds that are subject to the Offer
and which are not required to be applied to the purchase of Notes, Permitted Additional Pari Passu
Obligations or other Indebtedness pursuant to Section 4.09).
Section 12.04 Investment of Trust Monies.
So long as no Default or Event of Default shall have occurred and be continuing, all or any
part of any Trust Monies held by (or held in an account subject to the sole control of) the
Collateral Agent shall from time to time be invested or reinvested by the Collateral Agent in any
Cash Equivalents pursuant to a written request by the Issuer in the form of an Officers
Certificate, which shall specify the Cash Equivalents in which such Trust Monies shall be invested
and shall certify that such investments
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constitute Cash Equivalents; and the Collateral Agent shall sell any such Cash Equivalent only
upon receipt of such a written request by the Issuer specifying the particular Cash Equivalent to
be sold. So long as no Default or Event of Default occurs and is continuing, any interest or
dividends accrued, earned or paid on such Cash Equivalents (in excess of any accrued interest or
dividends paid at the time of purchase) that may be received by the Collateral Agent shall be
forthwith paid to the Issuer. Such Cash Equivalents shall be held by the Collateral Agent as a
part of the Collateral, subject to the same provisions hereof as the cash used by it to purchase
such Cash Equivalents.
The Trustee and Collateral Agent shall not be liable or responsible for any loss resulting
from such investments or sales except only for its own grossly negligent action, its own grossly
negligent failure to act or its own willful misconduct in complying with this Section 12.04.
Section 12.05 Application of other Trust Monies.
The Collateral Agent shall return all Trust Monies to the Issuer upon any Legal Defeasance,
Covenant Defeasance or satisfaction and discharge of this Indenture under Section 14.01. The
Collateral Agent shall have all rights and remedies with respect to the Collateral Account and any
Trust Monies as provided in the Security Documents.
ARTICLE 13
GUARANTEES
Section 13.01 Guarantee.
Subject to this Article 13, each of the Guarantors hereby, jointly and severally, fully and
unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (a) the
principal of, interest, premium and Additional Interest, if any, on the Notes shall 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 Issuer to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full
or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension
of time of payment or renewal of any Notes or any of such other obligations, that same shall be
promptly paid in full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest,
notice and all demands whatsoever and covenants that this Guarantee shall not be discharged except
by complete performance of the obligations contained in the Notes and this Indenture.
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Each Guarantor also agrees to pay any and all costs and expenses (including reasonable
attorneys fees) incurred by the Trustee or any Holder in enforcing any rights under this Section
13.01.
If any Holder or the Trustee is required by any court or otherwise to return to the Issuer,
the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation
to either the Issuer or the Guarantors, any amount paid either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to
the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration
in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for the purpose of this
Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor
so long as the exercise of such right does not impair the rights of the Holders under the
Guarantees.
Each Guarantee shall remain in full force and effect and continue to be effective should any
petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer
become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of the Issuers assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee on the Notes or Guarantees,
whether as a voidable preference, fraudulent transfer or otherwise, all as though such payment
or performance had not been made. In the event that any payment or any part thereof, is rescinded,
reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or
returned.
In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Each payment to be made by a Guarantor in respect of its Guarantee shall be made without
set-off, counterclaim, reduction or diminution of any kind or nature.
As used in this Section 13.01, the term Trustee shall also include each of the Paying Agent,
Registrar and Transfer Agent, as applicable.
Section 13.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Guarantee of such 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
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum
amount as will, after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant
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under such laws and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 13, result in the obligations of such
Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
applicable law. Each Guarantor that makes a payment under its Guarantee shall be entitled upon
payment in full of all guaranteed obligations under this Indenture to a contribution from each
other Guarantor in an amount equal to such other Guarantors pro rata portion of such payment based
on the respective net assets of all the Guarantors at the time of such payment determined in
accordance with GAAP.
Section 13.03 Execution and Delivery.
To evidence its Guarantee set forth in Section 13.01, each Guarantor hereby agrees that this
Indenture shall be executed on behalf of such Guarantor by its President, one of its Vice
Presidents or one of its Assistant Vice Presidents. Each Guarantor hereby agrees to execute a
Notation of Guarantee substantially in the form included in Exhibit A hereto on each Note
authenticated and delivered by the Trustee.
Each Guarantor hereby agrees that its Guarantee set forth in Section 13.01 shall remain in
full force and effect notwithstanding the absence of the endorsement of any notation of such
Guarantee on the Notes.
If an Officer whose signature is on this Indenture no longer holds that office at the time the
Trustee authenticates the Note, the Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantors.
Section 13.04 Subrogation.
Each Guarantor shall be subrogated to all rights of Holders of Notes against the Issuer in
respect of any amounts paid by any Guarantor pursuant to the provisions of Section 13.01;
provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be
entitled to enforce or receive any payments arising out of, or based upon, such right of
subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes
shall have been paid in full.
Section 13.05 Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it
pursuant to its Guarantee are knowingly made in contemplation of such benefits.
Section 13.06 Release of Guarantees.
Nothwithstanding any other provision of this Indenture, any Guarantee by a Restricted
Subsidiary (and all Liens securing the same) shall be automatically and unconditionally released
and discharged upon:
(1) such Subsidiary ceasing to constitute a Restricted Subsidiary in a transaction that
complies with this Indenture (whether upon a sale, exchange, transfer or disposition of
Capital Stock in such Restricted Subsidiary (including by way of merger or consolidation),
or the designation of such Restricted Subsidiary as an Unrestricted Subsidiary), or
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(2) the merger or dissolution of a Guarantor into the Issuer or another Guarantor or
the transfer or sale of all or substantially all of the assets of a Guarantor to the Issuer
or another Guarantor.
ARTICLE 14
SATISFACTION AND DISCHARGE
Section 14.01 Satisfaction and Discharge.
This Indenture shall be discharged and shall cease to be of further effect as to all Notes,
when:
(1) either (A) all such Notes theretofore authenticated and delivered (except lost,
stolen or destroyed Notes which have been replaced or paid or Notes whose payment has been
deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to
the Issuer or discharged from such trust as provided for in the Indenture) have been
delivered to the Trustee for cancellation or (B) all Notes not theretofore delivered to the
Trustee for cancellation (a) have become due and payable, (b) will become due and payable at
their Maturity within one year, or (c) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Issuer; or
(2) the Issuer or any Guarantor has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust an amount in United States dollars sufficient to
pay and discharge the entire indebtedness on the Notes not theretofore delivered to the
Trustee for cancellation, including principal of, premium, if any, and accrued interest at
such Maturity, Stated Maturity or Redemption Date;
(3) after giving effect thereto, no Default or Event of Default shall have occurred and
be continuing under any Indebtedness of the Issuer or any Restricted Subsidiary on the date
of such deposit;
(4) such satisfaction and discharge will not result in a breach or violation of, or
constitute a default under any other material agreement or instrument to which the Issuer or
any Restricted Subsidiary is a party or by which the Issuer or any Restricted Subsidiary is
bound;
(5) the Issuer or any Guarantor has paid or caused to be paid all other sums payable
under this Indenture by the Issuer; and
(6) the Issuer has delivered to the Trustee an Officers Certificate and an opinion of
independent counsel each stating that all conditions precedent under this Section 14.01
relating to the satisfaction and discharge of such Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been
deposited with the Trustee pursuant to clause (2) of this Section 14.01, the provisions of Section
14.02 and Section 8.06 shall survive.
Section 14.02 Application of Trust Money.
Subject to the provisions of Section 8.06, all money deposited with the Trustee pursuant to
Section 14.01 shall be held in trust and applied by it, in accordance with the provisions of the
Notes
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and this Indenture, to the payment, either directly or through any Paying Agent (including the
Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium and Additional Interest, if any) and interest for whose
payment such money has been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money in accordance with Section 14.01
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
Issuers and any Guarantors obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 14.01; provided that if
the Issuer has made any payment of principal of, premium and Additional Interest, if any, or
interest on any Notes because of the reinstatement of its obligations, the Issuer shall be
subrogated to the rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.
ARTICLE 15
MISCELLANEOUS
Section 15.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
Trust Indenture Act Section 318(c), the imposed duties shall control.
Section 15.02 Notices.
Any notice or communication by the Issuer, any Guarantor, the Collateral Agent 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), fax or overnight air courier guaranteeing next
day delivery, to the others address:
If to the Issuer and/or any Guarantor:
c/o Oxford Industries, Inc.
222 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Facsimile: (404) 653-1224
Attention: General Counsel
If to the Trustee:
U.S. Bank National Association
1349 W. Peachtree Street, NW
Two Midtown Plaza, Suite 1050
Atlanta, GA 30309
Fax No.: (404) 898-8844
Attention: Muriel Shaw
The Issuer, any Guarantor or the Trustee, by notice to the others, may designate additional or
different addresses for subsequent notices or communications.
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All notices and communications (other than those sent to Holders) shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five calendar days after being
deposited in the mail, postage prepaid, if mailed by first-class mail; when receipt acknowledged,
if faxed; and the next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery; provided that any notice or communication delivered
to the Trustee shall be deemed effective upon actual receipt thereof.
Any notice or communication to a Holder shall be mailed by first-class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in Trust Indenture Act Section 313(c), to the extent required by
the Trust Indenture Act. Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders.
If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.
Section 15.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to Trust Indenture Act Section 312(b) with other Holders with
respect to their rights under this Indenture or the Notes. The Issuer, the Trustee, the Registrar
and anyone else shall have the protection of Trust Indenture Act Section 312(c).
Section 15.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or any of the Guarantors to the Trustee to take
any action under this Indenture, the Issuer or such Guarantor, as the case may be, shall furnish to
the Trustee:
(a) an Officers Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 15.05) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 15.05) stating that, in the opinion
of such counsel, all such conditions precedent and covenants have been satisfied.
Section 15.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to Trust Indenture Act Section
314(a)(4)) shall comply with the provisions of Trust Indenture Act Section 314(e) and shall
include:
(a) a statement that the Person making such certificate or opinion has read such
covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
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(c) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with (and, in the case of an
Opinion of Counsel, may be limited to reliance on an Officers Certificate as to matters of
fact); and
(d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.
Section 15.06 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 15.07 No Personal Liability of Directors, Officers, Employees and Stockholders.
No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor or
any of their parent companies (other than the Issuer and the Guarantors) shall have any liability
for any obligations of the Issuer or the Guarantors under the Notes, the Guarantees or this
Indenture or for any claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder by accepting the Notes waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes.
Section 15.08 Governing Law.
THIS INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
Section 15.09 Force Majeure.
In no event shall the Trustee, Paying Agent, Registrar or Transfer Agent be responsible or
liable for any failure or delay in the performance of its obligations under this Indenture arising
out of or caused by, directly or indirectly, forces beyond its reasonable control, including
without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software or hardware) services.
Section 15.10 Successors.
All agreements of the Issuer in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee and the Paying Agent, Registrar and Transfer Agent in this Indenture
shall bind their respective successors. All agreements of each Guarantor in this Indenture shall
bind its successors, except as otherwise provided in Section 13.06. The provisions of Article 11
referring to the Collateral Agent shall inure to the benefit of such Collateral Agent.
Section 15.11 Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
-99-
Section 15.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. Delivery of an executed
counterpart of a signature page to this Indenture by facsimile, email or other electronic means
shall be effective as delivery of a manually executed counterpart of this Indenture.
