EXHIBIT 4.1
EXECUTION COPY
DEL MONTE CORPORATION
as Issuer
DEL MONTE FOODS COMPANY,
▇▇▇▇ MAC IHC, INC,
STAR-▇▇▇▇ SAMOA, INC.,
MARINE TRADING PACIFIC, INC. and
STAR-▇▇▇▇ MAURITIUS, INC.
as Guarantors
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee
--------------------------------------
INDENTURE
Dated as of February 8, 2005
---------------------------------------
$250,000,000
6-3/4% Senior Subordinated Notes due 2015
CROSS-REFERENCE TABLE
TIA Indenture
Section 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).......................................... N.A.
(b).......................................... 13.03
(c).......................................... 13.03
313 (a).......................................... 7.06
(b).......................................... 7.06
(c).......................................... 7.06
(d).......................................... 7.06
314 (a).......................................... 4.08
(b).......................................... N.A.
(c).......................................... N.A.
(d).......................................... N.A.
(e).......................................... N.A.
(f).......................................... N.A.
315 (a).......................................... N.A.
(b).......................................... N.A.
(c).......................................... N.A.
(d).......................................... N.A.
(e).......................................... N.A.
316 (a).......................................... N.A.
(b).......................................... N.A.
(c).......................................... N.A.
317 (a).......................................... N.A.
(b).......................................... N.A.
318 (a).......................................... N.A.
(c).......................................... N.A.
--------------------------------
N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions................................................ 1
SECTION 1.02. Incorporation by Reference of TIA.......................... 35
SECTION 1.03. Rules of Construction...................................... 35
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating............................................ 35
SECTION 2.02. Execution and Authentication; Aggregate Principal
Amount..................................................... 37
SECTION 2.03. Registrar and Paying Agent................................. 38
SECTION 2.04. Paying Agent To Hold Assets in Trust....................... 39
SECTION 2.05. Noteholder Lists........................................... 39
SECTION 2.06. Transfer and Exchange...................................... 39
SECTION 2.07. Replacement Notes.......................................... 52
SECTION 2.08. Outstanding Notes.......................................... 52
SECTION 2.09. Treasury Notes............................................. 53
SECTION 2.10. Temporary Notes............................................ 53
SECTION 2.11. Cancellation............................................... 53
SECTION 2.12. Defaulted Interest......................................... 54
SECTION 2.13. CUSIP Numbers.............................................. 54
SECTION 2.14. Deposit of Money........................................... 54
SECTION 2.15. Issuance of Additional Notes............................... 54
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee......................................... 55
SECTION 3.02. Selection of Notes To Be Redeemed.......................... 55
SECTION 3.03. Notice of Redemption....................................... 55
SECTION 3.04. Effect of Notice of Redemption............................. 56
SECTION 3.05. Deposit of Redemption Price................................ 56
SECTION 3.06. Notes Redeemed in Part..................................... 57
SECTION 3.07. Optional Redemption........................................ 57
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes........................................... 58
SECTION 4.02. Maintenance of Office or Agency............................ 58
SECTION 4.03. Corporate Existence........................................ 59
SECTION 4.04. Payment of Taxes and Other Claims.......................... 59
SECTION 4.05. Maintenance of Properties and Insurance.................... 59
SECTION 4.06. Compliance Certificate; Notice of Default.................. 59
SECTION 4.07. Compliance with Laws....................................... 60
SECTION 4.08. SEC Reports................................................ 60
SECTION 4.09. Waiver of Stay, Extension or Usury Laws.................... 61
SECTION 4.10. Limitation on Restricted Payments.......................... 61
SECTION 4.11. Limitation on Transactions with Affiliates................. 66
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness........ 67
SECTION 4.13. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries..................................... 67
SECTION 4.14. Prohibition on Incurrence of Senior Subordinated Debt...... 69
SECTION 4.15. Change of Control.......................................... 69
SECTION 4.16. Limitation on Asset Sales.................................. 72
SECTION 4.17. Limitation on Preferred Stock of Restricted Subsidiaries... 77
SECTION 4.18. Limitation on Liens........................................ 77
SECTION 4.19. Limitation on Guarantees by Domestic Restricted
Subsidiaries............................................... 78
SECTION 4.20. Restriction of Lines of Business to Food, Food
Distribution and Related Businesses........................ 79
SECTION 4.21. Rule 144A Information...................................... 79
SECTION 4.22. Termination of Certain Covenants........................... 79
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets of the Company.... 80
SECTION 5.02. Successor Corporation Substituted for the Company.......... 81
SECTION 5.03. Merger, Consolidation and Sale of Assets of Holdings....... 81
SECTION 5.04. Successor Corporation Substituted for Holdings............. 82
SECTION 5.05. Merger, Consolidation and Sale of Assets of Subsidiary
Guarantors................................................. 82
SECTION 5.06. Successor Corporation Substituted for Subsidiary
Guarantors................................................. 83
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.......................................... 83
SECTION 6.02. Acceleration............................................... 85
SECTION 6.03. Other Remedies............................................. 85
SECTION 6.04. Waiver of Past Defaults.................................... 86
SECTION 6.05. Control by Majority........................................ 86
SECTION 6.06. Limitation on Suits........................................ 86
SECTION 6.07. Rights of Holders To Receive Payment....................... 87
SECTION 6.08. Collection Suit by Trustee................................. 87
SECTION 6.09. Trustee May File Proofs of Claim........................... 87
SECTION 6.10. Priorities................................................. 87
SECTION 6.11. Undertaking for Costs...................................... 88
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.......................................... 88
SECTION 7.02. Rights of Trustee.......................................... 89
SECTION 7.03. Individual Rights of Trustee............................... 91
SECTION 7.04. Trustee's Disclaimer....................................... 91
SECTION 7.05. Notice of Default.......................................... 91
SECTION 7.06. Reports by Trustee to Holders.............................. 91
SECTION 7.07. Compensation and Indemnity................................. 91
SECTION 7.08. Replacement of Trustee..................................... 92
SECTION 7.09. Successor Trustee by Merger, Etc........................... 93
SECTION 7.10. Eligibility; Disqualification.............................. 93
SECTION 7.11. Preferential Collection of Claims Against Company.......... 94
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations................... 94
SECTION 8.02. Legal Defeasance and Covenant Defeasance................... 95
SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance...... 96
SECTION 8.04. Application of Trust Money................................. 98
SECTION 8.05. Repayment to the Company................................... 98
SECTION 8.06. Reinstatement.............................................. 98
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders................................ 99
SECTION 9.02. With Consent of Holders................................... 100
SECTION 9.03. Effect on Senior Debt..................................... 101
SECTION 9.04. Compliance with TIA....................................... 101
SECTION 9.05. Revocation and Effect of Consents......................... 101
SECTION 9.06. Notation on or Exchange of Notes.......................... 102
SECTION 9.07. Trustee To Sign Amendments, Etc........................... 102
SECTION 9.08. Effect of Supplemental Indentures......................... 102
ARTICLE TEN
SUBORDINATION
SECTION 10.01. Notes Subordinated to Senior Debt......................... 102
SECTION 10.02. No Payment on Notes in Certain Circumstances.............. 103
SECTION 10.03. Payment Over of Proceeds upon Dissolution, Etc............ 104
SECTION 10.04. Payments May Be Paid Prior to Dissolution................. 105
SECTION 10.05. Subrogation............................................... 105
SECTION 10.06. Obligations of the Company Unconditional.................. 106
SECTION 10.07. Notice to Trustee and Paying Agents....................... 106
SECTION 10.08. Reliance on Judicial Order or Certificate of
Liquidating Agent......................................... 106
SECTION 10.09. Trustee's Relation to Senior Debt......................... 107
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Debt.................. 107
SECTION 10.11. Noteholders Authorize Trustee and Paying Agent To
Effectuate Subordination of Notes......................... 108
SECTION 10.12. This Article Ten Not To Prevent Events of Default......... 108
SECTION 10.13. Trustee's Compensation Not Prejudiced..................... 108
ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee................................... 108
SECTION 11.02. Subordination of Guarantees............................... 109
SECTION 11.03. Severability.............................................. 109
SECTION 11.04. Release of Guarantees..................................... 109
SECTION 11.05. Waiver of Subrogation..................................... 110
SECTION 11.06. Execution of Guarantees................................... 111
SECTION 11.07. Waiver of Stay, Extension or Usury Laws................... 111
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
SECTION 12.01. Guarantee Obligations Subordinated to Guarantor Senior
Debt...................................................... 111
SECTION 12.02. No Payment on Notes in Certain Circumstances.............. 112
SECTION 12.03. Payment Over of Proceeds upon Dissolution, Etc............ 113
SECTION 12.04. Payments May Be Paid Prior to Dissolution................. 114
SECTION 12.05. Subrogation............................................... 114
SECTION 12.06. Obligations of the Guarantors Unconditional............... 115
SECTION 12.07. Notice to Trustee and Paying Agents....................... 115
SECTION 12.08. Reliance on Judicial Order or Certificate of Liquidating
Agent..................................................... 116
SECTION 12.09. Trustee's Relation to Guarantor Senior Debt of the
Guarantors................................................ 116
SECTION 12.10. Subordination Rights Not Impaired by Acts or Omissions
of the Guarantors or Holders of Guarantor Senior Debt
of the Guarantors......................................... 116
SECTION 12.11. Noteholders Authorize Trustee and Paying Agent To
Effectuate Subordination of Notes......................... 117
SECTION 12.12. This Article Twelve Not To Prevent Events of Default...... 117
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA Controls............................................... 118
SECTION 13.02. Notices.................................................... 118
SECTION 13.03. Communications by Holders with Other Holders............... 119
SECTION 13.04. Certificate and Opinion as to Conditions Precedent......... 120
SECTION 13.05. Statements Required in Certificate or Opinion.............. 120
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.................. 120
SECTION 13.07. Legal Holidays............................................. 120
SECTION 13.08. Governing Law.............................................. 121
SECTION 13.09. No Adverse Interpretation of Other Agreements.............. 121
SECTION 13.10. No Recourse Against Others................................. 121
SECTION 13.11. Successors................................................. 121
SECTION 13.12. Duplicate Originals........................................ 121
SECTION 13.13. Severability............................................... 121
Signatures.................................................................. 122
Exhibit A - Form of Initial Note and Guarantee.............................. A-1
Exhibit B - Form of Certificate of Transfer................................. B-1
Exhibit C - Form of Certificate of Exchange................................. C-1
Exhibit D - Form Of Certificate From Acquiring Institutional Accredited
Investor........................................................ D-1
Schedule 1 - Assets Held for Disposition
Note: This Table of Contents shall not, for any purpose, be deemed to be part of
the Indenture.
INDENTURE, dated as of February 8, 2005, among DEL MONTE CORPORATION, a
Delaware corporation ("the Company"), DEL MONTE FOODS COMPANY, a Delaware
corporation ("Holdings"), ▇▇▇▇ MAC IHC, INC., a Delaware corporation, STAR-▇▇▇▇
SAMOA, INC., a California corporation, MARINE TRADING PACIFIC, INC., a Delaware
corporation, and STAR-▇▇▇▇ MAURITIUS, INC., a Delaware corporation (the
"Subsidiary Guarantors"), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York
banking corporation, as Trustee (the "Trustee").
The Company, Holdings, the Subsidiary Guarantors and the Trustee agree as
follows for the benefit of one another and for the equal and ratable benefit of
the Holders (as defined below) of the 6-3/4% Senior Subordinated Notes due 2015:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01.Definitions.
"144A Global Note" means a global note in substantially the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that shall be issued in a denomination equal to the
outstanding principal amount of Notes sold in reliance on Rule 144A.
"Acceleration Notice" has the meaning provided in Section 6.02(a).
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of
the Company or at the time it merges or consolidates with or into the Company or
any of its Restricted Subsidiaries or assumed by the Company or any of its
Restricted Subsidiaries in connection with the acquisition of assets from such
Person and in each case not incurred by such Person in connection with, or in
anticipation or contemplation of, such Person becoming a Restricted Subsidiary
of the Company or such acquisition, merger or consolidation.
"Additional Interest" means additional interest, if any, which may be
payable on the Notes as described in Section 4.01.
"Additional Notes" means Notes, if any, issued under this Indenture after
the Issue Date, other than Exchange Notes.
"Affiliate" means, with respect to any specified Person, any other Person
who directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. The term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative of the foregoing.
"Affiliate Transaction" has the meaning provided in Section 4.11.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Applicable Premium" has the meaning set forth in Section 4.15(a).
"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 Clearstream that apply to such transfer or exchange.
"Asset Acquisition" means:
(a) an Investment by the Company or any Restricted Subsidiary of
the Company in any other Person pursuant to which such Person shall become
a Restricted Subsidiary of the Company, or shall be merged or consolidated
with or into the Company or
(b) the acquisition by the Company or any Restricted Subsidiary of
the Company of the assets of any Person (other than a Restricted
Subsidiary of the Company) which constitute all or substantially all of
the assets of such Person or comprises any division or line of business of
such Person or any other properties or assets of such Person other than in
the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or other transfer for value by the Company or any of
its Restricted Subsidiaries (including any Sale and Leaseback Transaction) to
any Person other than the Company or a Restricted Subsidiary of the Company of:
(a) any Capital Stock of any Restricted Subsidiary of the Company, or
(b) any other property or assets of the Company or any Restricted
Subsidiary of the Company other than in the ordinary course of business;
provided, however, that Asset Sales shall not include:
(i) a transaction or series of related transactions for which the
Company or its Restricted Subsidiaries receive aggregate consideration of
less than $5.0 million;
(ii) the sale, lease, conveyance, disposition or other transfer of
all or substantially all of the assets of the Company as permitted under
Section 5.01;
(iii) the grant of Liens permitted by Section 4.18;
(iv) the sale or transfer of Receivables Program Assets in
connection with a Qualified Receivables Transaction;
(v) the sale or transfer of certain assets identified in Schedule
I to this Indenture as being held for disposition;
2
(vi) the surrender or waiver of contractual rights or the
settlement, release or surrender of contract, tort or other claims of any
kind; and
(vii) Restricted Payments or Permitted Investments otherwise
permitted by this Indenture.
"Asset Swap" means the execution of a definitive agreement, subject only
to customary closing conditions that the Company in good faith believes will be
satisfied, for a substantially concurrent purchase and sale, or exchange, of
assets (of a kind used or usable by the Company and its Restricted Subsidiaries
in their business as it exists on the date thereof, or in businesses that are
the same as such business of the Company and its Restricted Subsidiaries on the
date thereof or similar or reasonably related thereto) between the Company or
any of its Restricted Subsidiaries and another Person or group of affiliated
Persons; provided, however, that any amendment to or waiver of any closing
condition that individually or in the aggregate is material to the Asset Swap
shall be deemed to be a new Asset Swap.
"Authenticating Agent" has the meaning provided in Section 2.02.
"Authentication Order" has the meaning provided in Section 2.02.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal, state
or foreign law for the relief of debtors.
"Blockage Period" has the meaning provided in Section 10.02.
"Board of Directors" means, as to any Person, the board of directors of
such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Borrowing Base" means as of any date, an amount, determined on a
consolidated basis and in accordance with GAAP, equal to the sum of (i) 70% of
the aggregate book value of inventory plus (ii) 85% of the aggregate book value
of all accounts receivable (net of bad debt reserves) of the Company and its
Restricted Subsidiaries. To the extent that information is not available as to
the amount of inventory or accounts receivable as of a specific date, the
Company shall use the most recent available information for purposes of
calculating the Borrowing Base.
"Business Day" means a day that is not a Legal Holiday.
"Capitalized Lease Obligation" means, as to any Person, the obligations of
such Person under a lease that are required to be classified and accounted for
as capital lease obligations under GAAP and, for purposes of this definition,
the amount of such obligations at any date shall be the capitalized amount of
such obligations at such date, determined in accordance with GAAP.
3
"Capital Stock" means:
(i) with respect to any Person that is a corporation, any and all
shares, interests, participations or other equivalents (however designated and
whether or not voting) of corporate stock, including each class or series of
Common Stock and Preferred Stock of such Person and
(ii) with respect to any Person that is not a corporation, any and all
partnership or other equity interests of such Person.
"Cash Equivalents" means:
(i) obligations issued by, or unconditionally guaranteed by, the U.S.
government or issued by any agency thereof, and in each case backed by the full
faith and credit of the United States and maturing within one year from the date
of acquisition thereof;
(ii) obligations issued or fully guaranteed by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or ▇▇▇▇▇'▇;
(iii) commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having the highest rating
obtainable from either S&P or ▇▇▇▇▇'▇;
(iv) certificates of deposit or bankers' acceptances maturing within one
year from the date of acquisition thereof issued by any bank organized under the
laws of the United States or any state thereof or the District of Columbia or
any U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $250,000,000;
(v) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (iv) above; and
(vi) investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (i) through (v)
above.
"Change of Control" means the occurrence of one or more of the following events:
(i) any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all or substantially all of the assets of the
Company or Holdings to any Person or group of related Persons for purposes of
Section 13(d) of the Exchange Act (a "Group"), together with any Affiliates
thereof (whether or not otherwise in compliance with the provisions of this
Indenture);
4
(ii) the approval by the holders of Capital Stock of the Company or
Holdings, as the case may be, of any plan or proposal for the liquidation
or dissolution of the Company or Holdings, as the case may be (whether or
not otherwise in compliance with the provisions of this Indenture);
(iii) any Person or Group shall become the owner, directly or
indirectly, beneficially or of record, of shares representing more than
50% of the aggregate ordinary voting power represented by the issued and
outstanding Capital Stock (the "Voting Stock") of the Company or Holdings;
or
(iv) the replacement of a majority of the Board of Directors of the
Company or Holdings over a two-year period from the directors who
constituted the Board of Directors of the Company or Holdings, as the case
may be, at the beginning of such period, and such replacement shall not
have been approved by a vote of at least a majority of the Board of
Directors of the Company or Holdings, as the case may be, then still in
office who either were members of such Board of Directors at the beginning
of such period or whose election as a member of such Board of Directors
was previously so approved.
"Change of Control Date" has the meaning provided in Section 4.15.
"Change of Control Offer" has the meaning provided in Section 4.15.
"Change of Control Payment Date" has the meaning provided in Section 4.15.
"Change of Control Redemption Date" has the meaning provided in Section
4.15.
"Change of Control Triggering Event" means the occurrence of both a Change
of Control and a Rating Decline with respect to the Notes.
"Clearstream" means Clearstream Banking, S.A., and any and all successors
thereto.
"Common Stock" of any Person means any and all shares, interests or other
participations in and other equivalents (however designated and whether voting
or non-voting) of such Person's common stock, whether outstanding on the Issue
Date or issued after the Issue Date, and includes without limitation, all series
and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Consolidated EBITDA" means, with respect to any Person, for any period,
the sum (without duplication) of:
(i) Consolidated Net Income, and
(ii) to the extent Consolidated Net Income has been reduced
thereby,
(A) all income taxes of such Person and its Restricted
Subsidiaries paid or accrued in accordance with GAAP for such
period,
5
(B) Consolidated Interest Expense, and
(C) Consolidated Non-cash Charges less any non-cash items
sincreasing Consolidated Net Income for such period,
all as determined on a consolidated basis for such Person and its Restricted
Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal quarters (the "Four Quarter Period") ending on or prior to the date of
the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "Transaction Date") to the Consolidated Fixed Charges
of such Person for the Four Quarter Period. In addition to and without
limitation of the foregoing, for purposes of this definition, "Consolidated
EBITDA" and "Consolidated Fixed Charges" shall be calculated after giving effect
on a pro forma basis for the period of such calculation to:
(i) the incurrence or repayment of any Indebtedness of such Person
or any of its Restricted Subsidiaries (and the application of the proceeds
thereof) giving rise to the need to make such calculation and any
incurrence or repayment of other Indebtedness (and the application of the
proceeds thereof), other than the incurrence or repayment of Indebtedness
in the ordinary course of business for working capital purposes pursuant
to working capital facilities, occurring during the Four Quarter Period or
at any time subsequent to the last day of the Four Quarter Period and on
or prior to the Transaction Date, as if such incurrence or repayment, as
the case may be (and the application of the proceeds thereof), occurred on
the first day of the Four Quarter Period and
(ii) any Asset Sales or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Restricted
Subsidiaries (including any Person who becomes a Restricted Subsidiary as
a result of the Asset Acquisition) incurring, assuming or otherwise being
liable for Acquired Indebtedness and also including any Consolidated
EBITDA (including any pro ---- forma expense and cost reductions which, in
the reasonable and good faith ----- judgment of the Company's senior
management, will result from such Asset Sale or Asset Acquisition
attributable to the assets which are the subject of the Asset Acquisition
or Asset Sale during the Four Quarter Period) occurring during the Four
Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date, as if such Asset
Sale or Asset Acquisition (including the incurrence, assumption or
liability for any such Acquired Indebtedness) occurred on the first day of
the Four Quarter Period.
If such Person or any of its Restricted Subsidiaries directly or indirectly
guarantees Indebtedness of a third Person, the preceding sentence shall give
effect to the incurrence of such guaranteed Indebtedness as if such Person or
any Restricted Subsidiary of such Person had directly incurred or otherwise
assumed such guaranteed Indebtedness. Furthermore, in calculating "Consolidated
Fixed Charges" for purposes of determining the denominator (but not the
numerator) of the "Consolidated Fixed Charge Coverage Ratio,"
6
(1) interest on outstanding Indebtedness determined on a fluctuating
basis as of the Transaction Date and which will continue to be so
determined thereafter shall be deemed to have accrued at a fixed rate per
annum equal to the average rate of interest on such Indebtedness in effect
during the preceding 12-month period ending on the Transaction Date,
(2) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered
by agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the
operation of such agreements,
(3) interest on Indebtedness that may optionally be determined at an
interest rate based upon a factor of a prime or similar rate, a
Eurocurrency interbank offered rate, or other rate, shall be deemed to
have been based upon the rate actually chosen, or if none, then based upon
such optional rate as such Person may designate, and
(4) interest on a Capitalized Lease Obligation shall be deemed to
accrue at an interest rate implicit in such Capitalized Lease Obligation
in accordance with GAAP and as reflected in such Person's financial
statements.
"Consolidated Fixed Charges" means, with respect to any Person for any
period, the sum (without duplication) of:
(i) Consolidated Interest Expense (excluding amortization or
write-off of deferred financing costs), plus
(ii) the product of (x) the amount of all dividend payments on any
series of Preferred Stock of such Person (other than dividends paid in
Qualified Capital Stock) paid or accrued during such period times (y) a
fraction, the numerator of which is one and the denominator of which is
one minus the then current effective consolidated federal, state and local
tax rate of such Person, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any Person for any
period, the sum (without duplication) of:
(i) the aggregate of the interest expense of such Person and its
Restricted Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP, including, without limitation,
(a) any amortization of debt discount and amortization or
write-off of deferred financing costs,
(b) the net costs under Interest Swap Obligations,
(c) all capitalized interest,
(d) the interest portion of any deferred payment obligation,
(e) dividends paid in respect of Disqualified Capital Stock,
7
(f) net payments (whether positive or negative) pursuant to
Interest Swap Obligations, and
(ii) the interest component of Capitalized Lease Obligations,
in each case paid, accrued and/or scheduled to be paid or accrued by such Person
and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP. Notwithstanding the foregoing,
Consolidated Interest Expense of the Company shall include the interest expense
of a Person only to the extent that the net income of such Person is included in
the Consolidated Net Income of the Company.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided that there shall be excluded therefrom:
(a) after-tax gains or losses from Asset Sales (without regard to
the $5.0 million limitation set forth in the definition thereof) or
abandonments or reserves relating thereto;
(b) after-tax items classified as extraordinary or nonrecurring
gains or losses;
(c) the net income of any Person acquired in a "pooling of
interests" transaction accrued prior to the date it becomes a Restricted
Subsidiary of the referent Person or is merged or consolidated with or
into the referent Person or any Restricted Subsidiary of the referent
Person;
(d) the net income (but not loss) of any Restricted Subsidiary of
the referent Person to the extent that the declaration of dividends or
similar distributions by that Restricted Subsidiary of that income is at
the time of determination restricted, directly or indirectly, by a
contract, operation of law or otherwise;
(e) the net income of any Person, other than a Restricted Subsidiary
of the referent Person, except to the extent of cash dividends or
distributions paid to the referent Person or to a Restricted Subsidiary of
the referent Person by such Person;
(f) any restoration to income of any contingency reserve, except to
the extent that provision for such reserve was made out of Consolidated
Net Income accrued at any time following the Issue Date;
(g) income or loss attributable to discontinued operations
(including, without limitation, operations disposed of during such period
whether or not such operations were classified as discontinued); and
(h) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's
assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets.
8
Notwithstanding the foregoing, "Consolidated Net Income" shall be calculated
without giving effect to:
(i) any premiums, fees or expenses incurred and any amortization of
premiums, fees or expenses incurred in connection with (A) the offering of
the Notes and any related financing (including, without limitation, the
Credit Agreement) or (B) repayment or repurchase of Indebtedness; and
(ii) the amortization, depreciation, or non-cash charge of any
amounts required or permitted by Statements of Financial Accounting
Standards (SFAS) 141 and 142.
"Consolidated Net Tangible Assets" means, as of any date, the total amount
of assets of the Company and its Restricted Subsidiaries (less applicable
depreciation, amortization and other valuation reserves), net of any write-ups
of capital assets, other than write-ups in connection with accounting for
acquisitions in conformity with GAAP, after deducting therefrom
(i) all current liabilities of the Company and its Restricted
Subsidiaries (excluding intercompany items), and
(ii) all deferred tax assets, goodwill, trade names, trademarks,
copyrights, patents, unamortized debt discount and expense, and all other
items which would be treated as intangibles,
in each case as shown on a consolidated balance sheet of the Company and its
Restricted Subsidiaries prepared in accordance with GAAP.
"Consolidated Non-cash Charges" means, with respect to any Person, for any
period, the aggregate depreciation, amortization, exchange or translation losses
on foreign currencies and other non-cash expenses of such Person and its
Restricted Subsidiaries reducing Consolidated Net Income of such Person and its
Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP (excluding any such charge which requires an accrual of or
a reserve for cash charges for any future period).
"Covenant Defeasance" has the meaning provided in Section 8.02.
"Credit Agreement" means (a)(i) the Credit Agreement dated as of December
20, 2002 among the Company and the financial institutions named therein, and
(ii) the Credit Agreement to be entered into among the Company, Holdings and the
financial institutions named therein in connection with the refinancing of which
the issuance of the Notes is a part, and in each of cases (i) and (ii) above,
any related notes, collateral documents, letters of credit and guarantees,
instruments and agreements executed in connection therewith, including any
appendices, exhibits or schedules to any of the foregoing (as the same may be in
effect from time to time) and (b) in each case as specified in clause (a) above,
as such agreements may be amended, modified, supplemented or restated from time
to time, or refunded, refinanced, restructured, replaced, renewed, repaid or
extended from time to time (whether with the original agents and lenders or
other agents or lenders or otherwise, and whether provided under the original
credit agreement or other credit agreements or otherwise), including, without
limitation, increasing the amount of
9
available borrowings or other Indebtedness thereunder (provided that such
increase in borrowings is permitted by Section 4.12).
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect the
Company or any Restricted Subsidiary of the Company against fluctuations in
currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any applicable Bankruptcy Law.
"Default" means an event or condition the occurrence of which is, or with
the lapse of time or the giving of notice or both would be, an Event of Default.
"Default Notice" has the meaning provided in Section 10.02.
"Definitive Note" means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Section 2.06 hereof, in
substantially 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 Global Notes, the Person specified
in Section 2.03 as the Depositary with respect to the Notes and any and all
successors thereto appointed as Depositary under this Indenture and having
become such pursuant to the applicable provisions of this Indenture.
"Designated Noncash Consideration" means any non-cash consideration
received by the Company or one of its Restricted Subsidiaries in connection with
an Asset Sale that is designated as Designated Noncash Consideration pursuant to
an Officers' Certificate executed by the principal executive officer and the
principal financial officer of the Company or such Restricted Subsidiary at the
time of such Asset Sale. Any particular item of Designated Noncash Consideration
will cease to be considered to be outstanding once cash or Cash Equivalents have
been received by the Company or a Restricted Subsidiary in exchange therefor as
proceeds or payments. Promptly after receipt of any Designated Noncash
Consideration, the Company shall deliver such Officers' Certificate to the
Trustee, together with a Board Resolution of the Company stating the fair market
value of such Designated Noncash Consideration and the basis of such valuation,
which shall be a report or opinion of an Independent Financial Advisor with
respect to the receipt in one transaction or a series of related transactions of
Designated Noncash Consideration with a fair market value in excess of $25.0
million.
"Designated Senior Debt" means:
(i) Indebtedness of the Company under or in respect of the Credit
Agreement; and
(ii) any other Indebtedness of the Company constituting Senior Debt
which, at the time of determination, has an aggregate outstanding
principal amount of at least $75.0 million and is specifically designated
by the Company in the instrument evidencing such Senior Debt as
"Designated Senior Debt."
10
"Disqualified Capital Stock" means that portion of any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in each case on or prior to the final maturity date of the Notes, provided,
however, that if such Capital Stock is issued to any plan for the benefit of
employees of the Company or by any such plan to such employees, such Capital
Stock shall not constitute Disqualified Capital Stock solely because it may be
required to be repurchased by the Company in order to satisfy applicable
statutory or regulatory obligations.
"DTC" means the Depository Trust Company and its successors.
"Equity Offering" means any sale of Qualified Capital Stock of Holdings or
the Company; provided that, in the event of an Equity Offering by Holdings,
Holdings contributes to the capital of the Company the portion of the net cash
proceeds of such Equity Offering necessary to pay the aggregate Redemption
Price, plus accrued interest to the Redemption Date, of the Notes to be redeemed
as described under Section 3.07(b).
"Euroclear" means Euroclear Bank, S.A/N.V., as operator of the Euroclear
System, and any and all successors thereto.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute or statutes thereto.
"Exchange Notes" means the Notes that are issued pursuant to this
Indenture and exchanged for the Initial Notes and any Additional Notes pursuant
to the exchange offer contemplated by the Registration Rights Agreement.
"Exchange Offer" means the registration by the Company under the
Securities Act pursuant to a registration statement of the offer by the Company
to each Holder of the Initial Notes and each Holder of Additional Notes, if any,
to exchange all the Initial Notes and Additional Notes held by such Holder for
Exchange Notes in an aggregate principal amount equal to the aggregate principal
amount of the Initial Notes and Additional Notes held by such Holder, all in
accordance with the terms and conditions of the Registration Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Existing Notes" means the 9-1/4% Senior Subordinated Notes due 2011 and
the 8-5/8% Senior Subordinated Notes due 2012 issued by the Company.
"fair market value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction.