Section 15.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 15.14 Qualification of Indenture.
The Issuer and the Guarantors shall qualify this Indenture under the Trust Indenture Act in
accordance with and to the extent required by the terms and conditions of the Registration Rights
Agreement and shall pay all reasonable costs and expenses (including attorneys fees and expenses
for the Issuer, the Guarantors and the Trustee) incurred in connection therewith, including, but
not limited to, costs and expenses of qualification of this Indenture and the Notes and printing
this Indenture and the Notes. The Trustee shall be entitled to receive from the Issuer and the
Guarantors any such Officers Certificates, Opinions of Counsel or other documentation as it may
reasonably request in connection with any such qualification of this Indenture under the Trust
Indenture Act.
Section 15.15 USA Patriot Act
The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act the
Trustee and Agents, like all financial institutions and in order to help fight the funding of
terrorism and money laundering, are required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens an account. The
parties to this agreement agree that they will provide the Trustee and the Agents with such
information as they may request in order to satisfy the requirements of the USA Patriot Act.
[Signatures on following pages]
-100-
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OXFORD INDUSTRIES, INC.
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By: |
/s/ Thomas C. Chubb III
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Name: |
Thomas C. Chubb III |
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Title: |
President |
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Signature Page to Indenture
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Each of the GUARANTORS |
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listed on Schedule I hereto except Tommy Bahama Texas
Beverages, LLC |
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By:
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/s/ Thomas C. Chubb III |
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Name: Thomas C. Chubb III
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Title: Vice President |
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Tommy Bahama Texas Beverages, LLC, |
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By: Tommy Bahama Beverages, LLC,
its sole member |
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By:
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/s/ Thomas C. Chubb III |
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Name: Thomas C. Chubb III
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Title: Vice President |
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Signature Page to Indenture
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By: |
/s/ Muriel Shaw
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Name: |
Muriel Shaw |
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Assistant Vice President |
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SCHEDULE I
Guarantors
BEN SHERMAN CLOTHING, INC.
LIONSHEAD CLOTHING COMPANY
OXFORD CARIBBEAN, INC.
OXFORD GARMENT, INC.
OXFORD INTERNATIONAL, INC.
OXFORD LOCKBOX, INC.
OXFORD OF SOUTH CAROLINA, INC.
PIEDMONT APPAREL CORPORATION
SFI OF OXFORD ACQUISITION CORPORATION
TOMMY BAHAMA GROUP, INC.
TOMMY BAHAMA BEVERAGES, LLC
TOMMY BAHAMA R&R HOLDINGS, INC.
TOMMY BAHAMA TEXAS BEVERAGES, LLC
VIEWPOINT MARKETING, INC.
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]
[Insert the IAI Note Legend, if applicable, pursuant to the provisions of the Indenture]
[Insert the ERISA Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the OID Legend, if applicable, pursuant to the provisions of the Indenture]
A-1
CUSIP [ ]
ISIN [ ]1
[RULE 144A][REGULATION S] GLOBAL NOTE
11.375% Senior Secured Notes due 2015
OXFORD INDUSTRIES, INC.
promises to pay to CEDE & CO. or registered assigns, the principal sum [set forth on the Schedule
of Exchanges of Interests in the Global Note attached hereto] [of United
States Dollars] on January 15, 2015.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
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Rule 144A Note CUSIP: 691497AD3
Rule 144A Note ISIN: US691497AD35
Regulation S Note CUSIP: U6919TAB6
Regulation S Note ISIN: USU6919TAB62
Exchange Note CUSIP: 691497AE1
Exchange Note ISIN: US691497AE18 |
A-2
IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.
Dated: [ ]
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OXFORD INDUSTRIES, INC.
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By: |
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Name: |
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A-3
This is one of the Notes referred to in the within-mentioned Indenture:
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By: |
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Authorized Signatory |
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A-4
[Back of Note]
11.375% Senior Secured Notes due 2015
Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1. INTEREST. Oxford Industries, Inc., a Georgia corporation, promises to pay interest on the
principal amount of this Note at 11.375% per annum from June 30, 2009 until maturity and shall pay
the Additional Interest, if any, payable pursuant to the Registration Rights Agreement referred to
below. The Issuer will pay interest and Additional Interest, if any, semi-annually in arrears on
January 15 and July 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 January
15, 2010. The Issuer will pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the
interest rate on the Notes; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and Additional Interest,
if any, (without regard to any applicable grace periods) from time to time on demand at the
interest rate on the Notes. Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months.
2. METHOD OF PAYMENT. The Issuer will pay interest on the Notes and Additional Interest, if
any, to the Persons who are registered Holders of Notes at the close of business on the January 1
or July 1 (whether or not a Business Day), as the case may be, immediately 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 2.12 of the Indenture with respect to defaulted
interest. Payment of interest and Additional Interest, if any, 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 with respect to principal of and
interest, premium and Additional Interest, if any, on, all Global Notes and all other Notes the
Holders of which shall have provided wire transfer instructions to the Issuer or the Paying Agent.
Such payment shall be in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, U.S. Bank National Association, will act as Paying
Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to the
Holders. The Issuer or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Issuer issued the Notes under an Indenture, dated as of June 30, 2009 (the
Indenture), among Oxford Industries Inc., the Guarantors named therein and the Trustee.
This Note is one of a duly authorized issue of notes of the Issuer designated as its 11.375% Senior
Secured Notes due 2015. The Issuer shall be entitled to issue Additional Notes pursuant to
Section 2.01 of the Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (the
Trust Indenture Act). 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.
A-5
5. OPTIONAL REDEMPTION.
(a) At any time prior to July 15, 2012, the Issuer may redeem all or a portion of the Notes,
on not less than 30 nor more than 60 days prior notice, in amounts of $1,000 or an integral
multiple thereof, at a price equal to the greater of: (x) 100% of the aggregate principal amount of
the Notes to be redeemed, together with accrued and unpaid interest, if any, to the date of
redemption, and (y) as determined by an Independent Investment Banker, the sum of the present
values of 105.688% of the principal of the Notes being redeemed plus scheduled payments of interest
(not including any portion of such payments of interest accrued as of the Redemption Date) from the
date of redemption to July 15, 2012 discounted to the Redemption Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate plus 50
basis points, together with accrued and unpaid interest, if any, to the Redemption Date.
(b) On or after July 15, 2012, the Issuer may redeem all or a portion of the Notes, on not
less than 30 nor more than 60 days prior notice, in amounts of $1,000 or an integral multiple
thereof at the following redemption prices (expressed as percentages of the principal amount),
together with accrued and unpaid interest, if any, to the Redemption Date, if redeemed during the
12-month period beginning July 15 of the years indicated below:
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Redemption |
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2012 |
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2013 |
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2014 and thereafter |
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100.000 |
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(c) In addition, at any time prior to July 15, 2012, the Issuer, at its option, may use the
net proceeds of one or more Equity Offerings to redeem up to an aggregate of 35% of the aggregate
principal amount of Notes originally issued under this Indenture at a redemption price equal to
111.375% of the aggregate principal amount of the Notes redeemed, plus accrued and unpaid interest,
if any, to the redemption date; provided that at least 65% of the initial aggregate
principal amount of Notes must remain outstanding immediately after the occurrence of such
redemption and the Issuer must complete such redemption within 90 days of the closing of the Equity
Offering.
(d) If less than all of the Notes are to be redeemed, the Trustee shall select the Notes to be
redeemed in compliance with the requirements of the principal national security exchange, if any,
on which the Notes are listed, or if the Notes are not listed, on a pro rata basis, by lot or by
any other method the Trustee shall deem fair and reasonable. Notes redeemed in part must be
redeemed only in integral multiples of $1,000 and no Note with a principal amount of less than
$2,000 will be redeemed in part.
(e) In addition to the Issuers rights to redeem the Notes as set forth above, the Issuer may
purchase Notes in open-market transactions, tender offers or otherwise
6. MANDATORY REDEMPTION. The Issuer shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
7. NOTICE OF REDEMPTION. Subject to Section 3.03 of the Indenture, notice of redemption will
be mailed by first-class mail at least 30 days but not more than 60 days before the
A-6
redemption date
(except that redemption notices may be mailed more than 60 days prior to a redemption date if the
notice is issued in connection with Article 8 or Article 11 of the Indenture) to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations larger than
$2,000 may be redeemed in part but only in whole multiples of $1,000 in excess thereof, unless all
of the Notes held by a Holder are to be redeemed. On and after the redemption date interest ceases
to accrue on Notes or portions thereof called for redemption.
8. OFFERS TO REPURCHASE.
(a) If a Change of Control occurs, each Holder of Notes will have the right to require this
Issuer to purchase all or any part (in integral multiples of $1,000 except that no partial
redemption will be permitted that would result in a Note having a remaining principal amount of
less than $2,000) of such Holders Notes pursuant to a Change of Control offer. In the Change of
Control offer, the Issuer will offer to purchase all of the Notes, at a purchase price in cash in
an amount equal to 101% of the principal amount of such Notes, plus accrued and unpaid interest, if
any, to the date of purchase (subject to the rights of Holders of record on relevant record dates
to receive interest due on an interest payment date). The Change of Control offer shall be made in
accordance with Section 4.11 of the Indenture.
(b) Under certain circumstances described in the Indenture, the Issuer will be required to
apply the proceeds of Asset Sales to the repayment of the Securities and Permitted Additional Pari
Passu Indebtedness. The offer shall be made in accordance with Section 4.09 of the Indenture
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are 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 and the Issuer may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuer need not exchange or register the transfer of any Notes or
portion of Notes selected for redemption, except for the unredeemed portion of any Notes being
redeemed in part. Also, the Issuer need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for
all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Guarantees or the Notes may be
amended or supplemented as provided in the Indenture.
12. DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section
6.01 of the Indenture. If any Event of Default shall occur and be continuing with respect to the
Indenture, the Trustee or the holders of not less than 25% in aggregate principal amount of the
Notes then outstanding may, and the Trustee at the request of such holders shall, declare all
unpaid principal of, premium, if any, and accrued interest on all Notes to be due and payable
immediately, by a notice in writing to the Issuer (and to the Trustee if given by the holders of
the Notes) and upon any such declaration, such principal, premium, if any, and interest shall
become due and payable immediately. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, then all the Notes shall
automatically become and be due and payable immediately in an amount equal to the principal amount
of the Notes, together with accrued and unpaid interest, if any, to the date the Notes become due
and payable, without any declaration or other act on the part of the Trustee or any holder. Holders
may not enforce the Indenture, the Notes or the Guarantees except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in aggregate principal amount of the
A-7
then
outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing Default (except a Default relating to
the
payment of principal, premium, if any, Additional Interest, if any, or interest) if it
determines that withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Notes waive any existing Default or and its consequences under the Indenture
except a continuing Default in payment of the principal of, premium, if any, Additional Interest,
if any, or interest on, any of the Notes held by a non-consenting Holder. The Issuer and each
Guarantor (to the extent that such Guarantor is so required under the Trust Indenture Act) is
required to deliver to the Trustee annually a statement regarding compliance with the Indenture,
and the Issuer is required within five (5) Business Days after becoming aware of any Default, to
deliver to the Trustee a statement specifying such Default and what action the Issuer proposes to
take with respect thereto.
13. AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.
14. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES.