11
"Four Quarter Period" has the meaning specified in the definition of
"Consolidated Fixed Charge Coverage Ratio" above.
"GAAP" means generally accepted accounting principles in the United States
of America 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 may have been approved by a
significant segment of the accounting profession as of 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 in the form of Exhibit
A hereto issued in accordance with Section 2.01, 2.06(b), 2.06(d), 2.06(f) or
2.07.
"Guarantee" means the guarantee of the obligations of the Company under
this Indenture and the Notes by Holdings or any Subsidiary Guarantor and shall
include, in the case of any Guarantor, any guarantee of such Guarantor which is
endorsed on the Notes.
"Guarantee Obligations" has the meaning provided in Section 12.01.
"Guarantor" means each of Holdings, any Subsidiary Guarantor that
guarantees the Notes on the Issue Date and any other Restricted Subsidiary that
executes a Guarantee pursuant to Section 4.19, each until a successor replaces
it pursuant to this Indenture and thereafter means such successor. A Restricted
Subsidiary whose Guarantee has terminated pursuant to this Indenture shall cease
to be a Guarantor effective as of such termination.
"Guarantor Designated Senior Debt" means, with respect to any Guarantor:
(i) Indebtedness of such Guarantor under or in respect of the Credit
Agreement; and
(ii) any other Indebtedness of such Guarantor constituting Guarantor
Senior Debt of such Guarantor which, at the time of determination, has an
aggregate outstanding principal amount of at least $75.0 million and is
specifically designated by such Guarantor in the instrument evidencing
such Guarantor Senior Debt as "Guarantor Designated Senior Debt."
"Guarantor Blockage Period" has the meaning provided in Section 12.02.
"Guarantor Default Notice" has the meaning provided in Section 12.02.
"Guarantor Senior Debt" means, with respect to a Guarantor, the principal
of, premium, if any, and interest (including any interest accruing subsequent to
the filing of a bankruptcy petition at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
claim under applicable law and without giving effect to any reduction in the
amount of such Indebtedness which is necessary to prevent the obligation of such
Guarantor with respect thereto from being rendered void or voidable under
applicable law relating to
12
fraudulent conveyance or fraudulent transfer) on any Indebtedness of such
Guarantor, whether outstanding on the Issue Date or thereafter created, incurred
or assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Guarantee of such Guarantor. Without limiting the generality of
the foregoing, "Guarantor Senior Debt" shall also include the principal of,
premium, if any, interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the documentation
with respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of,
(x) all monetary obligations (including guarantees thereof), if
any, of every nature of such Guarantor under or with respect to the Credit
Agreement, including, without limitation, obligations to pay principal and
interest, reimbursement obligations under letters of credit, fees, expenses and
indemnities,
(y) all Interest Swap Obligations (including guarantees thereof),and
(z) all obligations (including guarantees thereof) under Currency
Agreements, in each case whether outstanding on the Issue Date or thereafter
incurred.
Notwithstanding the foregoing, "Guarantor Senior Debt" shall not include:
(i) any Indebtedness of such Guarantor to a Subsidiary of such
Guarantor;
(ii) Indebtedness to, or guaranteed by such Guarantor for the
benefit of, any shareholder (other than a parent corporation), director,
officer or employee of such Guarantor or any Subsidiary of such Guarantor
(including, without limitation, amounts owed for compensation);
(iii) Indebtedness to trade creditors and other amounts incurred in
connection with obtaining goods, materials or services;
(iv) Indebtedness represented by Disqualified Capital Stock;
(v) any liability for federal, state, local or other taxes owed or
owing by such Guarantor;
(vi) any Indebtedness incurred in violation of this Indenture; and
(vii) guarantees of the Existing Notes and any Indebtedness, and any
other obligation referred to in clause (x), (y) or (z) of this definition,
which in each case is, by its express terms or by the express terms of the
instrument or agreement creating or evidencing the same or pursuant to
which the same is outstanding, subordinated in right of payment to any
other Indebtedness of such Guarantor.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"Holdings" means Del Monte Foods Company, a Delaware corporation, until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
13
"incur" has the meaning provided in Section 4.12.
"Indebtedness" means with respect to any Person, without duplication,
(i) all obligations of such Person for borrowed money;
(ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(iii) all Capitalized Lease Obligations of such Person (but
excluding any operating lease obligations);
(iv) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations and
all obligations under any title retention agreement (but excluding trade
accounts payable and other accrued liabilities arising in the ordinary
course of business that are not overdue by 90 days or more or that are
being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted);
(v) all obligations for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction;
(vi) guarantees and other contingent obligations in respect of
Indebtedness referred to in clauses (i) through (v) above and clause
(viii) below;
(vii) all obligations of any other Person of the type referred to in
clauses (i) through (vi) above and clause (viii) below that are secured by
any Lien on any property or asset of such Person, the amount of such
obligation being deemed to be the lesser of the fair market value of such
property or asset or the amount of the obligation so secured;
(viii) all obligations under Currency Agreements and Interest Swap
Obligations of such Person; and
(ix) all Disqualified Capital Stock issued by such Person with the
amount of Indebtedness represented by such Disqualified Capital Stock
being equal to its maximum fixed repurchase price (or comparable price
that such Person may be required to pay for the acquisition or retirement
of such Disqualified Capital Stock), but excluding accrued dividends, if
any.
For purposes hereof, the "maximum fixed repurchase price" of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock as if such
Disqualified 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 Disqualified
Capital Stock, such fair market value shall be determined in good faith by the
Board of Directors of the issuer of such Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof.
14
"Independent Financial Advisor" means a firm:
(i) which does not, and whose directors, officers and employees or
Affiliates do not, have a direct or indirect equity beneficial ownership
interest in the Company exceeding 10%; and
(ii) which, in the judgment of the Board of Directors of the
Company, is otherwise independent and qualified to perform the task for
which it is to be engaged.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"Initial Notes" means the Notes issued pursuant to this Indenture on the
Issue Date.
"Institutional Accredited Investor" means an "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"interest" on the Notes shall include Additional Interest, if any, unless
otherwise expressly stated or the context otherwise requires. For purposes of
clarity, it is hereby understood and agreed that references to "interest" on the
Notes shall mean and include "Additional Interest" notwithstanding the fact that
there may be references in this Indenture to "interest and Additional Interest."
"Interest Payment Date" means the stated maturity of an installment of
interest on the Notes.
"Interest Swap Obligations" means the obligations of any Person pursuant
to any arrangement with any other Person, whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such other Person calculated by
applying a fixed or a floating rate of interest on the same notional amount and
shall include, without limitation, interest rate swaps, caps, floors, collars
and similar agreements.
"Investment" means, with respect to any Person, any direct or indirect
loan or other extension of credit (including, without limitation, a guarantee)
or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of
others), or any purchase or acquisition by such Person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness issued
by, any other Person. In the case of the Company, "Investment" shall exclude
extensions of trade credit (including trade receivables) by the Company and its
Restricted Subsidiaries on commercially reasonable terms in accordance with
normal trade practices of the Company or such Restricted Subsidiary, as the case
may be. For the purposes of Section 4.10,
(i) "Investment" shall include and be valued at the portion of the
fair market value of the net assets of any Restricted Subsidiary
represented by the Company's equity interest in such Subsidiary at the
time that such Restricted Subsidiary is designated an Unrestricted
Subsidiary and shall exclude the fair market value of the net assets of
any
15
Unrestricted Subsidiary at the time that such Unrestricted Subsidiary
is designated a Restricted Subsidiary and
(ii) the amount of any Investment shall be the original cost of such
Investment plus the cost of all additional Investments by the Company or
any of its Restricted Subsidiaries, without any adjustments for increases
or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment, reduced by the payment of dividends or
distributions in connection with such Investment or any other amounts
received in respect of such Investment; provided that no such payment of
dividends or distributions or receipt of any such other amounts shall
reduce the amount of any Investment if such payment of dividends or
distributions or receipt of any such amounts would be included in
Consolidated Net Income.
If the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Common Stock of any direct or indirect Restricted Subsidiary of
the Company such that, after giving effect to any such sale or disposition, the
Company no longer owns, directly or indirectly, 80% of the outstanding Common
Stock of such Restricted Subsidiary, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market
value of the Common Stock of such Restricted Subsidiary not sold or disposed of.
"Investment Grade Rating" means a rating equal to or higher than Baa3 by
▇▇▇▇▇'▇ and BBB- by S&P, provided that at such time neither Rating Agency has
publicly announced that the Notes are under consideration for possible downgrade
to a rating lower than Baa3 or BBB-, respectively; provided, however, that if
(i) either of ▇▇▇▇▇'▇ or S&P changes its rating system, such ratings shall be
the equivalent ratings after such changes or (ii) S&P or ▇▇▇▇▇'▇ shall not make
a rating of the Notes publicly available, the references above to S&P or ▇▇▇▇▇'▇
or both of them, as the case may be, shall be to a nationally recognized U.S.
rating agency or agencies, as the case may be, selected by the Company and the
references to the ratings categories above shall be to the corresponding rating
categories of such rating agency or rating agencies, as the case may be.
"Issue Date" means February 8, 2005.
"Legal Defeasance" has the meaning provided in Section 8.02.
"Legal Holiday" has the meaning provided in Section 13.07.
"Lien" means any lien, mortgage, deed of trust, pledge, security interest,
charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give
any security interest).
"Maturity Date" means February 15, 2015.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds in
the form of cash or Cash Equivalents including payments in respect of deferred
payment obligations when received in the form of cash or Cash Equivalents (other
than the portion of any such deferred
16
payment constituting interest) received by the Company or any of its Restricted
Subsidiaries from such Asset Sale net of:
(a) reasonable out-of-pocket expenses and fees relating to such
Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions);
(b) taxes paid or payable after taking into account any reduction in
consolidated tax liability due to available tax credits or deductions and
any tax sharing arrangements;
(c) repayment of Indebtedness that is required to be repaid in
connection with such Asset Sale; and
(d) appropriate amounts to be provided by the Company or any
Restricted Subsidiary, as the case may be, as a reserve, in accordance
with GAAP, against any liabilities associated with such Asset Sale and
retained by the Company or any Restricted Subsidiary, as the case may be,
after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated
with such Asset Sale.
"Net Proceeds Offer" has the meaning provided in Section 4.16.
"Net Proceeds Offer Amount" has the meaning provided in Section 4.16.
"Net Proceeds Offer Payment Date" has the meaning provided in Section
4.16.
"Net Proceeds Offer Trigger Date" has the meaning provided in Section
4.16.
"Non-U.S. Person" means a Person who is not a U.S. person, as such term is
defined in Regulation S.
"Notes" means the Initial Notes, Additional Notes and the Exchange Notes,
treated as a single class of securities, as amended or supplemented from time to
time in accordance with the terms hereof, that are issued pursuant to this
Indenture. For purposes of this Indenture, all Notes shall vote together as one
class of securities under this Indenture.
"Notes Custodian" means the Trustee, as custodian with respect to the
Global Notes, or any successor entity.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Offering Memorandum" means the Offering Memorandum dated January 25,
2005, pursuant to which the Initial Notes were offered, and any supplement
thereto.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, any Vice President, the Chief
Operating Officer, the Chief
17
Financial Officer, the Treasurer, the Assistant Treasurer, the Controller, the
General Counsel, the Secretary or the Assistant Secretary of such Person, or any
other officer designated by the Board of Directors serving in a similar
capacity.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Officers of such Person and otherwise complying with the
applicable requirements of this Indenture, as they relate to the making of an
Officers' Certificate.
"Opinion of Counsel" means a written opinion from legal counsel, who may
be internal counsel for the Company, or who is otherwise reasonably acceptable
to the Trustee complying with the requirements of Sections 13.04 and 13.05, as
they relate to the giving of an Opinion of Counsel.
"Pari Passu Indebtedness" has the meaning provided in Section 4.16.
"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.
Paying Agent" has the meaning provided in Section 2.03.
"Permitted Indebtedness" means, without duplication, each of the
following:
(i) Indebtedness under the Notes, excluding any Additional Notes;
(ii) Indebtedness incurred pursuant to the Credit Agreement in an
aggregate principal amount at any time outstanding not to exceed the
greater of (A) the Borrowing Base, or (B) $1.5 billion less
(1) the aggregate amount of all mandatory principal payments in
respect of such term loans thereunder made by reason of or attributable to
the receipt of proceeds from Asset Sales; plus
(2) in the case of the revolving credit facility thereunder, the
aggregate amount of required permanent repayments which are accompanied by
a corresponding permanent commitment reduction thereunder made by reason
of or attributable to the receipt of proceeds from Asset Sales; plus
(3) without duplication, the amount of the Receivables Program
Obligations then outstanding.
(iii) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date, including, without limitation,
the Existing Notes, reduced by the amount of any scheduled amortization
payments or mandatory prepayments when actually paid or permanent
reductions thereon;
(iv) Interest Swap Obligations of the Company covering Indebtedness
of the Company or any of its Restricted Subsidiaries and Interest Swap
Obligations of any Restricted Subsidiary of the Company covering
Indebtedness of such Restricted Subsidiary; provided, however, that such
Interest Swap Obligations are entered into to
18
protect the Company and its Restricted Subsidiaries from fluctuations in
interest rates on Indebtedness incurred in accordance with this Indenture
to the extent the notional principal amount of such Interest Swap
Obligation does not exceed the principal amount of the Indebtedness to
which such Interest Swap Obligation relates;
(v) Indebtedness under Currency Agreements; provided that in the
case of Currency Agreements which relate to Indebtedness, such Currency
Agreements do not increase the Indebtedness of the Company and its
Restricted Subsidiaries outstanding other than as a result of fluctuations
in foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder;
(vi) Indebtedness of a Restricted Subsidiary of the Company to the
Company or to another Restricted Subsidiary of the Company, in either case
for so long as such Indebtedness is held by the Company or a Restricted
Subsidiary of the Company, in each case subject to no Lien held by a
Person other than the Company or a Restricted Subsidiary of the Company;
provided that if as of any date any Person other than the Company or a
Restricted Subsidiary of the Company owns or holds any such Indebtedness
or holds a Lien in respect of such Indebtedness, there shall be deemed to
have occurred on such date the incurrence of Indebtedness not constituting
Permitted Indebtedness by the issuer of such Indebtedness;
(vii) Indebtedness of the Company to a Restricted Subsidiary of the
Company for so long as such Indebtedness is held by a Restricted
Subsidiary of the Company, in each case subject to no Lien; provided that:
(A) any Indebtedness of the Company to a Restricted Subsidiary
of the Company is unsecured and subordinated, pursuant to a written
agreement, to the Company's obligations under this Indenture and the
Notes and
(B) if as of any date any Person other than a Restricted
Subsidiary of the Company owns or holds any such Indebtedness or any
Person holds a Lien in respect of such Indebtedness, there shall be
deemed to have occurred on such date the incurrence of Indebtedness
not constituting Permitted Indebtedness pursuant to this clause
(vii) by the Company;
(viii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided, however,
that such Indebtedness is extinguished within five Business Days of
incurrence;
(ix) Indebtedness of the Company or any of its Restricted
Subsidiaries in respect of security for workers' compensation claims,
payment obligations in connection with self-insurance, performance bonds,
surety bonds or similar requirements in the ordinary course of business;
(x) Capitalized Lease Obligations and Purchase Money Indebtedness of
the Company and its Restricted Subsidiaries incurred in the ordinary
course of business and Indebtedness arising from the conversion of the
obligations of the Company under or
19
pursuant to the "synthetic lease" transactions to on-balance sheet
Indebtedness of the Company in an aggregate amount at any time outstanding
not to exceed 10% of the Consolidated Net Tangible Assets of the Company
as shown on the then most recent consolidated balance sheet of the Company
and its Restricted Subsidiaries prepared in accordance with GAAP;
(xi) guarantees by the Company and its Restricted Subsidiaries of
each other's Indebtedness; provided that such Indebtedness is permitted to
be incurred under this Indenture, including, with respect to guarantees by
Restricted Subsidiaries of the Company, the provisions of Section 4.19;
(xii) Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or
from guarantees or letters of credit, surety bonds or performance bonds
securing any obligations of the Company or any of its Restricted
Subsidiaries pursuant to such agreements, in each case incurred in
connection with the disposition of any business, assets or Restricted
Subsidiary of the Company (other than guarantees of Indebtedness or other
obligations incurred by any Person acquiring all or any portion of such
business, assets or Restricted Subsidiary of the Company for the purpose
of financing such acquisition) in a principal amount not to exceed the
greater of (x) the gross proceeds actually received by the Company or any
of its Restricted Subsidiaries in connection with such disposition and (y)
$25.0 million;
(xiii) guarantees furnished by the Company or its Restricted
Subsidiaries in the ordinary course of business of Indebtedness of another
Person in an aggregate amount not to exceed $40.0 million at any time
outstanding;
(xiv) Refinancing Indebtedness;
(xv) Receivables Program Obligations;
(xvi) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount not to exceed $150.0 million
at any one time outstanding (which amount may, but need not, be incurred
in whole or in part under the Credit Agreement);
(xvii) Indebtedness incurred under commercial letters of credit
issued for the account of the Company or any of its Restricted
Subsidiaries in the ordinary course of business (and not for the purpose
of, directly or indirectly, incurring Indebtedness or providing credit
support or a similar arrangement in respect of Indebtedness), provided
that any drawing under any such letter of credit is reimbursed in full
within seven days;
(xviii) Indebtedness incurred in connection with any Sale and
Leaseback Transaction; provided, that the aggregate Indebtedness incurred
pursuant to this clause (xviii) shall not exceed $30.0 million at any time
outstanding;
(xix) any guarantee by a Restricted Subsidiary of any Indebtedness
incurred pursuant to the Credit Agreement or the Existing Notes;
20
(xx) the incurrence by the Company or any of its Restricted
Subsidiaries of Acquired Indebtedness; provided that the Consolidated
Fixed Charge Coverage Ratio immediately after giving pro forma effect to
such incurrence would be no less than the Consolidated Fixed Charge
Coverage Ratio immediately prior to such incurrence; and
(xxi) Indebtedness of the Company, to the extent the net proceeds
thereof are promptly (A) used to purchase Notes tendered in a Change of
Control Offer, (B) deposited to defease the Notes pursuant to Section 8.02
or (C) used to discharge this Indenture pursuant to Section 8.01.
For purposes of determining compliance with Section 4.12,
(1) in the event that an item of Indebtedness meets the
requirements of one or more of the categories of Permitted
Indebtedness set forth in clauses (i) through (xxi) above or
is entitled to be incurred pursuant to Section 4.12, the
Company shall, in its sole discretion, be permitted to
classify (or later classify or reclassify in whole or in part
in its sole discretion) such item of Indebtedness in any
manner that complies with Section 4.12;
(2) the accrual of interest, the accretion or
amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional
Indebtedness with the same, or less onerous, terms, the
payment of dividends on Disqualified Capital Stock in the form
of additional shares of the same class of Disqualified Capital
Stock, the accrual of dividends on Disqualified Capital Stock
and the accretion of the liquidation preference of
Disqualified Capital Stock shall not be deemed to be an
incurrence of Indebtedness or an issuance of Disqualified
Capital Stock for purposes of Section 4.12; and
(3) for the 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 earlier of
the date that such Indebtedness was incurred or the date that
the Company or its applicable Restricted Subsidiary committed
to incur such Indebtedness.
"Permitted Investments" means:
(i) Investments by the Company or any Restricted Subsidiary of the
Company in any Person that is or shall become immediately after such
Investment a Restricted Subsidiary of the Company or that shall
immediately after such Investment merge or consolidate with or into the
Company or a Restricted Subsidiary of the Company, or that shall
immediately after such Investment transfer or convey all of its assets
(including such Investment) to the Company or a Restricted Subsidiary of
the Company, provided that such Person is engaged, in all material
respects, solely in the business of food, food distribution and related
businesses;
21
(ii) Investments in the Company by any Restricted Subsidiary of the
Company; provided that any Indebtedness evidencing such Investment is
unsecured and subordinated, pursuant to a written agreement, to the
Company's obligations under the Notes and this Indenture;
(iii) Investments in cash and Cash Equivalents;
(iv) loans and advances to employees and officers of the Company and
its Restricted Subsidiaries in the ordinary course of business for bona
fide business purposes not in excess of $15.0 million at any one time
outstanding;
(v) Currency Agreements and Interest Swap Obligations entered into
in the ordinary course of the Company's or its Restricted Subsidiaries'
businesses and otherwise in compliance with this Indenture;
(vi) Investments in securities received in settlement of obligations
of trade creditors or customers in the ordinary course of business or in
satisfaction of judgments or pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of such trade
creditors or customers; and Investments made in settlement or exchange for
extensions of trade credit (including trade receivables) by the Company
and its Restricted Subsidiaries on commercially reasonable terms in
accordance with normal trade practices of the Company or such Restricted
Subsidiary, as the case may be;
(vii) Investments made by the Company or its Restricted Subsidiaries
as a result of consideration received in connection with an Asset Sale
made in compliance with Section 4.16, or not constituting an Asset Sale by
reason of the $5.0 million threshold contained in the definition thereof;
(viii) guarantees permitted by Section 4.19;
(ix) Related Business Investments in companies and ventures in which
the Company or a Restricted Subsidiary of the Company holds an equity
ownership interest in an aggregate amount not to exceed $150.0 million;
provided that any such Investment is not made with the intent that the
proceeds from such Investment would be used, or in contemplation of the
proceeds from such Investment being used, and are not contemporaneously
with such Investment used, to purchase Capital Stock of the Company or
Holdings;
(x) Investments made in connection with a Qualified Receivables
Transaction;
(xi) any acquisition of assets solely in exchange for the issuance
of Qualified Capital Stock of the Company;
(xii) Investments existing on the Issue Date and any renewal or
replacement thereof on terms and conditions not materially less favorable
taken as a whole than those of the Investment being renewed or replaced;
22
(xiii) workers' compensation, utility, lease and similar deposits
and prepaid expenses in the ordinary course of business and endorsements
of negotiable instruments and documents in the ordinary course of
business;
(xiv) advances, loans or extensions of credit to suppliers and
vendors in the ordinary course of business;
(xv) reclassification of any Investment initially made in the form
of equity as a loan or advance, and reclassification of any Investment
initially made in the form of a loan or advance as equity; provided in
each case that the amount of such Investment is not increased thereby; and
(xvi) additional Investments to the extent such Investments, when
taken together with all other Investments made pursuant to this clause
(xvi) and then outstanding, do not exceed 10.0% of Consolidated Net
Tangible Assets (determined as of the date of the most recent available
internal balance sheet of the Company and its Subsidiaries); provided that
the Person in which any such Investment is made is not an Affiliate of the
Company (unless such Person is an Affiliate of the Company solely because
the Company, directly or indirectly, owns Capital Stock of, or controls,
such Person), and provided further that any such Investment is not made
with the intent that the proceeds from such Investment would be used, or
in contemplation of the proceeds from such Investment being used, and are
not contemporaneously with such Investment used, to purchase Capital Stock
of the Company or Holdings.
"Permitted Liens" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent, or (b) being contested in good faith by
appropriate proceedings and as to which the Company or any of its
Restricted Subsidiaries shall have set aside on its books such reserves as
may be required pursuant to GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business; Liens in favor
of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods; and
any other Liens imposed by operation of law which do not materially affect
the Company's ability to perform its obligations under the Notes and this
Indenture;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security or similar obligations, including any
Lien securing letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money bonds
and other similar obligations (exclusive of obligations for the payment of
borrowed money);
(iv) judgment Liens not giving rise to an Event of Default so long
as such Lien is adequately bonded and any appropriate legal proceedings
which may have been duly
23
initiated for the review of such judgment shall not have been finally
terminated or the period within which such proceedings may be initiated
shall not have expired;
(v) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of the Company
or any of its Restricted Subsidiaries;
(vi) any interest or title of a lessor under any lease, whether or
not characterized as capital or operating; provided that such Liens do not
extend to any property or assets which is not leased property subject to
such lease;
(vii) Liens securing Capitalized Lease Obligations and Purchase
Money Indebtedness incurred in accordance with Section 4.12; provided,
however, that in the case of Purchase Money Indebtedness
(A) the Indebtedness shall not exceed the cost of such
property or assets being acquired or constructed and shall not be
secured by any property or assets of the Company or any Restricted
Subsidiary of the Company other than the property and assets being
acquired or constructed, and
(B) the Lien securing such Indebtedness shall be created
within 90 days of such acquisition or construction;
(viii) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
(ix) Liens securing reimbursement obligations with respect to
letters of credit which encumber documents and other property relating to
such letters of credit and products and proceeds thereof;
(x) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of offset
and set-off;
(xi) Liens securing Interest Swap Obligations that relate to
Indebtedness that is otherwise permitted under this Indenture;
(xii) Liens securing Indebtedness under Currency Agreements;
(xiii) Liens securing Acquired Indebtedness incurred in accordance
with Section 4.12; provided that
(A) such Liens secured such Acquired Indebtedness at the time
of and prior to the incurrence of such Acquired Indebtedness by the
Company or a Restricted Subsidiary of the Company and were not
granted in connection with, or in anticipation of, the incurrence of
such Acquired Indebtedness by the Company or a Restricted Subsidiary
of the Company, and
24
(B) such Liens do not extend to or cover any property or
assets of the Company or of any of its Restricted Subsidiaries other
than the property or assets that secured the Acquired Indebtedness
prior to the time such Indebtedness became Acquired Indebtedness of
the Company or a Restricted Subsidiary of the Company and are no
more favorable to the lienholders than those securing the Acquired
Indebtedness prior to the incurrence of such Acquired Indebtedness
by the Company or a Restricted Subsidiary of the Company;
(xiv) leases or subleases granted to others not interfering in any
material respect with the business of the Company or its Restricted
Subsidiaries;
(xv) Liens arising out of consignment or similar arrangements for
the sale of goods entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business;
(xvi) Liens on Receivables Program Assets securing Receivables
Program Obligations;
(xvii) Liens on property existing at the time of acquisition of such
property by the Company or any Restricted Subsidiary; provided that such
Liens were in existence prior to the contemplation of such acquisition;
(xviii) Liens existing on the Issue Date;
(xix) rights of banks to set off deposits against debts owned to
such banks; and
(xx) Liens on assets that are the subject of a Sale and Leaseback
Transaction permitted by this Indenture.
"Person" means an individual, partnership, corporation, limited liability
company, unincorporated organization, trust or joint venture, or a governmental
agency or political subdivision thereof.
"Preferred Stock" of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"principal" of any Indebtedness (including the Notes) means the
outstanding principal amount of such Indebtedness plus the premium, if any, on
such indebtedness. For purposes of clarity, it is hereby understood and agreed
that references to "principal" shall mean and include "premium, if any"
notwithstanding the fact that there may be references in this Indenture or the
Notes to "principal and premium, if any."
"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.
"Proceeds Purchase Date" has the meaning provided in Section 4.16.
25
"pro forma" means, with respect to any calculation made or required to be
made pursuant to the terms of this Indenture, a calculation in accordance with
Article 11 of Regulation S-X under the Securities Act, except as otherwise
specified herein.
"Purchase Money Indebtedness" means Indebtedness of the Company or any of
its Restricted Subsidiaries incurred in the normal course of business for the
purpose of financing all or any part of the purchase price, or the cost of
installation, construction or improvement, of real or personal property or
assets.
"Purchase Money Note" means a promissory note evidencing the obligation of
a Receivables Subsidiary to pay the purchase price for Receivables or other
indebtedness to the Company or to any other Seller in connection with a
Qualified Receivables Transaction, which note shall be repaid from cash
available to the maker of such note, other than cash required to be held as
reserves pursuant to Receivables Documents, amounts paid in respect of interest,
principal and other amounts owing under Receivables Documents and amounts paid
in connection with the purchase of newly generated Receivables.
"Qualified Capital Stock" means any Capital Stock that is not Disqualified
Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning specified
in Rule 144A under the Securities Act.
"Qualified Receivables Transaction" means any transaction or series of
transactions that may be entered into by the Company or any Subsidiary of the
Company pursuant to which the Company or any such Subsidiary may sell, convey or
otherwise transfer to a Receivables Subsidiary (in the case of a transfer by the
Company or any other Seller) and any other person (in the case of a transfer by
a Receivables Subsidiary), or may grant a security interest in, any Receivables
Program Assets (whether existing on the date of this Indenture or arising
thereafter); provided that:
(a) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of a Receivables Subsidiary or Special Purpose
Vehicle
(i) is guaranteed by the Company or any other Seller
(excluding guarantees of obligations pursuant to Standard
Securitization Undertakings),
(ii) is recourse to or obligates the Company or any other
Seller in any way other than pursuant to Standard Securitization
Undertakings, or
(iii) subjects any property or asset of the Company or any
other Seller, directly or indirectly, contingently or otherwise, to
the satisfaction of obligations incurred in such transactions, other
than pursuant to Standard Securitization Undertakings;
(b) neither the Company nor any other Seller has any material
contract, agreement, arrangement or understanding with a Receivables
Subsidiary or a Special Purpose Vehicle (except in connection with a
Purchase Money Note or Qualified Receivables Transaction) other than on
terms no less favorable to the Company or such Seller than those that
might be obtained at the time from Persons that are not Affiliates of
26
the Company, other than fees payable in the ordinary course of business in
connection with servicing accounts receivable; and
(c) the Company and the other Sellers do not have any obligation to
maintain or preserve the financial condition of a Receivables Subsidiary
or a Special Purpose Vehicle or cause such entity to achieve certain
levels of operating results other than Standard Securitization
Undertakings.
"Rating Agencies" means ▇▇▇▇▇'▇ and S&P.
"Rating Date" means the date which is 90 days prior to the earlier of (i)
a Change of Control and (ii) public notice of the occurrence of a Change of
Control.
"Rating Decline" means the occurrence of the following on, or within 90
days after, the date of public notice of the occurrence of a Change of Control
or of the intention by the Company to effect a Change of Control (which period
may be extended so long as the rating of the Notes is under publicly announced
consideration for possible downgrade by any of the Rating Agencies): (a) in the
event the Notes are assigned an Investment Grade Rating by both Rating Agencies
on the Rating Date, the rating of the Notes by one or both of the Rating
Agencies shall be below an Investment Grade Rating; or (b) in the event the
Notes are rated below an Investment Grade Rating by at least one of the Rating
Agencies on the Rating Date, the rating of the Notes by at least one of the
Rating Agencies shall be decreased by one or more gradations (including
gradations within rating categories as well as between rating categories).
"Receivables" means all rights of the Company or any other Seller to
payments (whether constituting accounts, chattel paper, instruments, general
intangibles or otherwise, and including the right to payment of any interest or
finance charges), which rights are identified in the accounting records of the
Company or such Seller as accounts receivable.