In addition to the rights provided to Holders of Notes under the Indenture, Holders of Restricted
Global Notes and Restricted Definitive Notes shall have all the rights set forth in the
Registration Rights Agreement, including the right to receive Additional Interest (as defined in
the Registration Rights Agreement).
15. GOVERNING LAW. THIS INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. CUSIP/ISIN NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused CUSIP/ISIN numbers to be printed on the
Notes and the Trustee may use CUSIP/ISIN numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as printed on the
Notes or as contained in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Issuer will furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be made to the Issuer at the
following address:
Oxford Industries Inc.
222 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Facsimile: (404) 653-1224
Attention: General Counsel
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee legal name)
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date:
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Your Signature: |
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(Sign exactly as your name appears on
the face of this Note) |
Signature Guarantee*:
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Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee). |
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.09 or
4.11 of the Indenture, check the appropriate box below:
o Section 4.09 o Section 4.11
If you want to elect to have only part of this Note purchased by the Issuer pursuant to
Section 4.09 or Section 4.11 of the Indenture, state the amount you elect to have purchased:
$
Date:
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Your Signature: |
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(Sign exactly as your
name appears on the face of this Note) |
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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-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is $___. 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 or Definitive Note for an interest in this Global
Note, have been made:
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Amount of |
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decrease in |
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this Global Note |
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Global Note |
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decrease or increase |
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Notes Registrar |
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This schedule should be included only if the Note is issued in global form. |
A-11
Notation of Guarantee
Pursuant to the Indenture, dated as of June 30, 2009 (the Indenture), among Oxford
Industries, Inc., the Guarantors named therein, and the Trustee, each Guarantor, subject to the
provisions of Article 13 of the Indenture, hereby, jointly and severally, fully and 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 Issuer thereunder, that: (a) the principal of, interest,
premium and Additional Interest, if any, on the Notes shall 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 Issuer
to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid
in full when due or performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly
and severally obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest,
notice and all demands whatsoever and covenants that this Guarantee shall not be discharged except
by complete performance of the obligations contained in the Notes and this Indenture.
Each Guarantor also agrees to pay any and all costs and expenses (including reasonable
attorneys fees) incurred by the Trustee or any Holder in enforcing any rights under Section 13.01
of the Indenture.
If any Holder or the Trustee is required by any court or otherwise to return to the Issuer,
the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation
to either the Issuer or the Guarantors, any amount paid either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to
the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the
purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in Article 6 of the Indenture, such
obligations (whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Guarantee. The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Guarantees.
A-12
Each Guarantee shall remain in full force and effect and continue to be effective should any
petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer
become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of the Issuers assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee on the Notes or Guarantees,
whether as a voidable preference, fraudulent transfer or otherwise, all as though such payment
or performance had not been made. In the event that any payment or any part thereof, is rescinded,
reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or
returned.
In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Each payment to be made by a Guarantor in respect of its Guarantee shall be made without
set-off, counterclaim, reduction or diminution of any kind or nature.
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BEN SHERMAN CLOTHING, INC.
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LIONSHEAD CLOTHING COMPANY |
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OXFORD CARIBBEAN, INC. |
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OXFORD GARMENT, INC. |
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OXFORD INTERNATIONAL, INC. |
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OXFORD LOCKBOX, INC. |
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OXFORD OF SOUTH CAROLINA, INC. |
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PIEDMONT APPAREL CORPORATION |
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SFI OF OXFORD ACQUISITION CORPORATION |
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TOMMY BAHAMA BEVERAGES, LLC |
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TOMMY BAHAMA GROUP, INC. |
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TOMMY BAHAMA R&R HOLDINGS, INC. |
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VIEWPOINT MARKETING, INC., |
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as Guarantors |
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By: |
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Title: |
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TOMMY BAHAMA TEXAS BEVERAGES, LLC, as Guarantor
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By Tommy Bahama Beverages, LLC, its sole member |
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TOMMY BAHAMA BEVERAGES, LLC |
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By: |
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A-13
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Oxford Industries, Inc.
222 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Facsimile: (404) 653-1224
Attention: General Counsel
U.S. Bank National Association
1349 W. Peachtree Street, NW
Two Midtown Plaza, Suite 1050
Atlanta, GA 30309
Fax No.: (404) 898-8844
Attention: Muriel Shaw
Re: 11.375% Senior Secured Notes due 2015
Reference is hereby made to the Indenture, dated as of June 30, 2009 (the
Indenture), among Oxford Industries, Inc., the Guarantors named therein and the Trustee.
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 DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in
accordance with Rule 144A under the United States 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.
2. o CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION S
GLOBAL NOTE OR A 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 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
B-1
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 (other than an
Initial Purchaser). 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 Indenture and the Securities Act.
3. o CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN A
GLOBAL NOTE OR A 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 Issuer 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 to an Institutional Accredited Investor and
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 B-1 to the Indenture and (2) if
such Transfer is in respect of a principal amount of Notes at the time of Transfer of less
than $100,000, 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 IAI Global Note and/or 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.
B-2
(a) o CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 to a Person who is not an affiliate (as defined in Rule
144) of the Issuer 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 to a Person who is
not an affiliate (as defined in Rule 144) of the Issuer 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 to a Person who is not an affiliate (as
defined in Rule 144) of the Issuer 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.
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o CHECK IF TRANSFEROR IS AN AFFILIATE OF THE ISSUER. |
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o CHECK IF TRANSFEREE IS AN AFFILIATE OF THE ISSUER. |
This certificate and the statements contained herein are made for your benefit and the benefit
of the Issuer.
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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:
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
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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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(ii) |
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o Regulation S Global Note (CUSIP [ ]), or |
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o IAI Global Note (CUSIP [ ]); or |
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o a Restricted Definitive Note. |
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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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(iii) |
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o Unrestricted Global Note (CUSIP [ ]), or |
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o IAI Global Notes (CUSIP [ ]); or |
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o a Restricted Definitive Note; or |
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o an Unrestricted Definitive Note,
in accordance with the terms of the Indenture. |
B-4
EXHIBIT B-1
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Oxford Industries, Inc.
222 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Facsimile: (404) 653-1224
Attention: General Counsel
U.S. Bank National Association
1349 W. Peachtree Street, NW
Two Midtown Plaza, Suite 1050
Atlanta, GA 30309
Fax No.: (404) 898-8844
Attention: Muriel Shaw
Re: 11.375% Senior Secured Notes due 2015
Reference is hereby made to the Indenture, dated as of June 30, 2009 (the
Indenture), among Oxford Industries, Inc., the Guarantors named therein, and the Trustee.
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 Issuer, (B) in accordance with Rule 144A under the
Securities Act to a qualified institutional buyer (as defined therein), (C) to an institutional
accredited investor (as defined below) that, prior to such transfer, furnishes (or has furnished
on its behalf by a U.S. broker-dealer) to you and to the Issuer a signed letter substantially in
the form of this letter and, if such transfer is in respect of a principal amount of Notes at the
time of transfer of less than $100,000, an Opinion of Counsel in form reasonably acceptable
B-5
to the Issuer to the effect that such transfer is in compliance with the Securities Act,
(D) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act,
(E) pursuant to an effective registration statement under the Securities Act, (F) in accordance
with Rule 144 under the Securities Act or (G) in accordance with another exemption from the
registration requirements of the Securities Act, and we further agree to provide to any Person
purchasing the Definitive Note or beneficial interest in a Global Note from us in a transaction
meeting the requirements of clauses (A) through (G) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to you and the Issuer such certifications, legal opinions and other
information as you and the Issuer may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional accredited investor (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and 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 acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional accredited investor) as to
each of which we exercise sole investment discretion.
You and the Issuer 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.
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[Insert Name of Accredited Investor] |
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By: |
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Name: |
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Dated:
B-6
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Oxford Industries, Inc.
222 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Facsimile: (404) 653-1224
Attention: General Counsel
U.S. Bank National Association
1349 W. Peachtree Street, NW
Two Midtown Plaza, Suite 1050
Atlanta, GA 30309
Fax No.: (404) 898-8844
Attention: Muriel Shaw
Re: 11.375% Senior Secured Notes due 2015
Reference is hereby made to the Indenture, dated as of June 30, 2009 (the
Indenture), among Oxford Industries, Inc., the Guarantors named therein and the Trustee.
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 United States 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, (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 and (v) the Owner is not an affiliate (as
defined in Rule 144) of the Issuer.
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, (ii) such Exchange has
C-1
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, (iv) the Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States and (v) the
Owner is not an affiliate (as defined in Rule 144) of the Issuer.
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, (iv) the
beneficial interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States and (v) the Owner is not an
affiliate (as defined in Rule 144) of the Issuer.
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, (iv) the Unrestricted Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state of
the United States and (v) the Owner is not an affiliate (as defined in Rule 144) of
the Issuer.
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
C-2
interest in the [CHECK ONE] o 144A Global Note o Regulation S Global Note
o IAI 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
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.
3) o CHECK IF OWNER IS AN AFFILIATE OF THE ISSUER.
4) o CHECK IF OWNER IS EXCHANGING THIS NOTE IN CONNECTION WITH AN EXPECTED TRANSFER TO AN
AFFILIATE OF THE ISSUER.
This certificate and the statements contained herein are made for your benefit and the benefit
of the Issuer and are dated .
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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:
C-3
EXHIBIT D
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
Supplemental Indenture (this Supplemental Indenture), dated as of , among
(the Guaranteeing Subsidiary), a subsidiary of Oxford Industries,
Inc., a Georgia Corporation (the Issuer) and U.S. Bank National Association, a national
banking association organized and existing under the bank of the United States of America, as
trustee (the Trustee).
W I T N E S S E T H
WHEREAS, each of Oxford Industries, Inc. and the Guarantors (as defined in the Indenture
referred to below) have heretofore executed and delivered to the Trustee an indenture (the
Indenture), dated as of June 30, 2009, providing for the issuance of an unlimited
aggregate principal amount of 11.375% Senior Secured Notes due 2015 (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 Issuers Obligations under the
Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the
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, the parties 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 be Bound. The Guaranteeing Subsidiary hereby becomes a party to the
Indenture as a Guarantor and as such will have all of the rights and be subject to all of the
obligations and agreements of a Guarantor under the Indenture.
(3) Guarantee. The Guaranteeing Subsidiary agrees, on a joint and several basis with
all the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of
the Notes and the Trustee the Indenture Obligations pursuant to Article XIII of the Indenture on a
secured basis.
(4) No Recourse Against Others. No director, officer, employee, incorporator or
stockholder of the Guaranteeing Subsidiary shall have any liability for any obligations of the
Issuer or the Guarantors (including the Guaranteeing Subsidiary) under the Notes, any Guarantees,
the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting Notes waives and releases all
such liability. The waiver and release are part of the consideration for issuance of the Notes.
(5) Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(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.
(9) Benefits Acknowledged. The Guaranteeing Subsidiarys Guarantee is subject to the
terms and conditions set forth in the Indenture. The Guaranteeing Subsidiary acknowledges that it
will receive direct and indirect benefits from the financing arrangements contemplated by the
Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to
this Guarantee are knowingly made in contemplation of such benefits.
(10) Successors. All agreements of the Guaranteeing Subsidiary in this Supplemental
Indenture shall bind its Successors, except as otherwise provided in the Indenture. All agreements
of the Trustee in this Supplemental Indenture shall bind its successors.