"Receivables Documents" means:
(a) a receivables purchase agreement, pooling and servicing
agreement, credit agreement, agreements to acquire undivided interests or
other agreement to transfer, or create a security interest in, Receivables
Program Assets, in each case as amended, modified, supplemented or
restated and in effect from time to time and entered into by the Company,
another Seller and/or a Receivables Subsidiary, and
(b) each other instrument, agreement and other document entered into
by the Company, any other Seller or a Receivables Subsidiary relating to
the transactions contemplated by the agreements referred to in clause (a)
above, in each case as amended, modified, supplemented or restated and in
effect from time to time.
"Receivables Program Assets" means:
(a) all Receivables which are described as being transferred by the
Company, another Seller or a Receivables Subsidiary pursuant to the
Receivables Documents;
(b) all Receivables Related Assets; and
27
(c) all collections (including recoveries) and other proceeds of the
assets described in the foregoing clauses.
"Receivables Program Obligations" means:
(a) notes, trust certificates, undivided interests, partnership
interests or other interests representing the right to be paid a specified
principal amount for the Receivables Program Assets, and
(b) related obligations of the Company, a Subsidiary of the Company
or a Special Purpose Vehicle (including, without limitation, rights in
respect of interest or yield, breach of warranty claims and expense
reimbursement and indemnity provisions).
"Receivables Related Assets" means:
(i) any rights arising under the documentation governing or relating
to Receivables (including rights in respect of liens securing such
Receivables and other credit support in respect of such Receivables);
(ii) any proceeds of such Receivables and any lockboxes or accounts
in which such proceeds are deposited;
(iii) spread accounts and other similar accounts (and any amounts on
deposit therein) established in connection with a Qualified Receivables
Transaction;
(iv) any warranty, indemnity, dilution and other intercompany claim
arising out of Receivables Documents; and
(v) other assets which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitization transactions involving accounts receivable.
"Receivables Subsidiary" means a special purpose wholly owned subsidiary
of the Company created in connection with the transactions contemplated by a
Qualified Receivables Transaction, which subsidiary engages in no activities
other than those incidental to such Qualified Receivables Transaction and which
is designated as a Receivables Subsidiary by the Company's Board of Directors.
Any such designation by the Board of Directors shall be evidenced by filing with
the Trustee a Board Resolution of the Company giving effect to such designation
and an Officers' Certificate certifying, to the best of such officers' knowledge
and belief after consulting with counsel, such designation, and the transactions
in which the Receivables Subsidiary will engage, comply with the requirements of
the definition of Qualified Receivables Transaction.
"Record Date" means each of the dates designated as such in the Notes,
whether or not a Legal Holiday.
"Redemption Date," when used with respect to any Note to be redeemed,
means the date fixed for such redemption pursuant to this Indenture and the
Notes.
28
"Redemption Price," when used with respect to any Note to be redeemed,
means the price fixed for such redemption pursuant to this Indenture and the
Notes.
"Reference Date" has the meaning provided in Section 4.10.
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness, in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the Company or any
Restricted Subsidiary of the Company of Indebtedness incurred in accordance with
Section 4.12 (other than pursuant to clauses (ii), (iv), (v), (vi), (vii),
(viii), (ix), (x), (xi), (xii), (xiii), (xv), (xvi), (xvii) or (xviii) of the
definition of Permitted Indebtedness), in each case that does not:
(1) result in an increase in the aggregate principal amount of
Indebtedness of such Person as of the date of such proposed Refinancing
(plus the amount of any premium required to be paid under the terms of the
instrument governing such Indebtedness and plus the amount of reasonable
expenses incurred by the Company in connection with such Refinancing); or
(2) create Indebtedness with
(A) a Weighted Average Life to Maturity that is less than the
Weighted Average Life to Maturity of the Indebtedness being
Refinanced, or
(B) a final maturity earlier than the final maturity of the
Indebtedness being Refinanced; provided that
(x) if such Indebtedness being Refinanced is solely
Indebtedness of the Company, then such Refinancing
Indebtedness shall be Indebtedness solely of the Company, and
(y) if such Indebtedness being Refinanced is subordinate
or junior to the Notes or any Guarantee, then such Refinancing
Indebtedness shall be subordinate to the Notes or such
Guarantee, as the case may be, at least to the same extent and
in the same manner as the Indebtedness being Refinanced.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights Agreement to
be dated the Issue Date among the Company, Holdings, as Guarantor, the
Subsidiary Guarantors and the placement agents for the benefit of themselves and
the Holders, as the same may be amended or modified from time to time in
accordance with the terms thereof.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a Global Note in substantially the form
of Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or
29
on behalf of and registered in the name of the Depositary or its nominee, issued
in a denomination initially equal to the outstanding principal amount of the
Notes sold in reliance on Rule 903 of Regulation S.
"Related Business Investment" means:
(i) any Investment by a Person in any other Person a majority of
whose revenues are derived from the food, food distribution or related
businesses; and
(ii) any Investment by such Person in any cooperative or other
supplier, including, without limitation, any joint venture which is
intended to supply any product or service useful to the business of the
Company and its Restricted Subsidiaries.
"Replacement Assets" has the meaning provided in Section 4.16.
"Representative" means the indenture trustee or other trustee, agent or
representative in respect of any Designated Senior Debt; provided that, if and
for so long as any Designated Senior Debt lacks such a representative, then the
Representative for such Designated Senior Debt shall at all times constitute the
holders of a majority in outstanding principal amount of such Designated Senior
Debt.
"Restricted Definitive Note" means a Definitive Note bearing the Private
Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private Placement
Legend.
"Restricted Payment" has the meaning provided in Section 4.10.
"Restricted Subsidiary" of any Person means any Subsidiary of such Person
which at the time of determination is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A (or any successor thereto) under the
Securities Act.
"Sale and Leaseback Transaction" means any direct or indirect arrangement
with any Person or to which any such Person is a party, providing for the
leasing to the Company or a Restricted Subsidiary of the Company of any
property, whether owned by the Company or any Restricted Subsidiary at the Issue
Date or later acquired, which has been or is to be sold or transferred by the
Company or such Restricted Subsidiary to such Person or to any other Person from
whom funds have been or are to be advanced by such Person on the security of
such Property.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute or statutes thereto.
"Seller" means the Company or any Subsidiary or other Affiliate of the
Company (other than a Receivables Subsidiary) which is a party to a Receivables
Document.
30
"Senior Debt" means the principal of, premium, if any, and interest
(including any interest accruing subsequent to the filing of a bankruptcy
petition at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law) on any
Indebtedness of the Company, whether outstanding on the Issue Date or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Notes. Without limiting the generality
of the foregoing, "Senior Debt" shall also include the principal of, premium, if
any, interest (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of:
(x)all monetary obligations (including guarantees thereof) of every
nature of the Company under the Credit Agreement, including, without limitation,
obligations to pay principal and interest, reimbursement obligations under
letters of credit, fees, expenses and indemnities;
(y) all Interest Swap Obligations (including guarantees thereof);
and
(z) all obligations (including guarantees thereof) under Currency
Agreements, in each case whether outstanding on the Issue Date or thereafter
incurred.
Notwithstanding the foregoing, Senior Debt shall not include:
(i) any Indebtedness of the Company to a Subsidiary of the
Company;
(ii) Indebtedness to, or guaranteed by the Company for the
benefit of, any shareholder (other than a parent corporation),
director, officer or employee of the Company or any Subsidiary of
the Company (including, without limitation, amounts owed for
compensation);
(iii) Indebtedness to trade creditors and other amounts
incurred in connection with obtaining goods, materials or services;
(iv) Indebtedness represented by Disqualified Capital Stock;
(v) any liability for federal, state, local or other taxes
owed or owing by the Company;
(vi) any Indebtedness incurred in violation of the provisions
of this Indenture; and
(vii) the Existing Notes and any Indebtedness, and any other
obligation referred to in clause (x), (y) or (z) of this definition,
which in each case is, by its express terms or by the express terms
of the instrument or agreement creating or evidencing the same or
pursuant to which the same is outstanding, subordinated in right of
payment to any other Indebtedness of the Company.
31
For purposes of clause (vi) of the immediately preceding proviso, a good
faith determination by the Board of Directors evidenced by a Board Resolution,
or a good faith determination by the Chief Financial Officer of the Company
evidenced by an Officers' Certificate, that any Indebtedness being incurred
under the Credit Agreement is permitted by this Indenture shall be conclusive.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"Significant Subsidiary" shall have the meaning set forth in Rule 1.02(w)
of Regulation S-X under the Securities Act as in effect on the Issue Date.
"S&P" means Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"Special Purpose Vehicle" means a trust, partnership or other special
purpose Person established by the Company and/or any of its Subsidiaries to
implement a Qualified Receivables Transaction.
"Spring-back Date" has the meaning provided in Section 4.22(b).
"Standard Securitization Undertakings" means representations, warranties,
covenants and indemnities entered into by the Company or any Subsidiary of the
Company which, in the good faith judgment of the Board of Directors of the
appropriate company, are reasonably customary in an accounts receivable
transaction.
"Subsidiary" with respect to any Person, means:
(i) any corporation of which the outstanding Capital Stock having at
least a majority of the votes entitled to be cast in the election of
directors under ordinary circumstances shall at the time be owned,
directly or indirectly, by such Person or
(ii) any other Person of which at least a majority of the voting
interest under ordinary circumstances is at the time owned, directly or
indirectly, by such Person.
"Subsidiary Guarantor" means any Restricted Subsidiary which has
guaranteed the Notes under this Indenture.
"Surviving Entity" has the meaning provided in Section 5.01.
"Surviving Parent Entity" has the meaning provided in Section 5.03.
"Suspended Covenants" has the meaning provided in Section 4.22(a).
"Suspension Period" has the meaning provided in Section 4.22(a).
"Tax Sharing Agreement" means the tax sharing agreement between the
Company and Holdings allocating the obligations to contribute amounts for the
payment of income taxes and the benefits of any credits or other reductions of
tax payments so as to approximate the income
32
taxes that would be payable by the Company and Holdings on a stand-alone basis
if no consolidated tax return were filed by such entities.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended, as in effect on the date of this Indenture, except as
otherwise provided in Section 9.04.
"Treasury Rate" has the meaning set forth in Section 4.15(a).
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means, with respect to the Trustee, any Vice President,
any Assistant Vice President, any Assistant Secretary, any Assistant Treasurer,
any Assistant Trust Officer, any Trust Officer or any other officer associated
with the corporate trust department of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
"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 in substantially
the form of Exhibit A hereto that bears the Global Note 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" of any Person means:
(i) any Subsidiary of such Person that at the time of determination
shall be or continue to be designated an Unrestricted Subsidiary by the
Board of Directors of such Person in the manner provided below and
(ii) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate any Subsidiary of the
Company (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or
owns or holds any Lien on any property of, the Company or any other Subsidiary
of the Company that is not a Subsidiary of the Subsidiary to be so designated;
provided that
(x) the Company certifies to the Trustee that such designation
complies with Section 4.10, and
(y) each Subsidiary to be so designated and each of its Subsidiaries
has not at the time of designation, and does not thereafter, create,
incur, issue, assume, guarantee or otherwise become directly or indirectly
liable with respect to any Indebtedness pursuant
33
to which the lender thereof has recourse to any of the assets of the
Company or any of its Restricted Subsidiaries (after giving effect to the
release of any guarantees of such Subsidiary's Indebtedness to be made in
connection with such designation).
The Board of Directors of the Company may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided, that such designation shall be deemed
an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if:
(x) such Indebtedness is permitted under Section 4.12, calculated on
a pro forma basis as if such designation had occurred at the beginning of
the four-quarter reference period; and
(y) immediately before and immediately after giving effect to such
designation, no Default or Event of Default shall have occurred and be
continuing.
Any such designation by the Board of Directors of the Company shall be evidenced
to the Trustee by promptly filing with the Trustee a copy of the Board
Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations of, and obligations
guaranteed by, the United States for the payment of which the full faith and
credit of the United States is pledged.
"U.S. Legal Tender" means such coin or currency of the United States as at
the time of payment shall be legal tender for the payment of public and private
debts.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing
(a) the then outstanding aggregate principal amount of such
Indebtedness into
(b) the sum of the total of the products obtained by multiplying
(i) the amount of each then remaining installment, sinking
fund, serial maturity or other required payment of principal,
including payment at final maturity, in respect thereof, by
(ii) the number of years (calculated to the nearest
one-twelfth) which will elapse between such date and the making of
such payment.
"Wholly Owned Restricted Subsidiary" of any Person means any Restricted
Subsidiary of such Person of which all the outstanding voting securities (other
than, in the case of a foreign Restricted Subsidiary, directors' qualifying
shares or an immaterial amount of shares otherwise required to be owned by other
Persons pursuant to applicable law) are owned by such Person or any Wholly Owned
Restricted Subsidiary of such Person.
34
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such provision
is incorporated by reference in, and made a part of, this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder or a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular; and
(5) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
(a) The Notes and the Trustee's 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 rule or usage. Each Note
shall be dated the date of its authentication. The Notes shall be in
denominations of $1,000 and integral multiples thereof. The terms and
35
provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the Company, 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.
(b) 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 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 therein and each
shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee or the Notes Custodian, at the direction of
the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
(c) 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" 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.
(d) The Company shall exchange Global Notes for Definitive Notes if: (1)
at any time the Depositary notifies the Company that it is unwilling or unable
to continue to act as Depositary for the Global Notes or if at any time the
Depositary shall no longer be eligible to act as such because it ceases to be a
clearing agency registered under the Exchange Act, and, in either case, the
Company shall not have appointed a successor Depositary within 90 days after the
Company receives such notice or becomes aware of such ineligibility, (2) the
Company, at its option, determines that the Global Notes shall be exchanged for
Definitive Notes and delivers a written notice to such effect to the Trustee or
(3) upon written request of a Holder or the Trustee if a Default or Event of
Default shall have occurred and be continuing.
Upon the occurrence of any of the events set forth in clauses (1), (2) or
(3) above, the Company shall execute, and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall authenticate and
deliver, Definitive Notes, in authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Notes in exchange
for such Global Notes.
Upon the exchange of a Global Note for Definitive Notes, such Global Note
shall be cancelled by the Trustee or an agent of the Company or the Trustee.
Definitive Notes issued in exchange for a Global Note pursuant to this Section
2.01 shall be registered in such names and in such authorized denominations as
the Depositary, pursuant to instructions from its Participants or its Applicable
Procedures, shall instruct the Trustee or an agent of the Company or the Trustee
in writing. The Trustee or such agent shall deliver such Definitive Notes to or
as directed by the Persons in whose names such Definitive Notes are so
registered or to the Depositary.
36
SECTION 2.02. Execution and Authentication; Aggregate Principal Amount.
Two Officers shall sign (each of whom shall, in each case, have been duly
authorized by all requisite corporate actions) the Notes for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Note was an Officer at the time of
such execution but no longer holds that office or position at the time the
Trustee authenticates the Note, the Note shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the Trustee or
the Authenticating Agent manually signs the certificate of authentication on the
Note. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee shall, upon a written order of the Company (an "Authentication
Order"), authenticate (i) Initial Notes for original issue in the aggregate
principal amount not to exceed $250,000,000, (ii) subject to Section 2.15,
Additional Notes, and (iii) Exchange Notes from time to time for issue only in
exchange for a like principal amount of Initial Notes or Additional Notes, in
each case upon written orders of the Company in the form of an Officers'
Certificate. The Officers' Certificate shall specify the amount of Notes to be
authenticated, the date on which the Notes are to be authenticated and the
aggregate principal amount of Notes outstanding on the date of authentication,
whether the Notes are to be Initial Notes or Additional Notes or Exchange Notes,
and shall further specify the amount of such Notes to be issued as Global Notes
or Definitive Notes. The aggregate principal amount of Notes outstanding at any
time may not exceed $250,000,000 plus, if any Additional Notes are issued, the
aggregate principal amount of such Additional Notes, except as provided in
Section 2.07.
The Trustee shall not be required to authenticate Notes if the issuance of
such Notes pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Notes and this Indenture in a manner which is not
reasonably acceptable to the Trustee.
The Trustee may, at the expense of the Company, appoint an Authenticating
Agent (the "Authenticating Agent") reasonably acceptable to the Company to
authenticate Notes. Unless otherwise provided in the appointment, 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 Authenticating Agent. An Authenticating Agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
Any Person into which any Authenticating Agent may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which any Authenticating Agent shall be a party,
or any Person succeeding to all or substantially all of the corporate agency
business of any Authenticating Agent, shall continue to be the Authenticating
Agent without the execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee and the Company. The
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and the
Company, and upon such a termination, the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Company
37
and shall mail notice of such appointment (at the Company's expense) to all
Holders. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent. Any such Authenticating Agent shall be entitled
to reasonable compensation for its services and, if paid by the Trustee, it
shall be a reimbursable expense pursuant to Section 7.07.
The Notes shall be issuable in fully registered form only, without
coupons, in minimum denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be located in
the Borough of Manhattan in the City of New York, State of New York) where (a)
Notes may be presented or surrendered for registration of transfer or for
exchange (the "Registrar"), (b) Notes may be presented or surrendered for
payment (the "Paying Agent") and (c) notices and demands to or upon the Company
in respect of the Notes and this Indenture may be served. The Registrar shall
keep a register of the Notes and of their transfer and exchange. The Company,
upon prior written notice to the Trustee, may have one or more co-Registrars and
one or more additional paying agents reasonably acceptable to the Trustee. The
term "Paying Agent" includes any additional Paying Agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall incorporate the
provisions of the TIA and implement the provisions of this Indenture that relate
to such Agent. The Company shall notify the Trustee, in advance, of the name and
address of any such Agent. If the Company fails to maintain a Registrar, Paying
Agent and/or agent for service of notices and demands, or fails to give the
foregoing notice, the Trustee shall act as such.
The Paying Agent or Registrar may resign upon 30 days written notice to
the Company and the Trustee, provided that a replacement Paying Agent or
Registrar, as the case may be, has been duly appointed and has agreed to act as
such, or that the Trustee has assumed the duties of the Paying Agent or the
Registrar, as the case may be. The Company may remove any Agent upon written
notice to such Agent and the Trustee; provided that no such removal shall become
effective until (i) the acceptance of an appointment by a successor Agent to
such Agent as evidenced by an appropriate agency agreement entered into by the
Company and such successor Agent and delivered to the Trustee or (ii) agreement
by the Trustee that the Trustee shall serve as such Agent until the appointment
of a successor Agent in accordance with clause (i) of this proviso.
The Company initially appoints DTC to act as Depositary with respect to
the Global Notes.
The Company initially appoints the Trustee to act as Registrar and Paying
Agent and to act as Notes Custodian with respect to the Global Notes.
Upon the occurrence of an Event of Default described in Section 6.01(6) or
(7), the Trustee shall, or upon the occurrence of any other Event of Default by
notice to the Company,
38
the Registrar and the Paying Agent, the Trustee may, assume the duties and
obligations of the Registrar and the Paying Agent hereunder.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all assets held by the Paying Agent for the payment
of principal of, or interest on, the Notes (whether such assets have been
distributed to it by the Company or any other obligor on the Notes), and the
Company and the Paying Agent shall notify the Trustee of any Default by the
Company (or any other obligor on the Notes) in making any such payment. The
Company at any time may require a Paying Agent to distribute all assets held by
it to the Trustee and account for any assets disbursed and the Trustee may at
any time during the continuance of any payment Default or Event of Default, upon
written request to a Paying Agent, require such Paying Agent to distribute all
assets held by it to the Trustee and to account for any assets distributed. Upon
distribution to the Trustee of all assets that shall have been delivered by the
Company to the Paying Agent, the Paying Agent shall have no further liability
for such assets.
SECTION 2.05. Noteholder Lists.
The Registrar shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Trustee or any Paying Agent is not the Registrar, the
Company shall furnish or cause the Registrar to furnish to the Trustee or any
such Paying Agent on or before the third Business Day preceding each Record Date
and at such other times as the Trustee or any such Paying Agent may request in
writing a list as of such date and in such form as the Trustee may reasonably
require of the names and addresses of the Holders, which list may be
conclusively relied upon by the Trustee or any such Paying Agent.
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. Upon the occurrence of any of the
events set forth in Section 2.01(d) above, Definitive Notes shall be issued in
denominations of $1,000 or integral multiples thereof and in such names as the
Depositary shall instruct the Trustee in writing. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Except as provided above, 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 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a), and
beneficial interests in a Global Note may not be transferred and exchanged other
than as provided in Section 2.06(b), (c) or (f) hereof.
(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
39
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 Global Notes also shall
require compliance with either clause (i) or (ii) below, as applicable, as well
as one or more of the other following clauses, 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 and any Applicable
Procedures; provided, however, that prior to the expiration of the
Distribution Compliance Period, transfers of beneficial interests in the
Regulation S Global Note may not be made to or for the account or benefit
of a "U.S. Person" (as defined in Rule 902(k) of Regulation S) (other than
a "distributor" (as defined in Rule 902(d) of the Regulation S)).
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. Except as may be required by any Applicable
Procedures, 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) above, 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) if permitted under
Section 2.06(a), 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
(B)(1) above. Upon consummation of an Exchange Offer by the Company in
accordance with Section 2.06(f) hereof, 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, the Trustee shall adjust the principal amount of
the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests in a Restricted Global Note
to Another Restricted Global Note. A holder of a beneficial interest in a
Restricted Global Note may transfer such beneficial interest 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) above and the Registrar receives the following:
40
(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 or, if permitted by
the Applicable Procedures, item (3) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof.
(iv) Transfer or Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note. A
holder of a beneficial interest in a Restricted Global Note may exchange
such beneficial interest for a beneficial interest in an Unrestricted
Global Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if the exchange or transfer complies with the
requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with a Registration Rights Agreement
and the holder of the beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, makes any
and all certifications required in the applicable Letter of
Transmittal (or is deemed to have made such certifications if
delivery is made through the Applicable Procedures) as may be
required by such Registration Rights Agreement;
(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; or
(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 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 clause (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably
41
acceptable to the Registrar to the effect that such exchange or
transfer complies with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
If any such transfer or exchange is effected pursuant to clause (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall execute and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred or exchanged
pursuant to clause (B) or (D) above.
(v) Transfer or Exchange of Beneficial Interests in an Unrestricted
Global Note for Beneficial Interests in a Restricted Global Note
Prohibited. Beneficial interests in an Unrestricted Global Note may not be
exchanged for, or transferred to Persons who take delivery thereof in the
form of, beneficial interests in a Restricted Global Note.
(c) Transfer and Exchange of Beneficial Interests in Global Notes for
Definitive Notes.
(i) Transfer or Exchange of Beneficial Interests in Restricted
Global Notes for Restricted Definitive Notes. Subject to Section 2.06(a)
hereof, if any holder of a beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive
Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Restricted Definitive Note, then, upon
receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder 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 to the effect set forth
in 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 (as defined in Section
902(k) of Regulation S) in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (2) thereof;
(D) 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 clauses (B) and (C) 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; or
42
(E) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof,
the Trustee shall reduce or cause to be reduced in a corresponding amount
pursuant to Section 2.06(h) hereof, the aggregate principal amount of the
applicable Restricted Global Note, and the Company shall execute and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate and deliver a Restricted Definitive Note in
the appropriate principal amount to the Person designated by the holder of
such beneficial interest in the instructions delivered to the Registrar by
the Depositary and the applicable Participant or Indirect Participant on
behalf of such holder. Any Restricted Definitive Note issued in exchange
for beneficial interests in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall designate in such instructions. The Trustee shall deliver
such Restricted Definitive Notes to the Persons in whose names such Notes
are so registered. Any Restricted 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.
(ii) Transfer or Exchange of Beneficial Interests in Restricted
Global Notes for Unrestricted Definitive Notes. Subject to Section 2.06(a)
hereof, 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 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, makes any
and all certifications in the applicable Letter of Transmittal (or
is deemed to have made such certifications if delivery is made
through the Applicable Procedures) as may be required by such
Registration Rights Agreement;
(B) such transfer is effected pursuant to a Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to
an Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(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 in the form of Exhibit C hereto, including
the certifications in item (1)(b) thereof; or
43
(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 in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this clause (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 complies 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.
Upon satisfaction of any of the conditions of any of the clauses of
this Section 2.06(c)(ii), the Company shall execute and, upon receipt of
an Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate and deliver an Unrestricted Definitive Note in
the appropriate principal amount to the Person designated by the holder of
such beneficial interest in instructions delivered to the Registrar by the
Depositary and the applicable Participant or Indirect Participant on
behalf of such holder, and the Trustee shall reduce or cause to be reduced
in a corresponding amount pursuant to Section 2.06(h), the aggregate
principal amount of the applicable Restricted Global Note.
(iii) Transfer or Exchange of Beneficial Interests in Unrestricted
Global Notes for Unrestricted Definitive Notes. Subject to Section 2.06(a)
hereof, if any holder of a beneficial interest in an Unrestricted Global
Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Note,
then, upon satisfaction of the applicable conditions set forth in Section
2.06(b)(ii) hereof, the Trustee shall reduce or cause to be reduced in a
corresponding amount pursuant to Section 2.06(h) hereof, the aggregate
principal amount of the applicable Unrestricted Global Note, and the
Company shall execute and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and
deliver an Unrestricted Definitive Note in the appropriate principal
amount to the Person designated by the holder of such beneficial interest
in instructions delivered to the Registrar by the Depositary and the
applicable Participant or Indirect Participant on behalf of such holder.
Any Unrestricted Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall be registered in such
name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall designate in such instructions.
The Trustee shall deliver such Unrestricted Definitive Notes to the
Persons in whose names such Notes are so registered. Any Unrestricted
Definitive Note issued in exchange for a beneficial interest pursuant to
this Section 2.06(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests the
Global Notes.
(i) Transfer or Exchange of Restricted Definitive Notes for
Beneficial Interests in Restricted Global Notes. If any holder of a
Restricted Definitive Note
44
proposes to exchange such Restricted Definitive 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 Restricted Definitive Note for a beneficial
interest in a Restricted Global Note, a certificate from such holder
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 to the effect set
forth in Exhibit B hereto, including the certifications in item (1)
thereof; or
(C) if such Restricted Definitive Note is being transferred to
a "non-U.S. Person" in an offshore transaction (as defined in Rule
902(k) of Regulation S) in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (2) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause
to be increased in a corresponding amount pursuant to Section 2.06(h)
hereof, the aggregate principal amount of, in the case of clause (A)
above, the appropriate Restricted Global Note, in the case of clause (B)
above, a 144A Global Note, in the case of clause (C) above, a Regulation S
Global Note.
(ii) Transfer or Exchange of Restricted Definitive Notes for
Beneficial Interests in Unrestricted Global Notes. A holder of a
Restricted Definitive Note may exchange such Restricted Definitive 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 of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, makes any
and all certifications in the applicable Letter of Transmittal (or
is deemed to have made such certifications if delivery is made
through the Applicable Procedures) as may be required by such
Registration Rights Agreement;
(B) such transfer is effected pursuant to a Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to
an Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
45
(1) if the holder of such Restricted Definitive Note
proposes to exchange such Restricted Definitive Note for a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(2) if the holder of such Restricted Definitive Note
proposes to transfer such Restricted Definitive Note 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 clause (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 shall be effected in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend shall
no longer be required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the clauses in this Section
2.06(d)(ii), the Trustee shall cancel such Restricted Definitive Note and
increase or cause to be increased in a corresponding amount pursuant to Section
2.06(h) hereof, the aggregate principal amount of the Unrestricted Global Note.
(iii) Transfer or Exchange of Unrestricted Definitive Notes for
Beneficial Interests in Unrestricted Global Notes. A holder of an
Unrestricted Definitive Note may exchange such Unrestricted Definitive
Note for a beneficial interest in an Unrestricted Global Note or transfer
such Unrestricted Definitive Note 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 in a corresponding amount pursuant to
Section 2.06(h) hereof the aggregate principal amount of one of the
Unrestricted Global Notes.
(iv) Transfer or Exchange of Unrestricted Definitive Notes for
Beneficial Interests in Restricted Global Notes Prohibited. An
Unrestricted Definitive Note may not be exchanged for, or transferred to
Persons who take delivery thereof in the form of, beneficial interests in
a Restricted Global Note.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a holder of Definitive Notes and such holder's 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. 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) Transfer of Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and registered
in the name of
46
Persons who take delivery thereof in the form of a Restricted Definitive
Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, a
certificate 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, a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof;
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
a certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable; or
(D) If the transfer will be made to the Company or any of its
subsidiaries, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in Item 3(b) thereof.
(ii) Transfer or Exchange of Restricted Definitive Notes for
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 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, makes any and all certifications in the
applicable Letter of Transmittal (or is deemed to have made such
certifications if delivery is made through the Applicable
Procedures) as may be required by a Registration Rights Agreement;
(B) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a broker-dealer pursuant
to an Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such Restricted Definitive Note
proposes to exchange such Restricted Definitive Note for an
Unrestricted Definitive Note, a certificate from such holder
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 Restricted Definitive Notes to a
Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a
47
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 clause (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 complies 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.
Upon satisfaction of the conditions of any of the clauses of this Section
2.06(e)(ii), the Trustee shall cancel the prior Restricted Definitive Note and
the Company shall execute, and upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver
an Unrestricted Definitive Note in the appropriate aggregate principal amount to
the Person designated by the holder of such prior Restricted Definitive Note in
instructions delivered to the Registrar by such holder.
(iii) Transfer of Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A holder of Unrestricted Definitive Notes may transfer
such Unrestricted Definitive Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note. Upon receipt of a request
to register such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate (A) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the aggregate principal amount of the
beneficial interests in the applicable Restricted Global Notes (1) tendered for
acceptance by Persons that make any and all certifications in the applicable
Letters of Transmittal (or are deemed to have made such certifications if
delivery is made through the Applicable Procedures) as may be required by such
Registration Rights Agreement and (2) accepted for exchange in such Exchange
Offer and (B) Unrestricted Definitive Notes in an aggregate principal amount
equal to the aggregate principal amount of the Restricted Definitive Notes
tendered for acceptance by Persons who made the foregoing certifications and
accepted for exchange in the Exchange Offer. Concurrently with the issuance of
such Notes, the Trustee shall reduce or cause to be reduced in a corresponding
amount the aggregate principal amount of the applicable Restricted Global Notes,
and the Company shall execute and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver
to the Persons designated by the holders of Restricted Definitive Notes so
accepted Unrestricted Definitive Notes in the appropriate aggregate principal
amount.
(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 thereof) shall bear the legend in
substantially the following form:
48
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
OF REGULATION D UNDER THE SECURITIES ACT) OR (C) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT,
WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER
THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE
TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT
OF LESS THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
NOTE WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(K)
UNDER THE SECURITIES ACT AFTER THE ORIGINAL ISSUANCE OF
THE NOTES, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR, THE HOLDER MUST,
49
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE
COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
STATES," AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING RESTRICTIONS;
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.
(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 OR IN ACCORDANCE WITH SECTION 9.06 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 COMPANY."
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇)
("▇▇▇"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF
50
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
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 aggregate 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; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, the aggregate principal amount of
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.
(i) 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 Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 4.15, 4.16 and 9.06 hereof).
(ii) 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 Company, evidencing the same debt as
the Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange, and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly issued
hereunder.
(iii) Neither the Registrar nor the Company shall 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 pursuant to this Indenture and ending at
the close of business on the date 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.
51
(iv) Prior to due presentment for the registration of transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of, premium, if
any, and interest on such Note and for all other purposes, in each case
regardless of any notice to the contrary.
(v) 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.
(vi) The Trustee is hereby authorized and directed to enter into a
letter of representation with the Depositary in the form provided by the
Company and to act in accordance with such letter.
(vii) Each Holder of a Note agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange
or assignment of such Holder's Note in violation of any provision of this
Indenture and/or applicable United States Federal or state securities law.
(viii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between
or among Depositary Participants or beneficial owners of interests in any
Global Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if
and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.
(ix) Neither the Trustee nor any Agent shall have any responsibility
for any actions taken or not taken by the Depositary.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Registrar or if the Holder of a
Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee or any Authenticating Agent of the Trustee
shall authenticate a replacement Note if the Registrar's requirements are met.
If required by the Registrar or the Company, such Holder must provide an
affidavit of lost certificate and an indemnity bond or other indemnity,
sufficient, in the judgment of both the Company and the Registrar, to protect
the Company, the Trustee and any Agent from any loss which any of them may
suffer if a Note is replaced. The Company may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Note, including reasonable
fees and expenses of counsel. Every replacement Note shall constitute an
additional obligation of the Company.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by the Registrar, those
received by the Registrar for cancellation and those described in this Section
as not outstanding. Subject to the provisions of Section 2.09,
52
a Note does not cease to be outstanding because the Company or any of its
Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless the
Registrar receives an Opinion of Counsel that the replaced Note is held by a
bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender of
such Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent (other than
the Company or one of its Affiliates) holds U.S. Legal Tender or U.S. Government
Obligations sufficient to pay all of the principal and interest due on the Notes
payable on that date and is not prohibited from paying such money to the Holders
thereof pursuant to the terms of this Indenture, then on and after that date
such Notes cease to be outstanding and interest on them ceases to accrue.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver, consent or notice, Notes owned by
the Company or any of its Affiliates shall be considered as though they are 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 which a Trust Officer of the Trustee actually knows are so owned shall be
so considered. The Company shall notify the Trustee, in writing, when it or any
of its Affiliates repurchases or otherwise acquires Notes, of the aggregate
principal amount of such Notes so repurchased or otherwise acquired. If the
Company or any of its Affiliates acquire any Initial Notes or Additional Notes,
the Company shall not resell or transfer, and shall cause its Affiliate not to
resell or transfer, any such Notes.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Notes upon receipt of a written order
of the Company in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of temporary Notes to be authenticated and
the date on which the temporary Notes are to be authenticated. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare, and the Trustee shall authenticate upon
receipt of a written order of the Company pursuant to Section 2.02, definitive
Notes in exchange for temporary Notes.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Registrar for
cancellation. The Paying Agent shall forward to the Registrar any Notes
surrendered to it for registration of transfer, exchange, purchase or payment.
The Registrar shall cancel and, at the written direction of the Company, shall
dispose of all Notes surrendered for registration of transfer, exchange,
purchase, payment or cancellation, provided that the Registrar shall not be
required to destroy such cancelled Notes. Subject to Section 2.07, the Company
may not issue new Notes to replace Notes that it has paid or delivered to the
Registrar for cancellation. If the Company shall acquire any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
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Indebtedness represented by such Notes unless and until the same are surrendered
to the Registrar for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest (including, without
limitation, Additional Interest) on the Notes, it shall pay the defaulted
interest, plus (to the extent lawful) any interest payable on the defaulted
interest to the Persons who are Holders on a subsequent special record date,
which date shall be the fifteenth day next preceding the date fixed by the
Company for the payment of defaulted interest or the next succeeding Business
Day if such date is not a Business Day. At least 15 days before the subsequent
special record date, the Company shall mail to each Person who was a Holder as
of a recent date selected by the Company, with a copy to the Trustee and the
Paying Agent, a notice that states the subsequent special record date, the
payment date and the amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" or "ISIN" numbers, and if
so, the Trustee shall use the CUSIP or ISIN numbers in notices of redemption or
exchange as a convenience to Holders; provided that no representation is hereby
deemed to be made by the Trustee as to the correctness or accuracy of the CUSIP
or ISIN numbers printed in the notice or on the Notes, and that reliance may be
placed only on the other identification numbers printed on the Notes. The
Company shall promptly notify the Trustee and the Registrar of any change in the
CUSIP or ISIN numbers.
SECTION 2.14. Deposit of Money.
Prior to 11:00 a.m. New York City time on each Interest Payment Date and
on the Maturity Date, any Redemption Date, Change of Control Payment Date, or
Net Proceeds Offer Payment Date or any offer date for any payment on the Notes,
the Company shall have deposited with the Paying Agent in immediately available
funds money sufficient to make cash payments, if any, due on such date, in a
timely manner which permits the Paying Agent to remit payment to the Holders on
such date.
SECTION 2.15. Issuance of Additional Notes.
The Company may, subject to compliance with Article Four of this Indenture
and applicable law, issue Additional Notes under this Indenture in an unlimited
principal amount. The Additional Notes shall rank equally and ratably with, and
identical to, the Initial Notes and the Exchange Notes in all respects. The
Notes issued on the Issue Date and any Additional Notes subsequently issued and
the Exchange Notes shall be treated as a single class of securities for all
purposes under this Indenture.
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ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Section 3.07 of this
Indenture or Section 6 of the Notes, it shall notify the Trustee and the Paying
Agent in writing of the Redemption Date and the principal amount of the Notes to
be redeemed.
The Company shall give each notice provided for in this Section 3.01 at
least 30 days but not more than 60 days before the Redemption Date (unless a
shorter notice period shall be satisfactory to the Trustee and the Paying Agent,
as evidenced in a writing signed on behalf of the Trustee and the Paying Agent),
together with an Officers' Certificate stating that such redemption complies
with the conditions contained herein and in the Notes.
SECTION 3.02. Selection of Notes To Be Redeemed.
If fewer than all of the Notes are to be redeemed, selection of the Notes
to be redeemed will be made by the Trustee in compliance with the requirements
of the principal national securities exchange applicable to it, if any, on which
the Notes are listed or, if the Notes are not then listed on a national
securities exchange, on a pro rata basis, by lot or in such other fair and
reasonable manner chosen at the discretion of the Trustee; provided, however,
that no Notes of a principal amount of $1,000 or less shall be redeemed in part;
provided, further that if a partial redemption is made with the proceeds of a
Equity Offering, selection of the Notes or portion thereof for redemption shall
be made by the Trustee only on a pro rata basis, or on as nearly a pro rata
basis as is practicable (subject to applicable procedures of the Depositary),
unless such method is otherwise prohibited. The Company shall promptly notify
the Trustee and the Paying Agent in writing of the date of listing and the name
of the securities exchange if and when the Notes are listed on a principal
national securities exchange. The Trustee shall make the selection from the
Notes outstanding and not previously called for redemption and shall promptly
notify the Company and the Paying Agent in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the
principal amount thereof to be redeemed. Notes in denominations of $1,000 may be
redeemed only in whole. The Trustee may select for redemption portions (equal to
$1,000 or any integral multiple thereof) of the principal of Notes that have
denominations larger than $1,000. 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.
At least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail or cause to be mailed a notice of redemption by first class
mail, postage prepaid, to each Holder whose Notes are to be redeemed at its
registered address, with a copy to the Trustee and any Paying Agent. At the
Company's written request, the Trustee shall give the notice of redemption in
the Company's name and at the Company's expense.
Each notice for redemption shall identify the Notes to be redeemed and
shall state:
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(1) the Redemption Date;
(2) the Redemption Price and the amount of premium and accrued
interest, if any, to be paid;
(3) the name and address of the Paying Agent;
(4) the subparagraph of the Notes pursuant to which such
redemption is being made;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued interest, if
any, and that interest on the Notes to be redeemed will cease to accrue on
and after the applicable Redemption Date, whether or not such Notes are
presented for payment.
(6) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders of
such Notes is to receive payment of the Redemption Price plus accrued
interest, if any, upon surrender to the Paying Agent of the Notes
redeemed;
(7) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date, and upon surrender of such Note, a new Note or Notes in
the aggregate principal amount equal to the unredeemed portion thereof
will be issued; and
(8) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption.
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 due and payable on the Redemption Date and at the
Redemption Price plus accrued interest, if any. Upon surrender to the Paying
Agent, such Notes called for redemption shall be paid at the Redemption Price,
plus accrued interest, if any, to the Redemption Date, but installments of
interest which are due and payable on dates falling on or prior to the
Redemption Date, shall be payable to Holders of record at the close of business
on the relevant Record Dates referred to in the Notes.
SECTION 3.05. Deposit of Redemption Price.
On or before 11:00 a.m. New York City time on the Redemption Date, the
Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the Redemption Price plus accrued interest, if any, of all Notes to be redeemed
on that date. The Paying Agent shall promptly (but in any event no later than
two Business Days) return to the Company any U.S. Legal Tender so deposited
which is not required for that purpose, except with respect to monies owed as
obligations to the Trustee pursuant to Article Seven.
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If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price plus accrued interest,
if any, interest on the Notes to be redeemed will cease to accrue on and after
the applicable Redemption Date, whether or not such Notes are presented for
payment.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the Company shall
execute and the Trustee shall authenticate for the Holder a new Note or Notes
equal in principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. Optional Redemption.
(a) The Notes will be redeemable, at the Company's option, in whole at
any time or in part from time to time, on and after February 15, 2010, upon not
less than 30 nor more than 60 days' notice, at the following Redemption Prices
(expressed as percentages of the principal amount of the Notes to be redeemed)
if redeemed during the twelve-month period commencing on February 15 of the
years set forth below, plus, in each case, accrued and unpaid interest thereon,
if any, to the Redemption Date, except that installments of interest which are
due and payable on dates falling on or prior to the applicable Redemption Date
will be payable to the persons who were the Holders of record at the close of
business on the relevant Record Dates.
Year Percentage
---- ----------
2010............................. 103.375%
2011............................. 102.250%
2012............................. 101.125%
2013 and thereafter.............. 100.00%
(b) At any time, or from time to time, on or prior to February 15, 2008,
the Company may, at its option, use the net cash proceeds of one or more Equity
Offerings to redeem Notes in an aggregate principal amount equal to up to 35% of
the aggregate principal amount of Notes (including any Additional Notes but
excluding the Exchange Notes) originally issued at a Redemption Price equal to
106.750% of the principal amount of the Notes to be redeemed plus accrued and
unpaid interest thereon, if any, to the Redemption Date, except that
installments of interest which are due and payable on dates falling on or prior
to the applicable Redemption Date will be payable to the persons who were the
Holders of record at the close of business on the relevant Record Dates;
provided that Notes in aggregate principal amount equal to at least 65% of the
principal amount of Notes (excluding any Additional Notes and also excluding the
Exchange Notes) originally issued remains outstanding immediately after any such
redemption.
In order to effect the foregoing redemption with the proceeds of any
Equity Offering, the Company shall make such redemption not more than 150 days
after the consummation of any such Equity Offering.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the Notes on the
dates and in the manner provided in the Notes and in this Indenture. An
installment of principal of or interest on the Notes shall be considered paid on
the date it is due if the Trustee or Paying Agent (other than the Company or an
Affiliate of the Company) holds on that date U.S. Legal Tender designated for
and sufficient to pay the installment in full and is not prohibited from paying
such money to the Holders pursuant to the terms of this Indenture.
In the event that the Exchange Offer is not consummated or a Shelf
Registration Statement is not declared effective on or prior to February 8,
2006, the annual interest rate borne by the Notes will be increased by 0.5%
until the Exchange Offer is consummated or the Shelf Registration Statement is
declared effective. Such 0.5% increase in the per annum rate of interest is
referred to herein as "Additional Interest."
The Company shall pay, to the extent such payments are lawful, interest on
overdue principal and on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the rate borne by the
Notes plus 2% per annum. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
Notwithstanding anything to the contrary contained in this Indenture, the
Company may, to the extent it is required to do so by law, deduct or withhold
income or other similar taxes imposed by the United States from principal or
interest payments hereunder.
SECTION 4.02. Maintenance of Office or Agency.
(a) The Company shall maintain the office or agency required under
Section 2.03. The Company shall give prior written notice to the Trustee and the
Paying Agent of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee and the Paying Agent with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the address of the Trustee set forth in Section 13.02.
(b) The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
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SECTION 4.03. Corporate Existence.
Except as otherwise permitted by Article Four, Article Five and Section
4.16, the Company shall do or cause to be done, at its own cost and expense, all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate existence of each of its Restricted Subsidiaries in
accordance with the respective organizational documents of each such Restricted
Subsidiary and the material rights (charter and statutory) and franchises of the
Company and each such Restricted Subsidiary.
SECTION 4.04. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Subsidiaries or
properties of it or any of its Subsidiaries and (ii) all lawful claims for
labor, materials and supplies that, if unpaid, might by law become a Lien upon
the property of it or any of its Subsidiaries; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings properly
instituted and diligently conducted for which adequate reserves, to the extent
required under GAAP, have been taken.
SECTION 4.05. Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its Restricted
Subsidiaries to, maintain its material properties in good working order and
condition (subject to ordinary wear and tear) and make all necessary repairs,
renewals, replacements, additions, betterments and improvements thereto and
actively conduct and carry on its business; provided, however, that nothing in
this Section 4.05 shall prevent the Company or any of its Restricted
Subsidiaries from discontinuing the operation and maintenance of any of its
properties, if such discontinuance is, in the good faith judgment of the Board
of Directors of the Company or the Restricted Subsidiary, as the case may be,
desirable in the conduct of their respective businesses and is not
disadvantageous in any material respect to the Holders.
(b) The Company shall provide or cause to be provided, for itself and
each of its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the good faith
judgment of the Board of Directors of the Company, are adequate and appropriate
for the conduct of the business of the Company and such Restricted Subsidiaries
in a prudent manner, with reputable insurers or with the government of the
United States or an agency or instrumentality thereof, in such amounts, with
such deductibles, and by such methods as shall be customary, in the good faith
judgment of the Board of Directors of the Company, for companies similarly
situated in the industry.
SECTION 4.06. Compliance Certificate; Notice of Default.
(a) The Company and each Guarantor shall deliver to the Trustee, within
90 days after the end of the Company's fiscal year, commencing with the first
full fiscal year after the date of this Indenture, an Officers' Certificate
stating that a review of its activities and the activities of its Subsidiaries
during the preceding fiscal year has been made under the supervision
59
of the signing Officers with a view to determining whether the Company or such
Guarantor, as the case may be, has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of such Officer's knowledge the
Company or such Guarantor, as the case may be, during such preceding fiscal year
has kept, observed, performed and fulfilled each and every such covenant and no
Default or Event of Default occurred during such year and at the date of such
certificate there is no Default or Event of Default that has occurred and is
continuing or, if such signers do know of such Default or Event of Default, the
certificate shall describe the Default or Event of Default and its status with
particularity. The Company shall also notify the Trustee should the Company
elect to change the manner in which it fixes its fiscal year end.
(b) The annual financial statements delivered pursuant to Section 4.08
shall be accompanied by a written report of the Company's independent
accountants (who shall be a firm of established national reputation) providing
that in conducting their audit of such financial statements nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article Four, Five or Six of this Indenture insofar as they
relate to accounting matters or, if any such violation has occurred, specifying
the nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Company
shall deliver to the Trustee, at its address set forth in Section 13.02 hereof,
by registered or certified mail or by facsimile transmission followed by hard
copy by registered or certified mail an Officers' Certificate specifying such
event, notice or other action within five Business Days of its becoming aware of
such occurrence. The Trustee shall not be deemed to have notice of any Default
or Event of Default unless one of its Trust Officers receives written notice
thereof from the Company or any of the Holders.
SECTION 4.07. Compliance with Laws.
The Company shall comply, and shall cause each of its Restricted
Subsidiaries to comply, with all applicable statutes, rules, regulations, orders
and restrictions of the United States, all states and municipalities thereof,
and of any governmental department, commission, board, regulatory authority,
bureau, agency and instrumentality of the foregoing, in respect of the conduct
of their respective businesses and the ownership of their respective properties,
except for such noncompliances as are not in the aggregate reasonably likely to
have a material adverse effect on the financial condition or results of
operations of the Company and its Restricted Subsidiaries, taken as a whole.
SECTION 4.08. SEC Reports.
(a) So long as the Notes are outstanding the Company shall deliver to
the Trustee within 15 days after the filing of the same with the SEC, copies of
the quarterly and annual reports and of the information, documents and other
reports, if any, which the Company is required to file with the SEC, pursuant to
Section 13 or 15(d) of the Exchange Act. Notwithstanding that the Company may
not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, so long as the Notes are outstanding the Company shall file with
the SEC, to the extent permitted, and provide the Trustee and Holders with such
annual
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reports and such information, documents and other reports specified in Sections
13 and 15(d) of the Exchange Act. For purposes of the foregoing provisions of
this paragraph, so long as:
(1) Holdings owns all of the issued and outstanding Capital Stock of the
Company;
(2) the aggregate amount of all Investments made by Holdings in any
Persons other than the Company and its Restricted Subsidiaries does not in the
aggregate exceed $5.0 million at any time outstanding; and
(3) the Company is not required to file separate reports with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act;
the filing and delivery of reports, information or documents which Holdings is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act in accordance with the provisions of this paragraph will satisfy the
Company's obligations under this paragraph. To the extent permitted by Section
314(a) of the TIA, each of the Company and Holdings, as the case may be, shall
be deemed to have provided such reports to the Trustee if it has filed such
reports with the SEC via the ▇▇▇▇▇ filing system (or any electronic filing
system that is a successor thereto). The Company shall also comply with the
other provisions of TIA Section 314(a).
SECTION 4.09. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 4.10. Limitation on Restricted Payments.
(a) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly,
(w) declare or pay any dividend or make any distribution (other
than dividends or distributions payable in Qualified Capital Stock of the
Company or in options, warrants or other rights to purchase such Qualified
Capital Stock) on or in respect of shares of the Company's Capital Stock
to holders of such Capital Stock,
(x) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Company or any warrants, rights or options to
purchase or acquire shares of any class of such Capital Stock (in each
case other than in exchange for Qualified Capital Stock of the Company or
options, warrants or other rights to purchase such Qualified Capital
Stock),
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(y) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund
payment, any Indebtedness of the Company that is subordinate or junior in
right of payment to the Notes or any Indebtedness of a Subsidiary
Guarantor that is subordinate or junior in right of payment to a
Guarantee, except the purchase, repurchase or other acquisition of any
such Indebtedness in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case, due within one year
of the date of such purchase, repurchase or other acquisition, or
(z) make any Investment (other than Permitted Investments), (each
of the foregoing actions set forth in clauses (w), (x), (y) and (z) being
referred to as a "Restricted Payment"), if at the time of such Restricted
Payment or immediately after giving effect thereto,
(i) a Default or an Event of Default shall have occurred and
be continuing, or
(ii) the Company is not able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.12, or
(iii) the aggregate amount of Restricted Payments (including
such proposed Restricted Payment) made subsequent to the Issue Date
shall exceed the sum of:
(A) 50% of the cumulative Consolidated Net Income (or
if cumulative Consolidated Net Income shall be a loss, minus
100% of such loss) of the Company earned subsequent to
September 30, 2002 and on or prior to the date on which the
Restricted Payment occurs or is to occur (the "Reference
Date") (treating such period as a single accounting period);
plus
(B) 100% of the aggregate net cash proceeds received
by the Company from any Person (other than a Subsidiary of the
Company) from the issuance and sale subsequent to the Issue
Date and on or prior to the Reference Date of Qualified
Capital Stock of the Company (including by conversion of
Indebtedness into Qualified Capital Stock) and 100% of the
fair market value of non-cash consideration received in any
such issuance and sale; (provided that, as further provided in
clause (vii) of Section 4.10(b), to the extent that the
Company does not realize cash from the proceeds of the
payment, sale or disposition of any such non-cash
consideration, the only Restricted Payments which shall be
permitted by reason of such non-cash consideration shall be
Restricted Payments which are made in kind of the non-cash
consideration so received) plus
(C) without duplication of any amounts included in
clause (iii) (B) above, 100% of the aggregate net cash
proceeds of any equity contribution received by the Company
subsequent to the Issue Date and on
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or prior to such Reference Date from a holder of the Company's
Capital Stock and 100% of the fair market value of non-cash
consideration of any such equity contribution received by the
Company from a holder of the Company's Capital Stock (provided
that, as further provided in clause (vii) of Section 4.10(b),
to the extent that the Company does not realize cash from the
proceeds of the payment, sale or disposition of any such
non-cash consideration, the only Restricted Payments which
shall be permitted by reason of such non-cash consideration
shall be Restricted Payments which are made in kind of the
non-cash consideration so received); plus
(D) without duplication, the sum of
(1) the aggregate amount returned in cash
subsequent to the Issue Date on or with respect to
Investments (other than Permitted Investments), whether
through interest payments, principal payments, dividends
or other distributions or payments,
(2) the net cash proceeds received by the Company
or any Restricted Subsidiary subsequent to the Issue
Date from the disposition of all or any portion of
Investments (other than Permitted Investments) (other
than any disposition to a Subsidiary of the Company) and
100% of the fair market value of non-cash consideration
received in any such disposition (provided that, as
further provided in clause (vii) of Section 4.10(b), to
the extent that the Company does not realize cash from
the proceeds of the payment, sale or disposition of any
such non-cash consideration, the only Restricted
Payments which shall be permitted by reason of such
non-cash consideration shall be Restricted Payments
which are made in kind of the non-cash consideration so
received), and
(3) upon redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary, the fair market
value of such Subsidiary, plus
(E) $125.0 million;
provided, however, that with respect to all Investments made in any Unrestricted
Subsidiary or joint venture, the sum of paragraphs (D)(1), (D)(2) and (D)(3)
above with respect to such Investment shall not exceed the aggregate amount of
all such Investments made subsequent to December 20, 2002 in such Unrestricted
Subsidiary or joint venture.
(b) Notwithstanding the foregoing, the provisions set forth in Section
4.10(a) do not prohibit:
(i) the payment of any dividend or the consummation of any
irrevocable redemption of debt that is subordinate to the Notes, within 60
days after the date of declaration of such dividend or the delivery of any
irrevocable notice of redemption, as the case may be, if the dividend or
redemption payment, as the case may be, would have
63
been permitted on the date of declaration or the date of the notice of
redemption, as the case may be;
(ii) the making of any Restricted Payment either:
(A) solely in exchange for shares of Qualified Capital Stock
of the Company or
(B) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary
of the Company) of shares of Qualified Capital Stock of the Company;
(iii) the repurchase, redemption, defeasance or other acquisition or
retirement of any Indebtedness of the Company that is subordinate or
junior in right of payment to the Notes or any Indebtedness of any
Subsidiary Guarantor that is subordinate or junior in right of payment to
a Guarantee either:
(A) in exchange for shares of Qualified Capital Stock of the
Company or Refinancing Indebtedness of the Company or such
Subsidiary Guarantor, as the case may be, or
(B) through the application of net proceeds of a
substantially concurrent incurrence or sale, as the case may be, for
cash (other than to a Subsidiary of the Company) of:
(1) shares of Qualified Capital Stock of the Company
or Holdings, provided that, in the case of Qualified Capital
Stock of Holdings, Holdings contributes to the capital of the
Company all or a portion of the net cash proceeds from the
sale of such Qualified Capital Stock in at least the amount
necessary to pay the aggregate acquisition cost of such
Indebtedness, or
(2) Refinancing Indebtedness;
(iv) so long as no Default or Event of Default shall have occurred
and be continuing, payments for the purpose of and in an amount equal to
the amount required to permit Holdings to redeem or repurchase Common
Stock of Holdings or options in respect thereof from employees, officers
or directors of Holdings or any of its Subsidiaries or their estates or
authorized representatives upon the death, disability or termination of
employment of such employees, officers or directors; provided, that the
aggregate price paid for all such redeemed or repurchased Common Stock may
not exceed $10.0 million in any fiscal year; provided, further that the
amount available in any given fiscal year shall be increased by the
excess, if any, of (i) $10.0 million over (ii) the amount used pursuant to
this clause (iv) in the immediately preceding two fiscal years; provided,
further, that the amount available in any given fiscal year shall be
increased in an amount not to exceed the cash proceeds from the issue or
sale of Qualified Capital Stock to any such employees, officers or
directors during such fiscal year to the extent proceeds from the issue or
sale of such Qualified Capital Stock have not otherwise been applied to
make Restricted Payments;
64
(v) the making of distributions, loans or advances in an amount
not to exceed $5.0 million per annum sufficient to permit Holdings to pay
the ordinary operating expenses of Holdings;
(vi) the payment of any amounts pursuant to the Tax Sharing
Agreement;
(vii) in the event that the Company has not realized cash from the
proceeds of the payment, sale or disposition of any non-cash consideration
referred to in clauses (iii)(B), (iii)(C) and (iii)(D)(2) of Section
4.10(a), Restricted Payments permitted by reason of such non-cash
consideration; provided, that such Restricted Payments may be made only in
kind of the non-cash consideration so received;
(viii) the declaration and payment of dividends to holders of any
class or series of Disqualified Capital Stock of the Company issued on or
after the Issue Date in compliance with Section 4.12;
(ix) the payment of any dividend by a Restricted Subsidiary of the
Company to the holders of its Common Stock on a pro rata basis; and
(x) other Restricted Payments in an aggregate amount since the
Issue Date not to exceed $75.0 million.
In determining the aggregate amount of Restricted Payments made subsequent to
December 20, 2002 in accordance with Section 4.10(a)(iii), amounts expended
pursuant to clauses (i), (ii), (vii), (viii), (ix), to the extent not paid to
the Company or its Restricted Subsidiaries, and (x) of this Section 4.10(b)
shall be included in such calculation and amounts expended pursuant to clauses
(ii), (iii), (v) and (vi) of this Section 4.10(b) shall be excluded from such
calculation.
(c) The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any assets or securities that are required to be valued
by this Section 4.10 for a Restricted Payment or any series of related
Restricted Payments shall be determined by (a) senior management of the Company
if the value of the assets or securities transferred or issued in such
Restricted Payment or series of related Restricted Payments is less than $10.0
million or (b) in all other cases, the Board of Directors of the Company.
(d) Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment complies with this Indenture and setting forth in reasonable
detail the basis upon which the required calculations were computed, which
calculations may be based upon the Company's or Holdings' latest available
internal quarterly financial statements. The Trustee shall have no duty or
obligation to recalculate or otherwise verify the accuracy of the calculations
set forth in any such Officers' Certificate.
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SECTION 4.11. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction or series of related transactions (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with, or for the benefit of, any of its Affiliates (each an "Affiliate
Transaction"), other than
(x) Affiliate Transactions permitted under Section 4.11(b) below,
and
(y) Affiliate Transactions on terms that are no less favorable to
the Company or the relevant Restricted Subsidiary than those that might
reasonably have been obtained in a comparable transaction at such time on
an arm's-length basis from a Person that is not an Affiliate of the
Company or such Restricted Subsidiary.
All Affiliate Transactions (and each series of related Affiliate Transactions
which are part of a common plan) involving aggregate payments or other property
with a fair market value in excess of $20.0 million shall be approved by the
Board of Directors of the Company or such Restricted Subsidiary, as the case may
be, such approval to be evidenced by a Board Resolution stating that such Board
of Directors has determined that such transaction complies with the foregoing
provisions. If the Company or any Restricted Subsidiary of the Company enters
into an Affiliate Transaction (or a series of related Affiliate Transactions
related to a common plan) that involves an aggregate fair market value or
payments to an Affiliate, as the case may be, of more than $50.0 million, the
Company or such Restricted Subsidiary, as the case may be, shall, prior to the
consummation thereof, obtain a favorable opinion as to the fairness of such
transaction or series of related transactions to the Company or the relevant
Restricted Subsidiary, as the case may be, from a financial point of view, from
an Independent Financial Advisor and file the same with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to:
(i) reasonable fees and compensation paid to (including
issuances and grant of securities and stock options, employment
agreements and stock option and ownership plans for the benefit of),
and indemnity provided on behalf of, officers, directors, employees
or consultants of the Company or any Restricted Subsidiary of the
Company as determined in good faith by the Company's Board of
Directors or senior management;
(ii) transactions between or among the Company and any of its
Restricted Subsidiaries or exclusively between or among such
Restricted Subsidiaries, provided that such transactions are not
otherwise prohibited by this Indenture;
(iii) any agreement as in effect as of the Issue Date or any
amendment thereto or any transaction contemplated thereby (including
pursuant to any amendment thereto or any replacement agreement
thereto so long as any such amendment or replacement agreement is
not more disadvantageous to the Holders, as determined in good faith
by the Company's Board of Directors, in any material respect than
the original agreement as in effect on the Issue Date);
66
(iv) (x) Restricted Payments that are permitted by Section
4.10 of the Indenture and (y) Permitted Investments in Affiliates of
the Company that are Affiliates solely because the Company, directly
or indirectly, owns Capital Stock of, or controls, such Person;
(v) the issuance of Qualified Capital Stock of the Company
or any Restricted Subsidiary of the Company;
(vi) loans or advances to employees and officers of the
Company and its Restricted Subsidiaries in the ordinary course of
business for bona fide business purposes not in excess of $15.0
million at any one time outstanding;
(vii) transactions permitted by, and complying with, Sections
5.01, 5.03 and 5.05; and
(viii) transactions with suppliers or other purchasers or
sales of goods or services, in each case in the ordinary course of
business (including, without limitation, pursuant to joint venture
agreements) and otherwise in compliance with the terms of this
Indenture which are fair to the Company in the good faith
determination of the Board of Directors of the Company or the senior
management of the Company and on terms at least as favorable as
might reasonably have been obtained at such time from an
unaffiliated party;
(ix) any reasonable and customary directors' fees,
indemnification and similar arrangements, consulting fees, employee
salaries, bonuses or employment agreements, compensation or employee
benefit arrangements and incentive arrangements with any officer,
director or employee of the Company or a Restricted Subsidiary of
the Company; and
(x) Qualified Receivables Transactions.
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
acquire, become liable, contingently or otherwise, with respect to, or otherwise
become responsible for payment of (collectively, "incur") any Indebtedness
(other than Permitted Indebtedness); provided, however, that if no Default or
Event of Default shall have occurred and be continuing at the time or as a
consequence of the incurrence of any such Indebtedness, the Company or its
Restricted Subsidiaries may incur Indebtedness (including, without limitation,
Acquired Indebtedness) if on the date of the incurrence of such Indebtedness,
after giving effect to the incurrence thereof on a pro forma basis, the
Consolidated Fixed Charge Coverage Ratio of the Company is greater than 2.0 to
1.0.