D-2
EX-5.1 OPINION OF KING & SPALDING LLP
Exhibit 5.1
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King & Spalding LLP
1185 Avenue of the Americas
New York, New York 10036-4003
www.kslaw.com |
July 13, 2009
Oxford Industries, Inc.
222 Piedmont Avenue NE
Atlanta, Georgia 30308
Re: Oxford Industries, Inc. Registration Statement on Form S-4 relating to
$150,000,000 aggregate principal amount of 11.375% Senior Secured Notes Due 2015
Ladies and Gentlemen:
We have acted as counsel to Oxford Industries, Inc. (the Issuer) and Lionshead Clothing
Company, Oxford Caribbean, Inc., Oxford Garment, Inc., Oxford Lockbox, Inc., Piedmont Apparel
Corporation, SFI of Oxford Acquisition Corporation, Tommy Bahama Group, Inc., Tommy Bahama R&R
Holdings, Inc., Tommy Bahama Beverages, LLC, Ben Sherman Clothing, Inc., Oxford International,
Inc., Oxford of South Carolina, Inc., Viewpoint Marketing, Inc., Tommy Bahama Texas Beverages, Inc.
(collectively the Guarantors), in connection with the proposed offer by the Company to exchange
$150,000,000 aggregate principal amount of its 11.375% Senior Secured Exchange Notes due 2015 (the
New Notes) for all of its outstanding 11.375% Senior Secured Notes due 2015 (the Old Notes).
Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such
terms in the Companys Registration Statement on Form S-4 (the Registration Statement), as filed
with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the
Securities Act), with respect to the New Notes.
In our capacity as such counsel, we have reviewed the Indenture (the Indenture), dated as of
June 30, 2009, among the Company, the Guarantors and U.S. Bank, National Association, as Trustee
(the Trustee). We have also reviewed such matters of law and examined original, certified,
conformed or photographic copies of such other documents, records, agreements and certificates as
we have deemed necessary as a basis for the opinions hereinafter expressed. In such review, we
have assumed the genuineness of signatures on all documents submitted to us as originals and the
conformity to original documents of all copies submitted to us as certified, conformed or
photographic copies. We have relied, as to the matters set forth therein, on certificates of
public officials. As to certain matters of fact material to this opinion, we have
relied, without
independent verification, upon certificates of the Company, and of certain officers of the Company.
Based upon and subject to the foregoing, and subject to the assumptions, qualifications and
limitations set forth herein, we are of the opinion that:
1. the New Notes have been duly authorized by the Company and, when the Registration
Statement has become effective and the New Notes have been duly executed, authenticated,
issued and delivered in accordance with the terms of the Registration Rights Agreement and
the Indenture, such New Notes will be legally issued by the Company and will constitute the
valid and legally binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject as to the enforcement of remedies to bankruptcy,
insolvency, reorganization, receivership, moratorium, fraudulent conveyance or similar laws
relating to or affecting the enforcement of creditors rights generally or by equitable
principles relating to enforceability; and
2. when the New Notes have been duly executed, authenticated, issued and delivered in
accordance with the terms of the Registration Rights Agreement and the Indenture, each
Guarantee will constitute the valid and legally binding obligation of its respective
Guarantor signatory, enforceable against such Guarantor in accordance with its terms,
subject as to the enforcement of remedies to bankruptcy, insolvency, reorganization,
receivership, moratorium, fraudulent conveyance or similar laws relating to or affecting the
enforcement of creditors rights generally or by equitable principles relating to
enforceability.
In connection with our opinion above, we have assumed that at or prior to the time of delivery
of the New Notes, the authorization of the New Notes will be applicable to each New Note, will not
be modified or rescinded and there will not have occurred any change in the law affecting the
validity or enforceability of such New Notes. We have also assumed that the issuance and delivery
of the New Notes will not, at or prior to the time of delivery of the New Notes, violate any
applicable law and will not, at or prior to the time of delivery of the New Notes, result in a
violation of any provision of any instrument of agreement then binding on the Company, or any
restriction imposed by any court or governmental body having jurisdiction over the Company.
Insofar as this opinion relates to the guarantee by the Guarantors under their respective
Guarantees, we have assumed the adequacy of the consideration that supports the agreements of the
Guarantors and the solvency and adequacy of capital of the Guarantors.
This opinion is limited in all respects to the federal laws of the United States of America,
the laws of the States of New York, Georgia and Texas, the General Corporation Law of the State of
Delaware and the Delaware Limited Liability Company Act, and no opinion is expressed with respect
to the laws of any other jurisdiction or any effect that such laws may have on the opinions
expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied
or may be inferred beyond the matters expressly stated herein. We have relied on
opinions of
Parker Poe Adams & Bernstein LLP and Gray-Robinson, P.A., as to certain matters of South Carolina
and Florida law, respectively.
This opinion is given as of the date hereof, and we assume no obligation to advise you after
the date hereof of facts or circumstances that come to our attention or changes in law that occur
which could affect the opinions contained herein. This letter is being rendered solely for the
benefit of the Company in connection with the matters addressed herein. This opinion may not be
furnished to or relied upon by a person or entity for any purpose without our prior written
consent.
We hereby consent to the filing of this opinion with the Securities and Exchange Commission as
Exhibit 5.1 to the Registration Statement. We also consent to the reference to this firm as having
passed on the validity of the New Notes under the caption Legal Matters in the Registration
Statement.
Very truly yours,
/s/ King & Spalding LLP
EX-5.2 OPINION OF PARKER POE ADAMS & BERNSTEIN LLP
Exhibit 5.2
Parker Poe Adams & Bernstein LLP
200 Meeting Street, Suite 301
Charleston, South Carolina 29401
July 13, 2009
Oxford Industries, Inc.
222 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Oxford of South Carolina, Inc., a South Carolina corporation
Ladies and Gentlemen:
We have acted as special South Carolina counsel for Oxford of South Carolina, Inc., a South
Carolina corporation (OSC), solely in connection with the issuance and sale of
$150,000,000 aggregate principal amount of 11.375% Senior Secured Notes due 2015 (the
Transaction) by Oxford Industries, Inc., a Georgia corporation (the Parent), as
contemplated by the Indenture (the Indenture) dated as of June 30, 2009, among the
Parent, the Guarantors (as defined therein) and U.S. Bank National Association, as trustee.
Capitalized terms used but not otherwise defined herein have the meanings assigned them in the
Indenture.
For the purposes of giving the opinions hereinafter set forth, our examination of documents
has been limited to the examination of executed or conformed counterparts, or copies otherwise
proved to our satisfaction, of the following:
(a) |
|
the Articles of Incorporation of OSC, as filed in the office of the Secretary of State of the
State of South Carolina (the Secretary of State) on July 13, 1998 (the
Articles) and certified by the Secretary of State on June 16, 2009; |
|
(b) |
|
the Certificate of Existence of OSC issued by the Secretary of State on July 8, 2009 (the
Certificate of Existence); |
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(c) |
|
the Bylaws of OSC (the Bylaws); |
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(d) |
|
the unanimous written consent of the Board of Directors of OSC dated June 22, 2009 (the
Consent); |
Oxford of South Carolina, Inc. Opinion Letter
July 13, 2009
Page 2
(e) |
|
certificates of officers of OSC (including the Articles, Bylaws, the Consent and other
exhibits thereto), the contents of which we assume to be true and correct as of the date
hereof (the Officers Certificates, and collectively with the Articles, the
Certificate of Existence, the Bylaws, and the Consent, the OSC Organizational
Documents); |
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(f) |
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the Indenture; and |
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(g) |
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the Notation of Guarantee to be executed by the Guarantors in connection with the Exchange
Notes (the Exchange Notes Guarantee, and together with the Indenture, collectively,
the Transaction Documents). |
We are admitted to practice in the State of South Carolina (the State), and the
opinions set forth herein are limited to the laws of the State. We express no opinion as to
matters under or involving the laws of any jurisdiction other than the State. We assume no
obligation to supplement this opinion if any laws change after the date of this opinion, or if we
become aware of any facts that might change the opinions expressed herein after the date of this
opinion.
For purposes of this opinion, we have not reviewed any documents other than the documents
listed in paragraphs (a) through (g) above. In particular, we have not reviewed any document
(other than the documents listed in paragraphs (a) through (g) above) that is referred to in or
incorporated by reference into any document reviewed by us. We have assumed that there exists no
provision in any document that we have not reviewed that is inconsistent with the opinions stated
herein. We have conducted no independent factual investigation of our own but rather have relied
solely upon the foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be true, complete and
accurate in all material respects.
With respect to all documents examined by us, we have assumed that (i) all signatures on
documents examined by us are genuine, (ii) all documents submitted to us as originals are
authentic, and (iii) all documents submitted to us as copies conform with the original copies of
those documents.
In rendering this opinion, we have made no investigation of and do not express an opinion as
to, any of the representations, warranties or factual matters contained in any of the Transaction
Documents except as may be expressly stated herein. We express no opinion concerning (i) the
creation, attachment, perfection or priority of any security interest, lien or other encumbrance,
or (ii) the nature or validity of title to any property. We also do no express any opinion as to
the effect on the opinions expressed herein of (i) the compliance or noncompliance of any party to
the Transaction Documents with any state, federal or other laws or regulations applicable to it or
them, or (ii) the legal or regulatory status or the nature of the business of any party.
Oxford of South Carolina, Inc. Opinion Letter
July 13, 2009
Page 3
In rendering this opinion, we have further assumed, with your express permission and without
independent verification or investigation (except as otherwise may be stated herein), the
following:
(a) that each of the OSC Organizational Documents is in full force and effect, has not
been amended and no amendment of such document is pending or has been proposed;
(b) that there are no proceedings pending or contemplated for the merger,
consolidation, conversion, dissolution, liquidation or termination of OSC;
(c) that, other than with respect to OSC, the parties to the Transaction Documents are
duly organized, validly existing and in good standing and the parties to the Transaction
Documents have the right, power and authority to enter into and fully perform all
obligations under all documents to which they are parties;
(d) that, other than with respect to OSC, the Transaction Documents have been duly
executed and delivered by or on behalf of each party thereto by officers or other
representatives who are duly authorized to do so;
(e) that all natural persons executing the Transaction Documents are legally competent
to do so;
(f) that, other than with respect to OSC, the execution, delivery and performance of
the Transaction Documents by the respective parties thereto do not and will not conflict
with, or result in a violation of, the articles or certificate of incorporation, the
articles or certificate of organization, certificate of partnership, bylaws, partnership
agreement, operating agreement or similar organizational documents of such parties and do
not and will not violate or conflict with any law, order, writ, injunction or decree of any
court, administrative agency or any other governmental authority applicable to such parties
or any agreement by which any such party is bound;
(g) that all factual matters contained in the Transaction Documents, including the
warranties and representations set forth therein, are true and correct in all material
respects and are not inconsistent with the factual assumptions set forth herein; and
(h) that under the laws of the jurisdiction governing each Transaction Document, each
of the Transaction Documents constitutes a valid and binding agreement of the parties
thereto, and is enforceable against the parties thereto, in accordance with its terms.
Oxford of South Carolina, Inc. Opinion Letter
July 13, 2009
Page 4
Based upon our examination of the Transaction Documents, the
OSC Organizational Documents, and upon related examinations of such
legal and factual matters as we deemed necessary for the formulation
of the following opinion, we are of the opinion that OSC has
authorized the execution, delivery and performance of the Exchange
Notes Guarantee by all necessary corporate action.
This opinion is furnished solely for the benefit of the addressees hereof in connection with
the transactions contemplated by the Indenture, may not be used or relied upon by any other party
or for any other purpose, and may not be quoted, published or otherwise disseminated without our
prior written consent, except that King & Spalding LLP may rely on this opinion in its capacity as
counsel for the Parent.
This opinion is provided to addressees hereof as a legal opinion only and not as a guarantee
or warranty of the matters discussed herein. This opinion is given as of the date hereof, and we
assume no obligation to update this opinion letter to reflect any facts or circumstances that may
hereafter come to our attention or any changes in any laws or regulations which may hereafter
occur.
We hereby consent to the filing of this opinion with the Securities and Exchange Commission as
an exhibit to the registration statement of the Parent on Form S-4 to be filed in connection with
the Transaction. In giving this consent, we do not thereby admit that
we are within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended or the Rules
and Regulations of the Securities and Exchange Commission.
Yours very truly,
/s/ Parker Poe Adams & Bernstein LLP
EX-5.3 OPINION OF GRAY ROBINSON, P.A.
Exhibit 5.3
[GRAY ROBINSON LETTERHEAD]
July 13, 2009
Oxford Industries, Inc.
222 Piedmont Avenue, N.E.
Atlanta, GA 30308
Ladies and Gentlemen:
We have acted as special Florida counsel for Viewpoint Marketing, Inc., a Florida Corporation
(VMI) that is a wholly-owned subsidiary of Oxford Industries, Inc., a Georgia corporation
(Oxford) with respect to the preparation of the Registration Statement on Form S-4 (the
Registration Statement) filed on the date hereof with the Securities and Exchange Commission (the
Commission) in connection with the registration by Oxford under the Securities Act of 1933, as
amended (the Securities Act) of: (i) the offer and exchange (the Exchange Offer) by Oxford of
$150,000,000.00 aggregate principal amount of its 11.375% Senior Secured Notes due 2015 (the
Initial Notes), for new notes bearing substantially identical terms and in like principal amount
(the Exchange Notes); and (ii) the guarantees issued pursuant to the Indenture (individually the
Guarantee and collectively the Guarantees) attached to the Initial Notes of VMI and certain
other subsidiaries of Oxford listed in the Registration Statement as guarantors (individually a
Subsidiary Guarantor and collectively the Subsidiary Guarantors) of the Initial Notes and the
Exchange Notes.
The Initial Notes were issued, and the Exchange Notes will be issued, pursuant to that certain
Indenture dated as of June 30, 2009, among Oxford, the Subsidiary Guarantors named on Schedule I
thereto, and U.S. Bank, National Association as Trustee. The Exchange Offer will be conducted on
such terms and conditions as are set forth in the prospectus contained in the Registration
Statement to which this opinion is an exhibit.
We have examined originals or copies, certified or otherwise identified to our satisfaction,
of: (i) the Registration Statement; (ii) the Indenture; (iii) the Notation of Guarantee, dated June
30, 2009 and executed in conjunction with the Indenture by VMI in its capacity as a Guarantor (the
Notation of Guarantee); (iv) that certain Registration Rights Agreement, by and among Oxford and
the Subsidiary Guarantors party thereto, and Banc of America Securities LLC, SunTrust Robinson
Humphrey, Credit Suisse Securities (USA) LLC, BB&T Capital Markets, a Division of Scott &
Stringfellow LLC, Morgan Keegan & Company, Inc., and PNC Capital Markets LLC, dated as of June 30,
2009 (the Registration Rights Agreement); and (v) such other certificates, statutes and other
instruments and documents as we considered appropriate for purposes of the opinion hereafter
expressed. We also have reviewed such matters of law and examined original, certified, conformed,
electronic or photographic copies of such other documents, records, agreements and certificates as
we have deemed necessary as a basis for the opinion hereinafter expressed. In our review, we have
assumed the genuineness of signatures on all documents submitted to us as originals and the
conformity to original
Oxford Industries, Inc.
Florida Counsel Opinion
July 13, 2009
documents of all copies submitted to us as certified, conformed, electronic or photographic copies,
and, as to any certificates of public officials, we have assumed the same to be accurate and to
have been given properly.
As to certain matters of fact material to this opinion, we have relied to the extent we deemed
appropriate, without independent verification, upon: (i) certificates of officers of Oxford, VMI,
the other Subsidiary Guarantors and the Trustee; and (ii) the representations and warranties of
Oxford, VMI, the other Subsidiary Guarantors and the Trustee contained in the Indenture and the
Registration Rights Agreement, or otherwise provided to us. We have made no other independent
investigation with respect to any factual matters set forth in the Indenture, the Registration
Rights Agreement or the Registration Statement, and we have assumed and have relied totally upon
the truth, accuracy and completeness of all such matters as are set forth therein, including
without limitation, the following:
(a) Each of the parties to the Indenture and the Registration Rights Agreement, other than VMI
and Oxford, has duly and validly executed and delivered the Indenture and the Registration Rights
Agreement to which such party is a signatory, and such partys obligations as set forth in the
Indenture and the Registration Rights Agreement are its legal, valid, and binding obligations,
enforceable in accordance with their respective terms;
(b) Each person executing the Indenture and the Registration Rights Agreement, other than VMI
and Oxford, whether individually or on behalf of an entity, is duly authorized to do so;
(c) Each natural person executing the Indenture and the Registration Rights Agreement is
legally competent to do so;
(d) All signatures of parties on the Indenture and the Registration Rights Agreement are
genuine;
(e) The parties to the Indenture, the Notation of Guarantee, and the Registration Rights
Agreement, and their successors and assigns will: (i) act in good faith and in a commercially
reasonable manner in the exercise of any rights or enforcement of any remedies under the Indenture,
the Notation of Guarantee, and the Registration Rights Agreement; (ii) not engage in any conduct in
the exercise of such rights or enforcement of such remedies that would constitute other than fair
dealing; and (iii) comply with all requirements of applicable procedural and substantive law in
exercising any rights or enforcing any remedies under the Indenture, the Notation of Guarantee, and
the Registration Rights Agreement; and
(f) The exercise of any rights or enforcement of any remedies under the Indenture, the
Notation of Guarantee, or the Registration Rights Agreement would not violate any federal law or
the laws of any state or local government outside the State of
2
Oxford Industries, Inc.
Florida Counsel Opinion
July 13, 2009
Florida, be unconscionable, result in a breach of the peace or otherwise be contrary to public
policy.
In connection with this opinion, we also have assumed that when the Exchange Notes have been
duly executed, authenticated, issued and delivered in accordance with the provisions of the
Indenture and the Registration Rights Agreement: (i) the Registration Statement, and any amendments
thereto (including post-effective amendments), will have become effective; and (ii) the Exchange
Notes will be issued and sold in compliance with applicable federal and state securities laws and
in the manner described in the Registration Statement to constitute valid and binding obligations
of Oxford enforceable against Oxford and the Subsidiary Guarantors in accordance with their terms.
Based upon the Registration Statement and the prospectus included therein, and subject to the
assumptions, qualifications and limitations set forth herein, we are of the opinion that VMIs
Guarantee of the Exchange Notes has been duly authorized.
The opinion expressed herein is limited exclusively to the laws of the State of Florida, and
we are expressing no opinion as to the effect of the laws of any other jurisdiction, domestic or
foreign.
We hereby consent to the filing of this opinion of Florida counsel as Exhibit 5.3 to the
Registration Statement and to the use of our firm name in the prospectus forming a part of the
Registration Statement under the caption Legal Matters. By giving such consent, we do not admit
that we are within the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission issued thereunder.
This opinion is rendered solely to you in connection with the above matter. This opinion may
not be relied upon by you for any other purpose or relied upon by or furnished to any other person
without our prior written consent except that King & Spalding LLP, as counsel for Oxford, may rely
upon this opinion as if it were addressed directly to them.
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Respectfully,
GRAY ROBINSON, P.A.
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/s/ Richard M. Blau, Esq
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Richard M. Blau, Esq. |
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for the Firm |
|
3
EX-12.1 COMP. OF RATIO OF EARNINGS TO FIXED CHRGS.
Exhibit 12.1
OXFORD INDUSTRIES, INC.
STATEMENT REGARDING COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Amounts in thousands, except ratios)
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Eight Month |
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Transition |
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Twelve Months |
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Fiscal Year |
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Period Ended |
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Ended |
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Ended |
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Fiscal Year Ended |
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February 2, |
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February 2, |
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January 31, |
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First Quarter Ended |
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May 28, 2004 |
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June 3, 2005 |
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June 2, 2006 |
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June 1, 2007 |
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2008 |
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2008 |
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2009 |
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May 3, 2008 |
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May 2, 2009 |
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FIXED CHARGES: |
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Interest expensed and
capitalized |
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$ |
23,530 |
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$ |
26,146 |
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$ |
23,971 |
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$ |
22,214 |
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$ |
15,302 |
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$ |
22,351 |
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$ |
23,702 |
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$ |
6,332 |
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$ |
4,565 |
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Amortized premiums, discounts
and capitalized expenses
(included above) |
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Estimate of interest within rental
expense |
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6,452 |
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8,538 |
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9,341 |
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9,725 |
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6,842 |
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10,263 |
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11,441 |
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2,762 |
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2,857 |
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Preference security dividend |
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Total Fixed Charges |
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$ |
29,982 |
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$ |
34,684 |
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$ |
33,312 |
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$ |
31,939 |
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$ |
22,144 |
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$ |
32,614 |
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$ |
35,143 |
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$ |
9,094 |
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$ |
7,422 |
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EARNINGS: |
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Pretax income from continuing
operations before adjustment
for minority interest in
consolidated subsidiaries or
income or loss from equity
investees |
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$ |
49,506 |
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$ |
65,649 |
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$ |
74,602 |
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$ |
77,446 |
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$ |
24,642 |
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$ |
62,160 |
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$ |
(279,230 |
) |
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$ |
13,419 |
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$ |
8,482 |
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Fixed Charges |
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29,982 |
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34,684 |
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33,312 |
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31,939 |
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22,144 |
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32,614 |
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35,143 |
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9,094 |
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7,422 |
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Distributed income of equity
investees |
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1,295 |
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1,025 |
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1,128 |
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1,505 |
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(166 |
) |
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337 |
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Total Earnings |
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$ |
79,488 |
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$ |
100,333 |
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$ |
107,914 |
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$ |
110,680 |
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$ |
47,811 |
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$ |
95,902 |
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$ |
(242,582 |
) |
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$ |
22,347 |
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$ |
16,241 |
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Ratio of Earnings to Fixed Charges |
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2.7x |
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2.9x |
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3.2x |
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3.5x |
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2.2x |
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2.9x |
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-6.9x |
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2.5x |
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2.2x |
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EX-23.4 CONSENT OF IND. REG. PUBLIC ACCT. FIRM
Exhibit 23.4
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the captions Summary Consolidated Financial and
Other Data and Independent Registered Public Accounting Firm in the Registration Statement on
Form S-4 and related Prospectus of Oxford Industries, Inc. for the registration of $150,000,000
aggregate principal amount of 11.375% Senior Secured Notes due 2015 and to the incorporation by
reference of our reports dated March 31, 2009 with respect to the consolidated financial statements
and schedule of Oxford Industries, Inc. and the effectiveness of internal controls over financial
reporting of Oxford Industries, Inc., included in its Annual Report (Form 10-K) for the year ended
January 31, 2009, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Atlanta, Georgia
July 9, 2009
EX-23.5 CONSENT OF VALUATION RESEARCH CORPORATION
Exhibit 23.5
Consent of Valuation Research Corporation
We hereby consent to the references to our name and our appraisal dated June 15,2009 of the Tommy
Bahama trade name in the United States in the Registration Statement on Form S-4 (together with any
amendments thereto, the Registration Statement) and related Prospectus of Oxford Industries, Inc.