SECTION 4.13. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.
(a) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become
67
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary of the Company to:
(i) pay dividends or make any other distributions on or in respect
of its Capital Stock;
(ii) make loans or advances or to pay any Indebtedness or other
obligation owed to the Company or any other Restricted Subsidiary of the
Company; or
(iii) transfer any of its property or assets to the Company or any
other Restricted Subsidiary of the Company.
(b) Section 4.13(a) shall not apply to encumbrances or restrictions
existing under or by reason of:
(i) applicable law, rule, regulation or order (including
agreements with regulatory authorities);
(ii) this Indenture, including any Guarantee;
(iii) customary net worth and non-assignment provisions of any
lease, license or other contract;
(iv) any agreement or other instrument governing Acquired
Indebtedness, which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired;
(v) any agreement or other instrument of a Person acquired by the
Company or a Restricted Subsidiary of the Company in existence at the time of
such acquisition, but not created in contemplation thereof, which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person or the property or assets of the Person so
acquired, so long as the agreement containing the restriction does not violate
any other provision of this Indenture;
(vi) agreements existing on the Issue Date (including, without
limitation, the Credit Agreement) to the extent and in the manner such
agreements are in effect on the Issue Date;
(vii) secured Indebtedness otherwise permitted to be incurred
pursuant to the provisions of Sections 4.12 and 4.18 of this Indenture that
limit the right of the debtor to dispose of the assets securing such
Indebtedness;
(viii) Purchase Money Indebtedness for property acquired in the
ordinary course of business that imposes encumbrances or restrictions of the
nature described in Section 4.13(a)(iii);
(ix) customary restrictions with respect to a Restricted Subsidiary
pursuant to an agreement that has been entered into for the sale or disposition
of all or substantially all of the assets or Capital Stock of such Restricted
Subsidiary;
68
(x) customary provisions in joint venture agreements and other
similar agreements relating solely to the securities, assets and revenues of
such joint venture or other business venture;
(xi) an agreement governing Indebtedness incurred to Refinance the
Indebtedness issued, assumed or incurred pursuant to an agreement referred to in
clause (ii), (iv), (v) or (vi) of this Section 4.13(b); provided, however, that
the provisions relating to such encumbrance or restriction contained in any such
Indebtedness are not, in the aggregate, materially less favorable, taken as a
whole, to the Company as determined by the Board of Directors of the Company in
its reasonable and good faith judgment than the provisions relating to such
encumbrance or restriction contained in agreements referred to in such clause
(ii), (iv), (v) or (vi); and
(xii) Standard Securitization Undertakings relating to a Receivables
Subsidiary or Special Purpose Vehicle.
SECTION 4.14. Prohibition on Incurrence of Senior Subordinated Debt.
The Company will not incur or suffer to exist any Indebtedness that is
senior in right of payment to the Notes and subordinate in right of payment to
any other Indebtedness of the Company. The Company will not cause or permit any
Subsidiary Guarantor to incur or suffer to exist any Indebtedness (including any
guarantee) that is senior in right of payment to the Guarantee of such
Subsidiary Guarantor and subordinate in right of payment to any other
Indebtedness (including any other guarantee) of such Subsidiary Guarantor.
SECTION 4.15. Change of Control.
(a) At any time on or prior to February 15, 2010, the Company may, at
its option, redeem the Notes, in whole, upon the occurrence of a Change of
Control, upon not less than 30 nor more than 60 days' prior notice (but in no
event more than 90 days after the occurrence of such Change of Control) at a
Redemption Price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued and unpaid interest, if any, to, the date
fixed for such redemption (the "Change of Control Redemption Date"), except that
installments of interest which are due and payable on dates falling on or prior
to the applicable Change of Control Redemption Date will be payable to the
Persons who were the Holders of record at the close of business on the relevant
Record Dates.
"Applicable Premium" means, with respect to a Note at any Change of
Control Redemption Date, the excess of (i) the present value at such Change of
Control Redemption Date of (A) the Redemption Price of such Note at February 15,
2010, determined in accordance with Section 3.07(a) above, plus (B) all required
interest payments due on such Note through February 15, 2010, computed using a
discount rate equal to the Treasury Rate plus 0.5% per annum, over (ii) the
principal amount of such Note.
"Treasury Rate" means the yield to maturity at the time of computation of
U.S. Treasury securities with a constant maturity (as compiled and published in
the most recent Federal Reserve Release H.15 (519) which has become publicly
available at least two Business Days prior to the Change of Control Redemption
Date (or, if such statistical release is no longer published, any publicly
available source or similar market data)) closest to the period from the
69
Change of Control Redemption Date to February 15, 2010; provided, however, that
if the period from the Change of Control Redemption Date to February 15, 2010 is
not equal to the constant maturity of a U.S. Treasury security for which a
weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of one year) from the
weekly average yields of U.S. Treasury securities for which such yields are
given, except that if the period from the Change of Control Redemption Date to
February 15, 2010 is less than one year, the weekly average yield on actually
traded U.S. Treasury securities adjusted to a constant maturity of one year
shall be used.
(b) Upon the occurrence of a Change of Control Triggering Event, if the
Company does not redeem the Notes as provided in Section 4.15(a) of this
Indenture, the Company or Holdings shall make a "Change of Control Offer," and
each Holder shall have the right to require that the Company or Holdings, as
applicable, purchase all or a portion of such Holder's Notes pursuant to such
Change of Control Offer, at a purchase price equal to 101% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase.
(c) Prior to the mailing of the notice referred to in Section 4.15(d)
below, but in any event within 60 days following any Change of Control
Triggering Event, the Company and Holdings will:
(i) repay in full and terminate all commitments under all
Indebtedness under the Credit Agreement, all other Senior Debt and all
Guarantor Senior Debt of any Guarantor the terms of which require
repayment upon a Change of Control Triggering Event or offer to repay in
full and terminate all commitments under all Indebtedness under the Credit
Agreement and all other such Senior Debt and Guarantor Senior Debt and to
repay the Indebtedness owed to each lender which has accepted such offer
in full; or
(ii) obtain the requisite consents under the Credit Agreement, all
other Senior Debt and all Guarantor Senior Debt to permit the repurchase
of the Notes as provided below.
The Company and Holdings shall first comply with Section 4.15(c) before
the Company shall be required to repurchase Notes pursuant to the provisions
described herein. The failure by the Company or Holdings to comply with Section
4.15(c) shall constitute an Event of Default under Section 6.01(a)(3) of this
Indenture and not under Section 6.01(2) of this Indenture
(d) Within 60 days following the date upon which the Change of Control
Triggering Event occurred (the "Change of Control Date"), unless the Company has
mailed a notice with respect to a redemption pursuant to Section 4.15(a) with
respect to all the Notes in connection with a Change of Control occurring on or
prior to February 15, 2010, and subject to compliance by the Company and
Holdings with Section 4.15(c) of this Indenture, the Company or Holdings must
send, by first class mail, a notice to each Holder, with a copy to the Trustee
and each Paying Agent, which notice shall govern the terms of the Change of
Control Offer. The notice to the Holders shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Change of Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.15 and that all Notes tendered and not withdrawn will be
accepted for payment;
70
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later
than 45 days from the date such notice is mailed, other than as may be
required by law or permitted by Section 4.15(g) of this Indenture) (the
"Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Note accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest on and after the Change of Control Payment
Date;
(5) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the
Change of Control Payment Date; provided that if the Company elects to
make a Change of Control Offer in compliance with Section 4.15(g), Holders
will be able to surrender Notes until the tenth Business Day following the
Change of Control Date;
(6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than five Business Days prior to the
Change of Control Payment Date (or on or before the tenth Business Day
following the Change of Control Date if the Company is relying on Section
4.15(g) of this Indenture), a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder
is withdrawing his election to have such Notes purchased;
(7) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered; provided that each Note purchased and each new Note
issued shall be in an original principal amount of $1,000 or integral
multiples thereof; and
(8) the circumstances and relevant facts regarding such Change of
Control Triggering Event.
(e) On or before the Change of Control Payment Date, the Company shall:
(i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price plus accrued interest, if any,
of all Notes so tendered; and
(iii) deliver to the Registrar Notes so accepted together with
an Officers' Certificate stating the Notes or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail to
the Holders of Notes so accepted payment in an amount equal to the
purchase price plus accrued interest, if any, and the Trustee shall
promptly authenticate and mail to such Holders new Notes equal in
principal amount to any unpurchased portion of the Notes
71
surrendered. Any Notes not so accepted shall be promptly mailed by
the Company to the Holder thereof.
Any amounts remaining after the purchase of Notes pursuant to a Change of
Control Offer shall be returned by the Paying Agent to the Company.
(f) Neither the Company nor Holdings will be required to make a Change
of Control Offer upon a Change of Control Triggering Event if a third party
makes a Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Indenture applicable to a
Change of Control Offer made by the Company or Holdings and purchases all Notes
validly tendered and not withdrawn under such Change of Control Offer at the
price, including accrued and unpaid interest, if any, at the times and in the
manner specified in this Indenture.
(g) A Change of Control Offer may be made in advance of a Change of
Control Triggering Event, and conditioned upon the occurrence of such Change of
Control Triggering Event, if a definitive agreement with respect to the Change
of Control relating to such Change of Control Triggering Event is in place at
the time of making the Change of Control Offer and the Change of Control Offer
remains open for at least ten Business Days following the date of the Change of
Control Triggering Event. Notes repurchased by the Company pursuant to a Change
of Control Offer shall have the status of Notes issued but not outstanding or
shall be retired and canceled, at the option of the Company. Notes purchased by
a third party pursuant to Section 4.15(f) of this Indenture will have the status
of Notes issued and outstanding.
(h) The Company or Holdings, as the case may be, will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes pursuant to a Change of
Control Offer. To the extent that the provisions of any securities laws or
regulations conflict with this Section 4.15, the Company or Holdings, as the
case may be, shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under this Section 4.15
by virtue thereof.
SECTION 4.16. Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(i) The Company or the applicable Restricted Subsidiary, as the
case may be, receives consideration at the time of such Asset Sale
(including by way of relief from or by any Person assuming responsibility
for any liabilities, contingent or otherwise) at least equal to the fair
market value of the assets or Capital Stock issued or sold or otherwise
disposed of (in each case as determined in good faith by the Company's
Board of Directors or, in the case of an Asset Sale or series of related
Asset Sales having a fair market value of less than $35.0 million, senior
management);
(ii) at least 75% of the consideration received by the Company or
the Restricted Subsidiary, as the case may be, from such Asset Sale shall
be in the form of cash or Cash Equivalents and shall be received at the
time of such disposition; provided that
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(A) the amount of any liabilities (as shown on the Company's
or such Restricted Subsidiary's most recent balance sheet) of the
Company or any such Restricted Subsidiary (other than liabilities
that are by their terms subordinated to the Notes or any Guarantee)
that are assumed by the transferee of any such assets,
(B) the fair market value of any marketable securities
received by the Company or a Restricted Subsidiary in exchange for
any such assets that are converted into cash within 180 days after
such Asset Sale,
(C) cash held in escrow as security for any purchase price
settlement, for damages in respect of a breach of representations
and warranties or covenants or for payment of other contingent
obligations in connection with the Asset Sale, and
(D) any Designated Noncash Consideration received by the
Company or any of its Restricted Subsidiaries in such Asset Sale
having an aggregate fair market value, when taken together with all
other Designated Noncash Consideration received pursuant to this
clause (D) since the Issue Date that is at that time outstanding,
not to exceed 10% of the Consolidated Net Tangible Assets of the
Company based on its most recent available internal consolidated
balance sheet at the time of the receipt of such Designated Noncash
Consideration from such Asset Sale (with the fair market value of
each item of Designated Noncash Consideration being measured at the
time received and without giving effect to subsequent changes in
value)
shall be deemed to be cash for purposes of this provision; and provided,
further, that the Company and its Restricted Subsidiaries may make Asset
Sales not exceeding $40.0 million in the aggregate in each year for
non-cash consideration; and
(iii) in the event and to the extent that the Net Cash Proceeds
received by the Company or any of its Restricted Subsidiaries from one or
more Asset Sales occurring on or after the Issue Date in any period of 12
consecutive months exceed 10% of Consolidated Net Tangible Assets
(determined as of the date closest to the commencement of such 12-month
period for which an internal consolidated balance sheet of the Company and
its Subsidiaries has been prepared), then the Company shall or shall cause
the relevant Restricted Subsidiary, within 360 days after the date Net
Cash Proceeds so received exceed 10% of Consolidated Net Tangible Assets,
to apply such excess Net Cash Proceeds:
(A) to prepay any (x) Senior Debt, (y) Guarantor Senior Debt
or (z) Indebtedness of a Restricted Subsidiary that is not a
Subsidiary Guarantor, other than Indebtedness of such Restricted
Subsidiary owed to Holdings, the Company or any of its Restricted
Subsidiaries and, in the case of any prepaid Senior Debt, Guarantor
Senior Debt or Indebtedness of a Restricted Subsidiary that is not a
Subsidiary Guarantor under any revolving credit facility, effect a
permanent reduction in the availability under such revolving credit
facility,
(B) to make an Investment (or enter into a definitive
agreement committing to so invest within 360 days after the date of
such agreement and to make such Investment as provided in such
agreement) in properties and assets that
73
replace the properties and assets that were the subject of such
Asset Sale or in properties and assets that will be used in the
business of the Company and its Restricted Subsidiaries as it exists
on the date of such Asset Sale or in businesses that are the same as
such business of the Company and its Restricted Subsidiaries on the
date of such Asset Sale or similar or reasonably related thereto
("Replacement Assets"), or
(C) a combination of prepayment and investment permitted by
the foregoing clauses (iii) (A) and (iii) (B).
(b) Pending the final application of such Net Cash Proceeds, the Company
or any Restricted Subsidiary of the Company may temporarily reduce borrowings
under the Credit Agreement or any other revolving credit facility, if any, or
otherwise invest such Net Cash Proceeds in Cash Equivalents, in each case in a
manner not prohibited by this Indenture. Subject to the last sentence of this
Section 4.16(b), on the 361st day after an Asset Sale or such earlier date, if
any, as the Board of Directors of the Company or of such Restricted Subsidiary
determines not to apply the Net Cash Proceeds relating to such Asset Sale as set
forth in Section 4.16(a) (iii) (A), (iii) (B) or (iii) (C) (each, a "Net
Proceeds Offer Trigger Date"), such aggregate amount of Net Cash Proceeds which
have not been applied (or committed to be applied pursuant to a definitive
agreement as described above) on or before such Net Proceeds Offer Trigger Date
as permitted in Section 4.16(a) (iii) (A), (iii) (B) and (iii) (C) (each a "Net
Proceeds Offer Amount") shall be applied by the Company or such Restricted
Subsidiary to make an offer to purchase (the "Net Proceeds Offer") on a date
(the "Net Proceeds Offer Payment Date") not less than 30 nor more than 60 days
following the applicable Net Proceeds Offer Trigger Date, from all Holders (and,
if required by the terms of any other Indebtedness of the Company ranking pari
passu with the Notes in right of payment and which has similar provisions
requiring the Company either to make an offer to repurchase or to otherwise
repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales
(the "Pari Passu Indebtedness"), from the holders of such Pari Passu
Indebtedness) on a pro rata basis (in proportion to the respective principal
amounts or accreted value, as the case may be, of the Notes and any such Pari
Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable,
an aggregate principal amount or accreted value, as the case may be, of Pari
Passu Indebtedness) equal to the Net Proceeds Offer Amount at a price equal to
100% of the principal amount of the Notes (or 100% of the principal amount or
accreted value, as the case may be, of such Pari Passu Indebtedness), plus
accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment
Date; provided, however, that if at any time any non-cash consideration
(including any Designated Noncash Consideration) received by the Company or any
Restricted Subsidiary of the Company, as the case may be, in connection with any
Asset Sale is converted into or sold or otherwise disposed of for cash (other
than interest received with respect to any such non-cash consideration), then
such conversion or disposition shall be deemed to constitute an Asset Sale
hereunder and the Net Cash Proceeds thereof shall be applied in accordance with
this Section 4.16. The Company may defer the Net Proceeds Offer until there is
an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $25.0
million resulting from one or more Asset Sales (at which time the entire
unutilized Net Proceeds Offer Amount, and not just the amount in excess of $25.0
million, shall be applied as required pursuant to this paragraph, and in which
case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date
that the Net Proceeds Offer Amount is equal to or in excess of $25.0 million).
74
(c) In the event of the transfer of substantially all (but not all) of
the property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted by Section 5.01 of this
Indenture, the successor corporation shall be deemed to have sold the properties
and assets of the Company and its Restricted Subsidiaries not so transferred for
purposes of this Section 4.16, and shall comply with the provisions of this
Section 4.16 with respect to such deemed sale as if it were an Asset Sale. In
addition, the fair market value of such properties and assets of the Company or
its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash
Proceeds for purposes of this Section 4.16.
(d) Each Net Proceeds Offer shall be mailed to the record Holders as
shown on the register of Holders within 25 days following the Net Proceeds Offer
Trigger Date, with a copy to the Trustee, and shall comply with the procedures
set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer,
Holders may elect to tender their Notes in whole or in part in integral
multiples of $1,000 in exchange for cash.
(e) To the extent that the aggregate principal amount of Notes (plus, if
applicable, the aggregate principal amount or accreted value, as the case may
be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not
withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders
(and, if applicable, Pari Passu Indebtedness tendered by the holders thereof)
will be purchased on a pro rata basis (based on the principal amount of the
Notes and, if applicable, the principal amount or accreted value, as the case
may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the
extent that the aggregate amount of the Notes (plus, if applicable, the
aggregate principal amount or accreted value, as the case may be, of any Pari
Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the
Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer
Amount for general corporate purposes or for any other purpose not prohibited by
the Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds
Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for
a period of 20 Business Days or such longer period as may be required by law.
(f) Each notice of a Net Proceeds Offer pursuant to this Section 4.16
shall be mailed by first class mail by the Company within 25 days following the
Net Proceeds Offer Trigger Date to all Holders, with a copy to the Trustee and
each Paying Agent. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Net Proceeds
Offer and shall state the following terms:
(i) that the Net Proceeds Offer is being made pursuant to Section
4.16 of this Indenture and that all Notes tendered will be accepted for
payment; provided however, that if the aggregate principal amount of Notes
tendered in a Net Proceeds Offer exceeds the aggregate amount of the Net
Proceeds Offer, the Company shall select the Notes to be purchased on a
pro rata basis (with such adjustments as may be deemed appropriate by the
Company so that only Notes in denominations of $1,000 or multiples thereof
shall be purchased);
(ii) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be 20 Business Days from the date of
mailing of notice of such Net Proceeds Offer, or such longer period as
required by law) (the "Proceeds Purchase Date");
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(iii) that any Note not tendered will continue to accrue interest;
(iv) that, unless the Company defaults in making payment therefor,
any Note accepted for payment pursuant to the Net Proceeds Offer shall
cease to accrue interest on and after the Proceeds Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to a
Net Proceeds Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the
Proceeds Purchase Date;
(vi) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than five Business Days prior to the
Proceeds Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder
is withdrawing his election to have such Note purchased; and
(vii) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered; provided that each Note purchased and each new Note
issued shall be in an original principal amount of $1,000 or integral
multiples thereof.
(g) On or before the Proceeds Purchase Date, the Company shall (i)
accept for payment Notes or portions thereof tendered pursuant to the Net
Proceeds Offer which are to be purchased in accordance with item (f)(i) above,
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price plus accrued interest, if any, of all Notes to be purchased and
(iii) deliver to the Paying Agent Notes so accepted together with an Officers'
Certificate stating the Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Notes so
accepted payment in an amount equal to the purchase price plus accrued interest,
if any.
(h) The Company or the applicable Restricted Subsidiary, as the case may
be, will comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of Notes pursuant
to a Net Proceeds Offer. To the extent that the provisions of any securities
laws or regulations conflict with this Section 4.16, the Company or such
Restricted Subsidiary shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.16 by virtue thereof.
(i) Notwithstanding the provisions of this Section 4.16, the Company and
its Restricted Subsidiaries will be permitted to consummate an Asset Swap if:
(i) at the time of entering into such Asset Swap or
immediately after giving effect to such Asset Swap, no Default or
Event of Default shall have occurred or be continuing or would occur
as a consequence thereof, and
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(ii) in the event that such Asset Swap involves an aggregate amount
in excess of $25.0 million, the terms of such Asset Swap have been
approved by a majority of the members of the Board of Directors of the
Company.
SECTION 4.17. Limitation on Preferred Stock of Restricted Subsidiaries.
The Company shall not permit any of its Restricted Subsidiaries (other
than a Receivables Subsidiary or a Special Purpose Vehicle) to issue any
Preferred Stock (other than to the Company or to a Wholly Owned Restricted
Subsidiary of the Company) or permit any Person (other than the Company or a
Wholly Owned Restricted Subsidiary of the Company) to own any Preferred Stock of
any Restricted Subsidiary of the Company (other than a Receivables Subsidiary or
a Special Purpose Vehicle).
SECTION 4.18. Limitation on Liens.
(a) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets of the Company or any of its Restricted Subsidiaries whether owned on the
Issue Date or acquired after the Issue Date, or any proceeds therefrom, or
assign or otherwise convey any right to receive income or profits therefrom for
purposes of security unless:
(i) in the case of Liens securing Indebtedness that is expressly
subordinate or junior in right of payment to the Notes, the Notes are
secured by a Lien on such property, assets or proceeds or such right to
receive income or profits, as the case may be, that is senior in priority
to such Liens and
(ii) in all other cases, the Notes are equally and ratably secured;
(b) Notwithstanding the foregoing, Section 4.18(a) shall not apply to
the following Liens:
(i) Liens existing as of the Issue Date to the extent and in
the manner such Liens are in effect on the Issue Date;
(ii) Liens securing Senior Debt, Guarantor Senior Debt or any
guarantees of Senior Debt by any Subsidiary Guarantor;
(iii) Liens securing the Notes;
(iv) Liens of the Company or a Restricted Subsidiary of the
Company on assets of any Restricted Subsidiary of the Company;
(v) Liens securing Refinancing Indebtedness which is
incurred to Refinance any Indebtedness which has been secured by a
Lien permitted under this Indenture and which has been incurred in
accordance with the provisions of this Indenture; provided, however,
that such Liens
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(A) are not materially less favorable to the Holders
and are not materially more favorable to the lienholders with
respect to such Liens than the Liens in respect of the
Indebtedness being Refinanced and
(B) do not extend to or cover any property or assets
of the Company or any of its Restricted Subsidiaries not
securing the Indebtedness so Refinanced;
(vi) Liens securing other Indebtedness or other obligations
as long as the amount of outstanding Indebtedness or other
obligations secured by such Liens do not exceed $15.0 million at any
one time outstanding; and
(vii) Permitted Liens.
SECTION 4.19. Limitation on Guarantees by Domestic Restricted
Subsidiaries.
(a) The Company will not permit any of its domestic Restricted
Subsidiaries that are not Subsidiary Guarantors, directly or indirectly, by way
of the pledge of any intercompany note or otherwise, to assume, guarantee or in
any other manner become liable with respect to any Indebtedness of the Company
or any other Restricted Subsidiary (other than Permitted Indebtedness of a
Restricted Subsidiary), unless, in any such case, such Restricted Subsidiary
simultaneously executes and delivers to the Trustee a supplemental indenture to
this Indenture, providing a Guarantee of such Restricted Subsidiary
substantially similar to the Guarantee of the Subsidiary Guarantors contained in
Article Eleven of this Indenture, which Guarantee shall be a senior subordinated
obligation of such Restricted Subsidiary and shall be subordinated in right of
payment to all Guarantor Senior Debt of such Restricted Subsidiary on terms
substantially similar to those described in Article 12 of this Indenture.
Neither the Company nor any such Restricted Subsidiary shall be required to make
a notation on the Notes to reflect any such subsequent Guarantee. Nothing
contained in this paragraph shall be construed to permit any Restricted
Subsidiary of the Company to incur Indebtedness otherwise prohibited by this
Indenture or the Credit Agreement.
Each Guarantee of a Restricted Subsidiary shall be limited in amount to an
amount not to exceed the maximum amount that can be guaranteed by such
Restricted Subsidiary without rendering such Guarantee, as it relates to such
Restricted Subsidiary, void or voidable under applicable laws relating to
fraudulent conveyance or fraudulent transfer or other similar laws affecting the
rights of creditors generally.
(b) Notwithstanding Section 4.19(a) of this Indenture, any such
Guarantee by a Restricted Subsidiary shall provide by its terms that it shall be
automatically and unconditionally released and discharged, without any further
action required on the part of the Trustee or any Holder, upon:
(i) the unconditional release of such Restricted Subsidiary from
its liability in respect of the Indebtedness in connection with which such
Guarantee was executed and delivered pursuant to Section 4.19(a) of this
Indenture; or
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(ii) any sale or other disposition (by merger or otherwise) to any
Person which is not a Restricted Subsidiary of the Company, of all of the
Company's Capital Stock in, or all or substantially all of the assets of,
such Restricted Subsidiary; provided that
(A) such sale or disposition of such Capital Stock or such
assets is otherwise in compliance with the terms of this Indenture,
and
(B) such assumption, guarantee or other liability of such
Restricted Subsidiary has been released by the holders of the other
Indebtedness so guaranteed.
SECTION 4.20. Restriction of Lines of Business to Food, Food Distribution
and Related Businesses.
The Company will not, and will not permit any Restricted Subsidiary to,
engage in any material business activity except for food, food distribution and
related businesses.
SECTION 4.21. Rule 144A Information.
If and to the extent required to permit resales or other transfers of the
Notes to be made pursuant to Rule 144A, the Company shall prepare and shall
furnish to any Holder of Notes, any beneficial owner of Notes (including,
without limitation, any owner of a beneficial interest in a Global Note) and any
prospective purchaser or other prospective transferee of Notes designated by a
Holder or beneficial owner of Notes, promptly upon request and at the expense of
the Company, the financial statements and other information specified in Rule
144A(d)(4) (or any successor provision thereto).
SECTION 4.22. Termination of Certain Covenants
(a) During any period beginning after the date of this Indenture in
which the Notes have an Investment Grade Rating from both Rating Agencies and no
Default or Event of Default has occurred and is continuing under this Indenture
(a "Suspension Period"), the Company and its Restricted Subsidiaries shall no
longer be subject to Sections 4.10, 4.11, 4.12, 4,13, 4.14, 4.16, 4.17 and
5.01(a)(2) of this Indenture (the "Suspended Covenants").
(b) If, during any Suspension Period, either of the Rating Agencies
withdraws its ratings or downgrades the Notes so that the Notes fail to have an
Investment Grade Rating from either Rating Agency or a Default or Event of
Default occurs (a "Spring-back Date"), then the Company and the Restricted
Subsidiaries of the Company shall, following such Spring-back Date, again be
subject to the Suspended Covenants. Restricted Payments made after any
Spring-back Date shall be calculated in accordance with Section 4.10 of this
Indenture as though Section 4.10 had been in effect during the entire period of
time since the Issue Date. Notwithstanding the foregoing and any other provision
of this Indenture, the Notes or the Guarantees, no Default, Event of Default or
breach of any kind shall be deemed to exist under this Indenture, the Notes or
the Guarantees with respect to the Suspended Covenants based on, and none of the
Company, Holdings or any of the Subsidiaries of the Company shall bear any
liability with respect to the Suspended Covenants for, (i) any actions taken or
events occurring during a Suspension Period (including without limitation any
agreements, Liens, Preferred Stock, obligations (including Indebtedness), or any
other facts or circumstances or obligations that were incurred or otherwise
79
came into existence during a Suspension Period) or (ii) any actions taken at any
time pursuant to any contractual obligation entered into during a Suspension
Period, regardless of whether such actions or events would have been permitted
if the applicable Suspended Covenants remained in effect during such period.
(c) The Company will promptly give written notice to the Trustee
following (i) any date on which the Company is no longer subject to the
Suspended Covenants and (ii) any Spring-back Date.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets of the Company.
(a) The Company will not, in a single transaction or a series of related
transactions, consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's assets
(determined on a consolidated basis for the Company and its Restricted
Subsidiaries), whether as an entirety or substantially as an entirety, to any
Person unless:
(i) either: (A) the Company shall be the surviving or continuing
corporation or (B) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, transfer, lease, conveyance or other
disposition the properties and assets of the Company and its Restricted
Subsidiaries as an entirety or substantially as an entirety (the
"Surviving Entity") (x) shall be a corporation organized and validly
existing under the laws of the United States or any state thereof or the
District of Columbia and (y) shall expressly assume, by supplemental
indenture (in form and substance reasonably satisfactory to the Trustee),
executed and delivered to the Trustee, the due and punctual payment of the
principal of and premium, if any, and interest (including, without
limitation, any Additional Interest) on all of the Notes and the
performance of every covenant of the Notes, this Indenture and the
Registration Rights Agreement on the part of the Company to be performed
or observed;
(ii) immediately after giving pro forma effect to such transaction
or series of transactions and the assumption contemplated by clause
(i)(B)(y) above (including giving effect to any Indebtedness and Acquired
Indebtedness incurred or anticipated to be incurred in connection with or
in respect of such transaction), (A) the Company or such Surviving Entity,
as the case may be, shall be able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12 or (B) the Consolidated Fixed Charge Coverage Ratio of the
Surviving Entity shall not be less than the Consolidated Fixed Charge
Coverage Ratio of the Company and its Restricted Subsidiaries immediately
prior to such transaction or series of transactions; provided, however,
that this clause (ii) shall no longer be applicable during any Suspension
Period;
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(iii) immediately after giving effect to such transaction or series
of transactions and the assumption contemplated by clause (i)(B)(y) above
(including, without limitation, giving effect to any Indebtedness and
Acquired Indebtedness incurred or anticipated to be incurred and any Lien
granted in connection with or in respect of such transaction), no Default
or Event of Default shall have occurred and be continuing; and
(iv) the Company or the Surviving Entity, as the case may be, shall
have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture complies with the applicable provisions of this
Indenture and that all conditions precedent in this Indenture relating to
such transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Company the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
(c) Notwithstanding the foregoing, the merger of the Company with an
Affiliate incorporated solely for the purpose of reincorporating the Company in
another jurisdiction shall be permitted without regard to Section 5.01(a)(ii)
hereof.
SECTION 5.02. Successor Corporation Substituted for the Company.
Upon any consolidation or merger of the Company or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with the foregoing in which the Company
is not the continuing corporation, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture and the Notes with the same effect as if such
Surviving Entity had been named as such; provided, however, that the Company
shall not be released from its obligations under this Indenture or the Notes in
the case of a lease.
SECTION 5.03. Merger, Consolidation and Sale of Assets of Holdings.
(a) Holdings will not, in a single transaction or a series of related
transactions, consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any
Subsidiary of Holdings to sell, assign, transfer, lease, convey or otherwise
dispose of) all or substantially all of Holdings' assets (determined on a
consolidated basis for Holdings and its Subsidiaries), whether as an entirety or
substantially as an entirety, to any Person unless:
(i) either: (A) Holdings shall be the surviving or continuing
corporation or (B) the Person (if other than Holdings) formed by such
consolidation or into which Holdings is merged or the Person which
acquires by sale, assignment, transfer, lease, conveyance or other
disposition the properties and assets of Holdings as an entirety or
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substantially as an entirety (the "Surviving Parent Entity") (x) shall be
a corporation organized and validly existing under the laws of the United
States or any state thereof or the District of Columbia and (y) shall
expressly assume, by supplemental indenture (in form and substance
reasonably satisfactory to the Trustee), executed and delivered to the
Trustee, the obligations of Holdings of the due and punctual payment of
the principal of and premium, if any, and interest (including, without
limitation, any Additional Interest) on the Notes and all of Holdings'
obligations under this Indenture, including its Guarantee;
(ii) Holdings or such Surviving Parent Entity, as the case may be,
shall not, immediately after giving effect to such transaction or series
of transactions, be in default in the performance of any covenants or
obligations of Holdings or Surviving Parent Entity under this Indenture,
including its Guarantee; and
(iii) Holdings or such Surviving Parent Entity, as the case may be,
shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture complies with the applicable provisions of
this Indenture and that all conditions precedent in this Indenture
relating to such transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties and assets of one or more Subsidiaries of
Holdings, the Capital Stock of which constitutes all or substantially all of the
properties and assets of Holdings, shall be deemed to be the transfer of all or
substantially all of the properties and assets of Holdings.
(c) Notwithstanding the foregoing, the merger of Holdings with and into
the Company shall be permitted without regard to compliance with Section
5.03(a); provided that such merger shall be permitted pursuant to and shall
comply with the provisions of Sections 5.01 and 5.02.
SECTION 5.04. Successor Corporation Substituted for Holdings.
Upon any consolidation or merger of Holdings or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of Holdings in accordance with the foregoing in which Holdings is not
the continuing corporation, the successor Person formed by such consolidation or
into which Holdings is merged or to which such sale, assignment, transfer,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, Holdings under this
Indenture, including its Guarantee, with the same effect as if such Surviving
Parent Entity had been named as such; provided, however, that Holdings shall not
be released from its obligations under this Indenture, including its Guarantee,
in the case of a lease.
SECTION 5.05. Merger, Consolidation and Sale of Assets of Subsidiary
Guarantors.
(a) Each Subsidiary Guarantor (other than any Subsidiary Guarantor whose
Guarantee is to be released in accordance with the terms of this Indenture) will
not, and the
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Company will not cause or permit any Subsidiary Guarantor (other than any
Subsidiary Guarantor whose Guarantee is to be released in accordance with this
Indenture) to, in a single transaction or series of related transactions,
consolidate or merge with or into any Person other than the Company or any other
Subsidiary Guarantor, unless:
(i) the entity formed by or surviving any such consolidation or
merger (if other than the Subsidiary Guarantor) is a corporation organized
and existing under the laws of the United States or any State thereof or
the District of Columbia;
(ii) such entity assumes by supplemental indenture all of the
obligations of the Subsidiary Guarantor on its Guarantee;
(iii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving effect to such transaction and the
use of any net proceeds therefrom on a pro forma basis, the Company could
satisfy the provisions of Section 5.01(a)(ii); and
(v) such entity shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation or merger and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture complies
with the applicable provisions of this Indenture and that all conditions
precedent in this Indenture relating to such transaction have been
satisfied.
SECTION 5.06. Successor Corporation Substituted for Subsidiary Guarantors
Upon any consolidation or merger of a Subsidiary Guarantor in accordance
with the foregoing in which such Subsidiary Guarantor is not the continuing
corporation, the successor Person formed by such consolidation or into which
such Subsidiary Guarantor is merged shall succeed to, and be substituted for,
and may exercise every right and power of, such Guarantor under this Indenture,
including its Guarantee, with the same effect as if such successor Person had
been named as such; provided, however, that such Guarantor shall not be released
from its obligations under this Indenture, including its Guarantee, in the case
of a lease.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
(a) The following events are "Events of Default":
(1) the failure to pay interest (including, without limitation, any
Additional Interest) on any Note when the same becomes due and payable and the
Default continues for a period of 30 days (whether or not such payment shall be
prohibited by Article Ten); or
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(2) the failure to pay the principal on any Notes when such principal
becomes due and payable, at maturity, upon redemption or otherwise (including
the failure to make a payment to purchase Notes tendered pursuant to a Change of
Control Offer or a Net Proceeds Offer) (whether or not such payment shall be
prohibited by Article Ten of this Indenture); or
(3) a default by the Company, Holdings or any Subsidiary Guarantor in the
observance or performance of any other covenant or agreement contained in this
Indenture and which default continues for a period of 30 days after written
notice specifying the default (and demanding that such default be remedied) is
received by the Company from the Trustee or by the Company and the Trustee from
the Holders of at least 25% of the outstanding principal amount of the Notes; or
(4) the failure to pay at final stated maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal amount of any
Indebtedness for borrowed money of the Company or any Restricted Subsidiary of
the Company or the acceleration of the final stated maturity of any such
Indebtedness, in either case, if the aggregate principal amount of such
Indebtedness, together with the aggregate principal amount of any other such
Indebtedness in default for failure to pay principal at final stated maturity or
which has been accelerated, aggregates $35.0 million or more at any time; or
(5) one or more judgments for the payment of money in an aggregate amount
in excess of $35.0 million (to the extent not covered by insurance) shall have
been rendered against the Company or any of its Restricted Subsidiaries and such
judgments remain undischarged, unpaid or unstayed for a period of 60 days after
such judgment or judgments become final and non-appealable; or
(6) the Company or any Significant Subsidiary of the Company (A) commences
a voluntary case or proceeding under any Bankruptcy Law with respect to itself,
(B) consents to the entry of a judgment, decree or order for relief against it
in an involuntary case or proceeding under any Bankruptcy Law, (C) consents to
the appointment of a Custodian of it or for substantially all of its property,
(D) consents to or acquiesces in the institution of a bankruptcy or an
insolvency proceeding against it, (E) makes a general assignment for the benefit
of its creditors, or (F) takes any corporate action to authorize or effect any
of the foregoing; or
(7) a court of competent jurisdiction enters a judgment, decree or order
for relief in respect of the Company or any Significant Subsidiary of the
Company in an involuntary case or proceeding under any Bankruptcy Law, which
shall (A) approve as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of the Company or any such
Significant Subsidiary, (B) appoint a Custodian of the Company or any such
Significant Subsidiary or for substantially all of its property or (C) order the
winding-up or liquidation of its affairs; and such judgment, decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or
(8) the failure of a Guarantee of the Notes given by a Guarantor to be in
full force and effect (except if such Guarantee shall have been released and
discharged pursuant to the terms of this Indenture) or the denial or
disaffirmation of such obligations by a Guarantor.
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SECTION 6.02. Acceleration.
(a) If an Event of Default (other than an Event of Default specified in
Section 6.01(a)(6) or (7) with respect to the Company) occurs and is continuing
and has not been waived pursuant to Section 6.04, then the Trustee or the
Holders of at least 25% in principal amount of outstanding Notes may declare the
principal of and accrued and unpaid interest on all the Notes to be due and
payable by notice in writing to the Company and the Trustee specifying the
respective Event of Default and that it is a "notice of acceleration" (the
"Acceleration Notice"), and the same (i) shall become immediately due and
payable; or (ii) if there are any amounts outstanding under the Credit
Agreement, shall become immediately due and payable upon the first to occur of
an acceleration under the Credit Agreement or five Business Days after receipt
by the Company and the Representative under the Credit Agreement of such
Acceleration Notice, but only if such Event of Default is then continuing. Upon
any such declaration, but subject to the immediately preceding sentence, such
amount shall be immediately due and payable.
(b) If an Event of Default specified in Section 6.01(a)(6) or (7) occurs
and is continuing with respect to the Company, all unpaid principal of and
premium, if any, and accrued and unpaid interest on all of the outstanding Notes
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
(c) If an Event of Default specified in Section 6.01(a)(4) has occurred
and is continuing, such Event of Default shall be automatically annulled if the
payment default triggering such Event of Default pursuant to Section 6.01(a)(4)
shall be remedied or cured by the Company or a Restricted Subsidiary of the
Company or waived by the holders of the relevant Indebtedness within 60 days of
its occurrence and all other Events of Default, if any, under this Indenture
have been cured or waived.
(d) At any time after the delivery of an Acceleration Notice with respect
to the Notes in accordance with Section 6.02(a), the Holders of a majority in
principal amount of the outstanding Notes may, on behalf of the Holders of all
of the Notes, rescind and cancel such declaration and its consequences: (i) if
the rescission would not conflict with any judgment or decree; (ii) if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration;
(iii) to the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal which has become due otherwise
than by such declaration of acceleration, has been paid; (iv) if the Company has
paid the Trustee its reasonable compensation and reimbursed the Trustee for its
expenses, disbursements and advances and any other amounts due the Trustee under
this Indenture; and (v) in the event of the cure or waiver of an Event of
Default of the type described in Section 6.01(a)(6) or (7), the Trustee shall
have received an Officers' Certificate and an Opinion of Counsel that such Event
of Default has been cured or waived. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
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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 in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 2.09, 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Notes by notice to the Trustee may waive an
existing Default or Event of Default and its consequences, except a Default in
the payment of principal of or interest on any Note as specified in clauses (1)
and (2) of Section 6.01(a). When a Default or Event of Default is waived, it is
cured and ceases.
SECTION 6.05. Control by Majority.
Subject to all provisions of this Indenture and applicable law, the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
it, including, without limitation, any remedies provided for in Section 6.03.
Subject to Section 7.01, however, the Trustee may refuse to follow any direction
that the Trustee reasonably believes conflicts with any law or this Indenture,
that the Trustee determines may be unduly prejudicial to the rights of another
Holder, or that may involve the Trustee in personal liability; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction; and provided further that this provision shall
not affect the rights of the Trustee set forth in Section 7.01(d).
SECTION 6.06. Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or the
Notes unless:
(1) the Holder gives to the Trustee written notice of a continuing Event
of Default;
(2) Holders of at least 25% in principal amount of the outstanding Notes
make a written request to the Trustee to pursue the remedy;
(3) such Holders offer to the Trustee indemnity in its sole discretion
satisfactory to the Trustee against any loss, liability or expense to be
incurred in compliance with such request;
(4) the Trustee does not comply with the request within 45 days after
receipt of the request and the offer of satisfactory indemnity; and
(5) during such 45-day period the Holders of a majority in principal
amount of the outstanding Notes do not give the Trustee a direction which, in
the opinion of the Trustee, is inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
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SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on a Note, on or after
the respective due dates expressed in such Note, 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 in payment of principal or interest specified in
clause (1) or (2) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Notes for the whole amount of principal and
accrued interest remaining unpaid, together with interest on overdue principal
and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest at the rate set forth in Section 4.01 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 its counsel, and any other amounts due the Trustee
under Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable expenses and disbursements of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07) and the Holders allowed in any judicial proceedings relating to
the Company or any other obligor upon the Notes, any of their respective
creditors or any of their respective property and shall be entitled and
empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any Custodian in
any such judicial proceedings 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 expenses and disbursements of the Trustee,
its agents and its counsel, and any other amounts due the Trustee under Section
7.07. The Company's payment obligations under this Section 6.09 shall be secured
in accordance with the provisions of Section 7.07 hereunder. 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
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money in the following order:
First: to the Trustee for any and all amounts due and owing under
Section 7.07;
Second: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
and interest, respectively;
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Third: if the Holders are forced to proceed against the Company
directly without the Trustee, to Holders for their collection costs; and
Fourth: to the Company or any other obligor on the Notes, as their
interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix a record date and
payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Notes.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If a Default or 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 thereof as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of a Default or an Event of Default:
(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no covenants or obligations shall be
implied in this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture, but need not confirm or investigate the accuracy of the
mathematical calculations or other facts stated therein.
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(c) Notwithstanding anything to the contrary herein contained, the Trustee
may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.02, 6.04 or 6.05.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.
(e) Whether or not herein expressly provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, note or other paper or 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.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel of its choice and the advice or any opinion of counsel shall
be full and complete authorization and protection with respect of any
action taken or omitted by it hereunder in good faith and in accordance
with such advice or opinion of counsel and may require an Officers'
Certificate, an Opinion of Counsel or both, which shall conform to
Sections 13.04 and 13.05. 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.
(c) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or indirectly or by or
through agents, attorneys, custodians or nominees and the Trustee shall
not be responsible for the misconduct or negligence of any agent,
attorney, custodian or nominee appointed with due care.
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(d) The Trustee shall not be liable for any action that it takes or
omits to take in good faith which it reasonably believes to be authorized
or within its rights or powers.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled, upon reasonable
notice to the Company and to the extent reasonably related to such facts
or matters to examine the books, records, and premises of the Company,
personally or by agent or attorney and to consult with the officers and
representatives of the Company, including the Company's accountants and
attorneys.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee security
or indemnity satisfactory to the Trustee in its sole discretion against
the costs, expenses and liabilities which may be incurred by it in
compliance with such request, order or direction.
(g) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(h) The Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
(i) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Trust 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 set forth in Section 13.02 hereof, and such notice references
the Notes and this Indenture.
(j) 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.
(k) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person
specified as so authorized in any such certificate previously delivered
and not superseded.
(l) Anything in this Indenture to the contrary notwithstanding, in
no event shall the Trustee, be liable under or in connection with this
Indenture for indirect, special, incidental, punitive or consequential
losses or damages of any kind whatsoever, including but not limited to
lost profits, whether or not foreseeable, even if the Trustee, has been
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advised of the possibility thereof and regardless of the form of action in
which such damages are sought.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company, any Subsidiary of
the Company or their respective Affiliates with the same rights it would have if
it were not Trustee. Any Agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The recitals contained herein and in the Notes shall be taken as
statements of the Company and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Notes, and it shall not be accountable for the
Company's use of the proceeds from the Notes, and it shall not be responsible
for any statement of the Company in this Indenture or the Notes other than the
Trustee's certificate of authentication.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if it is
actually known to a Trust Officer of the Trustee, the Trustee shall mail to each
Holder notice of the uncured Default or Event of Default within 90 days after
such Default or Event of Default occurs. Except in the case of a Default or an
Event of Default in payment of principal of, or interest on, any Note, including
an accelerated payment and the failure to make payment on the Change of Control
Payment Date pursuant to a Change of Control Offer or on the Proceeds Purchase
Date pursuant to a Net Proceeds Offer and, except in the case of a failure to
comply with Article Five hereof, the Trustee may withhold such notice if and so
long as its Board of Directors, the executive committee of its Board of
Directors or a committee of its directors and/or Trust Officers in good faith
determines that withholding the notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15, the Trustee shall, to the extent that
any of the events described in TIA Section 313(a) occurred within the previous
twelve months, but not otherwise, mail to each Holder a brief report dated as of
such date that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Sections 313(b), (c) and (d).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the SEC and each stock exchange, if any, on
which the Notes are listed.
The Company shall promptly notify the Trustee in writing if the Notes
become listed on any stock exchange and the Trustee shall comply with TIA
Section 313(d).
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee and each Agent from time to time such
compensation for their respective services as the Company and the Trustee and
each Agent may
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from time to time agree. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable fees and expenses,
including reasonable and documented out-of-pocket expenses incurred or made by
it in connection with the performance of its duties under this Indenture. Such
expenses shall include the reasonable fees and expenses of the Trustee's and
such Agent's agents, consultants and counsel.
The Company shall indemnify the Trustee and each Agent and their
respective agents, employees, stockholders and directors and officers for, and
hold them harmless against, any loss, liability or expense incurred by them
except for such actions to the extent caused by any negligence, bad faith or
willful misconduct on their part, arising out of or in connection with the
acceptance or administration of this trust including the reasonable costs and
expenses of defending themselves against any claim or liability in connection
with the exercise or performance of any of their rights, powers or duties
hereunder. The Trustee and each Agent shall notify the Company as soon as
practicable of any claim asserted against the Trustee or such Agent for which it
may seek indemnity. At the Trustee's or such Agent's, as the case may be, sole
discretion, the Company shall defend the claim and the Trustee or such Agent, as
the case may be, shall cooperate and may participate in the defense; provided
that any settlement of a claim shall be approved in writing by the Trustee or
such Agent, as the case may be. Alternatively, the Trustee or such Agent, as the
case may be, may at its option have separate counsel of its own choosing and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its written consent. The Company
need not reimburse any expense or indemnify against any loss or liability to the
extent incurred by the Trustee through its negligence, bad faith or willful
misconduct.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all assets or money held or
collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of or interest on particular Notes. The Trustee's
right to receive payment of any amounts due under this Section 7.07 shall not be
subordinate to any other liability or indebtedness of the Company (even though
the Notes may be subordinate to such other liability or indebtedness).
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) shall have occurred, such expenses
and the compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law; provided, however, that this shall not
affect the Trustee's rights as set forth in the preceding paragraph or Section
6.10.
The Company's obligations under this Section 7.07 and any lien arising
hereunder shall survive the resignation or removal of the Trustee, the discharge
of the Company's obligations pursuant to Article Eight or other termination of
this Indenture and any rejection or termination of this Indenture under any
Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Notes may remove the Trustee by
so notifying the Company and the Trustee in writing and may appoint a successor
Trustee reasonably acceptable to the Company. The Company may remove the Trustee
if:
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(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall notify each Holder of such event
and 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 Notes may appoint a successor Trustee reasonably acceptable to the Company
to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately thereafter, the retiring
Trustee shall transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided in Section 7.07, 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. A successor Trustee shall mail notice of its succession to each
Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 shall continue for the benefit of
the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to another corporation,
the resulting, surviving or transferee corporation without any further act
shall, if such resulting, surviving or transferee corporation is otherwise
eligible hereunder, be the successor Trustee; provided that such corporation
shall be otherwise qualified and eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirement
of TIA Sections 310(a)(1), (2) and (5). The Trustee (or, in the case of a
corporation included in a bank holding company system, the related bank holding
company) shall have a combined capital and surplus of at least $50 million as
set forth in its most recent published annual report of condition. In addition,
if the Trustee is a corporation included in a bank holding company system, the
Trustee, independently of such bank holding company, shall meet the capital
requirements of TIA Section 310(a)(2). The Trustee shall comply with TIA Section
310(b); provided, however, that there shall be
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excluded from the operation of TIA Section 310(b)(1) any indenture or indentures
under which other securities, or certificates of interest or participation in
other securities, of the Company are outstanding, if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met. The provisions of TIA
Section 310 shall apply to the Company, as obligor of the Notes.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
The provisions of TIA Section 311 shall apply to the Company, as obligor on the
Notes.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations.
The Company may terminate its obligations under the Notes and this
Indenture, except those obligations referred to in the penultimate paragraph of
this Section 8.01, if all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes which have been replaced or paid or Notes
for whose payment U.S. Legal Tender has theretofore been deposited with the
Trustee or the Paying Agent in trust or segregated and held in trust by the
Company and thereafter repaid to the Company, as provided in Section 8.05) have
been delivered to the Registrar for cancellation and the Company has paid all
sums payable by it hereunder, and the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent providing for or relating to the termination of the
Company's obligations under the Notes and this Indenture have been complied
with, or if:
(a) either (i) pursuant to Article Three, the Company shall have
given notice to the Trustee and each Paying Agent and mailed a notice of
redemption to each Holder of the redemption of all of the Notes under
arrangements satisfactory to the Trustee for the giving of such notice or
(ii) all Notes have otherwise become due and payable hereunder;
(b) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the
benefit of the Holders for that purpose, U.S. Legal Tender in such amount
as is sufficient without consideration of reinvestment of any interest
thereon, to pay principal of, premium, if any, and interest on the
outstanding Notes to maturity or redemption; provided that the Trustee
shall have been irrevocably instructed to apply such U.S. Legal Tender to
the payment of said principal, premium, if any, and interest with respect
to the Notes and; provided, further, that from and after the time of
deposit, the money deposited shall not be subject to the rights of holders
of Senior Debt pursuant to the provisions of Article Ten;
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(c) no Default or Event of Default with respect to this Indenture or
the Notes shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit and such deposit will
not result in a breach or violation of, or constitute a default under, any
other instrument to which the Company is a party or by which it is bound;
(d) the Company shall have paid all other sums payable by it
hereunder; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for or relating to the termination of the Company's
obligations under the Notes and this Indenture have been complied with.
Such Opinion of Counsel shall also state that such satisfaction and
discharge does not result in a default under the Credit Agreement (if then
in effect) or any other agreement or instrument then known to such counsel
that binds or affects the Company.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 7.07, 8.05 and 8.06 shall survive
until the Notes are no longer outstanding pursuant to the last paragraph of
Section 2.08. After the Notes are no longer outstanding, the Company's
obligations in Sections 7.07, 8.05 and 8.06 shall survive.
After such delivery or irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Notes and this Indenture except for those surviving obligations specified above.
SECTION 8.02. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board Resolution, at any time, elect
to have either paragraph (b) or (c) below be applied to all outstanding Notes
upon compliance with the conditions set forth in Section 8.03.
(b) Upon the Company's exercise under paragraph (a) hereof of the option
applicable to this paragraph (b), the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.03, be deemed to have been discharged
from its obligations with respect to all outstanding Notes on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, Legal Defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.04 hereof and the other Sections of this Indenture
referred to in (i) and (ii) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), and Holders of the Notes and any amounts deposited
under Section 8.03 hereof shall cease to be subject to any obligations to, or
the rights of, any holder of Senior Debt under Article Ten or otherwise, except
for the following provisions, which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of and interest
on such Notes when such payments are due, (ii) the Company's obligations with
respect to such Notes under Article Two and Section 4.02 hereof, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company's
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obligations in connection therewith and (iv) this Article Eight. Subject to
compliance with this Article Eight, the Company may exercise its option under
this paragraph (b) notwithstanding the prior exercise of its option under
paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the option
applicable to this paragraph (c), the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.03 hereof, be released from its
obligations under the covenants contained in Sections 4.10 through 4.20 and
Section 4.22 and Article Five hereof with respect to the outstanding Notes on
and after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Notes shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes) and Holders of the Notes and any amounts deposited
under Section 8.03 hereof shall cease to be subject to any obligations to, or
the rights of, any holder of Senior Debt under Article Ten or otherwise. For
this purpose, such Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event or Default under Section
6.01(3) hereof, but, except as specified above, the remainder of this Indenture
and such Notes shall be unaffected thereby. In addition, upon the Company's
exercise under paragraph (a) hereof of the option applicable to this paragraph
(c), subject to the satisfaction of the conditions set forth in Section 8.03
hereof, Sections 6.01(3), 6.01(4) and 6.01(5) shall not constitute Events of
Default.
SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of either Section
8.02(b) or 8.02(c) hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, U.S. Legal Tender, non-callable U.S.
Government Obligations or a combination thereof, in such amounts as will
be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any,
and interest on the Notes on the stated date for payment thereof or on the
applicable Redemption Date, as the case may be;
(b) in the case of an election under Section 8.02(b) hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there
has been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the Notes shall not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance
and shall be subject to federal income tax
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on the same amounts, in the same manner and at the same times as would
have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.02(c) hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the
Holders of the Notes shall not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and shall be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the incurrence of Indebtedness all or a portion of
the proceeds of which will be used to defease the Notes pursuant to this
Article Eight concurrently with such incurrence) or insofar as Sections
6.01(a)(6) and 6.01(a)(7) hereof are concerned, at any time in the period
ending on the 91st day after the date of such deposit (it being understood
that this condition shall not be satisfied and such Legal Defeasance or
Covenant Defeasance, as the case may be, shall not be effective until
expiration of such 91-day period);
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of or constitute a default under this Indenture or
any other material agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company
or with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Company or others;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with; and
(h) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (i) the trust funds will not be subject to any
rights of any holders of Senior Debt, including, without limitation, those
arising under this Indenture, and (ii) assuming no intervening bankruptcy
or insolvency of the Company between the date of deposit and the 91st day
following the deposit and that no Holder is an insider of the Company,
after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable Bankruptcy Law; and
(i) if the cash or U.S. Government Obligations or combination
thereof, as the case may be, deposited under subparagraph (a) above are
sufficient to pay the principal of, premium, if any, and interest on the
Notes provided the Notes are redeemed on a particular Redemption Date, the
Company shall have given the Trustee irrevocable instructions to redeem
the Notes on that Redemption Date and to provide notice of that redemption
to Holders as provided in this Indenture.
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SECTION 8.04. Application of Trust Money.
The Trustee or Paying Agent shall hold in trust U.S. Legal Tender or U.S.
Government Obligations deposited with it pursuant to Article Eight, and shall
apply the deposited U.S. Legal Tender and the proceeds from U.S. Government
Obligations in accordance with this Indenture to the payment of principal of,
premium, if any, and interest on the Notes. The Trustee shall be under no
obligation to invest said U.S. Legal Tender or U.S. Government Obligations
except as it may agree with the Company.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Legal Tender or U.S.
Government Obligations deposited pursuant to Section 8.03 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall, or shall request the Paying Agent to, deliver or pay to the
Company from time to time upon the Company's request any U.S. Legal Tender or
U.S. Government Obligations held by it as provided in Section 8.03 hereof which,
in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, 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 8.05. Repayment to the Company.
Subject to this Section 8.05 and the other provisions of this Article
Eight, the Trustee and the Paying Agent shall promptly pay to the Company upon
written request any excess U.S. Legal Tender or U.S. Government Obligations held
by them at any time and thereupon shall be relieved from all liability with
respect thereto. The Trustee and the Paying Agent shall pay to the Company upon
written request any money held by them for the payment of principal or interest
that remains unclaimed for two years; provided that the Trustee or such Paying
Agent, before being required to make any payment, may at the expense of the
Company cause to be published once in a newspaper of general circulation in the
City of New York or mail to each Holder entitled to such money notice that such
money remains unclaimed and that after a date specified therein which shall be
at least 30 days from the date of such publication or mailing any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company, Holders entitled to such money must look to the Company
for payment as general creditors unless an applicable law designates another
Person to whom such Holders may look.
SECTION 8.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender or
U.S. Government Obligations in accordance with Article Eight by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to Article
Eight until such time as the Trustee or Paying Agent is permitted to apply all
such U.S. Legal Tender or U.S. Government Obligations in accordance with Article
Eight; provided that if the
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Company has made any payment of interest on or principal of any Notes because of
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the U.S. Legal
Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee may
amend or supplement this Indenture or the Notes without notice to or consent of
any Holder:
(1) to cure any ambiguity herein, or to correct or supplement any
provision hereof which may be inconsistent with any other provision hereof
or to add any other provisions with respect to matters or questions
arising under this Indenture; provided that such actions shall not
adversely affect the interests of the Holders of Notes in any material
respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(4) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(5) to make any change that would provide any additional benefit or
rights to the Holders;
(6) to provide for issuance of the Exchange Notes, which will have
terms substantially identical in all material respects to the Initial
Notes (except that the transfer restrictions contained in the Initial
Notes will be modified or eliminated, as appropriate), and which will be
treated together with any outstanding Initial Notes, as a single issue of
securities;
(7) to add a Guarantor;
(8) to secure the Notes;
(9) to add to the covenants of the Company or any Guarantor for the
benefit of the Holders or to surrender any right or power conferred upon
the Company or any Guarantor;
(10) to evidence and provide for the acceptance of appointment under
this Indenture by a successor Trustee;
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(11) to make any other change that does not, in the good faith
judgment of the Board of Directors of the Company, adversely affect in any
material respect the rights of any Holders hereunder; and
(12) to conform the Indenture or the Notes to the section entitled
"Description of the Notes" in the Offering Memorandum;
provided that the Company has delivered to the Trustee an Opinion of Counsel
stating that such amendment or supplement complies with the provisions of this
Section 9.01.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company, when authorized by a Board
Resolution, and the Trustee, upon receipt of the written consent of the Holder
or Holders of at least a majority of the aggregate outstanding principal amount
of the Notes, may amend or supplement this Indenture or the Notes, without
notice to any other Holders. Subject to Section 6.07, the Holder or Holders of a
majority in aggregate outstanding principal amount of the Notes may waive
compliance by the Company with any provision of this Indenture or the Notes
without notice to any other Holder. Notwithstanding the forgoing, no amendment,
supplement or waiver, including a waiver pursuant to Section 6.04, shall,
without the consent of each Holder of each Note affected thereby:
(1) reduce the amount of Notes whose Holders must consent to an
amendment or waiver, including the waiver of Defaults or Events of
Default, or to a rescission and cancellation of a declaration of
acceleration of the Notes;
(2) reduce the rate of or change or have the effect of changing the
time for payment of interest, including defaulted interest and Additional
Interest, if any, on any Notes;
(3) reduce the principal of or change or have the effect of changing
the fixed maturity of any Notes, or change the date on which any Notes may
be subject to redemption, or reduce the Redemption Price therefor;
(4) make any Notes payable in a currency other than that stated in
the Notes;
(5) make any change in provisions of this Indenture protecting the
right of each Holder to receive payment of principal of and interest on
such Note on or after the due date thereof or to bring suit to enforce
such payment;
(6) amend, modify, change or waive any provision of this Section
9.02;
(7) change the price payable by the Company for Notes repurchased
pursuant to Section 4.15 or 4.16 or after the occurrence of a Change of
Control Triggering Event, modify or change in any material respect the
obligation of the Company or Holdings to make and consummate a Change of
Control Offer or modify any of the provisions or definitions with respect
thereto; or
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(8) waive a default in the payment of principal of or interest on
any Note; provided that this clause (8) shall not limit the right of the
Holders of a majority in aggregate principal amount of the outstanding
Notes to rescind and cancel a declaration of acceleration of the Notes
following delivery of an Acceleration Notice as provided in Section
6.02(d).
Any amendment to, or waiver of, the provisions of the Indenture relating
to subordination that adversely affects the rights of the Holders of the Notes
shall require the consent of the Holders of at least 75% in aggregate principal
amount of Notes then outstanding.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Effect on Senior Debt.
No amendment of this Indenture shall adversely affect the rights of any
holder of Designated Senior Debt under Article Ten of this Indenture or any
holder of Guarantor Designated Senior Debt under Article Twelve of this
Indenture without the consent of such holder.
SECTION 9.04. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
SECTION 9.05. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent Holder
of a Note or portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. Subject
to the following paragraph, any such Holder or subsequent Holder may revoke the
consent as to such Holder's Note or portion of such Note by written notice to
the Trustee or the Company received before the date on which the Trustee
receives an Officers' Certificate certifying that the Holders of the requisite
principal amount of Notes have consented (and not theretofore revoked such
consent) to the amendment, supplement or waiver.
The Company 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, which record date shall be at least 10 days prior to the
first solicitation of such consent. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to revoke any consent previously
given, whether or not such Persons
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continue to be Holders after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder, unless it makes a change described in any of clauses (1) through
(9) of Section 9.02, in which case the amendment, supplement or waiver shall
bind only each Holder of a Note who has consented to it and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note; provided that any such waiver shall not impair or
affect the right of any Holder to receive payment of principal of and interest
on a Note on or after the respective due dates expressed in such Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates without the consent of such Holder.
SECTION 9.06. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder of such Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Any such notation
or exchange shall be made at the sole cost and expense of the Company.
SECTION 9.07. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver authorized
pursuant to this Article Nine; provided that the Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver which affects the
Trustee's own rights, duties or immunities under this Indenture. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel and an Officers' Certificate each complying with Section
13.04 and 13.05 and stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article Nine is authorized or permitted by
this Indenture. Such Opinion of Counsel shall not be an expense of the Trustee.
SECTION 9.08. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article Nine,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
ARTICLE TEN
SUBORDINATION
SECTION 10.01. Notes Subordinated to Senior Debt.
The Company covenants and agrees, and each Holder of the Notes, by its
acceptance thereof, likewise covenants and agrees, that all Notes shall be
issued subject to the provisions of
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this Article Ten; and each Person holding any Note, whether upon original issue
or upon registration of transfer, assignment or exchange thereof, accepts and
agrees that the payment of all Obligations on the Notes by the Company shall, to
the extent and in the manner herein set forth, be subordinated and junior in
right of payment to the prior payment in full in cash or Cash Equivalents of all
Obligations on or in respect of Senior Debt; that the subordination is for the
benefit of, and shall be enforceable directly by, the holders of Senior Debt,
and that each holder of Senior Debt whether now outstanding or hereafter
created, incurred, assumed or guaranteed shall be deemed to have acquired Senior
Debt in reliance upon the covenants and provisions contained in this Indenture
and the Notes.
SECTION 10.02. No Payment on Notes in Certain Circumstances.
(a) If any default occurs and is continuing in the payment when due,
whether at maturity, upon redemption, by declaration or otherwise, of any
principal of, interest on, unpaid drawings for letters of credit issued in
respect of, or regularly accruing fees with respect to, any Designated Senior
Debt, no payment of any kind or character shall be made by, or on behalf of, the
Company or any other Person on its or their behalf with respect to any
Obligations on the Notes, or to acquire any of the Notes for cash or property or
otherwise. In addition, if any other event of default occurs and is continuing
with respect to any Designated Senior Debt, as such event of default is defined
in the instrument creating or evidencing such Designated Senior Debt, permitting
the holders of such Designated Senior Debt then outstanding to accelerate the
maturity thereof and if the Representative for the respective issue of
Designated Senior Debt gives written notice of such event of default to the
Trustee (a "Default Notice"), then, unless and until all such events of default
have been cured or waived or have ceased to exist or the Trustee receives notice
thereof from the Representative for the respective issue of Designated Senior
Debt terminating the Blockage Period (as defined below), during the 179 days
after the delivery of such Default Notice (the "Blockage Period"), neither the
Company nor any other Person on its behalf shall (x) make any payment of any
kind or character with respect to any Obligations on the Notes (other than
payment of amounts already deposited in accordance with the defeasance and
satisfaction and discharge provisions of this Indenture) or (y) acquire any of
the Notes for cash or property or otherwise. Notwithstanding anything herein to
the contrary, in no event will a Blockage Period extend beyond 180 days from the
date the payment on the Notes was due and only one such Blockage Period may be
commenced within any 360 consecutive days. No event of default which existed or
was continuing on the date of the commencement of any Blockage Period with
respect to the Designated Senior Debt shall be, or be made, the basis for the
commencement of a second Blockage Period by the Representative of such
Designated Senior Debt whether or not within a period of 360 consecutive days,
unless such event of default shall have been cured or waived for a period of not
less than 90 consecutive days (it being acknowledged that any subsequent action
or any breach of any financial covenants for a period commencing after the date
of commencement of such Blockage Period that, in either case, would give rise to
an event of default pursuant to any provisions under which an event of default
previously existed or was continuing shall constitute a new event of default for
this purpose).
(b) In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee, any Paying Agent or any Holder when such payment is
prohibited by Section 10.02(a), such payment shall be held in trust for the
benefit of, and shall be forthwith paid over or delivered to, the holders of
Senior Debt (pro rata to such holders on the basis of the respective amount of
Senior Debt held by such holders) or their respective Representatives, as their
respective interests may appear for application to the payment of such Senior
Debt until all
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such Senior Debt shall have been paid in full, after giving effect to any
concurrent payment or distribution or provision therefor to the holders of such
Senior Debt. The Trustee and each Paying Agent shall be entitled to rely on
information regarding amounts then due and owing on the Senior Debt, if any,
received from the holders of Senior Debt (or their Representatives) or, if such
information is not received from such holders or their Representatives, from the
Company and only amounts included in the information provided to the Trustee or
any Paying Agent shall be paid to the holders of Senior Debt.
Nothing contained in this Article Ten shall limit the right of the Trustee
or the Holders of Notes to take any action to accelerate the maturity of the
Notes pursuant to Section 6.02 or to pursue any rights or remedies hereunder;
provided that all Senior Debt thereafter due or declared to be due shall first
be paid in full in cash or Cash Equivalents before the Holders are entitled to
receive any payment of any kind or character with respect to Obligations on the
Notes.
SECTION 10.03. Payment Over of Proceeds upon Dissolution, Etc.
(a) Upon any payment or distribution of assets of the Company of any kind
or character to creditors, whether in cash, property or securities upon any
total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the Company
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Debt shall
first be paid in full in cash or Cash Equivalents, or such payment duly provided
for to the satisfaction of the holders of Senior Debt, before any payment or
distribution of any kind or character is made on account of any Obligations on
the Notes, or for the acquisition of any of the Notes for cash or property or
otherwise. Upon any such dissolution, winding-up, liquidation, reorganization,
receivership or similar proceeding, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders of the Notes would be entitled, except for the provisions
hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the Holders if received by them, directly to the holders of Senior Debt
(pro rata to such holders on the basis of the respective amounts of Senior Debt
held by such holders) or their respective Representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Debt may have
been issued, as their respective interests may appear, for application to the
payment of Senior Debt remaining unpaid until all such Senior Debt has been paid
in full in cash or Cash Equivalents after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of Senior
Debt.
(b) To the extent any payment of Senior Debt (whether by or on behalf of
the Company, as proceeds of security or enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required
to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or
other similar Person under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then, if such payment is recovered by, or paid over
to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other
similar Person, the Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, shall be
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received by any Holder when such payment or distribution is prohibited by this
Section 10.03, such payment or distribution shall be held in trust for the
benefit of, and shall be forthwith paid over or delivered to, the holders of
Senior Debt (pro rata to such holders on the basis of the respective amount of
Senior Debt held by such holders) or their respective Representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Senior
Debt may have been issued, as their respective interests may appear, for
application to the payment of Senior Debt remaining unpaid until all such Senior
Debt has been paid in full in cash or Cash Equivalents, after giving effect to
any concurrent payment, distribution or provision therefor to or for the holders
of such Senior Debt.
(d) The consolidation of the Company with, or the merger of the Company
with or into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of all or substantially all of its assets,
to another Person upon the terms and conditions provided in Article Five hereof
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section 10.03 if such other Person shall, as a part of such
consolidation, merger, conveyance or transfer, assume the Company's obligations
hereunder in accordance with Article Five hereof.
SECTION 10.04. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Ten or elsewhere in this Indenture shall
prevent (i) the Company, except under the conditions described in Sections 10.02
and 10.03, from making payments at any time in respect of principal of and
interest on the Notes, or from depositing with the Trustee any moneys for such
payments, or (ii) in the absence of actual knowledge by the Trustee that a given
payment would be prohibited by Section 10.02 or 10.03, the application by the
Trustee of any moneys deposited with it for the purpose of making such payments
of principal of, and interest on, the Notes to the Holders entitled thereto
unless at least two Business Days prior to the date upon which such payment
would otherwise become due and payable a Trust Officer shall have actually
received the written notice provided for in the second sentence of Section
10.02(a) or in Section 10.07 (provided that, notwithstanding the foregoing, such
application shall otherwise be subject to the provisions of the first sentence
of Section 10.02(a) and Section 10.03). The Company shall give prompt written
notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of the Company.
SECTION 10.05. Subrogation.
Subject to the payment in full in cash or Cash Equivalents of all Senior
Debt, the Holders of the Notes shall be subrogated to the rights of the holders
of Senior Debt to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Debt until the Notes shall be
paid in full; and, for the purposes of such subrogation, no such payments or
distributions to the holders of the Senior Debt by or on behalf of the Company
or by or on behalf of the Holders by virtue of this Article Ten which otherwise
would have been made to the Holders shall, as between the Company and the
Holders of the Notes, be deemed to be a payment by the Company to or on account
of the Senior Debt, it being understood that the provisions of this Article Ten
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Notes, on the one hand, and the holders of the Senior Debt,
on the other hand.
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SECTION 10.06. Obligations of the Company Unconditional.
Nothing contained in this Article Ten or elsewhere in this Indenture or in
the Notes is intended to or shall impair, as among the Company, its creditors
other than the holders of Senior Debt, and the Holders, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders the
principal of and any interest on the Notes as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of the Holders and creditors of the Company other than the
holders of the Senior Debt, nor shall anything herein or therein prevent the
Holder of any Note or the Trustee on its behalf from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
SECTION 10.07. Notice to Trustee and Paying Agents.
The Company shall give prompt written notice to the Trustee and each
Paying Agent of any fact known to the Company which would prohibit the making of
any payment to or by the Trustee or any Paying Agent in respect of the Notes
pursuant to the provisions of this Article Ten. Regardless of anything to the
contrary contained in this Article Ten or elsewhere in this Indenture, neither
the Trustee nor any Paying Agent shall be charged with knowledge of the
existence of any default or event of default with respect to any Senior Debt or
of any other facts which would prohibit the making of any payment to or by the
Trustee or any Paying Agent unless and until the Trustee or such Paying Agent,
as the case may be, shall have received notice in writing from the Company, or
from a holder of Senior Debt or a Representative therefor, together with proof
satisfactory to the Trustee or such Paying Agent, as the case may be, of such
holding of Senior Debt or of the authority of such Representative, and, prior to
the receipt of any such written notice, the Trustee shall be entitled to assume
(in the absence of actual knowledge to the contrary) that no such facts exist.
In the event that the Trustee or any Paying Agent determines in good faith
that any evidence is required with respect to the right of any Person as a
holder of Senior Debt to participate in any payment or distribution pursuant to
this Article Ten, the Trustee or such Paying Agent, as the case may be, may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee or such Paying Agent, as the case may be, as to the amounts of Senior
Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Ten, and if such evidence is not
furnished the Trustee or such Paying Agent, as the case may be, may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article Ten, the Trustee, subject to the provisions of Article Seven
hereof, each Paying Agent and the Holders ofhe Notes shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
any insolvency, bankruptcy, receivership, dissolution, winding-up, liquidation,
reorganization or similar case or proceeding is pending, or upon a certificate
of the receiver, trustee in bankruptcy, liquidating trustee, assignee for the
benefit of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or the Holders of
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the Notes, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Debt and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Ten provided that such court, trustee, assignee, agent or other
Person has been made aware of this Article Ten.
SECTION 10.09. Trustee's Relation to Senior Debt.
The Trustee, each Agent and any agent of the Company, of the Trustee or
any Agent shall be entitled to all the rights set forth in this Article Ten with
respect to any Senior Debt which may at any time be held by it in its individual
or any other capacity to the same extent as any other holder of Senior Debt and
nothing in this Indenture shall deprive the Trustee, any Agent or any such agent
of any of its rights as such a holder.
With respect to the holders of Senior Debt, the Trustee and each Agent
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee or any Agent. Neither the Trustee nor any Agent
shall be deemed to owe any fiduciary duty to the holders of Senior Debt and
shall not be liable to any such holders if the Trustee shall in good faith
mistakenly pay over or distribute to Holders of Notes or to the Company or to
any other person cash, property or securities to which any holders of Senior
Debt shall be entitled by virtue of this Article or otherwise.
Whenever a distribution is to be made or a notice is to be given to
holders or owners of Senior Debt, the distribution may be made and the notice
may be given to their Representatives, if any.
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt to enforce
subordination as provided herein shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee, without incurring responsibility to the
Trustee or the Holders of the Notes and without impairing or releasing the
subordination provided in this Article Ten or the obligations hereunder of the
Holders of the Notes to the holders of the Senior Debt do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Debt, or otherwise amend or supplement
in any manner Senior Debt, or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding; (ii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Debt; (iii) release any Person liable in any manner for the payment or
collection of Senior Debt; and (iv) exercise or refrain from exercising any
rights against the Company and any other Person.
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SECTION 10.11. Noteholders Authorize Trustee and Paying Agent To
Effectuate Subordination of Notes.
Each Holder of Notes by its acceptance of them authorizes and expressly
directs the Trustee and each Paying Agent on its behalf to take such action as
may be necessary or appropriate to effectuate, as between the holders of Senior
Debt and the Holders of Notes, the subordination provided in this Article Ten,
and appoints the Trustee and each Paying Agent its attorney-in-fact for such
purposes, including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Company, the filing of a claim for the unpaid balance of its Notes and
accrued interest in the form required in those proceedings.
If the Trustee does not file a proper claim or proof of debt in the form
required in such proceeding prior to 30 days before the expiration of the time
to file such claim or claims, then the holders of the Senior Debt or their
Representatives are hereby authorized to have the right to file and are hereby
authorized to file an appropriate claim for and on behalf of the Holders of said
Notes. Nothing herein contained shall be deemed to authorize the Trustee or the
holders of Senior Debt or their Representatives 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
thereof, or to authorize the Trustee or the holders of Senior Debt or their
Representatives to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 10.12. This Article Ten Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest on
the Notes by reason of any provision of this Article Ten shall not be construed
as preventing the occurrence of an Event of Default.
SECTION 10.13. Trustee's Compensation Not Prejudiced.
Nothing in this Article Ten shall apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee.
Each of the Guarantors unconditionally guarantees, jointly and severally,
(such guarantees to be referred to herein as the "Guarantees"), to each Holder
of a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, the Notes and the Obligations of the Company hereunder
and thereunder, that: (i) the principal of and interest on the Notes will be
promptly paid in full when due, subject to any applicable grace period, whether
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at maturity, by acceleration or otherwise and, to the extent lawful, interest on
the overdue principal of and interest on the Notes and all other Obligations of
the Company to the Holders or the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and (ii) in case of any extension of time of payment or renewal of any
Notes or of any such other obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by
acceleration or otherwise. Each Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
Each Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice and
all demands whatsoever and covenants that the Guarantees will not be discharged
except by complete performance of the obligations contained in the Notes, this
Indenture and in the Guarantees. If any Noteholder, the Trustee or any Paying
Agent is required by any court or otherwise to return to the Company, any
Guarantor, or any Custodian acting in relation to the Company or any Guarantor,
any amount paid by the Company or any Guarantor to the Trustee or such Paying
Agent or Noteholder, the Guarantees, to the extent theretofore discharged, shall
be reinstated in full force and effect. 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 Six for the purposes of the Guarantees,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forthwith become due and
payable by each Guarantor for the purpose of such Guarantees.
SECTION 11.02. Subordination of Guarantees.
The obligations of each Guarantor to the Holders of the Notes and to the
Trustee on behalf of the Holders pursuant to the Guarantees and this Indenture
are expressly subordinate and subject in right of payment to the prior payment
in full of all Guarantor Senior Debt of such Guarantor, to the extent and in the
manner provided in Article Twelve.
SECTION 11.03. Severability.
In case any provision of the Guarantees shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 11.04. Release of Guarantees.
(a) The Guarantee of any Subsidiary Guarantor shall be released, without
any further action required on the part of the Trustee or any Holder:
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(i) (A) At such time as less than $10.0 million principal amount of
the Existing Notes remains outstanding (provided that any Existing Notes
purchased by the Company and its Subsidiaries have been cancelled and that
any Existing Notes that have been redeemed by the Company have been
permanently redeemed) and (B) as long as the Subsidiary Guarantors are not
guarantors of any other Indebtedness other than Indebtedness under the
Credit Agreement, each of the Subsidiary Guarantors shall be released from
its obligations under its Guarantee;
(ii) upon any sale or other disposition (by merger or otherwise) to
any Person which is not a Restricted Subsidiary of the Company of all of
the Company's Capital Stock in such Subsidiary Guarantor, provided that
such sale or disposition of such Capital Stock is otherwise in compliance
with the terms of this Indenture; or
(iii) upon the designation of such Restricted Subsidiary as an
Unrestricted Subsidiary in accordance with the terms of this Indenture.
(b) Upon the release by the lenders under the Credit Agreement (including
any future refinancings thereof) of all guarantees of any Guarantor of or
relating to the Credit Agreement and all Indebtedness thereunder, such Guarantor
shall be deemed released from all obligations under this Article Eleven without
any further action required on the part of the Trustee or any Holder; provided,
however, that any such release shall occur only to the extent that all
obligations of such Guarantor under all of its guarantees of or relating to the
Credit Agreement (including any future refinancings thereof) and all
Indebtedness thereunder shall also be released and if any payment is made by the
Company or any Guarantor to the lenders under the Credit Agreement in connection
with any such release, a pro rata payment shall be made to the Holders based on
the ratio of the outstanding principal amount of the Notes to the maximum amount
which could be borrowed under the Credit Agreement.
(c) The Trustee shall deliver an appropriate instrument evidencing such
release upon receipt of a request by the Company accompanied by an Officers'
Certificate certifying as to the compliance with this Section 11.04.
SECTION 11.05. Waiver of Subrogation.
Until payment in full is made of the Notes and all other obligations of
the Company to the Holders or the Trustee on behalf of the Holders hereunder and
under the Notes, each Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of such Guarantors'
obligations under its Guarantee of this Indenture, including without limitation,
any right of subrogation, reimbursement, exoneration, indemnification, and any
right to participate in any claim or remedy of any Holder of Notes against the
Company, whether or not such claim, remedy or right arises in equity, or under
contract, statute or common law, including, without limitation, the right to
take or receive from the Company, directly or indirectly, in cash or other
property or by set-off or any other manner, payment or security on account of
such claim or other rights. If any amount shall be paid to any Guarantor in
violation of the preceding sentence and the Notes shall not have been paid in
full, such amount shall have been deemed to have been paid to such Guarantor for
the benefit of, and held in trust for the benefit of, the Holders of the Notes,
and shall forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Notes, whether matured or unmatured, in
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accordance with the terms of this Indenture. Each Guarantor acknowledges that it
will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
11.05 is knowingly made in contemplation of such benefits.
SECTION 11.06. Execution of Guarantees.
To evidence its guarantee to the Noteholders set forth in this Article
Eleven, each Guarantor hereby agrees to execute a Guarantee in substantially the
form included in Exhibit A, which shall be endorsed on such Note ordered to be
authenticated and delivered by the Trustee. Each Guarantor hereby agrees that
the Guarantees set forth in this Article Eleven shall remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of each
such Guarantee. Each such Guarantee shall be signed on behalf of each Guarantor
by two Officers, or an Officer and an Assistant Secretary prior to the
authentication of the Note on which it is endorsed, and the delivery of such
Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of such Guarantee on behalf of such Guarantor. Such
signatures upon the Guarantees may be by manual or facsimile signature of such
officers and may be imprinted or otherwise reproduced on the Guarantees, and in
case any such officer who shall have signed such Guarantee shall cease to be
such officer before the Note on which such Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Company, such
Note nevertheless may be authenticated and delivered or disposed of as though
the person who signed the Guarantee had not ceased to be such officer of such
Guarantor.
SECTION 11.07. Waiver of Stay, Extension or Usury Laws.
Each Guarantor covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive it from performing its Guarantee as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) each Guarantor hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
SECTION 12.01. Guarantee Obligations Subordinated to Guarantor Senior
Debt.
Each Guarantor covenants and agrees, and each Holder of the Notes, by its
acceptance thereof, likewise covenants and agrees, that any payment of
obligations by any Guarantor in respect of its Guarantee (its "Guarantee
Obligations") shall be made subject to the provisions of this Article Twelve;
and each Person holding any Note, whether upon original issue or upon
registration of transfer, assignment or exchange thereof, accepts and agrees
that the payment of all Guarantee Obligations by any Guarantor shall, to the
extent and in the manner herein set
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forth, be subordinated and junior in right of payment to the prior payment in
full in cash or Cash Equivalents of all Obligations on the Guarantor Senior Debt
of such Guarantor, that the subordination is for the benefit of, and shall be
enforceable directly by, the holders of Guarantor Senior Debt of such Guarantor,
and that each holder of Guarantor Senior Debt of such Guarantor whether now
outstanding or hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Guarantor Senior Debt of such Guarantor in reliance upon
the covenants and provisions contained in this Indenture and the Notes.
SECTION 12.02. No Payment on Notes in Certain Circumstances.
(a) If any default occurs and is continuing in the payment when due,
whether at maturity, upon redemption, by declaration or otherwise, of any
principal of, interest on, unpaid drawings for letters of credit issued in
respect of, or regularly accruing fees with respect to, any Guarantor Designated
Senior Debt of any Guarantor, no payment of any kind or character shall be made
by, or on behalf of, such Guarantor or any other Person on its or their behalf
with respect to any Guarantee Obligations, or to acquire any of the Notes for
cash or property or otherwise. In addition, if any other event of default occurs
and is continuing with respect to any Guarantor Senior Debt of such Guarantor,
as such event of default is defined in the instrument creating or evidencing
such Guarantor Senior Debt of such Guarantor, permitting the holders of such
Guarantor Senior Debt of such Guarantor then outstanding to accelerate the
maturity thereof and if the Representative for the respective issue of Guarantor
Senior Debt of such Guarantor gives notice of the event of default to the
Trustee (a "Guarantor Default Notice"), then, unless and until all events of
default have been cured or waived or have ceased to exist or the Trustee
receives notice thereof from the Representative for the respective issue of
Guarantor Senior Debt of such Guarantor terminating the Guarantor Blockage
Period (as defined below), during the 179 days after the delivery of such
Guarantor Default Notice (the "Guarantor Blockage Period"), neither such
Guarantor nor any other Person on its behalf shall (x) make any payment of any
kind or character with respect to any Guarantee Obligations or (y) acquire any
of the Notes for cash or property or otherwise. Notwithstanding anything herein
to the contrary, in no event will a Guarantor Blockage Period extend beyond 180
days from the date the payment on the Notes was due and only one such Guarantor
Blockage Period may be commenced within any 360 consecutive days. No event of
default which existed or was continuing on the date of the commencement of any
Guarantor Blockage Period with respect to the Guarantor Senior Debt of such
Guarantor shall be, or be made, the basis for the commencement of a second
Guarantor Blockage Period by the Representative of such Guarantor Senior Debt of
such Guarantor whether or not within a period of 360 consecutive days, unless
such event of default shall have been cured or waived for a period of not less
than 90 consecutive days (it being acknowledged that any subsequent action or
any breach of any financial covenants for a period commencing after the date of
commencement of such Guarantor Blockage Period that, in either case, would give
rise to an event of default pursuant to any provisions under which an event of
default previously existed or was continuing shall constitute a new event of
default for this purpose).
(b) In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee, any Paying Agent or any Holder when such payment is
prohibited by Section 12.02(a), such payment shall be held in trust for the
benefit of, and shall be forthwith paid over or delivered to, the holders of
Guarantor Senior Debt of such Guarantor (pro rata to such holders on the basis
of the respective amount of Guarantor Senior Debt of such Guarantor held by such
holders) or their respective Representatives, as their respective interests may
appear for application to the payment of such Senior Debt until all such Senior
Debt shall have been
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paid in full, after giving effect to any concurrent payment or distribution or
provision therefor to the holders of such Senior Debt. The Trustee and each
Paying Agent shall be entitled to rely on information regarding amounts then due
and owing on the Guarantor Senior Debt of such Guarantor, if any, received from
the holders of such Guarantor Senior Debt (or their Representatives) or, if such
information is not received from such holders or their Representatives, from
such Guarantor, and only amounts included in the information provided to the
Trustee and each Paying Agent shall be paid to the holders of Guarantor Senior
Debt of such Guarantor.
Nothing contained in this Article Twelve shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Section 6.02 or to pursue any rights or remedies
hereunder; provided that all Guarantor Senior Debt of any Guarantor thereafter
due or declared to be due shall first be paid in full in cash or Cash
Equivalents before the Holders are entitled to receive any payment of any kind
or character with respect to Guarantee Obligations.
SECTION 12.03. Payment Over of Proceeds upon Dissolution, Etc.
(a) Upon any payment or distribution of assets of any Guarantor of any
kind or character to creditors, whether in cash, property or securities, upon
any total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of any Guarantor
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to any Guarantor or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Guarantor Senior Debt
of such Guarantor shall first be paid in full in cash or Cash Equivalents, or
such payment duly provided for to the satisfaction of the holders of Guarantor
Senior Debt of such Guarantor, before any payment or distribution of any kind or
character is made on account of any Guarantee Obligations, or for the
acquisition of any of the Notes for cash or property or otherwise. Upon any such
dissolution, winding-up, liquidation, reorganization, receivership or similar
proceeding, any payment or distribution of assets of any Guarantor of any kind
or character, whether in cash, property or securities, to which the Holders of
the Notes would be entitled, except for the provisions hereof, shall be paid by
such Guarantor or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the Holders if
received by them, directly to the holders of Guarantor Senior Debt of such
Guarantor (pro rata to such holders on the basis of the respective amounts of
Guarantor Senior Debt of such Guarantor held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Guarantor Senior Debt of such Guarantor may have
been issued, as their respective interests may appear, for application to the
payment of Guarantor Senior Debt of such Guarantor remaining unpaid until all
such Guarantor Senior Debt of such Guarantor has been paid in full in cash or
Cash Equivalents after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of Guarantor Senior Debt of such
Guarantor.
(b) To the extent any payment of Guarantor Senior Debt of any Guarantor
(whether by or on behalf of such Guarantor, as proceeds of security or
enforcement of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then
if such payment is recovered by, or paid over to, such receiver, trustee in
bankruptcy, liquidating trustee, agent or
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other similar Person, the Guarantor Senior Debt of such Guarantor or part
thereof originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of any Guarantor of any kind or character, whether in
cash, property or securities, shall be received by any Holder when such payment
or distribution is prohibited by this Section 12.03, such payment or
distribution shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Guarantor Senior Debt of such Guarantor (pro
rata to such holders on the basis of the respective amount of Guarantor Senior
Debt of such Guarantor held by such holders) or their respective
Representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Guarantor Senior Debt of such Guarantor may have been issued,
as their respective interests may appear, for application to the payment of
Guarantor Senior Debt of such Guarantor remaining unpaid until all such
Guarantor Senior Debt of such Guarantor has been paid in full in cash or Cash
Equivalents, after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Guarantor Senior Debt of such
Guarantor.
(d) The consolidation of any Guarantor with, or the merger of a
Guarantor with or into, another Person or the liquidation or dissolution of a
Guarantor following the conveyance or transfer of all or substantially all of
its assets, to another Person upon the terms and conditions provided in Article
Five hereof shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 12.03 if such other Person
shall, as a part of such consolidation, merger, conveyance or transfer, assume
such Guarantors' obligations hereunder in accordance with Article Five hereof.
SECTION 12.04. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Twelve or elsewhere in this Indenture
shall prevent (i) any Guarantor, except under the conditions described in
Sections 12.02 and 12.03, from making payments at any time in respect of
Guarantee Obligations, or from depositing with the Trustee any moneys for such
payments, or (ii) in the absence of actual knowledge by the Trustee that a given
payment would be prohibited by Section 12.02 or 12.03, the, application by the
Trustee of any moneys deposited with it for the purpose of making such payments
of principal of, and interest on, Guarantee Obligations to the Holders entitled
thereto unless at least two Business Days prior to the date upon which such
payment would otherwise become due and payable a Trust Officer shall have
actually received the written notice provided for in the second sentence of
Section 12.02(a) or in Section 12.07 (provided that, notwithstanding the
foregoing, such application shall otherwise be subject to the provisions of the
first sentence of Section 12.02(a) and Section 12.03). Each Guarantor shall give
prompt written notice to the Trustee of any dissolution, winding-up, liquidation
or reorganization of such Guarantor.
SECTION 12.05. Subrogation.
Subject to the payment in full in cash or Cash Equivalents of all
Guarantor Senior Debt of any Guarantor, the Holders of the Guarantee Obligations
shall be subrogated to the rights of the holders of Guarantor Senior Debt of
such Guarantor to receive payments or distributions of cash, property or
securities of Holdings applicable to the Guarantor Senior Debt of such Guarantor
until the Guarantee Obligations shall be paid in full; and, for the purposes of
such subrogation,
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no such payments or distributions to the holders of the Guarantor Senior Debt of
such Guarantor by or on behalf of such Guarantor or by or on behalf of the
Holders by virtue of this Article Twelve which otherwise would have been made to
the Holders shall, as between such Guarantor and the Holders of the Guarantee
Obligations, be deemed to be a payment by such Guarantor to or on account of the
Guarantor Senior Debt of such Guarantor, it being understood that the provisions
of this Article Twelve are and are intended solely for the purpose of defining
the relative rights of the Holders of the Guarantee Obligations, on the one
hand, and the holders of the Guarantor Senior Debt of the Guarantors, on the
other hand.
SECTION 12.06. Obligations of the Guarantors Unconditional.
Nothing contained in this Article Twelve or elsewhere in this Indenture or
in the Notes is intended to or shall impair, as among each Guarantor, its
creditors other than the holders of Guarantor Senior Debt of such Guarantor, and
the Holders, the obligation of each Guarantor, which is absolute and
unconditional, to pay the Guarantee Obligations to the Holders as and when the
same shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the Holders and creditors of the such
Guarantor other than the holders of the Guarantor Senior Debt of such Guarantor,
nor shall anything herein or therein prevent the Holder of any Note or the
Trustee on its behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
in respect of cash, property or securities of such Guarantor received upon the
exercise of any such remedy.
SECTION 12.07. Notice to Trustee and Paying Agents.
Each Guarantor shall give prompt written notice to the Trustee and each
Paying Agent of any fact known to such Guarantor which would prohibit the making
of any payment to or by the Trustee in respect of the Notes pursuant to the
provisions of this Article Twelve. Regardless of anything to the contrary
contained in this Article Twelve or elsewhere in this Indenture, neither the
Trustee nor any Paying Agent shall be charged with knowledge of the existence of
any default or event of default with respect to any Guarantor Senior Debt of any
Guarantor or of any other facts which would prohibit the making of any payment
to or by the Trustee or any Paying Agent unless and until the Trustee or such
Paying Agent, as the case may be, shall have received notice in writing from
such Guarantor, or from a holder of Guarantor Senior Debt of such Guarantor or a
Representative therefor, together with proof satisfactory to the Trustee or such
Paying Agent, as the case may be, of such holding of Guarantor Senior Debt of
such Guarantor or of the authority of such Representative, and, prior to the
receipt of any such written notice, the Trustee shall be entitled to assume (in
the absence of actual knowledge to the contrary) that no such facts exist.
In the event that the Trustee or any Paying Agent determines in good faith
that any evidence is required with respect to the right of any Person as a
holder of Guarantor Senior Debt of any Guarantor to participate in any payment
or distribution pursuant to this Article Twelve, the Trustee or such Paying
Agent, as the case may be, may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee or such Paying Agent, as the case may be,
as to the amounts of Guarantor Senior Debt of such Guarantor held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Twelve, and if such evidence is not
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furnished, the Trustee or such Paying Agent, as the case may be, may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 12.08. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of any Guarantor referred to in
this Article Twelve, the Trustee, subject to the provisions of Article Seven
hereof, such Paying Agent and the Holders of the Notes shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
any insolvency, bankruptcy, receivership, dissolution, winding-up, liquidation,
reorganization or similar case or proceeding is pending, or upon a certificate
of the receiver, trustee in bankruptcy, liquidating trustee, assignee for the
benefit of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or the Holders of the Notes, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Guarantor Senior Debt of such Guarantor and
other Indebtedness of such Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Twelve; provided that such court receiver, trustee,
assignee, agent or other Person has been made aware of this Article Twelve.
SECTION 12.09. Trustee's Relation to Guarantor Senior Debt of the
Guarantors.
The Trustee, each Agent and any agent of the Guarantors, the Trustee or
any Agent shall be entitled to all the rights set forth in this Article Twelve
with respect to any Guarantor Senior Debt of any such Guarantor which may at any
time be held by it in its individual or any other capacity to the same extent as
any other holder of Guarantor Senior Debt of such Guarantor and nothing in this
Indenture shall deprive the Trustee, any Agent or any such agent of any of its
rights as such a holder.
With respect to the holders of Guarantor Senior Debt of the Guarantors,
the Trustee and each Agent undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article Twelve,
and no implied covenants or obligations with respect to the holders of Guarantor
Senior Debt of the Guarantors shall be read into this Indenture against the
Trustee. Neither the Trustee nor any Agent shall be deemed to owe any fiduciary
duty to the holders of Guarantor Senior Debt of the Guarantors and shall not be
liable to any such holders if the Trustee shall in good faith mistakenly pay
over or distribute to Holders of Notes or to the Company or to any other person
cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise.
Whenever a distribution is to be made or a notice is to be given to
holders or owners of Guarantor Senior Debt of the Guarantors, the distribution
may be made and the notice may be given to their Representatives, if any.
SECTION 12.10. Subordination Rights Not Impaired by Acts or Omissions of
the Guarantors or Holders of Guarantor Senior Debt of the
Guarantors.
No right of any present or future holders of any Guarantor Senior Debt of
the Guarantors to enforce subordination as provided herein shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
any Guarantor or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by any Guarantor with the terms of
116
this Indenture, regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Guarantor Senior Debt of the Guarantors may, at any time and from
time to time, without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Notes and without impairing
or releasing the subordination provided in this Article Twelve or the
obligations hereunder of the Holders of the Notes to the holders of the
Guarantor Senior Debt of the Guarantors, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Guarantor Senior Debt of any Guarantor, or otherwise
amend or supplement in any manner Guarantor Senior Debt of any Guarantor, or any
instrument evidencing the same or any agreement under which Guarantor Senior
Debt of any Guarantor is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Guarantor Senior
Debt of any Guarantor; (iii) release any Person liable in any manner for the
payment or collection of Guarantor Senior Debt of any Guarantor; and (iv)
exercise or refrain from exercising any rights against any Guarantor and any
other Person.
SECTION 12.11. Noteholders Authorize Trustee and Paying Agent To
Effectuate Subordination of Notes.
Each Holder of Notes by its acceptance of them authorizes and expressly
directs the Trustee and each Paying Agent on its behalf to take such action as
may be necessary or appropriate to effectuate, as between the holders of
Guarantor Senior Debt of the Guarantors and the Holders of Notes, the
subordination provided in this Article Twelve, and appoints the Trustee and each
Paying Agent its attorney-in-fact for such purposes, including, in the event of
any dissolution, winding-up, liquidation or reorganization of any Guarantor
(whether in bankruptcy, insolvency, receivership, reorganization or similar
proceedings or upon an assignment for the benefit of creditors or otherwise)
tending towards liquidation of the business and assets of Holdings, the filing
of a claim for the unpaid balance of its Notes and accrued interest in the form
required in those proceedings.
If the Trustee does not file a proper claim or proof of debt in the form
required in such proceeding prior to 30 days before the expiration of the time
to file such claim or claims, then the holders of the Guarantor Senior Debt of
such Guarantor or their Representatives are hereby authorized to have the right
to file and are hereby authorized to file an appropriate claim for and on behalf
of the Holders of said Notes. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Guarantor Senior Debt of any Guarantor
or their Representatives 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 thereof, or to authorize the
Trustee or the holders of Guarantor Senior Debt of such Guarantor or their
Representatives to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 12.12. This Article Twelve Not To Prevent Events of Default.
The failure to make a payment on account of Guarantee Obligations by
reason of any provision of this Article Twelve will not be construed as
preventing the occurrence of an Event of Default.
117
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01 TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
SECTION 13.02. Notices.
Any notices or other communications required or permitted hereunder shall
be in writing, and shall be sufficiently given if made by hand delivery, by
commercial courier service, by telecopier or registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
if to Holdings, the Company or any Subsidiary Guarantor:
Del Monte Corporation
and
Del Monte Foods Company
One Market Street @ The Landmark
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President and Treasurer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Del Monte Corporation
and
Del Monte Foods Company
One Market Street @ The Landmark
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
118
if to the Trustee:
Deutsche Bank Trust Company Americas
27th Floor - MS 2710
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Trust & Securities Services
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Paying Agent or Registrar:
Deutsche Bank Trust Company Americas
27th Floor - MS 2710
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Trust & Securities Services
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Each of the Company, Holdings, the Subsidiary Guarantors, the Trustee and
the Paying Agent by written notice to each other such Person may designate
additional or different addresses for notices to such Person. Any notice or
communication to the Company, Holdings, the Subsidiary Guarantors, the Trustee
and the Paying Agent shall be deemed to have been given or made as of the date
so delivered if personally delivered; when receipt is confirmed if delivered by
commercial courier service; when receipt is acknowledged, if faxed; and upon
actual receipt if sent by registered or certified mail, postage prepaid (except
that a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
In the event any additional Guarantors are added pursuant to Section 4.19,
this Section 13.02 shall be supplemented to provide for delivery of any notices
or communications described herein to each such Guarantor.
Any notice or communication mailed to a Holder shall be mailed to him by
first class mail or other equivalent means at his address as it appears on the
registration books of the Registrar and shall be sufficiently given to him if so
mailed within the time prescribed.
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 a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
SECTION 13.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and any other Person shall have the protection of TIA
Section 312(c).
119
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or Holdings to the Trustee
to take any action under this Indenture, the Company or Holdings, as the case
may be, shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee, stating that, in the opinion of the signers,
all conditions precedent to be performed by the Company, if any, provided
for in this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Company, if
any, provided for in this Indenture relating to the proposed action have
been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture, other than the Officers' Certificate
required by Section 4.06, shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition and the definitions relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is reasonably necessary to
enable him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the Trustee's
customary practices for action by or at a meeting of Holders. Each of the Paying
Agent or Registrar may make reasonable rules in accordance with customary
practices for its functions.
SECTION 13.07. Legal Holidays.
A "Legal Holiday" means a Saturday, Sunday or day on which banking
institutions in New York, New York are not required to be open except that, when
such term is used with respect to a particular place where a payment is to be
made in respect of the Notes and with respect to the payment to be made on the
Notes at such place, such term means a Saturday, Sunday or other day on which
banking institutions in such place of payment are not required to be open.
120
If a payment date is a Legal Holiday at such place, payment may be made at
such place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 13.08. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE.
SECTION 13.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.10. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such, of
the Company or of the Trustee shall not have any liability for any obligations
of the Company under the Notes 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 a Note waives and releases all such liability. Such waiver and release
are part of the consideration for the issuance of the Notes. The foregoing
provisions do not relate to the liability of Holdings as a Guarantor.
SECTION 13.11. Successors.
All agreements of the Company, Holdings and the Subsidiary Guarantors in
this Indenture and the Notes shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 13.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together shall represent the same
agreement.
SECTION 13.13. Severability.
In case any one or more of the provisions in this Indenture or in the
Notes shall be held invalid, illegal or unenforceable, in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions shall not in any way be affected
or impaired thereby, it being intended that all of the provisions hereof shall
be enforceable to the full extent permitted by law.
121
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
Issuer:
DEL MONTE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Treasurer
Guarantors:
DEL MONTE FOODS COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Treasurer
▇▇▇▇ MAC IHC, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Chief Financial
and Treasurer
STAR-▇▇▇▇ SAMOA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Chief Financial
and Treasurer
122
MARINE TRADING PACIFIC, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Chief Financial
and Treasurer
STAR-▇▇▇▇ MAURITIUS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Chief Financial
and Treasurer
Trustee:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
By: /s/ Yana Kalachikova
---------------------------------------
Name: Yana Kalachikova
Title: Vice President
123
EXHIBIT A
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 OR IN ACCORDANCE WITH SECTION 9.06 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 DEL MONTE CORPORATION.
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 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD
REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF
THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE
A-1
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT
OF LESS THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD
REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT AFTER THE ORIGINAL ISSUANCE
OF THE NOTES, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE
HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO
THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR,
THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES," AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING RESTRICTIONS.
A-2
CUSIP No.:
ISIN No.:
DEL MONTE CORPORATION
6-3/4% SENIOR SUBORDINATED NOTE DUE 2015
No. 1 $
Del Monte Corporation, a Delaware corporation (the "Company," which term
includes any successor entity), for value received promises to pay to __________
or registered assigns, the principal sum of Dollars ($_______________), on
February 15, 2015.
Interest Payment Dates: February 15 and August 15 (commencing August 15,
2005) Record Dates: January 31 and July 31
Reference is made to the further provisions of this Note contained herein,
which will for all purposes have the same effect as if set forth at this place.
A-3
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
DEL MONTE CORPORATION
By: _______________________
Name:
Title:
By: _______________________
Name:
Title:
Dated: February 8, 2005
Certificate of Authentication
This is one of the 6-3/4% Senior Subordinated Notes due 2015 referred to
in the within-mentioned Indenture.
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
By: _______________________
Authorized Signatory
A-4
(REVERSE OF SECURITY)
6-3/4% SENIOR SUBORDINATED NOTE DUE 2015
1. Interest. The Company will pay interest on the principal amount of
this Note at the rate per annum shown above. Interest on the Notes will accrue
from the most recent date on which interest has been paid or, if no interest has
been paid, from February 8, 2005. The Company will pay interest semi-annually in
arrears in cash on each Interest Payment Date, commencing August 15, 2005.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by the
Notes plus 2% per annum and on overdue installments of interest (without regard
to any applicable grace periods) to the extent lawful.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are the registered Holders at the
close of business on the Record Date immediately preceding the Interest Payment
Date even if the Notes are cancelled on registration of transfer or registration
of exchange after such Record Date. Holders must surrender Notes to a Paying
Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). The
Company will pay principal and premium, if any, on the Notes at the Trustee's
office or, at the Company's option, by wire transfer to an account maintained by
the payee with a bank located in the United States. At the Company's option,
interest may be paid at the Trustee's office, by check mailed to the registered
address of Holders or by wire transfer to an account maintained by the payee
with a bank located in the United States.
3. Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-Registrar without notice to the Holders.
4. Indenture and Guarantee. The Company issued the Notes under an
Indenture, dated as of February 8, 2005 (as amended and supplemented from time
to time, the "Indenture"), among the Company, Del Monte Foods Company
("Holdings"), the Subsidiary Guarantors (as defined in the Indenture, and
collectively with Holdings, the "Guarantors") and Deutsche Bank Trust Company
Americas, as Trustee (the "Trustee," which term includes any successor Trustee
under the Indenture). This Note is one of a duly authorized issue of initial
Notes of the Company designated as its 6-3/4% Senior Subordinated Notes due 2015
(the "Initial Notes"). The Initial Notes are limited in aggregate principal
amount to $250,000,000. Subject to compliance with the covenants in the
Indenture and to applicable law, the Company may issue additional notes (the
"Additional Notes") under the Indenture. The Notes include the Initial Notes,
the Additional Notes and the Exchange Notes, as defined below, issued in
exchange for Notes pursuant to the Indenture. The Initial Notes, Additional
Notes and the Exchange Notes are treated as a single class of securities under
the Indenture. Terms herein are used as defined in the Indenture unless
otherwise defined herein. 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 (15 U.S. Code Sections
A-5
77aaa-77bbbb), as amended (the "TIA"), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and the TIA for a statement of such terms, including the respective rights,
duties and immunities thereunder of the Company, the Guarantors, the Trustee and
the Holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Notes are general unsecured obligations of the
Company. Payment on each Note is guaranteed on a subordinated basis by Holdings
and on a senior subordinated basis by the Subsidiary Guarantors pursuant to
Article Eleven of the Indenture. The guarantees of the Notes by the Subsidiary
Guarantors will be released in certain circumstances set forth in the Indenture.
5. Subordination. The Notes are subordinated in right of payment, in
the manner and to the extent set forth in the Indenture, to the prior payment in
full in cash or Cash Equivalents of all Senior Debt of the Company, whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or GUARANTEED. Each Holder by his acceptance hereof agrees to be bound
by such provisions and authorizes and expressly directs the Trustee and the
Paying Agent, on his behalf, to take such action as may be necessary or
appropriate to effectuate the subordination provided for in the Indenture and
appoints the Trustee his attorney-in-fact for such purposes.
6. Redemption.
(a) Optional Redemption. The Notes will be redeemable, at the Company's
option, in whole at any time or in part from time to time, on and after February
15, 2010, upon not less than 30 nor more than 60 days' notice, at the following
Redemption Prices (expressed as percentages of the principal amount of the Notes
to be redeemed) if redeemed during the twelve-month period commencing on
February 15 of the years set forth below, plus, in each case, accrued and unpaid
interest thereon, if any, to the Redemption Date, except that installments of
interest which are due and payable on dates falling on or prior to the
applicable Redemption Date will be payable to the persons who were the Holders
of record at the close of business on the relevant Record Dates.
Year Percentage
---- ----------
2010.................... 103.375%
2011.................... 102.250%
2012.................... 101.125%
2013 and thereafter..... 100.000%
(b) Optional Redemption Upon Equity Offerings. At any time, or from time
to time, on or prior to February 15, 2008, the Company may, at its option, use
the net cash proceeds of one or more Equity Offerings to redeem Notes in an
aggregate principal amount equal to up to 35% of the aggregate principal amount
of Notes (including any Additional Notes but excluding the Exchange Notes)
originally issued at a Redemption Price equal to 106.750% of the principal
amount of the Notes to be redeemed plus accrued and unpaid interest thereon, if
any, to the Redemption Date, except that installments of interest which are due
and payable on dates falling on or prior to the applicable Redemption Date will
be payable to the persons who were the Holders of record at the close of
business on the relevant Record Dates; provided that Notes in aggregate
principal amount equal to at least 65% of the principal amount of Notes
(excluding
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any Additional Notes and also excluding the Exchange Notes) originally issued
remains outstanding immediately after any such redemption.
In order to effect the foregoing redemption with the proceeds of any
Equity Offering, the Company shall make such redemption not more than 150 days
after the consummation of any such Equity Offering.
(c) Optional Redemption Upon Change of Control. At any time, on or prior
to February 15, 2010, the Company may, at its option, redeem the Notes, in
whole, upon the occurrence of a Change of Control, upon not less than 30 nor
more than 60 days prior notice (but in no event more than 90 days after the
occurrence of such Change of Control) mailed by first-class mail to each
Holder's registered address, at a Redemption Price equal to 100% of the
principal amount of the Notes to be redeemed plus the Applicable Premium as of,
and accrued and unpaid interest, if any, to the date of redemption (the "Change
of Control Redemption Date"), except that installments of interest which are due
and payable on dates falling on or prior to the applicable Change of Control
Redemption Date shall be payable to the persons who were the Holders of record
at the close of business on the relevant Record Dates.
"Applicable Premium" means, with respect to a Note at any Change of
Control Redemption Date, the excess of (i) the present value at such Change of
Control Redemption Date of (A) the Redemption Price of such Note at February 15,
2010, determined in accordance with Section 6(a) hereof and Section 3.07(a) of
the Indenture, plus (B) all required interest payments due on such Note through
February 15, 2010, computed using a discount rate equal to the Treasury Rate
plus 0.5% per annum, over (ii) the principal amount of such Note.
"Treasury Rate" means the yield to maturity at the time of computation of
U.S. Treasury securities with a constant maturity (as compiled and published in
the most recent Federal Reserve Release H.15 (519) which has become publicly
available at least two Business Days prior to the Change of Control Redemption
Date (or, if such statistical release is no longer published, any publicly
available source or similar market data)) closest to the period from the Change
of Control Redemption Date to February 15, 2010; provided, however, that if the
period from the Change of Control Redemption Date to February 15, 2010 is not
equal to the constant maturity of a U.S. Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of one year) from the
weekly average yields of U.S. Treasury securities for which such yields are
given, except that if the period from the Change of Control Redemption Date to
February 15, 2010 is less than one year, the weekly average yield on actually
traded U.S. Treasury securities adjusted to a constant maturity of one year
shall be used.
7. Notice of Redemption. (A) Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at such Holder's registered address. Notes in
denominations larger than $1,000 may be redeemed in part.
Except as set forth in the Indenture, if monies for the redemption of the
Notes called for redemption shall have been deposited with the Paying Agent for
redemption on such Redemption Date, then, unless the Company defaults in the
payment of such Redemption Price plus accrued and unpaid interest, if any, the
Notes called for redemption will cease to bear interest from and
A-7
after such Redemption Date and the only right of the Holders of such Notes will
be to receive payment of the Redemption Price plus accrued and unpaid interest,
if any.
8. Offers to Purchase. Sections 4.15 and 4.16 of the Indenture provide
that, after certain Asset Sales (as defined in the Indenture) and upon the
occurrence of a Change of Control Triggering Event (as defined in the
Indenture), and subject to further limitations contained therein, the Company
will make an offer to purchase certain amounts of the Notes in accordance with
the procedures set forth in the Indenture.
9. Registration Rights. Pursuant to the Registration Rights Agreement
(as defined in the Indenture), the Company will be obligated to consummate a
registered exchange offer pursuant to which the Holder of this Note shall have
the right to exchange this Note for the Company's 6-3/4% Senior Subordinated
Notes due 2015 (the "Exchange Notes"), in like principal amount and having terms
identical in all material respects to the Initial Notes. The Holders of the
Initial Notes and Additional Notes shall be entitled to receive certain
Additional Interest (as defined in the Indenture) in the event such exchange
offer is not consummated by February 8, 2006 and upon certain other conditions,
all pursuant to and in accordance with the terms of the Registration Rights
Agreement.
10. Denominations; Transfer; Exchange. The Notes are in registered form,
without coupons, in denominations of $1,000 and integral multiples of $1,000. A
Holder shall register the transfer of or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange of any Notes or portions thereof selected for redemption.
11. Persons Deemed Owners. The registered Holder of a Note shall be
treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company. After that, all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity. If the Company at any
time deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the Indenture relating
thereto, the Company will be discharged from certain provisions of the Indenture
and the Notes (including certain covenants, but excluding its obligation to pay
the principal of and interest on the Notes).
14. Amendment; Supplement; Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the written consent
of the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding, and any existing Default or Event of Default or noncompliance
with any provision may be waived with the written consent of the Holders of a
majority in aggregate principal amount of the Notes then outstanding. Without
notice to or consent of any Holder, the parties thereto may amend or supplement
the Indenture or the Notes to, among other things, cure any ambiguity, defect or
inconsistency,
A-8
provide for uncertificated Notes in addition to or in place of certificated
Notes, comply with Article Five of the Indenture, add guarantors under the
Indenture, or make any other change that does not adversely affect in any
material respect the rights of any Holder of a Note.
15. Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Company and its Restricted Subsidiaries to, among other
things, incur additional Indebtedness, make payments in respect of its Capital
Stock or certain Indebtedness, enter into transactions with Affiliates, create
dividend or other payment restrictions affecting Restricted Subsidiaries, merge
or consolidate with any other Person, sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its assets or adopt a plan of
liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Company and Holdings must annually report to
the Trustee on compliance with such limitations.
16. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor will be released from those obligations.
17. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and payable
in the manner, at the time and with the effect provided in the Indenture. If
certain bankruptcy events relating to the Company or a Significant Subsidiary
(as defined in the Indenture) occur, the Notes shall immediately, without any
action on the part of the Holder, become due and payable. Holders of Notes may
not enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee is not obligated to enforce the Indenture or the Notes unless it has
received indemnity reasonably satisfactory to it. The Indenture permits, subject
to certain limitations therein provided, Holders of a majority in aggregate
principal amount of the Notes then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of Notes
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest and certain other specified Defaults) if it
determines that withholding notice is in their interest.
18. Trustee Dealings with Company. The Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Notes
and may otherwise deal with the Company, its Subsidiaries or their respective
Affiliates with the same rights it would have if it were not the Trustee.
19. No Recourse Against Others. No stockholder, director, officer, or
employee, as such, of the Company shall have any liability for any obligation of
the Company under the Notes or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their creation. Each Holder of a
Note by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes. The
foregoing provisions do not relate to the liability of Holdings as a Guarantor.
20. Authentication. This Note shall not be valid until the Trustee or an
Authenticating Agent manually signs the certificate of authentication on this
Note.
21. Governing Law. The Laws of the State of New York shall govern this
Note and the Indenture.
A-9
22. Abbreviations and Defined Terms. Customary abbreviations may be used
in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and
UIGIMIA (= Uniform Gifts to Minors Act).
23. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes as a convenience to the Holders of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification numbers
printed hereon.
24. Indenture. Each Holder, by accepting a Note, agrees to be bound by
all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
The Company will furnish to any Holder of a Note upon written request and
without charge a copy of the Indenture, which has the text of this Note in
larger type. Requests may be made to: Vice President, Legal Affairs and
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ @ The Landmark, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
A-10
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
GUARANTEE
Del Monte Foods Company ("Holdings"), ▇▇▇▇ Mac IHC, Inc., Star-▇▇▇▇ Samoa,
Inc., Marine Trading Pacific, Inc. and Star-▇▇▇▇ Mauritius, Inc. (the
"Subsidiary Guarantors," and, together with Holdings, the "Guarantors"), jointly
and severally, have unconditionally guaranteed on a subordinated basis by
Holdings and on a senior subordinated basis by the Subsidiary Guarantors (such
guarantees by Holdings and the Subsidiary Guarantors being referred to herein as
the "Guarantees") (i) the due and punctual payment of the principal of and
interest on the Notes, whether at maturity, by acceleration or otherwise, the
due and punctual payment of interest on the overdue principal and interest, if
any, on the Notes, to the extent lawful, and the due and punctual performance of
all other obligations of the Company to the Holders or the Trustee all in
accordance with the terms set forth in Article Eleven of the Indenture and (ii)
in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders of Notes and to the
Trustee pursuant to the Guarantees and the Indenture are expressly subordinated
in right of payment to the prior payment in full of all Guarantor Senior Debt
(as defined in the Indenture) of the Guarantors, to the extent and in the manner
provided in Articles Eleven and Twelve of the Indenture, and reference is hereby
made to such Indenture for the precise terms of the Guarantees therein made.
No stockholder, officer, director or incorporator, as such, past, present
or future, of any Guarantor shall have any liability under the Guarantees by
reason of his or its status as such stockholder, officer, director or
incorporator.
The Guarantees shall not be valid or obligatory for any purpose until the
certificate of authentication on the Notes upon which the Guarantees are noted
shall have been executed by the Trustee or an Authenticating Agent under the
Indenture by the manual signature of one of its authorized officers.
A-11
DEL MONTE FOODS COMPANY
By: _______________________
Name:
By: _______________________
Name:
▇▇▇▇ MAC IHC, INC.
By: _______________________
Name:
By: _______________________
Name:
STAR-▇▇▇▇ SAMOA, INC.
By: _______________________
Name:
By: _______________________
Name:
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MARINE TRADING PACIFIC, INC.
By: _______________________
Name:
By: _______________________
Name:
STAR-▇▇▇▇ MAURITIUS, INC.
By: _______________________
Name:
By: _______________________
Name:
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ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint __________, agent to transfer this Note on the books of
the Company. The agent may substitute another to act for him.
Date: __________________ Signed:__________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: ________________________________
In connection with any transfer of this Note occurring prior to the date
which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the end of the period referred to in Rule 144(k) under the
Securities Act, the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and that
this Note is being transferred:
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[Check One]
(1) pursuant to and in compliance with Rule 144A under the Securities Act;
or
(2) other than in accordance with (1) above and documents are being
furnished which comply with the conditions of transfer set forth in
this Note and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Note in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.06 of the Indenture shall have
been satisfied.
Date: __________________ Signed: ___________________________________
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee: ___________________________________________________________
TO BE COMPLETED BY PURCHASER IF (1) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:__________________ ______________________________________
NOTICE: To be executed by an executive
officer
A-15
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.15 or Section 4.16 of the Indenture, check the appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount you elect to have purchased:
$_______________________
Dated: _________________ _________________________________________
NOTICE: The signature on this assignment
must correspond with the name as it
appears upon the face of the within Note
in every particular without alteration or
enlargement or any change whatsoever and
be guaranteed by the endorser's bank or
broker.
Signature Guarantee: ________________________________
A-16
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in this Global Note, have been
made:
Amount of increase Principal Amount of Signature of
Amount of decrease in Principal this Global Note authorized officer
in Principal Amount Amount of this following such of Trustee or
Date of Exchange of this Global Note Global Note decrease (or increase) Notes Custodian
---------------- ------------------- ------------------ --------------------- ------------------
A-17
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Del Monte Corporation
One Market @ The Landmark
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[Date]
Re: 6-3/4% Senior Subordinated Notes due 2015 of Del Monte Corporation
Reference is hereby made to the Indenture, dated as of February 8, 2005
(the "Indenture"), among Del Monte Corporation, as issuer (the "Company"), Del
Monte Foods Company, ▇▇▇▇ Mac IHC, Inc., Star-▇▇▇▇ Samoa, Inc., Marine Trading
Pacific, Inc., and Star-▇▇▇▇ Mauritius, Inc., as Guarantors, and Deutsche Bank
Trust Company Americas, as 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. [ ] Check if Transferee shall 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 (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 believed
and believes is purchasing the beneficial interest or Definitive Note for its
own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note shall be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note or the Definitive Note and in the
Indenture and the Securities Act.
2. [ ] Check if Transferee shall 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 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
B-1
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 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 shall be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note and/or the Definitive Note and in the Indenture and
the Securities Act.
3. [ ] Check and complete if Transferee shall take delivery of 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) [ ] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) [ ] 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) [ ] 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 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 D to the Indenture, and (2) 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 shall be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Definitive
Notes and in the Indenture and the Securities Act.
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4. [ ] Check if Transferee shall take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) [ ] Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note shall 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) [ ] Check if Transfer is Pursuant to Regulation S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note shall 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) [ ] Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note shall not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP), or
(ii) [ ] Regulation S Global Note (CUSIP ), or
(iii) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee shall hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ), or
(ii) [ ] Regulation S Global Note (CUSIP), or
(iii) [ ] Unrestricted Global Note (CUSIP); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Del Monte Corporation
One Market @ The Landmark
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[Date]
Re: 6-3/4% Senior Subordinated Notes due 2015 of Del Monte Corporation
(CUSIP __________)
Reference is hereby made to the Indenture, dated as of February 8, 2005
(the "Indenture"), among Del Monte Corporation, as issuer (the "Company"), Del
Monte Foods Company, ▇▇▇▇ Mac IHC, Inc., Star-▇▇▇▇ Samoa, Inc., Marine Trading
Pacific, Inc., and Star-▇▇▇▇ Mauritius, Inc., as Guarantors, and Deutsche Bank
Trust Company Americas, as 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) [ ] 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 Owner's 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 Owner's 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 (the "Securities Act"), (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) [ ] Check if Exchange is from beneficial interest in a Restricted
Global Note to Unrestricted Definitive Note. In connection with the Exchange of
the Owner's 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 Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is
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being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(c) [ ] Check if Exchange is from Restricted Definitive Note to beneficial
interest in an Unrestricted Global Note. In connection with the Owner's 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 Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's 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 Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes
(a) [ ] Check if Exchange is from beneficial interest in a Restricted
Global Note to Restricted Definitive Note. In connection with the Exchange of
the Owner's 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 Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued shall 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) [ ] Check if Exchange is from Restricted Definitive Note to beneficial
interest in a Restricted Global Note. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE]:
[ ] 144A Global Note,
[ ] Regulation S Global Note,
with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's 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 shall be
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subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and
the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
___________________________
[Insert Name of Owner]
By:________________________
Name:
Title:
Dated: ___________, ____
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EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Del Monte Corporation
One Market @ The Landmark
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Deutsche Bank Trust Company Americas
27th Floor - MS 2710
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: 6-3/4% Senior Subordinated Notes due 2015 of Del Monte Corporation
Reference is hereby made to the Indenture, dated as of February 8, 2005
(the "Indenture"), among Del Monte Corporation, as issuer (the "Company"), Del
Monte Foods Company, ▇▇▇▇ Mac IHC, Inc., Star-▇▇▇▇ Samoa, Inc., Marine Trading
Pacific, Inc., and Star-▇▇▇▇ Mauritius, Inc., as Guarantors, and Deutsche Bank
Trust Company Americas, as 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) [ ] a beneficial interest in a Global Note, or
(b) [ ] 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 United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (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 Company a signed letter
substantially in the form of this letter, (D) outside the United States in
accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant
to the
D-1
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under 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 (E) 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
Company such certifications, legal opinions and other information as you and the
Company 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 Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
[Insert Name of Accredited Investor]
By:
Name:
Title:
Dated:
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