(the Company) for the registration of $150,000,000 aggregate principal amount of 11.375% Senior
Secured Notes due 2015.
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For Valuation Research Corporation (VRC): |
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Raymond Weisner, Senior Vice President |
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July 9, 2009 |
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EX-25.1 FORM T-1, STATEMENT OF ELIGIBILITY
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of
a Trustee Pursuant to Section 305(b)(2)
U.S. BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
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800 Nicollet Mall |
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Minneapolis, Minnesota
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55402 |
(Address of principal executive offices)
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(Zip Code) |
Muriel Shaw
U.S. Bank National Association
Two Midtown Plaza
1349 West Peachtree Street N.W.
Suite 1050
Atlanta, Georgia 30309
(404) 898-8822
(Name, address and telephone number of agent for service)
OXFORD INDUSTRIES, INC.
(Issuer with respect to the Securities)
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Georgia
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58-0831862 |
(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.) |
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222 Piedmont Avenue, N.E. |
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Atlanta, Georgia Elmwood Park, New Jersey 07407-1033 |
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Elmwood Park, New Jersey 07407-1033
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30308 |
(Address of Principal Executive Offices)
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(Zip Code) |
11.375% SENIOR SECURED NOTES due 2015
(Title of the Indenture Securities)
FORM T-1
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Item 1.
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GENERAL INFORMATION. Furnish the following information as to the Trustee. |
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a) |
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Name and address of each examining or supervising authority to which it
is subject. |
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Comptroller of the Currency
Washington, D.C. |
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b) |
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Whether it is authorized to exercise corporate trust powers. |
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Yes |
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Item 2.
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AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe
each such affiliation. |
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None |
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Items 3-15
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Items 3-15 are not applicable because to the best of the Trustees knowledge, the
obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
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Item 16.
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LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of
eligibility and qualification. |
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1. |
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A copy of the Articles of Association of the Trustee.* |
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2. |
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A copy of the certificate of authority of the Trustee to commence
business.* |
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3. |
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A copy of the certificate of authority of the Trustee to exercise
corporate trust powers.* |
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4. |
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A copy of the existing bylaws of the Trustee.** |
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5. |
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A copy of each Indenture referred to in Item 4. Not applicable. |
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6. |
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The consent of the Trustee required by Section 321(b) of the Trust
Indenture Act of 1939, attached as Exhibit 6. |
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7. |
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Report of Condition of the Trustee as of December 31, 2008 published
pursuant to law or the requirements of its supervising or examining authority,
attached as Exhibit 7. |
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* |
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Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on
S-4, Registration Number 333-128217 filed on November 15, 2005.
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** |
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Incorporated by reference to Exhibit 25.1 to registration statement on S-4, Registration
Number 333-145601 filed on August 21, 2007. |
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S.
BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of
the United States of America, has duly caused this statement of eligibility and qualification to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Atlanta,
Georgia on the 13th of July, 2009.
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By: |
/s/ Muriel Shaw
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Muriel Shaw |
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Assistant Vice President |
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3
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S.
BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by
Federal, State, Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Dated:
July 13, 2009
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By: |
/s/ Muriel Shaw
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Muriel Shaw |
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Assistant Vice President |
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4
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 3/31/2009
($000s)
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3/31/2009 |
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Assets |
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Cash and Balances Due From
Depository Institutions |
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$ |
6,290,222 |
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Securities |
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37,422,789 |
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Federal Funds |
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3,418,378 |
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Loans & Lease Financing Receivables |
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180,410,691 |
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Fixed Assets |
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4,527,063 |
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Intangible Assets |
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12,182,455 |
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Other Assets |
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14,275,149 |
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Total Assets |
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$ |
258,526,747 |
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Liabilities |
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Deposits |
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$ |
175,049,211 |
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Fed Funds |
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10,281,149 |
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Treasury Demand Notes |
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0 |
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Trading Liabilities |
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745,122 |
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Other Borrowed Money |
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34,732,595 |
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Acceptances |
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0 |
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Subordinated Notes and Debentures |
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7,779,967 |
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Other Liabilities |
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6,523,925 |
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Total Liabilities |
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$ |
235,111,969 |
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Equity |
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Minority Interest in Subsidiaries |
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$ |
1,650,987 |
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Common and Preferred Stock |
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18,200 |
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Surplus |
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12,642,020 |
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Undivided Profits |
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9,103,571 |
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Total Equity Capital |
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$ |
23,414,778 |
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Total Liabilities and Equity Capital |
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$ |
258,526,747 |
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To the best of the undersigneds determination, as of the date hereof, the above financial
information is true and correct.
U.S. Bank National Association
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By:
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/s/ Muriel Shaw
Assistant Vice President
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Date:
July 13, 2009
5
EX-99.1 FORM OF LETTER TRANSMITTAL
Exhibit 99.1
THE EXCHANGE OFFER WILL EXPIRE
AT 5:00 P.M., NEW YORK CITY TIME,
ON ,
2009 UNLESS EXTENDED IN THE SOLE AND ABSOLUTE DISCRETION OF
OXFORD INDUSTRIES, INC. (THE EXPIRATION DATE).
TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY
TIME, ON THE EXPIRATION DATE.
Oxford Industries,
Inc.
LETTER OF TRANSMITTAL
for
Exchange of 11.375% Senior
Secured Notes of Oxford Industries, Inc. due 2015 which have
been registered under the Securities Act of 1933, as amended for
outstanding 11.375% Senior Secured Notes due 2015
Guaranteed by
Lionshead Clothing Company
Oxford Caribbean, Inc.
Oxford Garment, Inc.
Oxford Lockbox, Inc.
Piedmont Apparel Corporation
SFI of Oxford Acquisition Corporation
Tommy Bahama Group, Inc
Tommy Bahama R&R Holdings, Inc.
Tommy Bahama Beverages, LLC
Ben Sherman Clothing, Inc.
Oxford International, Inc.
Oxford of South Carolina, Inc.
Viewpoint Marketing, Inc.
Tommy Bahama Texas Beverages, LLC
Exchange Agent:
U.S. Bank National Association
By Mail, Hand or Courier:
U.S. Bank National Association
Specialized Finance
60 Livingston Avenue
Mail Station EP-MN-WS2N
St. Paul, Minnesota
55107-2292
or
U.S. Bank National Association
100 Wall Street,
16th
Floor
New York, NY 10005
Attn: Corporate Trust Services
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By Facsimile (for Eligible Institutions only):
(651) 495-8158
Attention: Specialized Finance
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Confirm by Telephone:
(800) 934-6802
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For information on other offices or agencies of the Exchange
Agent where Old
Notes may be presented for exchange, please call the
telephone number listed above.
Delivery of this instrument to an address other than as set
forth above does not constitute a valid delivery.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL, INCLUDING THE
INSTRUCTIONS TO THIS LETTER, CAREFULLY BEFORE CHECKING ANY
BOX BELOW
Capitalized terms used in this Letter of Transmittal and not
defined herein shall have the respective meanings ascribed to
them in the Prospectus (as defined herein). The method of
delivery of this Letter of Transmittal, notes and all other
required documents to the Exchange Agent, including delivery
through The Depository Trust Company and any acceptance or
Agents Message delivered through ATOP, is at the election
and risk of holders.
List in Box 1 below the Old Notes of which you are the holder.
If the space provided in Box 1 is inadequate, list the
certificate numbers and principal amount at maturity of Old
Notes on a separate signed schedule and affix that schedule to
this Letter of Transmittal.
BOX 1
TO BE
COMPLETED BY ALL TENDERING HOLDERS
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Principal
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Principal
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Amount of
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Name(s) and Address(es) of Registered Holder(s)
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Certificate
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Amount of
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Old Notes
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(Please fill in if blank)
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Number(s)(1)
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Old Notes
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Tendered(2)
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Totals:
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(1) Need not be completed if Old Notes are being tendered
by book-entry transfer.
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(2) Unless otherwise indicated, the entire principal amount
of Old Notes represented by a certificate or Book-Entry
Confirmation delivered to the Exchange Agent will be deemed to
have been tendered.
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The undersigned acknowledges receipt of (i) the Prospectus,
dated ,
2009 (the Prospectus), of Oxford Industries, Inc.
(the Issuer) and Lionshead Clothing Company, Oxford
Caribbean, Inc., Oxford Garment, Inc., Oxford Lockbox, Inc.,
Piedmont Apparel Corporation, SFI of Oxford Acquisition
Corporation, Tommy Bahama Group, Inc., Tommy Bahama R&R
Holdings, Inc., Tommy Bahama Beverages, LLC, Ben Sherman
Clothing, Inc., Oxford International, Inc., Oxford of South
Carolina, Inc., Viewpoint Marketing, Inc. and Tommy Bahama Texas
Beverages, Inc. (together, the Guarantors) and
(ii) this Letter of Transmittal, which may be amended from
time to time (as amended, this Letter), which
together constitute the offer of the Issuer and the Guarantors
(the Exchange Offer) to exchange new
11.375% Senior Secured Notes due 2015 (the New
Notes) that have been registered under the Securities Act
of 1933, as amended (the Securities Act), for a like
principal amount of the Issuers outstanding
11.375% Senior Secured Notes due 2015 (the Old
Notes). The Old Notes were issued and sold in transactions
exempt from registration under the Securities Act.
The undersigned has completed, executed and delivered this
Letter to indicate the action he or she desires to take with
respect to the Exchange Offer.
All holders of Old Notes who wish to tender their Old Notes
must, on or prior to the Expiration Date: (1) complete,
sign, date and mail or otherwise deliver this Letter or a
facsimile of this Letter to the Exchange Agent, in person or at
the address set forth above; and (2) tender his or her Old
Notes or, if a tender of Old Notes is to be made by book-entry
transfer to the account maintained by the Exchange Agent at The
Depository Trust Company (the Book-Entry Transfer
Facility), confirm such book-entry transfer (a
Book-Entry
Confirmation), in accordance with the procedures for
tendering described in the Instructions to this Letter. Holders
of Old Notes whose certificates are not immediately available,
or who are unable to deliver their certificates or Book-Entry
Confirmation and all other documents required by this Letter to
be delivered to the Exchange Agent on or prior to the Expiration
Date, must tender their Old Notes according to the guaranteed
delivery procedures set forth under the caption The
Exchange Offer Procedures for Tendering Old
Notes in the Prospectus. (See Instruction 1)
Notwithstanding anything contained in this Letter of
Transmittal, or in the related notice of guaranteed delivery,
tenders can only be made through ATOP by DTC participants and
Letters of Transmittal can only be accepted by means of an
Agents Message.
The Instructions included with this Letter must be followed in
their entirety. Questions and requests for assistance or for
additional copies of the Prospectus or this Letter may be
directed to the Exchange Agent, at the address listed above.
Ladies and
Gentlemen:
Upon the terms and subject to the conditions of the Exchange
Offer, the undersigned tenders to the Issuer and the Guarantors
the principal amount of Old Notes indicated above. Subject to,
and effective upon, the acceptance for exchange of the Old Notes
tendered with this Letter, the undersigned exchanges, assigns
and transfers to, or upon the order of, the Issuer and the
Guarantors, all right, title and interest in and to the Old
Notes tendered.
The undersigned constitutes and appoints the Exchange Agent as
his or her agent and attorney-in-fact (with full knowledge that
the Exchange Agent also acts as the agent of the Issuer and the
Guarantors) with respect to the tendered Old Notes, with full
power of substitution, to: (a) deliver certificates for
such Old Notes; (b) deliver Old Notes and all accompanying
evidence of transfer and authenticity to or upon the order of
the Issuer upon receipt by the Exchange Agent, as the
undersigneds agent, of the New Notes to which the
undersigned is entitled upon the acceptance by the Issuer and
the Guarantors of the Old Notes tendered under the Exchange
Offer; and (c) receive all benefits and otherwise exercise
all rights of beneficial ownership of the Old Notes, all in
accordance with the terms of the Exchange Offer. The power of
attorney granted in this paragraph shall be deemed irrevocable
and coupled with an interest.
The undersigned hereby represents and warrants that he or she
has full power and authority to tender, exchange, assign and
transfer the Old Notes tendered hereby and to acquire New Notes
issuable upon exchange of the tendered Old Notes, and that, when
the tendered Old Notes are accepted for exchange, the Issuer and
the Guarantors will acquire good and unencumbered title thereto,
free and clear of all liens, restrictions, charges and
encumbrances and not subject to any adverse claims. The
undersigned will, upon request, execute and deliver any
additional documents deemed by the Issuer to be necessary or
desirable to complete the exchange, assignment and transfer of
the Old Notes tendered.
The undersigned agrees that acceptance of any tendered Old Notes
by the Issuer and the Guarantors and the issuance of New Notes
in exchange therefore shall constitute performance in full by
the Issuer and Guarantors of their respective obligations under
the registration rights agreement that the Issuer and Guarantors
entered into with the initial purchasers of the Old Notes (the
Registration Rights Agreement) and that, upon the
issuance of the New Notes, the Issuer and Guarantors will have
no further obligations or liabilities under the Registration
Rights Agreement (except in certain limited circumstances). By
tendering Old Notes, the undersigned certifies that (i) any
New Notes received by it will be acquired in the ordinary course
of its business, (ii) it is not engaging in or intending to
engage in a distribution of the New Notes and it has no
arrangement or understanding with any person or entity to
participate in a distribution (within the meaning of the
Securities Act) of the New Notes, (iii) it is not an
affiliate (within the meaning of Rule 405 under
the Securities Act) the Issuer or the Guarantors nor is it a
broker-dealer that acquired Old Notes directly from such persons
or, if it is an affiliate (as so defined) of such persons or a
broker-dealer that acquired Old Notes directly from such
persons, it will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent
applicable, and (iv) if it is not a
broker-dealer,
it is not engaged in, and does not intend to engage in, a
distribution of the New Notes.
The undersigned acknowledges that, if it is a broker-dealer that
will receive New Notes in exchange for Old Notes that were
acquired for its own account as a result of market-making
activities or other trading activities, it will deliver a
prospectus in connection with any resale of such New Notes.
The undersigned understands that the Issuer and the Guarantors
may accept the undersigneds tender by delivering written
notice of acceptance to the Exchange Agent, at which time the
undersigneds right to withdraw such tender will terminate.
All authority conferred or agreed to be conferred by this Letter
shall survive the death or incapacity of the undersigned, and
every obligation of the undersigned under this Letter shall be
binding upon the undersigneds heirs, legal
representatives, successors, assigns, executors and
administrators. Tenders may be withdrawn only in accordance with
the procedures set forth in the Instructions included with this
Letter.
Unless otherwise indicated under Special Delivery
Instructions below, the Exchange Agent will deliver New
Notes (and, if applicable, a certificate for any Old Notes not
tendered but represented by a certificate also encompassing Old
Notes which are tendered) to the undersigned at the address set
forth in Box 1.
The undersigned acknowledges that the Exchange Offer is subject
to the more detailed terms set forth in the Prospectus and, in
case of any conflict between the terms of the Prospectus and
this Letter, the Prospectus shall prevail.
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CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE
EXCHANGE AGENT WITH THE BOOK-ENTRY TRANSFER FACILITY AND
COMPLETE THE FOLLOWING:
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Name of Tendering Institution:
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CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED
PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO
THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
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Name(s) of Registered Owner(s):
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Date of Execution of Notice of Guaranteed Delivery:
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Window Ticket Number (if available):
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Name of Institution which Guaranteed Delivery:
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CHECK HERE IF YOU ARE AN AFFILIATE (WITHIN THE
MEANING OF RULE 405 UNDER THE SECURITIES ACT) OF THE ISSUER
OR ANY OF THE GUARANTORS.
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CHECK HERE IF YOU ARE A BROKER-DEALER OR AN
AFFILIATE (WITHIN THE MEANING OF RULE 405 UNDER
THE SECURITIES ACT) OF THE ISSUER OR THE GUARANTORS AND WISH TO
RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF
ANY AMENDMENTS OR SUPPLEMENTS THERETO.
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PLEASE
READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
BOX
2
PLEASE
SIGN HERE
WHETHER OR NOT OLD NOTES ARE BEING
PHYSICALLY TENDERED HEREBY
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X
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X
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(Signature(s) of
Owner(s)
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(Date)
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or Authorized
Signatory)
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Area Code and Telephone Number: |
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This box must be signed by registered holder(s) of Old Notes as
their name(s) appear(s) on certificate(s) for Old Notes, or by
person(s) authorized to become registered holder(s) by
endorsement and documents transmitted with this Letter. If
signature is by a trustee, executor, administrator, guardian,
officer or other person acting in a fiduciary or representative
capacity, such person must set forth his or her full title
below. (See Instruction 3)
(Please Print)
(Include Zip Code)
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Signature(s) Guaranteed
by an Eligible Institution:
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(If required by Instruction 3)
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(Authorized Signature)
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(Title)
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(Name of
Firm)
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BOX
3
SPECIAL ISSUANCE INSTRUCTIONS
(See
Instructions 3 and 4)
To be completed ONLY if certificates for Old Notes in a
principal amount not exchanged, or New Notes, are to be issued
in the name of someone other than the person whose signature
appears in Box 2, or if Old Notes delivered by book-entry
transfer which are not accepted for exchange are to be returned
by credit to an account maintained at the Book-Entry Transfer
Facility other than the account indicated above.
Issue and deliver:
(check appropriate boxes)
o Old
Notes not tendered
o New
Notes, to:
(Please Print)
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TIN or Social Security Number: |
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BOX
4
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 3 and 4)
To be completed ONLY if certificates for Old Notes in a
principal amount not exchanged, or New Notes, are to be sent to
someone other than the person whose signature appears in Box 2
or to an address other than that shown in Box 1.
Deliver:
(check appropriate boxes)
o Old
Notes not Tendered
o New
Notes, to:
(Please Print)
INSTRUCTIONS
FORMING
PART OF THE TERMS AND
CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of this Letter and
Certificates. Certificates for Old Notes or a
Book-Entry Confirmation, as the case may be, as well as a
properly completed and duly executed copy of this Letter and any
other documents required by this Letter, must be received by the
Exchange Agent at its address set forth herein any time prior to
5:00 p.m., New York City time, on the Expiration Date. The
method of delivery of this Letter, certificates for Old Notes or
a Book-Entry
Confirmation, as the case may be, and any other required
documents is at the election and risk of the tendering holder,
but except as otherwise provided below, the delivery will be
deemed made when actually received by the Exchange Agent. If
delivery is by mail, the use of registered mail with return
receipt requested, properly insured, is suggested.
Holders whose Old Notes are not immediately available or who
cannot deliver their Old Notes or a
Book-Entry
Confirmation, as the case may be, and all other required
documents to the Exchange Agent on or before the Expiration Date
may tender their Old Notes pursuant to the guaranteed delivery
procedures set forth in the Prospectus. Pursuant to such
procedure: (i) tender must be made by or through a bank,
broker, dealer, credit union, savings association or other
entity which is a member in good standing of a recognized
medallion program approved by the Securities Transfer
Association Inc., including the Securities Transfer Agents
Medallion Program (STAMP), the Stock Exchange Medallion Program
(SEMP) and the New York Stock Exchange Medallion Signature
Program (MSP), or any other eligible guarantor
institution within the meaning of
Rule 17Ad-15
under the Securities Exchange Act of 1934 (an Eligible
Institution); (ii) any time prior to 5:00 p.m.,
New York City time, on prior to the Expiration Date, the
Exchange Agent must have received from the Eligible Institution
a properly completed and duly executed Notice of Guaranteed
Delivery (by telegram, facsimile transmission, mail or hand
delivery) (x) setting forth the name and address of the
holder, the names in which the Old Notes are registered, the
principal amount of Old Notes tendered and, if possible, the
certificate numbers of the Old Notes to be tendered,
(y) stating that the tender is being made thereby and
(z) guaranteeing that within three New York Stock Exchange
trading days after the date of execution of such Notice of
Guaranteed Delivery, the Old Notes, in proper form for transfer,
will be delivered by the Eligible Institution together with this
Letter, properly completed and duly executed, and any other
required documents to the Exchange Agent; and (iii) the
certificates for all tendered Old Notes or a
Book-Entry
Confirmation, as the case may be, as well as all other documents
required by this Letter, must be received by the Exchange Agent
within three New York Stock Exchange trading days after the date
of execution of such Notice of Guaranteed Delivery, all as
provided in the Prospectus under the caption The Exchange
Offer Guaranteed Delivery Procedures.
All questions as to the validity, form, eligibility (including
time of receipt), acceptance and withdrawal of tendered Old
Notes will be determined by the Issuer, whose determination will
be final and binding. The Issuer reserves the absolute right to
reject any or all tenders that are not in proper form or the
acceptances for exchange of which may, in the opinion of counsel
to the Issuer, be unlawful. The Issuer also reserves the right
to waive any of the conditions of the Exchange Offer or any
defects or irregularities in tenders of any particular holder of
Old Notes whether or not similar defects or irregularities are
waived in the cases of other holders of Old Notes. All tendering
holders, by execution of this Letter, waive any right to receive
notice of acceptance of their Old Notes.
None of the Issuer, the Guarantors, the Exchange Agent nor any
other person shall be obligated to give notice of defects or
irregularities in any tender, nor shall any of them incur any
liability for failure to give any such notice.
2. Partial Tenders; Withdrawals. If less
than the entire principal amount of any Old Note evidenced by a
submitted certificate or by a Book-Entry Confirmation is
tendered, the tendering holder must fill in the principal amount
tendered in the fourth column of Box 1 above. All of the Old
Notes represented by a certificate or by a Book-Entry
Confirmation delivered to the Exchange Agent will be deemed to
have been tendered unless otherwise indicated. A certificate for
Old Notes not tendered will be sent to the holder at its
registered address, unless otherwise provided in Box 3 or 4, as
soon as practicable after the Expiration Date, in the event that
less than the entire principal amount of Old Notes represented
by a submitted certificate is
tendered (or, in the case of Old Notes tendered by book-entry
transfer, such non-exchanged Old Notes will be credited to an
account maintained by the holder with the Book-Entry Transfer
Facility).
If not yet accepted, a tender pursuant to the Exchange Offer may
be withdrawn at any time prior to 5:00 p.m., New York City
time, on the Expiration Date. To be effective with respect to
the tender of Old Notes, a written or facsimile transmission
notice of withdrawal must: (i) be received by the Exchange
Agent at its address or facsimile number (with confirmation) set
forth above before 5:00 p.m., New York City time, on the
Expiration Date; (ii) specify the person named in the
applicable letter of transmittal as having tendered Old Notes to
be withdrawn; (iii) specify the certificate numbers, if
applicable, of Old Notes to be withdrawn; (iv) specify the
principal amount of Old Notes to be withdrawn, which must be an
authorized denomination; (v) state that the holder is
withdrawing its election to have those Old Notes exchanged;
(vi) state the name of the registered holder of those Old
Notes; and (vii) be signed by the holder in the same manner
as the signature on the applicable letter of transmittal,
including any required signature guarantees, or be accompanied
by evidence satisfactory to the Issuer that the person
withdrawing the tender has succeeded to the beneficial ownership
of the Old Notes being withdrawn.
3. Signatures on this Letter; Assignments; Guarantee of
Signatures. If this Letter is signed by the
holder(s) of Old Notes tendered hereby, the signature must
correspond with the name(s) as written on the face of the
certificate(s) for such Old Notes, without alteration,
enlargement or any change whatsoever.
If any of the Old Notes tendered hereby are owned by two or more
joint owners, all owners must sign this Letter. If any tendered
Old Notes are held in different names on several certificates,
it will be necessary to complete, sign and submit as many
separate copies of this Letter as there are names in which
certificates are held.
If this Letter is signed by the holder of record and
(i) the entire principal amount of the holders Old
Notes are tendered;
and/or
(ii) untendered Old Notes, if any, are to be issued to the
holder of record, then the holder of record need not endorse any
certificates for tendered Old Notes, nor provide a separate bond
power. If any other case, the holder of record must transmit a
separate bond power with this Letter.
If this Letter or any certificate or assignment is signed by
trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in
a fiduciary or representative capacity, such persons should so
indicate when signing and proper evidence satisfactory to the
Issuer of their authority to so act must be submitted, unless
waived by the Issuer.
Signatures on this Letter must be guaranteed by an Eligible
Institution, unless Old Notes are tendered: (i) by a holder
who has not completed Box 3 entitled Special Issuance
Instructions or Box 4 entitled Special Delivery
Instructions on this Letter; or (ii) for the account
of an Eligible Institution. In the event that the signatures in
this Letter or a notice of withdrawal, as the case may be, are
required to be guaranteed, such guarantees must be by an
eligible guarantor institution which is a member of The
Securities Transfer Agents Medallion Program (STAMP), The New
York Stock Exchanges Medallion Signature Program (MSP) or The
Stock Exchanges Medallion Program (SEMP). If Old Notes are
registered in the name of a person other than the signer of this
Letter, the Old Notes surrendered for exchange must be endorsed
by, or be accompanied by a written instrument or instruments of
transfer or exchange, in satisfactory form as determined by the
Issuer, in its sole discretion, duly executed by the registered
holder with the signature thereon guaranteed by an Eligible
Institution.
4. Special Issuance and Delivery
Instructions. Tendering holders should indicate,
in Box 3 or 4, as applicable, the name and address to which the
New Notes or certificates for Old Notes not exchanged are to be
issued or sent, if different from the name and address of the
person signing this Letter. In the case of issuance in a
different name, the tax identification number of the person
named must also be indicated. Holders tendering Old Notes by
book-entry transfer may request that Old Notes not exchanged be
credited to such account maintained at the Book-Entry Transfer
Facility as such holder may designate.
5. Transfer Taxes. The Issuer
and/or the
Guarantors will pay all transfer taxes, if any, applicable to
the transfer of Old Notes to them or their order pursuant to the
Exchange Offer. If, however, the New Notes or certificates for
Old Notes not exchanged are to be delivered to, or are to be
issued in the name of, any person other than the record holder,
or if tendered certificates are recorded in the name of any
person other than the person signing this Letter, or if a
transfer tax is imposed for any reason other than the transfer
of Old Notes to
the Issuer and the Guarantors or their order pursuant to the
Exchange Offer, then the amount of such transfer taxes (whether
imposed on the record holder or any other person) will be
payable by the tendering holder. If satisfactory evidence of
payment of taxes or exemption from taxes is not submitted with
this Letter, the amount of transfer taxes will be billed
directly to the tendering holder.
Except as provided in this Instruction 5, it will not be
necessary for transfer tax stamps to be affixed to the
certificates listed in this Letter.
6. Waiver of Conditions. The Issuer
reserves the absolute right to amend or waive any of the
specified conditions in the Exchange Offer in the case of any
Old Notes tendered.
7. Mutilated, Lost, Stolen or Destroyed
Certificates. Any holder whose certificates for
Old Notes have been mutilated, lost, stolen or destroyed should
contact the Exchange Agent at the address indicated above for
further instructions.
8. Requests for Assistance or Additional Copies.
Questions relating to the procedure for tendering, as well as
requests for additional copies of the Prospectus or this Letter,
may be directed to the Exchange Agent.
IMPORTANT: This Letter (together with certificates
representing tendered Old Notes or a
Book-Entry
Confirmation and all other required documents) must be received
by the Exchange Agent any time prior to 5:00 p.m., New York
City time, on the Expiration Date of the Exchange Offer (as
described in the Prospectus).
EX-99.2 FORM OF NOTICE OF GUARANTEED DELIVERY
Exhibit 99.2
OXFORD INDUSTRIES,
INC.
Exchange Offer
to holders of its
11.375% Senior Secured
Notes due 2015
NOTICE OF GUARANTEED
DELIVERY
As set forth in (i) the Prospectus,
dated ,
2009 (the Prospectus), Oxford Industries, Inc. (the
Issuer) and Lionshead Clothing Company, Oxford
Caribbean, Inc., Oxford Garment, Inc., Oxford Lockbox, Inc.,
Piedmont Apparel Corporation, SFI of Oxford Acquisition
Corporation, Tommy Bahama Group, Inc., Tommy Bahama R&R
Holdings, Inc., Tommy Bahama Beverages, LLC, Ben Sherman
Clothing, Inc., Oxford International, Inc., Oxford of South
Carolina, Inc., Viewpoint Marketing, Inc., Tommy Bahama Texas
Beverages, Inc. (together, the Guarantors) under
The Exchange Offer Procedures for Tendering
Old Notes and (ii) the Letter of Transmittal (the
Letter of Transmittal) relating to the offer by the
Issuer and the Guarantors to exchange up to $150,000,000 in
principal amount of the Issuers new 11.375% Senior
Secured Notes due 2015 for $150,000,000 in principal amount of
the Issuers 11.375% Senior Secured Notes due 2015
(the Old Notes), which Old Notes were issued and
sold in transactions exempt from registration under the
Securities Act of 1933, as amended, this form or one
substantially equivalent hereto must be used to accept the offer
of the Issuer and the Guarantors if: (i) certificates for
the Old Notes are not immediately available or (ii) time
will not permit all required documents to reach the Exchange
Agent (as defined below) on or prior to the expiration date of
the Exchange Offer (as defined below and as described in the
Prospectus). Such form may be delivered by telegram, facsimile
transmission, mail or hand to the Exchange Agent.
To: U.S. Bank, National Association (the Exchange
Agent)
By Mail, Hand or Courier:
U.S. Bank National Association
Specialized Finance
60 Livingston Avenue
Mail Station EP-MN-WS2N
St. Paul, Minnesota
55107-2292
or
U.S. Bank National Association
100 Wall Street,
16th
Floor
New York, NY 10005
Attn: Corporate Trust Services
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By Facsimile (for Eligible Institutions only):
(651) 495-8158
Attention: Specialized Finance
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Confirm by Telephone:
(800) 934-6802
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For information on other offices or agencies of the Exchange
Agent where Old
Notes may be presented for exchange, please call the
telephone number listed above.
Delivery of this instrument to an address other than as set
forth above
or as indicated upon contacting the Exchange Agent at the
telephone number
set forth above, or transmittal of this instrument to a
facsimile number other
than as set forth above or as indicated upon contacting the
Exchange Agent at
the telephone number set forth above, does not constitute a
valid delivery.
Notwithstanding anything contained in this Notice of
Guaranteed Delivery or in the related
Letter of Transmittal, tenders can only be made through ATOP
by DTC participants
and Letters of Transmittal can only be accepted by means of
an Agents Message.
Ladies
and Gentlemen:
The undersigned hereby tenders to the Issuer and the Guarantors,
upon the terms and conditions set forth in the Prospectus and
the Letter of Transmittal (which together constitute the
Exchange Offer), receipt of which are hereby
acknowledged, the principal amount of Old Notes set forth below
pursuant to the guaranteed delivery procedure described in the
Prospectus under the caption The Exchange
Offer Guaranteed Delivery Procedures and the
Letter of Transmittal.
All the authority herein conferred or agreed to be conferred in
this Notice of Guaranteed Delivery and every obligation of the
undersigned hereunder shall be binding upon the successors,
assigns, heirs, executors, administrators, trustees in
bankruptcy and legal representatives of the undersigned and
shall not be affected by, and shall survive the death or
incapacity of, the undersigned.
Principal Amount of Old Notes
Certificate Nos. (if available):
Total Principal Amount Represented
by Old Notes Certificate(s):
Account Number:
Name(s) in which Old Notes Registered:
Sign Here
Please Print the Following Information
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Area Code and Tel.
No(s).: |
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Must be signed by the holder(s) of Outstanding Notes as their
names(s) appear(s) on certificates for Outstanding Notes or on a
security position listing, or by person(s) authorized to become
registered holder(s) by endorsement and documents transmitted
with this Notice of Guaranteed Delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact,
officer or other person acting in a fiduciary or representative
capacity, such person must set forth his or her full title below.
GUARANTEE
The undersigned, a bank, broker, dealer, credit union, savings
association or other entity which is a member in good standing
of a recognized medallion program approved by the Securities
Transfer Association Inc., including the Securities Transfer
Agents Medallion Program (STAMP), the Stock Exchange Medallion
Program (SEMP) and the New York Stock Exchange Medallion
Signature Program (MSP), or any other eligible guarantor
institution within the meaning of
Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended, hereby
guarantees delivery to the Exchange Agent of certificates
tendered hereby, in proper form for transfer, or delivery of
such certificates pursuant to the procedure for book-entry
transfer, in either case with delivery of a properly completed
and duly executed Letter of Transmittal (or facsimile thereof)
and any other required documents, within three New York Stock
Exchange trading days after the Expiration Date (as defined in
the Letter of Transmittal).
Name of Firm:
Authorized Signature:
Number and Street or P.O. Box:
City:
State:
Zip Code:
Area Code and Tel. No.:
Dated: