1
EXHIBIT 4.1
SENIOR SUBORDINATED INDENTURE
among
NEW WORLD PASTA COMPANY,
THE GUARANTORS NAMED HEREIN
and
THE BANK OF NEW YORK,
as Trustee
dated as of February 19, 1999
$160,000,000
9 1/4% Senior Subordinated Notes due 2009
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TABLE OF CONTENTS
Page
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ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE......................................1
SECTION 1.01 Definitions.................................................................. 1
SECTION 1.02 Incorporation by Reference of Trust Indenture Act............................26
SECTION 1.03 Rules of Construction........................................................26
ARTICLE TWO THE NOTES .....................................................................27
SECTION 2.01 Form and Dating..............................................................27
SECTION 2.02 Execution and Authentication.................................................28
SECTION 2.03 Registrar and Paying Agent...................................................29
SECTION 2.04 Paying Agent to Hold Assets in Trust.........................................29
SECTION 2.05 Holder Lists.................................................................29
SECTION 2.06 Transfer and Exchange........................................................30
SECTION 2.07 Replacement Notes............................................................30
SECTION 2.08 Outstanding Notes............................................................30
SECTION 2.09 Treasury Notes...............................................................31
SECTION 2.10 Temporary Notes..............................................................31
SECTION 2.11 Cancellation.................................................................31
SECTION 2.12 Defaulted Interest...........................................................32
SECTION 2.13 CUSIP Number.................................................................32
SECTION 2.14 Deposit of Moneys............................................................32
SECTION 2.15 Book-Entry Provisions for Global Notes.......................................32
SECTION 2.16 Registration of Transfers and Exchanges......................................33
ARTICLE THREE REDEMPTION...................................................................37
SECTION 3.01 Notices to Trustee............................................................37
SECTION 3.02 Selection of Notes To Be Redeemed.............................................37
SECTION 3.03 Notice of Redemption..........................................................37
SECTION 3.04 Effect of Notice of Redemption................................................38
SECTION 3.05 Deposit of Redemption Price...................................................38
SECTION 3.06 Notes Redeemed in Part........................................................39
SECTION 3.07 Optional Redemption...........................................................39
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ARTICLE FOUR COVENANTS................................................................40
SECTION 4.01 Payment of Notes........................................................40
SECTION 4.02 Maintenance of Office or Agency.........................................40
SECTION 4.03 Limitation on Incurrence of Indebtedness................................40
SECTION 4.04 Prohibition on Incurrence of Senior Subordinated Debt...................44
SECTION 4.05 Limitation on Liens.....................................................44
SECTION 4.06 Limitation on Restricted Payments.......................................44
SECTION 4.07 Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.................................................47
SECTION 4.08 Limitation of Guarantees by Restricted Subsidiaries.....................49
SECTION 4.09 Limitation on Transactions with Shareholders and Affiliates.............50
SECTION 4.10 Limitation on Asset Sales...............................................52
SECTION 4.11 Change of Control.......................................................53
SECTION 4.12 Compliance with Laws....................................................53
SECTION 4.13 Payment of Taxes and Other Claims.......................................54
SECTION 4.14 Notice of Defaults......................................................54
SECTION 4.15 Maintenance of Properties and Insurance.................................54
SECTION 4.16 Compliance Certificate..................................................55
SECTION 4.17 Reports to Holders and Trustee..........................................55
SECTION 4.18 Waiver of Stay, Extension or Usury Laws.................................56
SECTION 4.19 Conduct of Business.....................................................56
ARTICLE FIVE MERGER, CONSOLIDATION AND SALE OF ASSETS.................................56
SECTION 5.01 Merger, Consolidation and Sale of Assets................................56
SECTION 5.02 Successor Substituted...................................................58
ARTICLE SIX DEFAULTS AND REMEDIES.....................................................58
SECTION 6.01 Events of Default.......................................................58
SECTION 6.02 Acceleration............................................................60
SECTION 6.03 Control by Majority.....................................................60
SECTION 6.04 Other Remedies..........................................................61
SECTION 6.05 Waiver of Past Default..................................................61
SECTION 6.06 Limitation on Suits.....................................................61
SECTION 6.07 Rights of Holders to Receive Payment....................................62
SECTION 6.08 Collection Suit by Trustee..............................................62
SECTION 6.09 Trustee May File Proofs of Claim........................................62
SECTION 6.10 Priorities..............................................................62
SECTION 6.11 Undertaking for Costs...................................................63
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ARTICLE SEVEN TRUSTEE..................................................................63
SECTION 7.01 Duties of Trustee........................................................63
SECTION 7.02 Rights of Trustee........................................................64
SECTION 7.03 Individual Rights of Trustee.............................................65
SECTION 7.04 Trustee's Disclaimer.....................................................65
SECTION 7.05 Notice of Defaults.......................................................65
SECTION 7.06 Reports by Trustee to Holders............................................66
SECTION 7.07 Compensation and Indemnity...............................................66
SECTION 7.08 Replacement of Trustee...................................................67
SECTION 7.09 Successor Trustee by Merger, etc.........................................68
SECTION 7.10 Eligibility; Disqualification............................................68
SECTION 7.11 Preferential Collection of Claims Against the Company....................68
ARTICLE EIGHT DISCHARGE OF INDENTURE; DEFEASANCE.......................................68
SECTION 8.01 Termination of the Company's Obligations.................................68
SECTION 8.02 Legal Defeasance and Covenant Defeasance.................................70
SECTION 8.03 Conditions to Legal Defeasance or Covenant Defeasance....................71
SECTION 8.04 Application of Trust Money...............................................72
SECTION 8.05 Repayment to Company.....................................................72
SECTION 8.06 Reinstatement............................................................73
ARTICLE NINE SUBORDINATION OF NOTES....................................................73
SECTION 9.01 Notes Subordinated to Senior Indebtedness................................73
SECTION 9.02 No Payment on Notes in Certain Circumstances.............................73
SECTION 9.03 Payment Over of Proceeds upon Dissolution, etc...........................74
SECTION 9.04 Subrogation..............................................................76
SECTION 9.05 Obligations of the Company Unconditional.................................76
SECTION 9.06 Notice to Trustee........................................................77
SECTION 9.07 Reliance on Judicial Order or Certificate of Liquidating Agent...........77
SECTION 9.08 Trustee's Relation to Senior Indebtedness................................77
SECTION 9.09 Subordination Rights Not Impaired by Acts or Omissions of the Company
or Holders of Senior Indebtedness........................................78
SECTION 9.10 Holders Authorize Trustee To Effectuate Subordination of Notes 78
SECTION 9.11 This Article Not To Prevent Events of Default............................78
SECTION 9.12 Trustee's Compensation Not Prejudiced....................................78
SECTION 9.13 No Waiver of Subordination Provisions....................................78
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SECTION 9.14 Subordination Provisions Not Applicable to Money Held in Trust
for Holders.............................................................79
SECTION 9.15 Reliance by Holders of Senior Indebtedness on Subordination Provisions..79
SECTION 9.16 Reinstatement...........................................................79
SECTION 9.17 Filing of Claims........................................................79
ARTICLE TEN AMENDMENTS, SUPPLEMENTS AND WAIVERS.......................................80
SECTION 10.01 Without Consent of Holders..............................................80
SECTION 10.02 With Consent of Holders.................................................81
SECTION 10.03 Compliance with Trust Indenture Act.....................................82
SECTION 10.04 Revocation and Effect of Consents.......................................82
SECTION 10.05 Notation on or Exchange of Notes........................................82
SECTION 10.06 Trustee to Sign Amendments, etc.........................................82
ARTICLE ELEVEN SUBSIDIARY GUARANTEE...................................................83
SECTION 11.01 Unconditional Guarantee.................................................83
SECTION 11.02 Severability............................................................84
SECTION 11.03 Contribution............................................................84
SECTION 11.04 Limitation of Guarantor's Liability.....................................84
SECTION 11.05 Execution of Subsidiary Guarantee.......................................85
SECTION 11.06 Subordination of Subrogation and Other Rights...........................85
SECTION 11.07 Additional Guarantors; Releases of Guarantors...........................85
SECTION 11.08 Successors and Assigns..................................................86
SECTION 11.09 Waiver of Stay, Extension or Usury Laws.................................86
ARTICLE TWELVE SUBORDINATION OF SUBSIDIARY GUARANTEE .................................86
SECTION 12.01 Subsidiary Guarantee Obligations Subordinated to Senior Indebtedness....86
SECTION 12.02 Payment Over of Proceeds Upon Dissolution, etc.; No Payment in Certain
Circumstances...........................................................87
SECTION 12.03 Subrogation.............................................................88
SECTION 12.04 Obligations of Guarantors Unconditional.................................89
SECTION 12.05 Notice to Trustee.......................................................89
SECTION 12.06 Reliance on Judicial Order or Certificate of Liquidating Agent..........90
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EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Legend for Global Notes
Exhibit C Form of Subsidiary Guarantee
Exhibit D Option of Holder to Elect Purchase
Exhibit E Certificate to be Delivered Upon Exchange or Registration of
Transfer of Notes
Exhibit F Form of Transferee Letter of Representation
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)......................................................................................7.10
(a)(2)......................................................................................7.10
(a)(3)......................................................................................N.A.
(a)(4)......................................................................................N.A.
(a)(5)......................................................................................N.A.
(b)...................................................................................7.10;13.02
(b)(1)......................................................................................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
(b)(1)......................................................................................N.A.
(b)(2)......................................................................................N.A.
(c)..................................................................................7.06; 13.02
(d).........................................................................................7.06
314(a)........................................................................................13.02
(a)(4)......................................................................................N.A.
(b).........................................................................................N.A.
(c)(1)......................................................................................N.A.
(c)(2)......................................................................................N.A.
(c)(3)......................................................................................N.A.
(d).........................................................................................N.A.
(e).........................................................................................N.A.
(f).........................................................................................N.A.
315(a).........................................................................................N.A.
(b)..................................................................................7.05; 13.02
(c).........................................................................................N.A.
(d).........................................................................................N.A.
(e).........................................................................................N.A.
316(a)(1)(A)...................................................................................N.A.
(a)(1)(B)...................................................................................6.05
(a)(2)......................................................................................N.A.
(b).........................................................................................N.A.
(c).........................................................................................N.A.
317(a)(1)......................................................................................N.A.
(a)(2)......................................................................................N.A.
(b).........................................................................................N.A
318(a).........................................................................................N.A.
(b).........................................................................................N.A.
(c).........................................................................................N.A.
*This Cross-Reference Table is not part of the Indenture. N.A. means not applicable.
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INDENTURE dated as of February 19, 1999, among NEW WORLD PASTA
COMPANY, a Delaware corporation (the "Company"), the GUARANTORS from time to
time party hereto, and THE BANK OF NEW YORK, a New York banking corporation, as
trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each
other party hereto and for the equal and ratable benefit of the Holders from
time to time of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Acceleration Notice" shall have the meaning provided in
Section 6.02.
"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 the
Company or any of its Subsidiaries or assumed 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; provided that Indebtedness of such Person which is redeemed,
defeased, retired or otherwise repaid at the time of or immediately upon
consummation of the transaction by which such Person becomes a Restricted
Subsidiary or at the time of such merger or consolidation or acquisition of
assets shall not be Acquired Indebtedness.
"Adjusted Consolidated Net Income" means, for any period, the
aggregate net income (or loss) of the Company and its Restricted Subsidiaries
for such period determined in conformity with GAAP and before any reduction in
respect of preferred stock dividends; provided that (x) there shall be added to
such aggregate net income (or loss) the amount of any decrease in the deferred
tax asset for such period relating to the actual cash tax benefit realized by
the Company (or the consolidated tax group of which the Company is a member)
resulting from the election under Section 338(h)(10) of the Code in respect of
the Recapitalization so long as the aggregate amounts added back in determining
Adjusted Consolidated Net Income pursuant to this clause (x) at no time exceed
the actual amount of tax savings realized by the Company and its Restricted
Subsidiaries as a result of the Section 338(h)(10) election referenced above,
and (y) the following items shall be excluded in computing Adjusted Consolidated
Net Income (without duplication):
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(i) the net income of any Person that is not a
Restricted Subsidiary, except to the extent of the amount of dividends
or other distributions actually paid to the Company or any of its
Restricted Subsidiaries by such Person during such period;
(ii) solely for the purposes of calculating the
amount of Restricted Payments that may be made pursuant to clause (C)
of Section 4.06(a) (and in such case, except to the extent includable
pursuant to clause (i) above), the net income (or loss) of any Person
accrued prior to the date it becomes a Restricted Subsidiary or is
merged into or consolidated with the Company or any of its Restricted
Subsidiaries or all or substantially all of the property and assets of
such Person are acquired by the Company or any of its Restricted
Subsidiaries;
(iii) the net income of any Restricted Subsidiary to
the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of such net income is not
at the time permitted by the operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Restricted Subsidiary;
(iv) any gains or losses (on an after-tax basis)
attributable to Asset Sales;
(v) all extraordinary, non-recurring and unusual
gains and losses (on an after-tax basis) and, without duplication, all
restructuring charges (on an after-tax basis);
(vi) write-offs of intangible assets, including
research and development, relating to assets acquired by the Company
and its Restricted Subsidiaries if such write-offs are done at the
time of, or within three months after, such acquisition;
(vii) any non-cash compensation expense incurred in
connection with the exercise of or paid or payable solely with
Qualified Capital Stock of the Company or any options, warrants or
other rights to acquire Qualified Capital Stock of the Company;
(viii) in the case of any 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;
(ix) the fees, expenses or other costs incurred in
connection with the Recapitalization;
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(x) any net after-tax earnings (or losses) from
discontinued operations and any net after-tax gains or losses on any
disposal of discontinued operations; and
(xi) the cumulative effect of changes in accounting
principles after the Issue Date.
"Adjusted Net Worth" shall have the meaning provided in
Section 11.03.
"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.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Aggregate Deficit Amount" shall have the meaning provided in
Section 11.03.
"Aggregate Excess Amount" shall have the meaning provided in
Section 11.03.
"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 any
Restricted Subsidiary of the Company, or shall be merged with or into the
Company or any Restricted Subsidiary of 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.
"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 Wholly Owned 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;
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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 $1,000,000, (ii) the
sale, lease, conveyance, disposition or other transfer of all or substantially
all of the assets of the Company, or the consolidation or merger of the Company
with any other Person, in each case as permitted under Article Five, (iii) any
disposition of property of the Company or any of its Restricted Subsidiaries
that, in the reasonable judgment of the Company, has become uneconomic, damaged,
obsolete or worn out, (iv) the sale of inventory in the ordinary course of
business, (v) the sale or discount, in each case without recourse (other than
recourse for a breach of a representation or warranty) of accounts receivable
arising in the ordinary course of business, but only in connection with the
compromise or collection thereof, (vi) sales of Cash Equivalents, (vii)
surrender or waiver of contract rights or the settlement, release or surrender
of contract, tort or other claims of any kind, (viii) granting of Liens not
otherwise prohibited by this Indenture, (ix) the licensing of intellectual
property, (x) the sale, lease, conveyance, disposition or other transfer of
Permitted Investments or the Capital Stock of or any Investment in any
Unrestricted Subsidiary, (xi) leases or subleases to third persons not
interfering in any material respect with the business of the Company or any of
its Restricted Subsidiaries, (xii) the ▇▇▇▇▇▇ Real Property Transactions and
(xiii) the making of any Permitted Investments or other Restricted Payments
described in Section 4.06.
"Bankruptcy Law" means title 11 of the U.S. Code, or any
similar Federal, state or foreign law for the relief of debtors.
"Board of Directors" means the board of directors of the
Company or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means the day that is not a Saturday, a Sunday
or a day in which banking institutions in New York, New York are not required to
be open.
"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 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,
membership or other equity interests of such Person.
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"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.
"Cash Equivalents" means (i) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued 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 one of the two highest ratings obtainable from 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 of America 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; (vi) investments in
money market funds with assets of $5,000,000 or greater; and (vii) Indebtedness
(issued by Persons other than the Company and its Subsidiaries), which
Indebtedness matures within one year from the date of the acquisition thereof
and has a rating of "A" or higher from S&P or "A2" or higher from ▇▇▇▇▇'▇.
"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 and its Restricted Subsidiaries, taken as a whole, 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) other than to a
Subsidiary of the Company, the Principals and their Related Parties; (ii) the
liquidation or dissolution of the Company (whether or not otherwise in
compliance with the provisions of this Indenture); (iii) any Person or Group
(other than the Principals and their Related Parties) 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 of the Company; or (iv) the replacement of a majority
of the Board of Directors of the Company over a two-year period from the
directors who constituted the Board of Directors of the Company 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 then still
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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.
"Code" means the Internal Revenue Code of 1986, as amended.
"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 the first paragraph
of this Indenture until a successor replaces it and, thereafter, means the
successor and, for purposes of any provision contained herein and required by
the TIA, each other obligor on the Notes.
"Consolidated EBITDA" means, for any period, Adjusted
Consolidated Net Income for such period plus (A) to the extent such amount was
deducted in calculating such Adjusted Consolidated Net Income: (i) consolidated
interest expense, (ii) income taxes (other than income taxes or income tax
effects (either positive or negative) attributable to extraordinary, unusual
and non-recurring gains or losses or sales of assets and all restructuring
charges), (iii) depreciation expense, (iv) amortization expense, (v) any
out-of-pocket costs and transaction expenses relating to any issuance of Capital
Stock or incurrence of Indebtedness or Asset Acquisition or Permitted Investment
and (vi) all other non-cash items reducing Adjusted Consolidated Net Income,
less (B) (i) all non-cash items increasing Adjusted Consolidated Net Income
(excluding reversals of accruals or reserves referred to in the following clause
(ii)) and (ii) the amount of all reversals of accruals or reversals of reserves
established in the ordinary course of business, and all amortizations of prepaid
cash expenses from prior periods, occurring during the respective period, all as
determined on a consolidated basis for the Company and its Restricted
Subsidiaries in conformity with GAAP; provided that, if any Restricted
Subsidiary is not a Wholly Owned Restricted Subsidiary, Consolidated EBITDA
shall be reduced (to the extent not otherwise reduced in accordance with GAAP)
by an amount equal to (A) the amount of the Consolidated EBITDA attributable to
such Restricted Subsidiary multiplied by (B) the percentage ownership interest
in the income of such Restricted Subsidiary not owned on the last day of such
period by the Company or any of its Restricted Subsidiaries.
"Consolidated Fixed Charge Coverage Ratio" means the ratio of
(i) Consolidated EBITDA 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") for which financial statements are available to (ii) 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
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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 or Preferred
Stock (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
other dispositions 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
or excluding, as the case may be, any Consolidated EBITDA (including any pro
forma expense and cost reductions calculated on a basis consistent with
Regulation S-X under the Exchange Act) attributable to the assets which are the
subject of the Asset Acquisition or Asset Sale or other disposition 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 other disposition or Asset
Acquisition (including the incurrence, assumption or liability for any such
Acquired Indebtedness) occurred on the first day of the Four Quarter Period.
Furthermore, if the Company has categorized any of its Subsidiaries or
operations as discontinued operations in accordance with GAAP, and if there is
any Indebtedness or Preferred Stock relating solely to such discontinued
operations for which no recourse is available, whether pursuant to direct
obligations, Guarantees or otherwise, to the non-discontinued operations (or
related Assets) of the Company and its Restricted Subsidiaries (in any event
excluding Indebtedness incurred pursuant to the New Credit Facility or other
Indebtedness with direct liability on the part of the Company which survives
such discontinuation), "Consolidated Fixed Charges" shall be calculated giving
pro forma effect to the deemed retirement of such Indebtedness or Preferred
Stock, as the case may be. If such Person or any of its Restricted Subsidiaries
directly or indirectly Guarantees Indebtedness of a third Person, the second
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. If since
the beginning of such period any Person (that subsequently became a Restricted
Subsidiary or was merged with or into the Company or any Restricted Subsidiary
since the beginning of such period) shall have made any Asset Acquisition or
Asset Sale or other disposition that would have required adjustment pursuant to
this definition, then the Consolidated Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect thereto as if such Asset Acquisition or Asset
Sale or other disposition had occurred at the beginning of the applicable Four
Quarter Period. Furthermore, in calculating "Consolidated Fixed Charges" for
purposes of determining the denominator (but not the numerator) of this
"Consolidated Fixed Charge Coverage Ratio," (1) interest on outstanding
Indebtedness determined on a fluctuating basis as of the Transaction Date and
which will
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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 on the 30 business days preceding the Transaction Date; (2) if
interest on any Indebtedness actually incurred on the Transaction Date 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 rates, then the
interest rate in effect on the Transaction Date will be deemed to have been in
effect during the Four Quarter Period; and (3) notwithstanding clause (1) above,
interest on Indebtedness determined on a fluctuating basis, to the extent such
interest is covered by agreements relating to Interest Rate Agreements with a
remaining term at the Transaction Date of at least 12 months, shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation of
such agreements.
"Consolidated Fixed Charges" means, for any period, the sum,
without duplication, of:
(1) the consolidated interest expense of the Company
and its Restricted Subsidiaries for such period, whether paid or
accrued, including, without limitation, original issue discount,
non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated
with Capital Lease Obligations, commissions, discounts and other fees
and charges incurred in respect of letter of credit or banker's
acceptance financings, and net payments, if any, pursuant to Interest
Rate Agreements or Currency Agreements, but excluding amortization or
write-off debt issuance costs; plus
(2) the consolidated interest expense of the Company
and its Restricted Subsidiaries that was capitalized during such
period; plus
(3) any interest expense on Indebtedness of another
Person that is Guaranteed by the Company or one of its Restricted
Subsidiaries or secured by a Lien on assets of such person or one of
its Restricted Subsidiaries, whether or not such Guarantee or Lien is
called upon; plus
(4) the product of (a) all dividend accruals, whether
or not paid or payable in cash, during such period on any Disqualified
Capital Stock of the Company or any of its Restricted Subsidiaries, and
on any Preferred Stock of Restricted Subsidiaries of the Company, times
(b) a fraction, the numerator of which is one and the denominator of
which is one minus the then current combined federal, state and local
statutory tax rate of the Company, expressed as a decimal, in each
case, on a consolidated basis and in accordance with GAAP; plus
(5) the product of (a) all dividends actually paid,
whether paid in cash or in any other consideration (but excluding any
dividends to the extent paid
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through the issuance of additional shares of Qualified Capital Stock of
the Company), during such period with respect to any Preferred Stock
(not constituting Disqualified Capital Stock) of the Company, times (b)
a fraction, the numerator of which is one and the denominator of which
is one minus the then current combined federal, state and local
statutory tax rate of the Company, expressed as a decimal, in each on a
consolidated basis and in accordance with GAAP.
"Contribution Percentage" shall have the meaning provided in
Section 11.03.
"Corporate Trust Office" means the office of the Trustee
specified in Section 13.02 or such other office as the Trustee shall advise the
Company in writing.
"Covenant Defeasance" shall have the meaning provided in
Section 8.02(c).
"Credit Facilities" means, with respect to the Company and its
Restricted Subsidiaries, one or more debt facilities (including, without
limitation, the New Credit Facility) or commercial paper facilities or
indentures providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to lenders or to special
purpose entities formed to borrow from lenders against receivables), letters of
credit or other long-term indebtedness, in each case, as amended, restated,
modified, renewed, refunded, replaced or refinanced in whole or in part from
time to time.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any 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.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the person specified in Section 2.03
as the Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter, "Depositary" shall mean or include such successor.
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"Designated Guarantor Senior Indebtedness" shall mean as to
any Guarantor, all Guarantor Senior Indebtedness of such Guarantor constituting
Guarantees of Designated Senior Indebtedness.
"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 officer's certificate executed by the principal
executive officer or the principal financial officer of the Company. Such
officer's certificate shall state the basis of valuation, and the fair market
value of the Designated Noncash Consideration being received in the respective
Asset Sale (which shall be determined in good faith by the Board of Directors).
A particular item of Designated Noncash Consideration shall no longer be
considered outstanding when it has been sold for cash or redeemed or paid in
full in the case of non-cash consideration in the form of promissory notes or
equity.
"Designated Preferred Stock" means Preferred Stock (not
constituting Disqualified Capital Stock) of the Company (excluding the Company's
12% Cumulative Redeemable Preferred Stock, any other Preferred Stock issued on
or prior to the Issue Date and any Preferred Stock issued in exchange or
substitution for any of the foregoing) that is designated as Designated
Preferred Stock pursuant to an officer's certificate executed by the principal
executive officer or the principal financial officer of the Company, on the
issuance date thereof, the cash proceeds of which are excluded from the
calculation set forth in clause (C)(2) of Section 4.06(a).
"Designated Senior Indebtedness" means (i) Indebtedness under
or in respect of the New Credit Facility and (ii) any other Indebtedness
constituting Senior Indebtedness which, at the time of determination, has an
aggregate principal amount of at least $25,000,000 and is specifically
designated in the instrument evidencing such Senior Indebtedness as "Designated
Senior Indebtedness" by the Company.
"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 at the option of the holder), 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 sole option
of the holder thereof on or prior to the Stated Maturity of the Notes; provided
that any Capital Stock that would not constitute Disqualified Capital Stock but
for provisions therein giving holders thereof the right to cause the issuer
thereof to repurchase or redeem such Capital Stock upon the occurrence of an
"Asset Sale" or "Change of Control" occurring prior to the final stated maturity
of the Notes will not constitute Disqualified Capital Stock if the "Asset Sale"
or "Change of Control" provisions applicable to such Capital Stock, taken as a
whole, are not materially more favorable to the holders of such Capital Stock
than the provisions described under Sections 4.10 and 4.11; provided further
that if such Capital Stock
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is issued pursuant to any plan for the benefit of employees of the Company or
its Subsidiaries 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.
"Equity Offering" means an issuance or sale after the Issue
Date by the Company of its Qualified Capital Stock.
"Event of Default" shall have the meaning provided in Section
6.01.
"Excess Proceeds" shall have the meaning provided in Section
4.10.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Notes" means the 9 1/4% Senior Subordinated Notes
due 2009 of the Company to be issued in exchange for the Initial Notes pursuant
to the Registration Rights Agreement and any similar securities issued in
compliance with Section 2.02 in accordance with any other registration rights
agreement.
"Exchange Offer Registration Statement" shall have the meaning
provided in the Registration Rights Agreement.
"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. Fair market value shall be determined by the Board of Directors of
the Company acting in good faith and shall be evidenced by a Board Resolution of
the Board of Directors of the Company delivered to the Trustee.
"Final Maturity Date" means February 15, 2009.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect as of the
Issue Date.
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"Global Note" means a Note that bears a legend in the form of
Exhibit B.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any other
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of such other Person (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets, goods,
securities or services (unless such purchase arrangements are on arm's-length
terms and are entered into in the ordinary course of business), to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for purposes of assuring in any other manner the obligee of such Indebtedness of
the payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part); provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guaranteed Obligations" shall have the meaning provided in
Section 11.01.
"Guarantor" means each of (i) Winchester Pasta, L.L.C., a
Delaware limited liability company, and Pasta Group, L.L.C., a Delaware limited
liability company and (ii) each of the Company's Restricted Subsidiaries that in
the future executes a supplemental indenture in which such Restricted Subsidiary
agrees to be bound by the terms of this Indenture as a Guarantor; provided that
any Person constituting a Guarantor as described above shall cease to constitute
a Guarantor when its respective Subsidiary Guarantee is released in accordance
with the terms of this Indenture.
"Guarantor Senior Indebtedness" means, with respect to any
Guarantor, the principal of, premium, if any, and 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 any Indebtedness of a
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 Indebtedness" 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 by the respective Guarantor in
respect of, (x) all obligations (including
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Guarantees thereof) of every nature under the New Credit Facility, including,
without limitation, obligations to pay principal and interest, reimbursement
obligations under letters of credit, fees, expenses and indemnities, (y) all
obligations under Interest Rate Agreements (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 Indebtedness" shall not include
(i) any Indebtedness of such Guarantor to the Company or any other Subsidiary of
the Company or to any Affiliate of such Guarantor or any of such Affiliate's
Subsidiaries, (ii) Indebtedness to, or guaranteed on behalf of, any director,
officer or employee of such Guarantor or any Restricted 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, commodities, materials or services, (iv) Indebtedness
represented by Preferred Stock or Disqualified Capital Stock, (v) any liability
for federal, state, local or other taxes owed or owing by such Guarantor, (vi)
that portion of any Indebtedness incurred in violation of Section 4.03, (vii)
Indebtedness which, when incurred and without respect to any election under
Section 1111(b) of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without recourse to the
Company and (viii) any Indebtedness which is, by its express terms, subordinated
in right of payment to any other Indebtedness of such Guarantor.
"Holder" means a holder of a Note, registered on the books of
the Registrar.
"Incur" means, with respect to any Indebtedness, to incur,
create, issue, assume, Guarantee or otherwise become liable for or with respect
to, or become responsible for, the payment of, contingently or otherwise, such
Indebtedness, including an "Incurrence" of Acquired Indebtedness; provided that
neither the accrual of interest nor the accretion of original issue discount
shall be considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any date
of determination (without duplication):
(i) all indebtedness of such Person for borrowed money;
(ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(iii) all obligations of such Person in respect of letters of
credit, bankers' acceptances or other similar instruments (including
reimbursement obligations with respect thereto);
(iv) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services, which purchase price is
due more than two
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months after the date of placing such property in service or taking
delivery and title thereto or the completion of such services;
(v) all Capitalized Lease Obligations;
(vi) all Indebtedness of other Persons secured by a Lien on
any asset of such Person, whether or not such Indebtedness is assumed
by such Person; provided that the amount of such Indebtedness shall be
the lesser of (A) the fair market value of such asset at such date of
determination and (B) the amount of such Indebtedness;
(vii) all Indebtedness of other Persons Guaranteed by such
Person to the extent such Indebtedness is Guaranteed by such Person;
(viii) all Disqualified Capital Stock and, in the case of a
Restricted Subsidiary, all Preferred Stock issued by such Person; and
(ix) to the extent not otherwise included in this definition,
obligations under Currency Agreements and Interest Rate Agreements.
The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations as
described above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the obligation,
provided (A) that the amount outstanding at any time of any Indebtedness issued
with original issue discount is the face amount of such Indebtedness less the
remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP, (B) that the
amount of Indebtedness at any time of any Disqualified Capital Stock or
Preferred Stock shall be the greater of its voluntary or involuntary liquidation
preference and the maximum fixed redemption or repurchase price in respect
thereof, and (C) that Indebtedness shall not include (x) trade accounts payable,
contingent liabilities (excluding contingent liabilities of the types described
in clauses (iii), (iv), (vi), (vii) and (ix) above) and accrued liabilities
arising in the ordinary course of business and (y) any liability for federal,
state, local or other taxes.
"Indenture" means this Indenture, as amended, modified or
supplemented from time to time.
"Initial Notes" means the 9 1/4% Senior Subordinated Notes due
2009 of the Company issued on the Issue Date or thereafter in accordance with
the requirements of Section 2.02 of this Indenture; provided that the term
Initial Notes shall not include any Exchange Notes issued in exchange for
theretofore outstanding Initial Notes.
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"Initial Purchasers" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
and Scotia Capital Markets (USA) Inc.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"Interest Payment Date" means each interest payment date on
February 15 and August 15 of each year, commencing on August 15, 1999.
"Interest Record Date" for the interest payable on any
Interest Payment Date (except a date for payment of defaulted interest) means
the February 1 or August 1 (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement, interest rate option or interest rate
future contract or other similar agreement or arrangement.
"Investment" in any Person means any direct or indirect
advance, loan or other extension of credit (including, without limitation, by
way of Guarantee or similar arrangement; but excluding advances to customers or
suppliers in the ordinary course of business that are, in conformity with GAAP,
recorded as accounts receivable, prepaid expenses or deposits on the balance
sheet of the Company or its Restricted Subsidiaries) or capital contribution to
(by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase or
acquisition of Capital Stock, bonds, notes, debentures or other similar
instruments issued by, such Person and shall include (i) the designation of a
Restricted Subsidiary as an Unrestricted Subsidiary (which shall be deemed to
constitute an Investment made on the date of such designation) and (ii) an
amount equal to the fair market value of the Capital Stock (or any other
Investment), held by the Company or any of its Restricted Subsidiaries, of (or
in) any Person that was a Restricted Subsidiary and that has ceased for any
reason to be a Restricted Subsidiary, including without limitation, by reason of
any Asset Sale or any other issuance of Capital Stock by such Restricted
Subsidiary (with an Investment in the amount described above being deemed made
on the date the respective Person ceases to be a Restricted Subsidiary, for any
reason). For purposes of the definition of "Unrestricted Subsidiary" and Section
4.06, (i) "Investment" shall include the fair market value of the assets (net of
liabilities (other than liabilities to the Company or any of its Restricted
Subsidiaries)) of any Restricted Subsidiary at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary, (ii) the fair market value
of the assets (net of liabilities (other than liabilities to the Company or any
of its Restricted Subsidiaries)) of any Unrestricted Subsidiary at the time that
such Unrestricted Subsidiary is
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designated a Restricted Subsidiary shall be considered a reduction in
outstanding Investments and (iii) any property transferred to or from an
Unrestricted Subsidiary shall be valued at its fair market value at the time of
such transfer, with the fair market value of the various items as required to be
determined pursuant to the foregoing provisions of this sentence to be
determined, in each case, in good faith by the Board of Directors.
"Investment Company Act" means the Investment Company Act of
1940, as amended, and any successor statute thereto.
"Issue Date" means the date of original issuance of the Notes.
"JLL" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Levy Fund III, L.P., a
Delaware limited partnership.
"Legal Defeasance" shall have the meaning as provided in
Section 8.02(b).
"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).
"Liquidated Damages" shall have the meaning provided in the
Registration Rights Agreement.
"Management Investor" means ▇▇▇▇▇▇ Pasta LLC, a Delaware
limited liability company.
"▇▇▇▇▇▇ Milling" shall mean ▇▇▇▇▇▇ Milling Company, a
Minnesota corporation.
"▇▇▇▇▇▇ Real Property Transactions" means (a) the lease by the
Company to ▇▇▇▇▇▇ Milling of real property in Winchester, Virginia underlying
▇▇▇▇▇▇ Milling's flour milling facility (the "▇▇▇▇▇▇ Property"), and (b) the
transfer for $1.00 by the Company to ▇▇▇▇▇▇ Milling of the ▇▇▇▇▇▇ Property.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
"Net Cash Proceeds" means, (a) with respect to any Asset Sale,
the proceeds of such Asset Sale in the form of cash or Cash Equivalents,
including payments in respect of deferred payment obligations (to the extent
corresponding to the principal, but not interest, component thereof) when
received in the form of cash or Cash Equivalents (except to the extent such
obligations are financed or sold with recourse to the Company or any Restricted
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Subsidiary) and proceeds from the conversion of other property received when
converted to cash or Cash Equivalents, net of (i) brokerage commissions and
other fees and expenses (including fees and expenses of counsel and investment
bankers) related to such Asset Sale, (ii) provisions for all taxes (whether or
not such taxes will actually be paid or are payable) as a result of such Asset
Sale without regard to the consolidated results of operations of the Company and
its Restricted Subsidiaries, taken as a whole, (iii) payments made to
permanently repay Indebtedness or any other obligation (excluding Indebtedness
and obligations pursuant to the Credit Facilities) outstanding at the time of
such Asset Sale that either (A) is secured by a Lien on the property or assets
sold or (B) is required to be paid as a result of such sale and (iv) appropriate
amounts to be provided by the Company or any Restricted Subsidiary as a reserve
against any liabilities associated with such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as determined in conformity
with GAAP and (b) with respect to any issuance or sale of Capital Stock, the
proceeds of such issuance or sale in the form of cash or Cash Equivalents,
including payments in respect of deferred payment obligations (to the extent
corresponding to the principal, but not interest, component thereof) when
received in the form of cash or Cash Equivalents (except to the extent such
obligations are financed or sold with recourse to the Company or any Restricted
Subsidiary) and proceeds from the conversion of other property received when
converted to cash or Cash Equivalents, net of attorneys' fees, accountants'
fees, underwriters' or placement agents' fees, discounts or commissions and
brokerage, consultant and other fees incurred in connection with such issuance
or sale and net of taxes paid or payable as a result thereof.
"Net Worth" shall have the meaning provided in Section 11.03.
"New Credit Facility" means the Credit Agreement dated as of
January 28, 1999, among the Company, the lenders party thereto in their
capacities as lenders thereunder and The Bank of Nova Scotia, as administrative
agent and a lender, together with the related documents thereto (including,
without limitation, any guarantee agreements and security documents), in each
case as such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including increasing the amount of available borrowings
thereunder or adding Restricted Subsidiaries of the Company as additional
borrowers or guarantors thereunder) all or any portion of the indebtedness under
such agreement or any successor or replacement agreement and whether by the same
or any other agent, lender or group of lenders.
"Note Purchase Agreement" means the Note Purchase Agreement,
dated as of January 28, 1999, among the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, as paying agent and calculation agent, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and Scotiabanc Inc., as initial purchasers.
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"Noteholder" means a holder of a Note, registered on the books
of the Registrar.
"Notes" means the Initial 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.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Offer to Purchase" means an offer to purchase Notes by the
Company from the Holders commenced by mailing a notice to the Trustee and each
Holder stating:
(i) the Section pursuant to which the offer is being made and
that all Notes validly tendered will be accepted for payment on a pro
rata basis;
(ii) the purchase price and the date of purchase (which shall
be a Business Day no earlier than 30 days nor later than 60 days from
the date such notice is mailed) (the "Purchase Offer Payment Date");
(iii) that any Note not tendered will continue to accrue
interest pursuant to its terms;
(iv) that, unless the Company defaults in the payment of the
purchase price, any Note accepted for payment pursuant to the Offer to
Purchase shall cease to accrue interest on and after the Purchase Offer
Payment Date;
(v) that Holders electing to have a Note purchased pursuant to
the Offer to Purchase will be required to surrender the Note, together
with the form entitled "Option of the Holder to Elect Purchase" in
substantially the form of Exhibit D annexed hereto, completed, to the
Paying Agent at the address specified in the notice prior to the close
of business on the Business Day immediately preceding the Purchase
Offer Payment Date;
(vi) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on
the third Business Day immediately preceding the Purchase Offer Payment
Date, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Notes delivered for purchase and a
statement that such Holder is withdrawing his election to have such
Notes purchased; and
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(vii) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered; provided that each Note
purchased and each new Note issued shall be in a principal amount of
$1,000 or integral multiples thereof.
On the Purchase Offer Payment Date, the Company shall (i)
accept for payment on a pro rata basis Notes or portions thereof tendered
pursuant to an Offer to Purchase; (ii) deposit with the Paying Agent money
sufficient to pay the purchase price of all Notes or portions thereof so
accepted; and (iii) deliver, or cause to be delivered, to the Trustee all Notes
or portions thereof so accepted together with an Officers' Certificate
specifying the Notes or portions thereof accepted for payment by the Company.
The Paying Agent shall promptly mail to the Holders of Notes so accepted payment
in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail to such Holders a new Note equal in principal amount to
any unpurchased portion of the Note surrendered; provided that each Note
purchased and each new Note issued shall be in a principal amount of $1,000 or
integral multiples thereof. The Trustee shall act as the Paying Agent for an
Offer to Purchase. The Company will comply with Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable, in the event that the Company is required
to repurchase Notes pursuant to an Offer to Purchase.
"Offering" means the initial offering of the Notes.
"Offering Memorandum" means the Offering Memorandum, dated
February 11, 1999, relating to the Notes.
"Officer" means the Chairman of the Board, the President, any
Vice President, the Treasurer, the Secretary or the Controller of the Company.
"Officers' Certificate" of any Person means a certificate
signed on behalf of such Person or the general partner, in the case of a limited
partnership, or member, in the case of a limited liability company, of such
Person by the Chairman of the Board, the President, any Executive Vice
President, Senior Vice President or Vice President (whether or not such title is
preceded or followed by one or more words or phrases) and by the Treasurer or
any Assistant Treasurer or the Secretary or any Assistant Secretary of such
Person, that meets the requirements set forth in Sections 13.04 and 13.05 of
this Indenture.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or Trustee.
"Participants" shall have the meaning provided in Section
2.15.
"Paying Agent" shall have the meaning provided in Section
2.03.
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"Payment Blockage Notice" shall have the meaning provided in
Section 9.02.
"Payment Blockage Period" shall have the meaning provided in
Section 9.02.
"Permitted Indebtedness" shall have the meaning provided in
Section 4.03.
"Permitted Investments" means:
(i) Investments by the Company or any Restricted Subsidiary of
the Company in any Person that is or will become immediately after such
Investment a Restricted Subsidiary of the Company or that will merge or
consolidate into the Company or a Restricted Subsidiary of the Company;
(ii) Investments in the Company by any Restricted Subsidiary
of the Company; provided that any Indebtedness evidencing such
Investment to the extent held by a Restricted Subsidiary that is not a
Guarantor 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;
(v) Currency Agreements and Interest Rate Agreements 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 of trade creditors or customers
received pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of such trade creditors or customers
or in good faith settlement of delinquent obligations of such trade
creditors or customers;
(vii) Investments made pursuant to the Recapitalization;
(viii) Guarantees of Indebtedness and other obligations
otherwise permitted under this Indenture;
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(ix) obligations of one or more officers or other employees of
the Company or any of its Restricted Subsidiaries in connection with
such officer's or employee's acquisition of shares of Common Stock of
the Company so long as no cash is paid by the Company or any of its
Restricted Subsidiaries to such officers or employees in connection
with the acquisition of any such obligations;
(x) 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 4.10;
(xi) commission, travel, payroll, entertainment, relocation
and similar advances to officers and employees of the Company or any
Restricted Subsidiary made in the ordinary course of business;
(xii) advances or payments to individuals in an amount equal
to any income taxes payable by such individuals resulting solely from
imputed income attributable to Preferred Stock of the Company owned by
them or the Management Investor; provided that the aggregate amount of
advances and payments made pursuant to this clause (xii) in any fiscal
year of the Company shall not exceed $775,000;
(xiii) Investments acquired in exchange for, or out of the Net
Cash Proceeds (which have not, and will not, be included pursuant to
clause (C)(2) of Section 4.06(a)) of a substantially concurrent
offering of, shares of Qualified Capital Stock (which is not Designated
Preferred Stock) of the Company (or options, warrants or other rights
to acquire such Qualified Capital Stock);
(xiv) Investments in Unrestricted Subsidiaries not to exceed
an amount equal to (A) $10,000,000 plus (B) to the extent not
previously reinvested under this clause (xiv), any cash return of
capital (whether realized as a result of payments from the respective
Unrestricted Subsidiary, the receipt of Net Cash Proceeds from the sale
of the respective Permitted Investment or otherwise) realized on a
Permitted Investment made after the Issue Date pursuant to this clause
(xiv) (but with the total return of capital for purposes of this clause
(xiv) not to exceed the amount Invested pursuant to this clause (xiv));
and
(xv) additional Investments not to exceed an amount equal to
(A) the greater of $25,000,000 or 10% of Total Assets, as determined on
the date of the making of each Investment, plus (B) to the extent not
previously reinvested under this clause (xv), any cash return of
capital (whether realized as a result of payments from the respective
Person in which the Permitted Investment was made, the receipt of Net
Cash Proceeds from the sale of the respective Permitted Investment or
otherwise) realized on a Permitted Investment made after the Issue Date
pursuant to this clause
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(xv) (but with the total return of capital for purposes of this clause
(xv) not to exceed the amount Invested pursuant to this clause (xv)).
"Permitted Payments" shall have the meaning provided in
Section 9.02.
"Person" means an individual, partnership, corporation,
unincorporated organization, limited liability company, trust or joint venture,
or a governmental agency or political subdivision thereof.
"Physical Notes" means one or more certificated Notes in
registered form.
"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.
"Principals" means (i) JLL and each Affiliate of JLL as of the
Issue Date; and (ii) each officer or employee of JLL or any such member referred
to in clause (i) as of the Issue Date.
"Private Exchange Notes" means the Private Exchange Notes as
defined in the Registration Rights Agreement and any similar notes issued in
compliance with Section 2.02 in accordance with any other registration rights
agreement.
"Private Placement Legend" means the legend substantially to
the following effect:
THIS SECURITY 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 BELOW. 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)
OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATED PERSON OF THE COMPANY WAS THE OWNER
OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A)
TO THE ISSUER OR ANY SUBSID-
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IARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE
THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED
IN RULE 501(a) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN
"ACCREDITED INVESTOR") THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (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, OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER 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.
"Purchase Money Indebtedness" means Indebtedness of the
Company and 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 property or equipment.
"Purchase Offer Payment Date" shall have the meaning assigned
that term in the definition of "Offer to Purchase".
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
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"QIB" shall mean a "qualified institutional buyer" as defined
in Rule 144A.
"Recapitalization" shall mean the transactions contemplated by
the Recapitalization Agreement and the incurrence of Indebtedness under the New
Credit Facility and the Note Purchase Agreement in connection therewith.
"Recapitalization Agreement" shall mean that certain
Recapitalization Agreement, dated as of December 15, 1998 (as amended, modified
or supplemented from time to time), among Hershey Foods Corporation, Hershey
Chocolate and Confectionery Corporation (as the successor in interest to Hershey
CRE, Inc.) and Homestead, Inc., the Company, New World Pasta LLC, JLL (with
respect to Sections 7.7 and 7.8 only), Pasta Group, L.L.C. and Winchester Pasta,
L.L.C.
"Redemption Date" when used with respect to any Note to be
redeemed or repurchased, means the date fixed for such redemption or repurchase
pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price fixed for such redemption pursuant to this Indenture.
"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 (whose proceeds are applied within 90
days after the incurrence thereof) 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 4.03 (other than pursuant to clauses (ii), (iii), (iv),
(v), (vi), (vii), (viii), (ix), (xii), (xiv), (xv) or (xvi) of Section 4.03(b)),
in each case that does not (1) result in an increase in the aggregate principal
amount (or accreted value, if applicable) of Indebtedness of such Person as of
the date of such proposed Refinancing (provided that the amount of any
penalties, interest or premium required to be paid under the terms of the
instrument governing such Indebtedness and plus the amount of reasonable fees,
discounts, commissions and other expenses incurred by the Company in connection
with such Refinancing may also be Refinanced) 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 Stated Maturity
earlier than the Stated 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, (y) if such Indebtedness being Refinanced is subordinate or junior to
the Notes or any Subsidiary Guarantee, then such Refinancing Indebtedness shall
be subordinate or junior to the Notes and/or the respective
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Subsidiary Guarantees at least to the same extent and in substantially the same
manner as the Indebtedness being Refinanced and (z) if such Indebtedness being
Refinanced constitutes Preferred Stock of a Restricted Subsidiary or
Disqualified Capital Stock, then the refinancing Indebtedness shall also
constitute Capital Stock of the respective issuer of the Capital Stock being
refinanced.
"Registrar" shall have the meaning provided in Section 2.03.
"Registration" means a registered exchange offer for the Notes
by the Company or other registration of the Notes under the Securities Act
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of February 19, 1999 by and among the Company, the
Guarantors and the Initial Purchasers.
"Reg. S Legend" means a legend to substantially the following
effect:
THIS SECURITY AND INTERESTS IN THIS SECURITY MAY NOT BE OFFERED OR SOLD
TO A U.S. PERSON (AS SUCH TERM IS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON PRIOR TO
THE EXPIRATION OF THE RESTRICTED PERIOD (AS DEFINED IN THE INDENTURE),
AND NO TRANSFER OR EXCHANGE OF THIS NOTE OR INTEREST IN THIS NOTE MAY
BE MADE FOR A PHYSICAL SECURITY OR AN INTEREST IN A PHYSICAL SECURITY
UNTIL AFTER THE LATER OF THE DATE OF EXPIRATION OF THE RESTRICTED
PERIOD AND THE DATE ON WHICH THE PROPER REQUIRED CERTIFICATION RELATING
TO SUCH TRANSFER OR EXCHANGE HAS BEEN PROVIDED IN ACCORDANCE WITH THE
TERMS OF THE INDENTURE, TO THE EFFECT THAT THE BENEFICIAL OWNER OR
OWNERS OF SUCH INTEREST ARE NOT U.S. PERSONS.
"Related Party" with respect to any Principal means (A) any
controlling stockholder or 80% (or more) owned Subsidiary of such Principal or
(B) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Principal and/or such other
Persons referred to in the immediately preceding clause (A).
"Relevant Payment" shall have the meaning provided in Section
11.03.
"Representative" means the indenture trustee or other trustee,
agent or representative in respect of any Designated Senior Indebtedness;
provided that if, and for so
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long as, any Designated Senior Indebtedness lacks such a representative, then
the Representative for such Designated Senior Indebtedness shall at all times
constitute the holders of a majority in outstanding principal amount of such
Designated Senior Indebtedness in respect of any Designated Senior Indebtedness.
"Restricted Note" means a Note that bears the Private
Placement Legend.
"Restricted Payments" shall have the meaning provided in
Section 4.06.
"Restricted Period" means, with respect to Notes, the period
of 40 consecutive days beginning on and including the later of (i) the day on
which such Notes are first offered to Persons other than distributors (as
defined in Regulation S under the Securities Act) and (ii) the Issue Date.
"Restricted Subsidiary" of any Person means any Subsidiary of
such Person which at the time of determination is not an Unrestricted
Subsidiary. Unless otherwise indicated, or unless the context otherwise
requires, each reference herein to a "Restricted Subsidiary" shall mean a
Restricted Subsidiary of the Company.
"Rule 144A" means Rule 144A under the Securities Act, as
amended from time to time.
"Rule 144A Global Note" shall have the meaning provided in
Section 2.01.
"S&P" means Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, and its successors.
"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 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" or "Commission" means the U.S. Securities and Exchange
Commission, or any successor organization.
"Secured Indebtedness" shall have the meaning as provided in
Section 4.05.
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"Securities Act" means the Securities Act of 1933, as amended,
or any successor statute or statutes thereto.
"Senior Indebtedness" means the principal of, premium, if any,
and 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 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 Indebtedness" 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 by the Company in respect of, (x) all obligations (including guarantees
thereof) of every nature under the New Credit Facility, including, without
limitation, obligations to pay principal and interest, reimbursement obligations
under letters of credit, fees, expenses and indemnities, (y) all obligations
under Interest Rate Agreements (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 Indebtedness" shall not include (i) any
Indebtedness of the Company to a Subsidiary of the Company or any Affiliate of
the Company or any of such Affiliate's Subsidiaries, (ii) Indebtedness to, or
guaranteed on behalf of, any 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, commodities, materials or services, (iv)
Indebtedness represented by Preferred Stock or Disqualified Capital Stock, (v)
any liability for federal, state, local or other taxes owed or owing by the
Company, (vi) that portion of any Indebtedness incurred in violation of Section
4.03, (vii) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without
recourse to the Company and (viii) any Indebtedness which is, by its express
terms, subordinated in right of payment to any other Indebtedness of the
Company.
"Shelf Registration Statement" shall have the meaning provided
in the Registration Rights Agreement.
"Significant Restricted Subsidiary" means, at any date of
determination, any Restricted Subsidiary that, together with its Subsidiaries,
(i) for the most recent period of four full fiscal quarters (or, if shorter, the
period beginning on the Issue Date and) ending on or prior to the date of any
determination pursuant to this definition for which financial statements are
available, accounted for more than 10% of the consolidated revenues of the
Company and its Restricted Subsidiaries for such period or (ii) as of the end of
such fiscal
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quarter or year, was the owner of more than 10% of the consolidated assets of
the Company and its Restricted Subsidiaries, all as set forth on the most
recently available consolidated financial statements of the Company for such
fiscal quarter or year.
"Stated Maturity" means, (i) with respect to any debt
security, the date specified in such debt security as the fixed date on which
the final installment of principal of such debt security is due and payable and
(ii) with respect to any scheduled installment of principal of or interest on
any debt security, the date specified in such debt security as the fixed date on
which such installment is due and payable.
"Subsidiary" 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, directly or indirectly, owned by
such Person. Unless otherwise indicated, or unless the context otherwise
requires, each reference herein to a "Subsidiary" shall mean a Subsidiary of the
Company.
"Subsidiary Guarantee" means the Guarantee of the Obligations
of the Company with respect to the Notes by each Guarantor pursuant to the terms
of this Indenture.
"Surviving Entity" shall have the meaning provided in Section
5.01.
"Temporary Reg. S Global Note" shall have the meaning provided
in Section 2.01.
"TIA" means the Trust Indenture Act of 1939, as amended, as in
effect on the Issue Date, except as provided in Section 10.03 hereof.
"Total Assets" means the total consolidated assets of the
Company and its Restricted Subsidiaries, as set forth on the Company's most
recent consolidated balance sheet.
"Trust Officer" means any officer within the corporate trust
department (or any successor group of the Trustee) including any vice president,
assistant vice president, assistant secretary, assistant treasurer or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at that time shall be such
officers, and also means, with respect to a particular corporate trust matter,
any other officer to whom such trust matter is referred because of such person's
knowledge of and familiarity with the particular subject.
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36
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of this Indenture and thereafter means such successor.
"Unrestricted Notes" means one or more Notes that do not and
are not required to bear the Private Placement Legend, including without
limitation, the Exchange Notes and any Notes registered under the Securities Act
pursuant to and in accordance with the Registration Rights Agreement.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination shall be or continue to be designated
an Unrestricted Subsidiary by the Board of Directors of the Company in the
manner provided below and (ii) any Subsidiary of an Unrestricted Subsidiary. The
Board of Directors of the Company may at any time and from time to time after
the Issue Date designate any Subsidiary (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 4.06 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 to which the lender has recourse to any of the assets of the Company or
any of its Restricted Subsidiaries. Any such designation by the Board of
Directors 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. The Board of Directors of the Company may at any time and
from time to time after the Issue Date designate any Unrestricted Subsidiary to
be a Restricted Subsidiary; provided that (i) no Default or Event of Default
shall occur or result from such designation and (ii) all Liens and Indebtedness
of such Unrestricted Subsidiary outstanding immediately after such designation
would, if Incurred or issued at such time, have been permitted to be Incurred or
issued (and shall be deemed to have been Incurred or issued) for all purposes of
this Indenture. 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 non-callable
obligations of 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.
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"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 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.
SECTION 1.02 Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture security holder" means 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 and
any other obligor on the indenture securities.
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 have
the meanings assigned to them by such definitions.
SECTION 1.03 Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) as used herein, accounting terms relating to the Company
and its Subsidiaries not defined in Section 1.01 and accounting terms
partly defined in
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Section 1.01 to the extent not defined, shall have the respective
meanings given to them under GAAP. All computations determining
compliance with financial covenants or terms, including definitions
used therein, shall be prepared in accordance with generally accepted
accounting principles in effect at the time of the preparation of, and
in conformity with those used to prepare, the Company's historical
financial statements included in the Offering Memorandum. If at any
time the computations for determining compliance with financial
covenants or provisions relating thereto utilize generally accepted
accounting principles different than those then being utilized in the
financial statements then being delivered to the Holders, such
financial statements shall be accompanied by a reconciliation statement
with respect to such computations;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular; and
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness.
ARTICLE TWO
THE NOTES
SECTION 2.01 Form and Dating. The Initial Notes and the
Exchange Notes and the Trustee's certificate of authentication thereof shall be
substantially in the form of Exhibit A hereto with appropriate inserts and
deletions. Exhibit A is hereby incorporated in and expressly made a part of this
Indenture. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. The Company shall approve the forms of the
Notes and any notation, legend or endorsement on them. Each Note shall be dated
the date of its authentication. Global Notes shall bear the legend set forth in
Exhibit B hereto.
Notes initially offered and sold in reliance on Rule 144A
shall initially be issued in the form of a permanent Global Note in registered
form (the "Rule 144A Global Note"), deposited with the Trustee as custodian for
the Depositary. Notes initially offered and sold in offshore transactions
pursuant to Regulation S under the Securities Act shall initially be issued in
the form of a temporary Global Note in registered form, deposited with the
Trustee as custodian for the Depositary (the "Temporary Reg. S Global Note").
Upon the expiration of the Restricted Period, and upon receipt by the Trustee of
the certification required by
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39
Regulation S under the Securities Act, the Temporary Reg. S Global Note shall be
exchanged for a permanent Global Note in equal principal amount.
Notwithstanding the foregoing, Notes may also be issued as
Physical Notes in registered form, rather than as Global Notes, as set forth in
Section 2.02. The aggregate principal amount of the Global Notes may from time
to time be increased or decreased as hereinafter provided.
SECTION 2.02 Execution and Authentication. Two Officers,
including no more than one signing solely as Assistant Secretary, shall sign, or
one Officer (other than as an Assistant Secretary) shall sign and the Secretary
or an Assistant Secretary (each of whom shall, in each case, have been duly
authorized by all requisite corporate actions) shall attest to such Officer's
signature, the Notes of 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 at the time the
Trustee authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee 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 authenticate (i) Initial Notes for original
issue in an unlimited principal amount; provided that the aggregate principal
amount of Initial Notes issued on the Issue Date shall not exceed $160,000,000;
and, provided further, that in connection with any Initial Notes originally
issued after the Issue Date, the Company complies with Section 4.03, (ii)
Private Exchange Notes from time to time only in exchange for a like principal
amount of the same type of Initial Notes and (iii) Unrestricted Notes from time
to time (A) in exchange for a like principal amount of the same type of Initial
Notes or a like principal amount of the same type of Private Exchange Notes or
(B) as the Company may determine in accordance with this Indenture, in each case
upon a written order of the Company in the form of an Officers' Certificate.
Each such written order shall specify the amount of and the type of Notes to be
authenticated and the date on which the Notes are to be authenticated, whether
the Notes are to be Initial Notes, Private Exchange Notes or Unrestricted Notes
and whether the Notes are to be issued as Physical Notes or Global Notes and
such other information as the Trustee may reasonably request. The aggregate
principal amount of Notes outstanding at any time may not exceed the sum of (x)
the aggregate principal amount of Initial Notes issued on the Issue Date
pursuant to clause (i) of the first sentence of this paragraph and (y) the
aggregate principal amount of Initial Notes originally issued after the Issue
Date in accordance with the requirements of clause (i) of the first sentence of
this paragraph, except as provided in Sections 2.07 and 2.08.
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Notwithstanding the foregoing, all Notes issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Notes may vote or consent) as one class and no series of Notes will have
the right to vote or consent as a separate class on any matter.
The Trustee may appoint an 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 agent. An authenticating agent shall
have the same rights as an Agent to deal with the Company and Affiliates of the
Company.
Each time a Note is issued, each Guarantor shall execute a
Subsidiary Guarantee with respect thereto in accordance with Section 11.05.
The Notes shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03 Registrar and Paying Agent. The Company shall
maintain an office or agency in the Borough of Manhattan, The City 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 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 notice to the
Trustee, may appoint one or more co-Registrars and one or more additional Paying
Agents. The term "Paying Agent" includes any additional Paying Agent and the
term "Registrar" includes any co-Registrar. Except as provided herein, the
Company or any Guarantor may act as Paying Agent, Registrar or co-Registrar.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.07.
The Company initially appoints the Trustee as Registrar and
Paying Agent until such time as the Trustee has resigned or a successor has been
appointed. The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Global Notes.
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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 Holders or the Trustee
all assets held by the Paying Agent for the payment of principal of, or interest
on, the Notes, and shall notify the Trustee of any Default by the Company 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, 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 (if other than the Company), the
Paying Agent shall have no further liability for such assets. If the Company or
any Guarantor or any of their respective Affiliates acts as Paying Agent, it
shall, on or before each due date of the principal of or interest on the Notes,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
SECTION 2.05 Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least five days before each Interest
Record Date and at such other times as the Trustee 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 Holders, which list may be conclusively relied upon by
the Trustee.
SECTION 2.06 Transfer and Exchange. Subject to the provisions
of Sections 2.15 and 2.16, when Notes are presented to the Registrar with a
request to register the transfer of such Notes or to exchange such Notes for an
equal principal amount of Notes of other authorized Notes of the same series,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transaction are met; provided, however, that the Notes
surrendered for transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing. To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Notes at the Registrar's
written request. No service charge shall be made 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 payable by the transferor of such Notes (other than any such transfer
taxes or other governmental charge payable upon exchanges or transfers pursuant
to Section 2.10, 3.06, 4.10, 4.11, or 10.05). The Registrar shall not be
required to register the transfer or exchange of any Note (i) during a period
beginning at the opening of business 15 days before the mailing of a notice of
redemption of Notes and ending at the close of business on the day of such
mailing and (ii) selected for redemption in whole or in part pursuant to Article
Three hereof, except the unredeemed portion of any Note being redeemed in part.
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Prior to the registration of any transfer by a Holder as
provided herein, the Company, the Trustee and any Agent shall treat the person
in whose name the Note is registered as the owner thereof for all purposes
whether or not the Note shall be overdue, and none of the Company, the Trustee
or any Agent shall be affected by notice to the contrary. Any Holder of a
beneficial interest in a Global Note shall, by acceptance of such beneficial
interest in a Global Note, agree that transfers of beneficial interests in such
Global Note may be effected only through a book-entry system maintained by the
Depositary (or its agent), and that ownership of a beneficial interest in a
Global Note shall be required to be reflected in a book entry.
SECTION 2.07 Replacement Notes. If a mutilated Note is
surrendered to the Trustee 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 shall authenticate a replacement Note if the Trustee's requirements for
replacement of Notes are met. Such Holder must provide an indemnity bond or
other indemnity, sufficient in the judgment of both the Company and the Trustee,
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 is an additional obligation of the
Company and the Guarantors.
SECTION 2.08 Outstanding Notes. Notes outstanding at any time
are all the Notes that have been authenticated by the Trustee except those
canceled by it, those delivered to it for cancellation and those described in
this Section 2.08 as not outstanding. Subject to Section 2.09, 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 Trustee receives proof satisfactory to it 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, Purchase Offer Payment Date or the
Final Maturity Date, the Paying Agent holds money 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 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 or consent,
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Notes owned by the Company, a Guarantor or any of their respective Affiliates
shall be disregarded, except that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that a Trust Officer of the Trustee actually knows are so owned shall
be disregarded.
The Company shall notify the Trustee, in writing, when the
Company, a Guarantor or any of their respective Affiliates repurchases or
otherwise acquires Notes and of the aggregate principal amount of such Notes
repurchased or otherwise acquired.
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.
Notwithstanding the foregoing, this Section 2.10 shall not affect the Company's
obligations with respect to the Temporary Reg. S Global Note set forth in
Section 2.01.
SECTION 2.11 Cancellation. The Company at any time may deliver
Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Notes surrendered to them for transfer, exchange or
payment. The Trustee, or at the direction of the Trustee, the Registrar or the
Paying Agent, and no one else, shall cancel, and dispose of such canceled Notes
in accordance with its customary procedures. Subject to Section 2.07, the
Company may not issue new Notes to replace Notes that it has paid or delivered
to the Trustee for cancellation. If the Company or any Guarantor shall acquire
any of the Notes, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation pursuant to this Section
2.11.
SECTION 2.12 Defaulted Interest. The Company shall pay
interest on overdue principal from time to time on demand at the applicable rate
of interest then borne by the Notes. The Company shall, to the extent lawful,
pay interest on overdue installments of interest (including Liquidated Damages,
if any), without regard to any applicable grace periods, at the rate of interest
then borne by the Notes.
If the Company defaults in a payment of interest (including
Liquidated Damages, if any) 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
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special record date, which date shall be the fifteenth day 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
Holder, with a copy to the Trustee, 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.
Notwithstanding the foregoing, any interest which is paid
prior to the expiration of the 30-day period set forth in Section 6.01(2) shall
be paid to Holders as of the Interest Record Date for the Interest Payment Date
for which interest has not been paid.
SECTION 2.13 CUSIP Number. The Company in issuing the Notes
will use a "CUSIP" number and the Trustee shall use the "CUSIP" number in
notices of redemption or exchange as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the
correctness or accuracy of the "CUSIP" number 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 of any
changes in "CUSIP" numbers.
SECTION 2.14 Deposit of Moneys. Prior to 10:00 a.m., New York
City time, on each Interest Payment Date, Purchase Offer Payment Date and the
Final Maturity Date, the Company shall deposit with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date, Purchase Offer Payment Date or Final Maturity
Date, as the case may be, in a timely manner which permits the Paying Agent to
remit payment to the Holders on such Interest Payment Date, Purchase Offer
Payment Date or Final Maturity Date, as the case may be.
SECTION 2.15 Book-Entry Provisions for Global Notes. (a) The
Global Notes initially shall (i) be registered in the name of the Depositary or
the nominee of such Depositary, (ii) be delivered to the Trustee as custodian
for such Depositary and (iii) bear legends as set forth in Exhibit B.
Members of, or participants in, the Depositary
("Participants") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Note, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of the Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and Participants, the operation of customary practices governing
the exercise of the rights of a Holder of any Note.
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(b) Transfers of Global Notes shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depositary and the provisions of Section 2.16, provided, however, that
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in Global Notes if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for any Global
Note and a successor Depositary is not appointed by the Company within 90 days
of such notice or (ii) an Event of Default has occurred and is continuing and
the Registrar has received a request from the Depositary to issue Physical
Notes.
(c) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b) of this Section 2.15,
the Global Notes shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall upon written
instructions from the Company authenticate and deliver, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in the
Global Notes, an equal aggregate principal amount of Physical Notes of
authorized denominations.
(d) Any Physical Note constituting a Restricted Note delivered
in exchange for an interest in a Global Note pursuant to paragraph (b) of this
Section 2.15 shall, except as otherwise provided by Section 2.16, bear the
Private Placement Legend.
(e) The Holder of any Global Note may grant proxies and
otherwise authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under this Indenture or the Notes.
(f) The Temporary Reg. S. Global Note shall bear the Reg. S
Legend.
SECTION 2.16 Registration of Transfers and Exchanges. (a)
Transfer and Exchange of Physical Notes. When Physical Notes are presented to
the Registrar with written instructions:
(i) to register the transfer of the Physical Notes; or
(ii) to exchange such Physical Notes for an equal principal
amount of Physical Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as
requested; provided, however, that the Physical Notes presented or
surrendered for registration of transfer or exchange:
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(I) shall be duly endorsed or accompanied by
a written instrument of transfer in form satisfactory to the
Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and
(II) in the case of Physical Notes bearing
the Private Placement Legend, the offer and sale of which have
not been registered under the Securities Act, such Physical
Notes shall be accompanied, in the sole discretion of the
Company, by the following additional information and
documents, as applicable:
(A) if such Physical Note is being
delivered to the Registrar by a Holder for
registration in the name of such Holder, without
transfer, a certification from such Holder to that
effect (substantially in the form of Exhibit E
hereto); or
(B) if such Physical Note is being
transferred to a QIB in accordance with Rule 144A, a
certification to that effect (substantially in the
form of Exhibit E hereto); or
(C) if such Physical Note is being
transferred to an Institutional Accredited Investor,
a certification to that effect (substantially in the
form of Exhibit E hereto) and a transferee letter of
representation substantially in the form of Exhibit F
hereto and, at the option of the Company, an Opinion
of Counsel reasonably satisfactory to the Company to
the effect that such transfer is in compliance with
the Securities Act; or
(D) if such Physical Note is being
transferred in reliance on Rule 144 under the
Securities Act, a certification to that effect
(substantially in the form of Exhibit E hereto); or
(E) if such Physical Note is being
transferred to the Company or a Subsidiary of the
Company, a certification to that effect
(substantially in the form of Exhibit E hereto).
(b) Restrictions on Transfer of a Physical Note for a
Beneficial Interest in a Global Note. When Physical Notes are presented to the
Registrar with written instructions that they be exchanged for a beneficial
interest in a Global Note, the Registrar shall register the transfer as
requested; provided, however, that the Physical Notes presented or surrendered
for registration of transfer:
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(I) shall be duly endorsed or accompanied by
a written instrument of transfer in form satisfactory to the
Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and
(II) in the case of Physical Notes bearing
the Private Placement Legend, the offer and sale of which have
not been registered under the Securities Act, shall be
accompanied by a certification, in the form of Exhibit E
hereto, that such Physical Notes are being transferred (I) to
a QIB or (II) in an offshore transaction in compliance with
Rule 904 under the Securities Act.
Upon receipt of the foregoing, the Registrar shall cancel such Physical Notes
and cause, or direct the Depositary to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Registrar,
the principal amount of Notes represented by the applicable Global Note to be
increased accordingly. If no Global Note is then outstanding, the Company shall,
unless either of the events in the proviso to Section 2.15(b) have occurred and
are continuing, issue and the Trustee shall, upon written instructions from the
Company in accordance with Section 2.02, authenticate such a Global Note in the
appropriate principal amount.
(c) Transfer and Exchange of Global Notes. The
transfer and exchange of Global Notes or beneficial interests therein shall be
effected through the Depositary in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depositary
therefor. Upon receipt by the Registrar of written instructions, or such other
instruction as is customary for the Depositary, from the Depositary or its
nominee, requesting the registration of transfer of an interest in a Global Note
to another type of Global Note, together with the applicable Global Notes (or,
if the applicable type of Global Note required to represent the interest as
requested to be transferred is not then outstanding, only the Global Note
representing the interest being transferred), the Registrar will cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Registrar, the aggregate principal amount of the applicable
Global Notes (or Global Note) to be reduced or increased, as applicable, to give
effect to such transfer. If an applicable Global Note is not then outstanding,
the Company shall, unless either of the events in the proviso to Section 2.15(b)
have occurred and are continuing, issue and the Trustee shall, upon written
instructions from the Company in accordance with Section 2.02, authenticate such
a Global Note in the appropriate principal amount. Notwithstanding the
foregoing, interests in the Temporary Reg. S Global Note may only be exchanged
for beneficial interests in the Rule 144A Global Note if the transferor
certifies to the Trustee in writing that it reasonably believes the transferee
to be a QIB and that the proposed transfer meets the requirements of Rule 144A.
(d) Transfer of a Beneficial Interest in a Global
Note for a Physical Note. Any Person having a beneficial interest in a Global
Note may upon request exchange
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such beneficial interest for a Physical Note. Upon receipt by the Registrar of
written instructions, or such other form of instructions as is customary for the
Depositary, from the Depositary or its nominee on behalf of any Person (subject
to the previous sentence) having a beneficial interest in a Global Note and upon
receipt by the Trustee of
(I) a written order or such other form of instructions as is
customary for the Depositary or the Person designated by the
Depositary as having such a beneficial interest containing
registration instructions, and
(II) in the case of any such transfer or exchange of a
beneficial interest in Notes bearing the Private Placement
legend, the offer and sale of which have not been registered
under the Securities Act, the documentation required by
Section 2.16(a)(II),
the Registrar will cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Registrar, the aggregate
principal amount of the applicable Global Note to be reduced and, following such
reduction, the Company will execute and, upon receipt of an authentication order
in the form of an Officers' Certificate in accordance with Section 2.02, the
Trustee will authenticate and deliver to the transferee a Physical Note in the
appropriate principal amount. Notwithstanding the foregoing, interests in the
Temporary Reg. S Global Note shall not be exchangeable for Physical Notes until
after the later of the date of expiration of the Restricted Period and the date
on which the proper required certification relating to such interest has been
provided in accordance with the terms of the Indenture, to the effect that the
beneficial owner or owners of such interest are not U.S. persons (as such term
is used in Regulation S under the Securities Act).
Notes issued in exchange for a beneficial interest in
a Global Note pursuant to this Section 2.16(d) shall be registered in such names
and in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Registrar in writing. The Registrar shall deliver such Physical Notes to the
Persons in whose names such Physical Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global
Notes. Notwithstanding any other provisions of this Indenture, a Global Note may
not be transferred as a whole except 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.
(f) Private Placement Legend. Upon the transfer,
exchange or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Registrar shall deliver only Notes that bear the Private
Placement Legend unless, and the Trustee is hereby authorized to
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deliver Notes without the Private Placement Legend if, (i) there is delivered to
the Trustee an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act; (ii) such Note has been sold pursuant to an effective
registration statement under the Securities Act (including pursuant to a
Registration); or (iii) the date of such transfer, exchange or replacement is
two years after the later of (x) the Issue Date and (y) the last date that the
Company or any affiliate (as defined in Rule 144 under the Securities Act) of
the Company was the owner of such Notes (or any predecessor thereto).
(g) General. By its acceptance of any Note bearing
the Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture and in the Private Placement Legend.
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 Note (including any transfers between or among
Participants or beneficial owners of interest 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.
The Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 2.15 or
this Section 2.16. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01 Notices to Trustee. If the Company
elects to redeem Notes pursuant to Section 3.07, it shall notify the Trustee in
writing of the Redemption Date and the principal amount of Notes to be redeemed.
The Company shall give such notice to the Trustee at least 60 days before the
Redemption Date (unless a shorter notice shall be agreed to by the Trustee in
writing), together with an Officers' Certificate stating that such redemption
will comply with the conditions contained herein.
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SECTION 3.02 Selection of Notes To Be Redeemed. If less than
all of the Notes are to be redeemed, the Trustee shall select the Notes to be
redeemed in compliance with the requirements of the principal national
securities exchange, if any, on which such Notes are listed or, if such Notes
are not so listed, on a pro rata basis, by lot or in such other manner as the
Trustee shall deem fair and appropriate.
The Trustee may select for redemption portions of the
principal amount of Notes that have denominations equal to or larger than $1,000
principal amount. Notes and portions of them the Trustee so selects shall be in
amounts of $1,000 principal amount or integral multiples thereof. 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 a notice of
redemption by first-class mail to each Holder whose Notes are to be redeemed at
such Holder's registered address.
Each notice of redemption shall identify the Notes to be
redeemed (including the CUSIP number thereon) and shall state:
(1) the paragraph of the Notes pursuant to which the Notes are
being redeemed;
(2) the Redemption Date;
(3) the redemption price;
(4) the name and address of the Paying Agent to which the
Notes are to be surrendered for redemption;
(5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that, unless the Company default 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 is to receive payment of the redemption price upon surrender to
the Paying Agent; and
(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, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion thereof will be
issued.
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At the Company's written request, the Trustee shall give the notice of
redemption on behalf of the Company, in the Company's name and at the Company's
expense.
SECTION 3.04 Effect of Notice of Redemption. Once a notice of
redemption is mailed, Notes called for redemption become due and payable on the
Redemption Date and at the redemption price. Upon surrender to the Paying Agent,
such Notes shall be paid at the redemption price, plus accrued interest thereon,
if any, to the Redemption Date, but interest installments whose maturity is on
or prior to such Redemption Date shall be payable to the Holders of record at
the close of business on the relevant Interest Record Date.
SECTION 3.05 Deposit of Redemption Price. At least one Business Day
before the Redemption Date, the Company shall deposit with the Paying Agent (or
if the Company is Paying Agent, shall, on or before the Redemption Date,
segregate and hold in trust) money sufficient to pay the redemption price of and
accrued interest and Liquidated Damages, if any, on all Notes to be redeemed on
that date other than Notes or portions thereof called for redemption on that
date which have been delivered by the Company to the Trustee for cancellation.
If the Company complies with the provisions of the preceding paragraph,
and so long as the money deposited with the Paying Agent (or segregated by the
Company and held in trust) is permitted pursuant to the terms of this Indenture
to be paid to the Holders on the Redemption Date, on and after the Redemption
Date, interest shall cease to accrue on the Notes or the portions of Notes
called for redemption. If a Note is redeemed on or after an Interest Record Date
but prior to the related Interest Payment Date, then any unpaid interest accrued
through such Interest Payment Date shall be paid to the Person in whose name
such Note was registered at the close of business on such Interest Record Date.
Upon surrender of a Note for redemption in accordance with the notice given
pursuant to Section 3.03 hereof, such Note shall be purchased by the Company at
the redemption price, together with accrued and unpaid interest to the
redemption date.
If any Note surrendered for redemption in the manner provided in the
Notes shall not be so paid on the Redemption Date due to the failure of the
Company to deposit with the Paying Agent money sufficient to pay the redemption
price thereof, or because monies so deposited are prohibited by the terms of
this Indenture to be paid to the Holders, the principal and accrued and unpaid
interest, if any, thereon shall, until paid or duly provided for, bear interest
as provided in Sections 2.12 and 4.01 with respect to any payment default.
SECTION 3.06 Notes Redeemed in Part. Upon surrender of a Note that is
redeemed in part, the Company shall issue and the Trustee shall authenticate for
the Holder a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
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SECTION 3.07 Optional Redemption. (a) Except as provided in
Section 3.07(b), the Notes will not be redeemable at the option of the Company
prior to February 15, 2004. On and after such date, the Notes will be
redeemable, at the Company's option, in whole or in part, at the following
redemption prices (expressed in percentages of principal amount), if redeemed
during the 12-month period commencing on February 15 of the years set forth
below, plus accrued and unpaid interest and Liquidated Damages, if any, to the
Redemption Date:
Redemption
Period Price
2004........................................................ 104.6250%
2005........................................................ 103.0833%
2006........................................................ 101.5417%
2007 and thereafter......................................... 100.0000%
(b) At any time, or from time to time, on or prior to February 15,
2002, the Company may, at its option, redeem up to 35% of sum of (i) the initial
aggregate principal amount of Notes issued in the Offering and (ii) the
respective initial aggregate principal amount of Initial Notes originally issued
under this Indenture after the Issue Date pursuant to clause (i) of the first
sentence of the fourth paragraph of Section 2.02 of this Indenture with Net Cash
Proceeds of one or more Equity Offerings, at a redemption price equal to 109.25%
of the principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon, if any, to the date of redemption; provided, however,
that at least 65% of the sum of (i) initial aggregate principal amount of Notes
issued in the Offering and (ii) the respective initial aggregate principal
amounts of Initial Notes issued under this Indenture after the Issue Date
pursuant to clause (i) of the first sentence of the fourth paragraph of Section
2.02 of this Indenture, remain outstanding immediately after each 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 120 days
after the consummation of any such Equity Offering.
ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Notes. The Company shall pay the
principal of and interest and Liquidated Damages on the Notes in the manner
provided in the Notes and the Registration Rights Agreement. An installment of
principal or interest (including
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any Liquidated Damages) shall be considered paid on the date due if the Trustee
or Paying Agent (other than the Company, a Guarantor or any of their respective
Affiliates) holds on that date money designated for and sufficient to pay the
installment in full and is not prohibited from paying such money to the Holders
of the Notes pursuant to the terms of this Indenture.
The Company shall pay cash interest on overdue principal at
the same rate per annum borne by the applicable Notes. The Company shall pay
cash interest on overdue installments of interest (including any Liquidated
Damages) at the same rate per annum borne by the applicable Notes, to the extent
lawful, as provided in Section 2.12.
SECTION 4.02 Maintenance of Office or Agency. The Company
shall maintain in the Borough of Manhattan, The City of New York, the office or
agency required under Section 2.03. The Company shall give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.02 The Company hereby initially
designates the Trustee at its address set forth in Section 13.02 as its office
or agency in the Borough of Manhattan, The City of New York, for such purposes.
SECTION 4.03 Limitation on Incurrence of Indebtedness. (a) The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, Incur any Indebtedness; provided, however, that the
Company may Incur Indebtedness (including, without limitation, Acquired
Indebtedness incurred by the Company), if in each case on the date of the
Incurrence of such Indebtedness and after giving effect thereto, the
Consolidated Fixed Charge Coverage Ratio is greater than 2.0 to 1.0.
(b) Notwithstanding the provisions of Section 4.03(a), this
covenant will not prohibit the Incurrence of any of the following items of
Indebtedness (collectively, "Permitted Indebtedness"):
(i) Indebtedness under the Notes issued in the Offering in an
aggregate principal amount of $160,000,000 and the related Subsidiary
Guarantees;
(ii) Indebtedness of the Company incurred pursuant to one or
more Credit Facilities in an aggregate principal amount at any time
outstanding not to exceed the sum of (A) $200,000,000 and (B) the
greater of (x) $50,000,000 and (y) 60% of inventory plus 85% of
accounts receivable (each as determined in accordance with GAAP, but
excluding accounts receivable that are past due by more than 60 days)
of the Company and its Restricted Subsidiaries determined on a
consolidated basis as of the end of the last fiscal quarter for which
financial statements have been prepared (with the amount of all
principal payments and commitment reductions under one or more Credit
Facilities made with the Net Cash Proceeds of one or more Asset Sales
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pursuant to Section 4.10 be applied, at the option of the Company, to
reduce the amounts specified in clause (A) and/or (B) (and in the case
of any application to reduce clause (B), the amount so applied shall
reduce both the amounts specified in subclauses (x) and (y) thereof) so
long as the aggregate amount so applied to the amounts of Indebtedness
permitted pursuant to preceding clauses (A) and (B) equals the amount
of the principal payments and commitment reductions so made to the
Credit Facilities (until such time as the aggregate amount of
Indebtedness permitted under this clause (ii) has been reduced to $0);
(iii) Indebtedness arising from any agreement entered
into by the Company or any of its Restricted Subsidiaries providing for
indemnification, purchase price adjustment or similar obligations
(other than Guarantees of Indebtedness incurred by any Person acquiring
all or any portion of the assets disposed of pursuant to the respective
Asset Sale), in each case incurred or assumed in connection with any
Asset Sale;
(iv) Indebtedness under Interest Rate Agreements of
the Company or any of its Restricted Subsidiaries; provided, however,
that such Interest Rate Agreements are entered into to 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 Indebtedness under
Interest Rate Agreements does not exceed the principal amount of the
Indebtedness to which such Interest Rate Agreements relate;
(v) Indebtedness under Currency Agreements designed
to protect the Company or its Restricted Subsidiaries against
fluctuations in foreign currency exchange rates and not for speculative
purposes;
(vi) Indebtedness of a Restricted Subsidiary of the
Company to the Company or to a Wholly Owned Restricted Subsidiary of
the Company for so long as such Indebtedness is held by the Company, a
Wholly Owned Restricted Subsidiary of the Company or the lenders or
collateral agent under one or more Credit Facilities in each case
subject to no Lien held by a Person other than the Company, a Wholly
Owned Restricted Subsidiary of the Company or such lenders or
collateral agent; provided that if as of any date any Person other than
the Company, a Wholly Owned Restricted Subsidiary of the Company or the
lenders or collateral agent under one or more Credit Facilities owns or
holds any such Indebtedness or holds a Lien in respect of such
Indebtedness, such date shall be deemed the incurrence of Indebtedness
not constituting Permitted Indebtedness by the issuer of such
Indebtedness pursuant to this clause (vi);
(vii) Indebtedness of the Company to a Wholly Owned
Restricted Subsidiary of the Company for so long as such Indebtedness
is held by a Wholly
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Owned Restricted Subsidiary of the Company or the lenders or collateral
agent under the Credit Facilities, in each case subject to no Lien held
by a Person other than a Wholly Owned Restricted Subsidiary or such
other lenders or collateral agent; provided that (A) any Indebtedness
of the Company to any Wholly Owned Restricted Subsidiary of the Company
which is not a Guarantor is unsecured and subordinated (on
substantially the same terms as the Company's obligations under this
Indenture and the Notes are subordinated to the Senior Indebtedness),
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 Wholly Owned Restricted Subsidiary of the Company or such
lenders or collateral agent owns or holds any such Indebtedness or any
Person holds a Lien in respect of such Indebtedness, such date shall be
deemed the incurrence of Indebtedness not constituting Permitted
Indebtedness by the Company pursuant to this clause (vii);
(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 ten
business days of incurrence;
(ix) Indebtedness of the Company or any of its
Restricted Subsidiaries represented by letters of credit for the
account of the Company or such Restricted Subsidiary, as the case may
be, issued in the ordinary course of business of the Company or such
Restricted Subsidiary, including, without limitation, in order to
provide security for workers' compensation claims or payment
obligations in connection with self-insurance or similar requirements
in the ordinary course of business and other Indebtedness with respect
to workers' compensation claims, self-insurance obligations,
performance, surety and similar bonds and completion guarantees
provided by the Company or any Restricted Subsidiary in the ordinary
course of business;
(x) Indebtedness (A) consisting of Capitalized Lease
Obligations and (B) consisting of Purchase Money Indebtedness of the
Company and its Restricted Subsidiaries or under purchase money
mortgages or secured by purchase money security interests, in the case
of (A) or (B) incurred for the purpose of leasing or financing or
refinancing all or any part of the purchase price or cost of
construction or improvement of any property (real or personal) or other
assets that are used or useful in the business of the Company or such
Restricted Subsidiary (whether through the direct purchase of assets or
the Capital Stock of any Person owning such assets and whether such
Indebtedness is owed to the seller or Person carrying out such
construction or improvement or to any third party), so long as (I) such
Indebtedness is not secured by any property or assets of the Company or
any Restricted Subsidiary other than the property or assets so leased,
acquired (directly or indirectly), constructed
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or improved and (II) such Indebtedness is created within 90 days of the
acquisition or completion of construction or improvement of the related
property or asset; provided that the aggregate principal amount of
Indebtedness at any time outstanding pursuant to this clause (x), when
added to the aggregate principal amount of any Refinancing Indebtedness
incurred in respect of Indebtedness originally incurred pursuant to
this clause (x) or subsequent refinancings thereof, shall at no time
exceed the greater of (1) $25,000,000 and (2) 10% of Total Assets, at
the time of any incurrence thereof;
(xi) Refinancing Indebtedness;
(xii) Guarantees of Indebtedness otherwise permitted
under this Indenture, provided that the Guarantee of such Indebtedness
is permitted by and made in accordance with Section 4.08;
(xiii) Acquired Indebtedness of Restricted
Subsidiaries acquired by the Company after the Issue Date, or resulting
from the merger of one or more Persons into one or more Restricted
Subsidiaries of the Company after the Issue Date; provided that the
respective Acquired Indebtedness is not incurred in contemplation of
the respective acquisition or merger; and, provided further, that after
giving effect to any Indebtedness Incurred, acquired or assumed
pursuant to this clause (xiii), the Company would be permitted to incur
at least $1.00 of additional Indebtedness pursuant to Section 4.03(a);
(xiv) Obligations in respect of performance and
surety bonds and completion guarantees provided by the Company or any
Restricted Subsidiary in the ordinary course of business;
(xv) Indebtedness consisting of deferred payment
obligations under Section 2.7 of the Recapitalization Agreement; and
(xvi) additional Indebtedness of the Company and its
Restricted Subsidiaries in an aggregate principal amount not to exceed
$40,000,000 at any one time outstanding (which amount may, but need
not, be incurred in whole or in part under the New Credit Facility).
(c) Notwithstanding any other provision in this
Section 4.03, (i) all Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date shall be deemed Incurred on the Issue
Date (and shall only be permitted to be outstanding on such date if same would
be permitted to be Incurred on such date pursuant to the provisions of this
Section 4.03) and (ii) the maximum amount of Indebtedness that the Company or a
Restricted Subsidiary may Incur pursuant to this Section 4.03 shall not be
deemed to be exceeded, with respect to any outstanding Indebtedness, due solely
to the result of fluctuations in the exchange rates of currencies. For the
purposes of determining compliance with this Section 4.03, (x)
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Indebtedness Incurred under the New Credit Facility on or prior to the Issue
Date shall be treated as Incurred pursuant to Section 4.03(b)(ii) and (y)
subject to the provisions of preceding clause (i), in the event that an item of
Indebtedness meets the criteria of more than one of the categories of Permitted
Indebtedness or is otherwise entitled to be incurred pursuant to this Section
4.03, the Company shall, in its sole discretion, classify (or reclassify) such
item of Indebtedness in any manner that complies with this Section 4.03 and such
items of Indebtedness will be treated as having been Incurred pursuant to only
one of such clauses or pursuant to the first paragraph hereof. Accrual of
interest or accretion of accreted value will not be deemed to be an Incurrence
of Indebtedness for purposes of this Section 4.03. Accruals of dividends or the
payment of dividends through the issuance of additional shares of the same class
of Capital Stock in accordance with the provisions thereof permitting such
pay-in-kind dividends will not be deemed an issuance of Capital Stock for
purposes of this Section 4.03.
SECTION 4.04 Prohibition on Incurrence of Senior Subordinated Debt.
Neither the Company nor the Guarantors will incur or suffer to exist
Indebtedness that is senior in right of payment to the Notes or the Subsidiary
Guarantees, as the case may be, and subordinate in right of payment to any other
Indebtedness of the Company or the Guarantors, as the case may be.
SECTION 4.05 Limitation on Liens. Neither the Company nor any Guarantor
shall Incur or suffer to exist any Indebtedness secured by a Lien ("Secured
Indebtedness") which is not Senior Indebtedness or Guarantor Senior
Indebtedness, as the case may be, unless contemporaneously therewith effective
provision is made to secure the Notes or the Subsidiary Guarantee, as the case
may be, equally and ratably with (or, if the Secured Indebtedness is
subordinated in right of payment to the Notes, or the Subsidiary Guarantee, as
the case may be, prior to) such Secured Indebtedness for so long as such Secured
Indebtedness is secured by a Lien.
SECTION 4.06 Limitation on Restricted Payments. (a) The Company will
not, and will not permit any Restricted Subsidiary to, directly or indirectly,
(i) declare or pay any dividend or make any distribution on or with respect to
its Capital Stock held by Persons other than the Company or any of its
Restricted Subsidiaries (other than (x) dividends or distributions payable
solely in shares of its Qualified Capital Stock or in options, warrants or other
rights to acquire shares of such Qualified Capital Stock (so long as, in the
case of any Restricted Subsidiary, the Qualified Capital Stock is issued in
accordance with the other relevant requirements of this Indenture) and (y) pro
rata dividends or distributions on Common Stock of Restricted Subsidiaries held
by minority stockholders), (ii) purchase, redeem, retire or otherwise acquire
for value any shares of Capital Stock of (x) the Company or an Unrestricted
Subsidiary (including options, warrants or other rights to acquire such shares
of Capital Stock) held by any Person (other than the Company or a Wholly Owned
Restricted Subsidiary) or (y) a Restricted Subsidiary (including options,
warrants or other rights to acquire such shares of Capital Stock) held by any
Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or
any holder (or any Affiliate of such holder) of 5% or more of
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the Capital Stock of the Company, (iii) make any voluntary or optional principal
payment, or voluntary or optional redemption, repurchase, defeasance, or other
acquisition or retirement for value, of Indebtedness of the Company or any
Guarantor that is subordinated in right of payment to the Notes or a Subsidiary
Guarantee or (iv) make any Investment (including, without limitation, any
Investment deemed made upon (x) the designation of a Restricted Subsidiary as an
Unrestricted Subsidiary or (y) any Restricted Subsidiary ceasing to constitute a
Restricted Subsidiary, in each case in accordance with the definition of
Investment contained herein), other than a Permitted Investment, in any Person
(such payments or any other actions described in clauses (i) through (iv) above
being collectively "Restricted Payments") if, at the time of, and after giving
effect to, the proposed Restricted Payment:
(A) a Default or Event of Default shall have occurred and be
continuing,
(B) the Company could not Incur at least $1.00 of Indebtedness
under Section 4.03(a), or
(C) the aggregate amount of all Restricted Payments (the
amount, if other than in cash, to be determined in good faith by the
Board of Directors, whose determination shall be conclusive and
evidenced by a Board Resolution) made after the Issue Date shall exceed
the sum of:
(1) 50% of the aggregate amount of the Adjusted Consolidated
Net Income (or, if the Adjusted Consolidated Net Income is a loss,
minus 100% of the amount of such loss) (determined by excluding income
resulting from transfers of assets by the Company or a Restricted
Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis
during the period (taken as one accounting period) beginning on the
Issue Date and ending on the last day of the last fiscal quarter
preceding the date of the respective Restricted Payment for which
annual or quarterly financial statements, as the case may be, are
available; plus
(2) the aggregate Net Cash Proceeds received by the Company
after the Issue Date from the issuance and sale otherwise permitted
hereby of its Qualified Capital Stock to (or, without duplication, from
the receipt of capital contributions (so long as the equity in respect
of which the capital contributions are made constitutes Qualified
Capital Stock of the Company) from) a Person who is not a Subsidiary of
the Company, including an issuance or sale otherwise permitted hereby
of Indebtedness of the Company for cash subsequent to the Issue Date
upon the conversion of such Indebtedness into Qualified Capital Stock
of the Company and including any additional proceeds received by the
Company upon such conversion, or from the issuance to a Person who is
not a Subsidiary of the Company of any options, warrants or other
rights to acquire Qualified Capital Stock of the Company (in each case,
exclusive of any options, warrants or other rights that are redeemable
at the
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option of the holder, or are required to be redeemed, prior to the
Stated Maturity of the Notes); provided that there shall not be
included pursuant to this clause (2) any Net Cash Proceeds (x) of any
issuance of Designated Preferred Stock (or options, warrants or other
rights to acquire same), (y) which are, or will be, used to make
Permitted Investments pursuant to clause (xiii) of the definition of
Permitted Investment contained herein ; plus
(3) an amount equal to the net reduction in
Investments made after the Issue Date (other than reductions
in Permitted Investments) in any Person resulting from
payments of interest on Indebtedness, dividends, repayments of
loans or advances, or other transfers of assets, in each case
to the Company or any Restricted Subsidiary or from the Net
Cash Proceeds from the sale of any such Investment (except, in
each case, to the extent any such payment or proceeds are
included in the calculation of Adjusted Consolidated Net
Income), or from redesignations of Unrestricted Subsidiaries
as Restricted Subsidiaries (valued in each case as provided in
the definition of "Investments"), not to exceed, in each case,
the amount of Investments previously made by the Company or
any Restricted Subsidiary in such Person or Unrestricted
Subsidiary.
(b) The foregoing provisions shall not be violated by reason
of:
(i) the payment of any dividend within 60 days after the date
of declaration thereof if, at said date of declaration, such payment
would comply with Section 4.06(a);
(ii) the redemption, repurchase, defeasance or other
acquisition or retirement for value of Indebtedness that is
subordinated in right of payment to the Notes including premium, if
any, and accrued and unpaid interest, with the proceeds of, or in
exchange for, subordinated Refinancing Indebtedness Incurred under
clause (xi) of Section 4.03(b);
(iii) the repurchase, redemption or other acquisition of
Capital Stock of the Company, an Unrestricted Subsidiary or a
Restricted Subsidiary (or options, warrants or other rights to acquire
such Capital Stock) in exchange for, or out of the proceeds of, a
substantially concurrent offering of, shares of Qualified Capital Stock
of the Company (or options, warrants or other rights to acquire such
Qualified Capital Stock);
(iv) the making of any principal payment or the repurchase,
redemption, retirement, defeasance or other acquisition for value of
Indebtedness of the Company which is subordinated in right of payment
to the Notes in exchange for, or out of the proceeds of, a
substantially concurrent offering of, shares of the Qualified
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Capital Stock of the Company (or options, warrants or other rights to
acquire such Qualified Capital Stock);
(v) distributions made by the Company on the Issue
Date that are utilized solely to consummate the Recapitalization and
distributions made subsequent to the Issue Date in order to make
payments pursuant to the Recapitalization Agreement, as in effect on
the Issue Date and as amended from time to time so long as any such
amendment or modification is, in the good faith judgment of the Board
of Directors, not more disadvantageous to the Holders of Notes in any
material respect then the Recapitalization Agreement as in effect on
the Issue Date;
(vi) repurchases by the Company of Qualified Capital
Stock (or options therefor) of the Company from directors, officers or
employees of the Company or any of its Restricted Subsidiaries or their
authorized representatives upon the death, disability or termination of
employment of such officers or employees, in an aggregate amount not to
exceed, in any calendar year, $2,000,000; provided that unused amounts
in any calendar year (beginning with calendar year 1999) may be carried
forward and used to make repurchases as described above in this clause
(vi) in any succeeding calendar year; provided further that the
aggregate amount spent pursuant to this clause (vi) in any calendar
year (both pursuant to the immediately preceding proviso and the
portion of this clause (vi) which precedes said proviso) does not
exceed $4,000,000 in any calendar year;
(vii) the declaration and payment of regularly
accruing dividends to holders of any class or series of Disqualified
Capital Stock of the Company or its Restricted Subsidiaries or the
declaration and payment of regularly accruing dividends to holders of
Preferred Stock of Restricted Subsidiaries, in each case, issued after
the Issue Date in accordance with Section 4.03;
(viii) the declaration and payment of regularly
accruing dividends to holders of any class or series of Designated
Preferred Stock of the Company issued after the Issue Date; provided
that at the time of such issuance, and after giving effect to such
issuance on a pro forma basis (for purposes of making determinations on
a pro forma basis pursuant to this clause (viii), treating all
dividends which will accrue on such Designated Preferred Stock, as well
as all other Designated Preferred Stock then outstanding, as if same
will in fact be, or have in fact been, paid in cash), the Company would
have been able to incur at least $1.00 of additional Indebtedness
pursuant to Section 4.03(a); and
(ix) Restricted Payments in aggregate amount not to
exceed $15,000,000; provided that, except in the case of clauses (i),
(iii) and (v) of this Section 4.06(b), no Default or Event of Default
shall have occurred and be continuing or occur as a consequence of the
actions or payments set forth therein.
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(c) Except as set forth in the next sentence, each Restricted
Payment and issuance of Capital Stock described in Section 4.06(b) shall be
included in calculating whether the conditions of clause (C) of Section 4.06(a)
have been met with respect to any subsequent Restricted Payments. The following
Restricted Payments described in the preceding paragraph shall not be included
in such calculation:
(i) Restricted Payments described in clauses (ii), (v), (viii)
and (ix) of Section 4.06(b) and
(ii) an exchange of Capital Stock for Capital Stock or
Indebtedness described in clause (iii) or (iv) of Section 4.06(b).
(d) In the event the proceeds of an issuance of Capital Stock
of the Company are used for the redemption, repurchase or other acquisition of
the Notes, or Indebtedness that is pari passu with the Notes, then the Net Cash
Proceeds of such issuance shall be included in clause (C) of Section 4.06(a)
only to the extent such proceeds are not used for such redemption, repurchase or
other acquisition of Indebtedness. For purposes of determining compliance with
this Section 4.06, in the event that a Restricted Payment meets the criteria of
more than one of the types of Restricted Payments described in the above
clauses, the Company, in its sole discretion, may order and classify, and from
time to time may reclassify, such Restricted Payment if it would have been
permitted at the time such Restricted Payment was made and at the time of such
reclassification.
SECTION 4.07 Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and
will not permit any Restricted Subsidiary to, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions
permitted by applicable law on any Capital Stock of such Restricted
Subsidiary owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness owed to the Company or any
other Restricted Subsidiary;
(iii) make loans or advances to the Company or any
other Restricted Subsidiary; or
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(iv) transfer any of its property or assets to the
Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.07(a) shall not
restrict any encumbrances or restrictions:
(i) existing on the Issue Date in the New Credit
Facility, this Indenture or any other agreements in effect on the Issue
Date, and any extensions, refinancings, renewals or replacements of
such agreements; provided that the encumbrances and restrictions in any
such extensions, refinancings, renewals or replacements are no less
favorable in any material respect to the Holders than those
encumbrances or restrictions that are then in effect and that are being
extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the
property or assets of such Person acquired by the Company or any
Restricted Subsidiary, existing at the time of such acquisition and not
incurred in contemplation thereof, which encumbrances or restrictions
are not applicable to any Person or the property or assets of any
Person other than such Person or the property or assets of such Person
so acquired;
(iv) in the case of clause (iv) of Section 4.07(a),
(A) that restrict in a customary manner the subletting, assignment or
transfer of any property or asset that is a lease, license, conveyance
or contract or similar property or asset, (B) existing by virtue of any
transfer of, agreement to transfer, option or right with respect to, or
Lien on, any property or assets of the Company or any Restricted
Subsidiary not otherwise prohibited by this Indenture or (C) arising or
agreed to in the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the aggregate,
detract from the value of property or assets of the Company or any
Restricted Subsidiary in any manner material to the Company or any
Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and
imposed pursuant to an agreement that has been entered into for the
sale or disposition of all or substantially all of the Capital Stock
of, or property and assets of, such Restricted Subsidiary, pending such
sale or disposition;
(vi) existing under purchase money obligations for
property acquired in the ordinary course of business that impose
restrictions of the nature discussed in clause (iv) above on the
property so acquired;
(vii) existing under applicable law or any applicable
rule, regulation or order;
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(viii) contracts for the sale of assets, including, without
limitation, customary restrictions with respect to a Subsidiary
pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets
of such Subsidiary;
(ix) existing under Secured Indebtedness otherwise permitted
to be incurred pursuant to Sections 4.03 and 4.05 that limit the right
of the debtor to dispose of the assets securing such Indebtedness;
(x) restrictions on cash or other deposits or net worth
imposed by customers under contracts (not evidencing or relating to
Indebtedness) entered into the ordinary course of business; and
(xi) existing under customary provisions in joint venture
agreements and other similar agreements (in each case relating solely
to the respective joint venture or similar entity or the equity
interests therein) entered into in the ordinary course of business.
(c) Nothing contained in this Section 4.07 shall prevent the
Company or any Restricted Subsidiary from (i) creating, incurring, assuming or
suffering to exist any Liens otherwise permitted under Section 4.05 or (ii)
restricting the sale or other disposition of property or assets of the Company
or any of its Restricted Subsidiaries that secure Indebtedness of the Company or
any of its Restricted Subsidiaries.
SECTION 4.08 Limitation of Guarantees by Restricted
Subsidiaries. (a) The Company will not permit any of its Restricted Subsidiaries
directly or indirectly to Guarantee any Indebtedness of the Company or any other
Restricted Subsidiary (excluding any Guarantee of a Restricted Subsidiary which
constitutes Acquired Indebtedness of such Subsidiary, so long as such Guarantee
does not apply to Indebtedness pursuant to the New Credit Facility or any other
Indebtedness of the Company and its Restricted Subsidiaries not acquired
pursuant to the respective acquisition or merger) unless, in any such case, (i)
such Restricted Subsidiary becomes a Guarantor in accordance with the
requirements of Section 11.07 and (ii) if any such guarantee of such Restricted
Subsidiary is provided in respect of Indebtedness that is expressly subordinated
to the Notes, such guarantee or other instrument provided by such Restricted
Subsidiary in respect of such subordinated Indebtedness shall be subordinated to
the Subsidiary Guarantee pursuant to subordination provisions no less favorable
to the Holders of the Notes than those contained in this Indenture.
(b) Notwithstanding Section 4.08(a), any such Subsidiary
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:
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(i) the release and discharge of the Guarantee which resulted
in the creation of such Subsidiary Guarantee (as well as the release or
discharge of any subsequently created Guarantees which would have
resulted in the creation of such Subsidiary Guarantee if same did not
already exist), in each case except a discharge or release by or as a
result of payment under such Guarantee;
(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 and its other Restricted Subsidiaries' Capital Stock
in such Restricted Subsidiary; provided that such sale or disposition
of such Capital Stock or assets is otherwise in compliance with the
terms of this Indenture;
(iii) the designation of such Subsidiary as an Unrestricted
Subsidiary in accordance with the provisions hereof; or
(iv) the sale or other disposition of shares of Capital Stock
of such Subsidiary to a Person other than the Company or a Restricted
Subsidiary such that such Subsidiary ceases to constitute a Subsidiary
of the Company, provided such disposition is otherwise in accordance
with the provisions of this Indenture.
SECTION 4.09 Limitation on Transactions with Shareholders and
Affiliates. (a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into, renew or extend any
transaction (including, without limitation, the purchase, sale, lease or
exchange of property or assets, or the rendering of any service) with any holder
(or any Affiliate of such holder) of 5% or more of any class of Capital Stock of
the Company or with any Affiliate of the Company or any Restricted Subsidiary,
except upon fair and reasonable terms no less favorable to the Company or such
Restricted Subsidiary than could be obtained, at the time of such transaction
or, if such transaction is pursuant to a written agreement, at the time of the
execution of the agreement providing therefor, in a comparable arm's length
transaction with a Person that is not such a holder or an Affiliate.
(b) Section 4.09(a) does not limit, and shall not apply to:
(i) transactions (A) approved by a majority of the
disinterested members of the Board of Directors or (B) for which the
Company or a Restricted Subsidiary delivers to the Trustee a written
opinion of a nationally recognized accounting, valuation or investment
banking firm addressed to the Company and the Trustee, stating that the
transaction is fair to the Company or such Restricted Subsidiary from a
financial point of view;
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(ii) any transaction solely between the Company and
any of its Wholly Owned Restricted Subsidiaries or solely between
Wholly Owned Restricted Subsidiaries;
(iii) management and administrative services provided
by the Company or any Restricted Subsidiary to any Restricted
Subsidiary or any Person in which the Company or any Restricted
Subsidiary has an Investment;
(iv) the payment of reasonable and customary regular
fees to directors of the Company;
(v) any Restricted Payments not prohibited by Section
4.06;
(vi) issuances of Qualified Capital Stock of the
Company, to the extent otherwise permitted under this Indenture, to the
Principals and the Management Investor and its equity holders;
(vii) customary investment banking, underwriting,
placement agent or financial advisory fees paid in connection with
services rendered to the Company or its Subsidiaries;
(viii) management fees (A) paid to the Management
Investor in amounts not to exceed $400,000 in any calendar year and (B)
to JLL in amounts not to exceed $500,000 in any calendar year;
(ix) any issuance of securities, or other payments,
awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements, employee stock options and
employee stock ownership plans approved by the Board of Directors;
(x) loans or advances to employees in the ordinary
course of business of the Company or any of its Restricted Subsidiaries
consistent with past practices;
(xi) the existence of, or the performance by the
Company or any of its Restricted Subsidiaries of its obligations under
the terms of, any stockholders agreement (including any registration
rights agreement or purchase agreement related thereto) to which it is
a party as of the Issue Date and any similar agreements which it may
enter into thereafter, in each case subject to compliance with the
other provisions of this Indenture; provided, however, that the
existence, or the performance by the Company or any of its Restricted
Subsidiaries of obligations under any future amendment to any such
existing agreement or under any similar agreement entered into after
the Issue Date shall only be permitted by this clause (xi) to the
extent that the
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terms (taken as a whole) of any such amendment or new agreement are not
otherwise disadvantageous to the Holders in any material respect;
(xii)arrangements with ▇▇▇▇▇▇ Milling relating to the
procurement of raw materials on behalf of the Company and its
Restricted Subsidiaries, so long as the respective arrangements are
pursuant to terms which have been approved by the majority of the
disinterested members of the Board of Directors;
(xiii)any Permitted Investment made pursuant to clause (xii)
of the definition thereof;
(xiv)the ▇▇▇▇▇▇ Real Property Transactions;
(xv) the entering into of agreements with lenders to ▇▇▇▇▇▇
Milling, pursuant to which the Company and its Subsidiaries (A) consent
to such lenders' liens on ▇▇▇▇▇▇ Milling's assets, and (B) agree to
subordinate any rights of first refusal they may have against such
assets; and
(xvi)payments made pursuant to the following conditions: if
the Company is to file consolidated federal income tax returns with New
World Pasta, LLC, or combined or unitary state income tax returns with
New World Pasta, LLC, the Company may enter into a tax sharing
agreement with New World Pasta, LLC and may pay to New World Pasta, LLC
amounts when due and payable pursuant to such tax sharing agreement in
respect of amounts of tax due with respect to such consolidated,
combined or unitary returns, as the case may be, in each case in an
amount not to exceed the amount of tax that the Company would have been
obligated to pay to the appropriate taxing authority if the Company and
its subsidiaries had filed a hypothetical separate consolidated,
combined or unitary return for the then current year and all prior
years ending after the Issue Date.
(c) Notwithstanding Sections 4.09(a) and 4.09(b), any
transaction or series of related transactions covered by Section 4.09(a) and not
covered by clauses (ii) through (xvi) of Section 4.09(b), (i) the aggregate
amount of which exceeds $5,000,000 in value, must be approved or determined to
be fair in the manner provided for in Section 4.09(b) (i) (A) or (B) and (ii)
the aggregate amount of which exceeds $10,000,000 in value, must be determined
to be fair in the manner provided for in Section 4.09(b) (i) (B) above.
SECTION 4.10 Limitation on Asset Sales. (a) The Company will
not, and will not permit any Restricted Subsidiary to, consummate any Asset
Sale, unless (i) the consideration received by the Company or such Restricted
Subsidiary is at least equal to the fair market value (as determined in good
faith by the Board of Directors) of the assets sold or disposed of, and (ii) at
least 75% of the consideration received consists of cash or Cash
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Equivalents; provided that for purposes of preceding clause (ii) each of the
following shall be deemed to constitute cash;
(A) the outstanding principal amount of Indebtedness
of the Company or any Restricted Subsidiary (other than (x) Capital
Stock which constitutes Indebtedness and (y) Indebtedness to the
Company or any Restricted Subsidiary) assumed by the transferee (which
shall not constitute the Company or a Restricted Subsidiary) pursuant
to the respective Asset Sale, so long as the Company or such Restricted
Subsidiary is irrevocably and unconditionally released from all
liability under such Indebtedness;
(B) any notes or other obligations received by the
Company or any Restricted Subsidiary from such transferee that are,
within 180 days after the date of the respective Asset Sale, converted
by the Company or such Restricted Subsidiary into cash (to the extent
of the cash received in that conversion); and
(C) any Designated Noncash Consideration received by
the Company or any of its Restricted Subsidiaries in such Asset Sale
having an aggregate fair market value, taken together with all other
Designated Noncash Consideration received since the date of this
Indenture pursuant to this clause (C) that is at that time outstanding,
not to exceed the greater of (x) $30,000,000 and (y) 10% of Total
Assets at the time of the receipt of such Designated Noncash
Consideration (with the fair market value of each item of Designated
Noncash Consideration being measured at the time received and without
giving effect to any subsequent changes in value).
(b) Within 365 days after the receipt of any Net Cash
Proceeds from an Asset Sale, the Company shall or shall cause the
relevant Restricted Subsidiary to:
(i) (A) apply an amount equal to 100% of such Net Cash Proceeds to
permanently repay Senior Indebtedness of the Company, or Guarantor
Senior Indebtedness of any Restricted Subsidiary providing a Subsidiary
Guarantee or Indebtedness of any other Restricted Subsidiary, in each
case owing to a Person other than the Company or any of its Restricted
Subsidiaries; or
(B) invest an equal amount, or the amount not so
applied pursuant to Section 4.10(b)(i)(A) (or enter into a
definitive agreement committing to so invest within 365 days
after the date of such agreement), in property or assets
(other than current assets) of a nature or type or that are
used in a business (or in the Capital Stock of a company
(which company shall become a Restricted Subsidiary upon the
making of such investment) having property and assets of a
nature or type, or engaged in a business) similar or related
to the nature or type of the property and assets of, or the
business of, the Company and its Restricted Subsidiaries
existing on the date of such investment; and
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(ii) apply (no later than the end of the 365-day period
following the receipt of such Net Cash Proceeds) such excess Net Cash
Proceeds (to the extent not applied pursuant to Section 4.10(b)(i)) as
provided in this Section 4.10.
(c) The amount of such excess Net Cash Proceeds required to be
applied (or to be committed to be applied) during a 365-day period as set forth
in Section 4.10(b)(i) and not applied as so required by the end of such period
shall constitute "Excess Proceeds."
(d) If, as of the first day of any calendar month, the
aggregate amount of Excess Proceeds not theretofore subject to an Offer to
Purchase pursuant to this Section 4.10 totals at least $10,000,000, the Company
must commence, not later than the fifteenth Business Day of such month, and
consummate an Offer to Purchase from the Holders on a pro rata basis an
aggregate principal amount of Notes equal to the Excess Proceeds on such date,
at a purchase price equal to 100% of the principal amount of the Notes, plus, in
each case, accrued interest and Liquidated Damages, if any, to the Purchase
Offer Payment Date.
SECTION 4.11 Change of Control. The Company must commence,
within 30 days of the occurrence of a Change of Control, and consummate, an
Offer to Purchase for all Notes then outstanding, at a purchase price equal to
101% of the principal amount thereof, plus accrued interest and Liquidated
Damages, if any, to the Purchase Offer Payment Date.
SECTION 4.12 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 of America, 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 4.13 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, (1) all material taxes, assessments and governmental charges
levied or imposed upon the Company or any Restricted Subsidiary or upon the
income, profits or property of the Company or any Restricted Subsidiary and (2)
all lawful claims for labor, materials and supplies which, in each case, if
unpaid, might by law become a material liability, or Lien upon the property, of
the Company or any Restricted Subsidiary; 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 and for which
appropriate provision has been made.
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SECTION 4.14 Notice of Defaults. (a) In the event that any
Indebtedness of the Company or any of its Subsidiaries is declared due and
payable before its maturity because of the occurrence of any default (or any
event which, with notice or lapse of time, or both, would constitute such a
default) under such Indebtedness, the Company shall promptly give written notice
to the Trustee of such declaration, the status of such default or event and what
action the Company is taking or proposes to take with respect thereto.
(b) Upon becoming aware of any Default or Event of Default,
the Company shall promptly, and in no event later than 5 Business Days after the
occurrence thereof, deliver an Officers' Certificate to the Trustee specifying
the Default or Event of Default.
SECTION 4.15 Maintenance of Properties and Insurance. (a)
Subject to Article Five, the Company shall cause all material properties owned
by or leased to it or any Restricted Subsidiary and used or useful in the
conduct of its business or the business of any Restricted Subsidiary to be
maintained and kept in normal condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary, so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 4.15 shall prevent the Company
or any Restricted Subsidiary from discontinuing the use, operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of Directors of the
Company or the Restricted Subsidiary concerned, or of an Officer (or other agent
employed by the Company or of any Restricted Subsidiary) of the Company or such
Restricted Subsidiary having managerial responsibility for any such property,
desirable in the conduct of the business of the Company or any Restricted
Subsidiary as, in the judgment of the Company, may be necessary.
(b) The Company shall maintain, and shall cause the Restricted
Subsidiaries to maintain, insurance with responsible carriers against such risks
and in such amounts, and with such deductibles, retentions, self-insured amounts
and co-insurance provisions as, in the judgment of the Company, may be
necessary.
SECTION 4.16 Compliance Certificate. The Company shall deliver
to the Trustee within 45 days after the end of each of the first three fiscal
quarters of the Company and within 90 days after the close of each fiscal year a
certificate signed by the principal executive officer, principal financial
officer or principal accounting officer stating that a review of the activities
of the Company has been made under the supervision of the signing officers with
a view to determining whether a Default or Event of Default has occurred and
whether or not the signers know of any Default or Event of Default by the
Company that occurred during such fiscal quarter or fiscal year. If they do know
of such a Default or Event of Default, the certificate shall describe all such
Defaults or Events of Default, their status and
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the action the Company is taking or proposes to take with respect thereto. The
first certificate to be delivered by the Company pursuant to this Section 4.16
shall be for the period commencing January 1, 1999 and ending March 31, 1999.
SECTION 4.17 Reports to Holders and Trustee. (a) Whether or
not required by the Commission, so long as any Notes are outstanding, the
Company will furnish to the Holders of Notes and the Trustee, within the time
periods specified in the Commission's rules and regulations:
(i) all quarterly and annual financial information that would
be required to be contained in a filing with the Commission on Forms
10-Q and 10-K if the Company were required to file such Forms,
including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to the annual
information only, a report on the annual financial statements by the
Company's certified independent accountants; and
(ii) all current reports that would be required to be filed
with the Commission on Form 8-K if the Company were required to file
such reports.
(b) If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by Section 4.17(a) shall include a reasonably detailed presentation,
either on the face of the financial statements or in the footnotes thereto, and
in Management's Discussion and Analysis of Financial Condition and Results of
Operations, of the financial condition and results of operations of the Company
and its Restricted Subsidiaries separate from the financial condition and
results of operations of the Unrestricted Subsidiaries of the Company.
(c) Whether or not required by the Commission, the Company
will file a copy of all of the information and reports referred to in clauses
(i) and (ii) of Section 4.17(a) with the Commission for public availability
within the time periods specified in the Commission's rules and regulations
(unless the Commission will not accept such a filing) and make such information
available to securities analysts and prospective investors upon request.
Moreover, the Company and each Guarantor agrees that, for so long as any Notes
remain outstanding, it will furnish to the Holders and to securities analysts
and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of such reports, information and documents to the
Trustee is for informational purposes only, and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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SECTION 4.18 Waiver of Stay, Extension or Usury Laws. Each of
the Company and the Guarantors 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, which would prohibit or forgive the Company or
such Guarantor from paying all or any portion of the principal of and/or
interest and Liquidated Damages, if any, 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 and each Guarantor hereby expressly waive all
benefit or advantage of any such law, and covenants that it shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 4.19 Conduct of Business. The Company and its
Restricted Subsidiaries will not engage in any businesses which are not the
same, similar or reasonably related or complementary to the businesses in which
the Company and its Restricted Subsidiaries are engaged on the Issue Date (as
determined in good faith by the Board of Directors of the Company).
ARTICLE FIVE
MERGER, CONSOLIDATION AND SALE OF ASSETS
SECTION 5.01 Merger, Consolidation and Sale of Assets. (a) The
Company will not, in a single transaction or 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 the Company's 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 of
the Company's Restricted Subsidiaries 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 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 on all of the Notes and
the performance of every covenant of the Notes, this Indenture and the
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Registration Rights Agreement on the part of the Company to be
performed or observed;
(ii) immediately after giving effect to such transaction and
the assumption contemplated by clause (i)(B) 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), 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) pursuant to Section 4.03(a);
(iii)immediately before and immediately after giving effect to
such transaction and the assumption contemplated by clause (i)(B) 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 the transaction), no
Default or Event of Default shall have occurred or be continuing; and
(iv) the Company or the Surviving Entity 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 comply with the applicable provisions of this Indenture and
that all conditions precedent in this Indenture relating to such
transaction have been satisfied.
(b) Notwithstanding clauses (ii), (iii) and (iv) of Section
5.01(a), (i) any Restricted Subsidiary may consolidate with, merge into or
transfer all or part of its property and assets to the Company or any other
Restricted Subsidiary and (ii) the Company may merge with an Affiliate
incorporated solely for the purpose of reincorporating the Company in another
jurisdiction.
(c) For purposes of Section 5.01(a), 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.
(e) Each Guarantor (other than any Guarantor whose Subsidiary
Guarantee is to be released in accordance with the terms of such Subsidiary
Guarantee and this Indenture in connection with any transaction complying with
Section 4.10) will not, and the Company will not cause or permit any Guarantor
to, consolidate with or merge with or into any Person other than the Company or
any other Guarantor unless:
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(i) the entity formed by or surviving any such consolidation
or merger (if other than the 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 (in form
and substance satisfactory to the Trustee) all of the obligations of
the Guarantor on the Subsidiary Guarantee;
(iii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
(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).
(f) Notwithstanding Section 5.01(e)(iv), (i) any Guarantor may
consolidate with, merge into or transfer all or part of its property and assets
to the Company or any other Guarantor and (ii) any Guarantor formed solely for
the purpose of merging with and into any other Person, may merge with or into
such Person.
SECTION 5.02 Successor Substituted. Upon any consolidation,
combination or merger or any transfer of all or substantially all of the assets
of the Company in accordance with this Section 5.02, 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 conveyance, lease or transfer
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.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default. Each of the following is an
"Event of Default" for the purposes of this Indenture:
(1) default in the payment of principal of (or premium, if
any, on) any Note when the same becomes due and payable at maturity,
upon acceleration, redemption or otherwise (including the failure to
make a payment to purchase Notes tendered pursuant to an Offer to
Purchase), whether or not such payment is prohibited by the
subordination provisions of Article Nine;
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(2) default in the payment of interest on, or Liquidated
Damages with respect to, any Note when the same becomes due and
payable, and such default continues for a period of 30 days, whether or
not such payment is prohibited by the subordination provisions of
Article Nine;
(3) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture or under
the Notes (other than a default specified in clause (1) or (2) above)
and such default or breach continues for a period of 30 consecutive
days after written notice by the Trustee or the Holders of 25% or more
in aggregate outstanding principal amount of the Notes;
(4) there occurs with respect to any issue or issues of
Indebtedness of the Company or any Restricted Subsidiary having an
outstanding principal amount of $10,000,000 or more in the aggregate
for all such issues of all such Persons, whether such Indebtedness now
exists or shall hereafter be created, (I) an event of default that has
caused the holder thereof to declare such Indebtedness to be due and
payable prior to its Stated Maturity and such Indebtedness has not been
discharged in full or such acceleration has not been rescinded or
annulled within 10 days of such acceleration and/or (II) the failure to
make a principal payment at the final (but not any interim) fixed
maturity and such defaulted payment shall not have been made, waived or
extended within 10 days of such payment default;
(5) there shall be any period of 60 consecutive days following
entry of one or more final judgments or orders (not covered by
insurance) for the payment of money in excess of $10,000,000 in the
aggregate (treating any deductibles, self-insurance or retention as not
so covered) against the Company and/or one or more Significant
Restricted Subsidiaries, during which a stay of enforcement of such
final judgment or order, by reason of pending appeal or otherwise shall
not be in effect or such judgments or orders shall not be paid;
(6) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company or any
Significant Restricted Subsidiary in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, (B) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or
any Significant Restricted Subsidiary or for all or substantially all
of the property and assets of the Company or any Significant Restricted
Subsidiary or (C) the winding up or liquidation of the affairs of the
Company or any Significant Restricted Subsidiary and, in each case,
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days;
(7) the Company or any Significant Restricted Subsidiary (A)
commences a voluntary case under any applicable bankruptcy, insolvency
or other
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similar law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such law, (B)
consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any Significant Restricted Subsidiary or for
all or substantially all of the property and assets of the Company or
any Significant Restricted Subsidiary or (C) effects any general
assignment for the benefit of creditors; or
(8) any Subsidiary Guarantee of any Guarantor that is a
Significant Restricted Subsidiary ceases to be in full force and effect
or any such Subsidiary Guarantee is declared to be null, void or
unenforceable or any such Subsidiary Guarantee is found to be invalid
or any such Guarantor denies its liability under its Subsidiary
Guarantee (other than by reason of a release of a Guarantor in
accordance with the terms of Section 4.08(b)).
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
SECTION 6.02 Acceleration. If an Event of Default (other than
an Event of Default specified in clause (6) or (7) of Section 6.01 that occurs
with respect to the Company) shall occur and is continuing under this Indenture,
the Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding, by written notice to the Company (and to the Trustee if
such notice is given by the Holders), may, and the Trustee at the request of
such Holders shall, declare the principal of, premium, if any, and accrued
interest on the Notes to be immediately due and payable ("Acceleration Notice").
Upon a declaration of acceleration, such principal of, premium, if any, and
accrued interest shall be immediately due and payable. If an Event of Default
specified in clause (6) or (7) of Section 6.01 shall occur with respect to the
Company, the principal of, premium, if any, and accrued interest on the Notes
then outstanding 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.
At any time after a declaration of acceleration with respect
to the Notes as described in the preceding paragraph, the Holders of a majority
in principal amount of the Notes may 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 (v) in
the event of the cure or waiver of an Event of Default of the type described
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in Section 6.01(6), 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 Control by Majority. Subject to Section 2.09, the
Holders of at least a majority in aggregate principal amount of the outstanding
Notes may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that may subject the Trustee to personal
liability, or that the Trustee determines in good faith may be unduly
prejudicial to the rights of Holders of Notes not joining in the giving of such
direction and may take any other action it deems proper that is not inconsistent
with any such direction received from Holders of Notes.
SECTION 6.04 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.
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
maturing 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 6.05 Waiver of Past Default. Subject to Sections 2.09,
6.07 and 10.02, the Holders of not less than a majority in aggregate principal
amount of the outstanding Notes by written notice to the Trustee may waive an
existing Default or Event of Default and its consequences, except a Default in
the payment of the principal of or interest on any Notes. The Company shall
deliver to the Trustee an Officers' Certificate stating that the requisite
percentage of Holders have consented to such waiver and attaching copies of such
consents. In case of any such waiver, the Company, the Trustee and the Holders
shall be restored to their former positions and rights hereunder and under the
Notes, respectively. This paragraph of this Section 6.05 shall be in lieu of
Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is
hereby expressly excluded from this Indenture and the Notes, as permitted by the
TIA.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred
for every purpose of this Indenture and the Notes, but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
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SECTION 6.06 Limitation on Suits. A Holder may not pursue any
remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount
of the outstanding Notes make a written request to the Trustee to
pursue the remedy;
(iii) such Holder or Holders offer and, if requested, provide
to the Trustee indemnity satisfactory to the Trustee against any costs,
liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the
Trustee a direction 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.
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 premium, if any or interest on a Note, on
or after the respective due dates expressed in the 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 the Holder.
SECTION 6.08 Collection Suit by Trustee. If an Event of
Default in payment of principal or interest specified in Section 6.01(1) or (2)
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 overdue on principal and to the extent that payment of
such interest is lawful, interest on overdue installments of interest, in each
case at the rate per annum borne by the Notes and such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.09 Trustee May File Proofs of Claim. The Trustee 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 compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders
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allowed in any judicial proceedings relative to the Company or any other obligor
upon the Notes, their respective creditors or 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 compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.07. 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 or property in
the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Notes for
principal (and premium, if any) and interest and Liquidated Damages, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal (and premium, if any) and interest and
Liquidated Damages, respectively; and
Third: to the Company.
The Trustee, upon prior written 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 and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
shall not apply to a suit by the Trustee, a suit by a Holder or group of Holders
of more than 10% in aggregate principal amount of the outstanding Notes, or to
any suit instituted by any Holder for the enforcement or the payment of the
principal or interest on any Notes on or after the respective due dates
expressed in the Note.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01 Duties of Trustee. (a) If a 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
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of a Default:
(1) The Trustee shall not be liable except for the performance
of such duties as are specifically set forth herein and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(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 conforming to the requirements of this Indenture; however, in
the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine such certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee shall not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(ii) 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; and
(iii) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.03.
(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 to take or omit to take any
action under this Indenture or take any action at the request or direction of
Holders if it shall have reasonable grounds for believing that repayment of such
funds is not assured to it or it does not receive from such Holders an
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indemnity satisfactory to it in its sole discretion against such risk,
liability, loss, fee or expense which might be incurred by it in compliance with
such request or direction.
(e) 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 received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02 Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may conclusively rely on any document believed by it to
be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel, which shall conform to the
provisions of Section 13.05. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through attorneys and agents of its selection
and shall not be responsible for the misconduct or negligence of any agent or
attorney (other than an agent who is an employee of the Trustee) appointed with
due care.
(d) The Trustee shall not be liable for any action 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 may consult with counsel of its selection and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(f) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or
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indemnity reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
(h) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney.
(i) The Trustee shall not be deemed to have notice of any Event of
Default unless a Trust Officer of the Trustee has actual knowledge thereof or
unless the Trustee shall have received written notice thereof at the Corporate
Trust Office of the Trustee, 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 to each agent, custodian and other Person employed by the Trustee
to act hereunder.
SECTION 7.03 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not Trustee, subject to Section 7.10 hereof. Any Agent may
do the same with like rights. However, the Trustee is subject to Sections 7.10
and 7.11.
SECTION 7.04 Trustee's Disclaimer. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this Indenture
or the Notes, it shall not be accountable for the Company's use of the proceeds
from the Notes, and it shall not be responsible for any statement of the Company
in this Indenture or any document issued in connection with the sale of Notes or
any statement in the Notes other than the Trustee's certificate of
authentication.
SECTION 7.05 Notice of Defaults. If a Default or an Event of Default
occurs and is continuing and the Trustee knows of such Defaults or Events of
Default, the Trustee shall mail to each Holder notice of the Default or Event of
Default within 90 days after the occurrence thereof. Except in the case of a
Default or an Event of Default in payment of principal of or interest on any
Note or a Default or Event of Default in complying with Section 6.01, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the interest
of Holders. This Section 7.05 shall be in lieu of the proviso to Section 315(b)
of the TIA and such proviso to Section 315(b) of the
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TIA is hereby expressly excluded from this Indenture and the Notes, as permitted
by the TIA.
SECTION 7.06 Reports by Trustee to Holders. Within 60 days after each
February 15 of each year beginning with 2000, 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), 313(c) and 313(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 securities exchange, if
any, on which the Notes are listed.
The Company shall notify the Trustee if the Notes become listed on any
securities exchange or of any delisting thereof.
SECTION 7.07 Compensation and Indemnity. The Company shall pay to the
Trustee from time to time such compensation as the Company and the Trustee shall
from time to time agree in writing for its services. 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
disbursements, expenses and advances (including fees, disbursements and expenses
of its agents and counsel) incurred or made by it in addition to the
compensation for its services except any such disbursements, expenses and
advances as may be attributable to the Trustee's negligence or bad faith. Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee's agents, accountants, experts and counsel and any taxes or other
expenses incurred by a trust created pursuant to Section 7.01 hereof.
The Company shall indemnify the Trustee or any predecessor trustee
hereunder for, and hold it harmless against any and all loss, damage, claims,
liability or expense, including taxes (other than taxes based upon, measured by
or determined by the income of the Trustee), arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim (whether
asserted by the Company or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent that such loss, damage, claim, liability or
expense is due to its own negligence or bad faith. The Trustee shall notify the
Company promptly of any claim asserted against the Trustee for which it may seek
indemnity. However, the failure by the Trustee to so notify the Company shall
not relieve the Company of its obligations hereunder. The Company shall defend
the claim and the Trustee shall cooperate in the defense (and may employ its own
counsel) at the Company's expense; provided, however, that the Company's
reimbursement obligation with respect to counsel employed by the Trustee will be
limited to the reasonable fees and expenses of such counsel.
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The Company need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify any loss or liability incurred by the Trustee
as a result of the Trustee's negligence or bad faith.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes against all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of or interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or 6.01(7) occurs, the expenses (including
the reasonable fees and expenses of its agents and counsel) and the compensation
for the services shall be preferred over the status of the Holders in a
proceeding under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Company's obligations under this
Section 7.07 and any claim arising hereunder shall survive the resignation or
removal of any Trustee, the discharge of the Company's obligations pursuant to
Article Eight, the termination of this Indenture, and any rejection or
termination under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee. The Trustee may resign at any time
by so notifying the Company in writing. The Holders of a majority in principal
amount of the outstanding Notes may remove the Trustee by so notifying the
Trustee and the Company in writing and may appoint a successor Trustee with the
Company's consent. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent under any
Bankruptcy Law;
(c) a custodian or other public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. As promptly as
practicable after that, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.07, 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 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, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.07, 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 or banking
corporation, the resulting, surviving or transferee corporation or banking
corporation without any further act shall be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification. This Indenture shall always
have a Trustee which shall be eligible to act as Trustee under TIA Sections
310(a)(1) and 310(a)(2). The Trustee shall have a combined capital and surplus
of at least $50,000,000 as set forth in its most recent published annual report
of condition. If the Trustee has or shall acquire any "conflicting interest"
within the meaning of TIA Section 310(b), the Trustee and the Company shall
comply with the provisions of TIA Section 310(b); provided, however, that there
shall be 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. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 7.10, the Trustee shall resign immediately in the
manner and with the effect herein before specified in this Article Seven.
SECTION 7.11 Preferential Collection of Claims Against the 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
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Section 311(a) to the extent indicated therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01 Termination of the Company's Obligations. (a) The
Company may terminate its obligations under the Notes and this Indenture, except
those obligations referred to in this Section 8.01(a), 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 or U.S.
Government Obligations, or a combination thereof, 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 Trustee for cancellation and the Company has paid all
sums payable by it hereunder, or if:
(i) either (A) pursuant to Article Three, the Company shall
have given notice to the Trustee 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 (B) all
Notes have otherwise become due and payable hereunder;
(ii) 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 or U.S.
Government Obligations, or a combination thereof, in such amount as is
sufficient without consideration of reinvestment of such interest, to
pay principal, premium (if any), interest and Liquidated Damages, if
any, on the outstanding Notes to maturity or redemption, as well as the
Trustee's fees and expenses; provided that the Trustee shall have been
irrevocably instructed to apply such U.S. Legal Tender to the payment
of said principal, premium interest and Liquidated Damages with respect
to the Notes; provided, further, that no deposits made pursuant to this
Section 8.01(a)(ii) shall cause the Trustee to have a conflicting
interest as defined in and for the purposes of the TIA; provided,
further, that from and after the time of deposit, the money deposited
shall not be subject to the rights of holders of Senior Indebtedness or
Guarantor Senior Indebtedness pursuant to the provisions of Article
Nine or Twelve and provided, further, that, as confirmed by an Opinion
of Counsel, no such deposit shall result in the Company, the Trustee or
the trust becoming or being deemed to be an "investment company" under
the Investment Company Act;
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(iii) 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 material instrument to which the Company is
a party or by which it is bound;
(iv) the Company shall have paid all other sums payable by it
hereunder; and
(v) 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 any
agreement or instrument then known to such counsel that binds or
affects the Company.
(b) Notwithstanding Section 8.01(a), 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.
(c) 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) The Company may, at its option and at any time, elect to
have its obligations and the obligations of the Guarantors (except as described
below) discharged with respect to the outstanding Notes, this Indenture and the
Subsidiary Guarantees ("Legal Defeasance"). If the Company exercises its Legal
Defeasance option, the Company and, if it so elects, each of the Guarantors,
shall be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Notes and cured all then existing Defaults and Events of
Default, except for:
(i) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of (premium, if any, on) and
interest and Liquidated Damages, if any, on such Notes when such
payments are due;
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(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 obligations in connection
therewith; and
(iv) this Article Eight.
Subject to compliance with this Article Nine, the Company may exercise its
option under this paragraph (b) notwithstanding the prior exercise of its option
under paragraph (c) hereof. Legal Defeasance shall become effective on the 91st
day following the deposit contemplated by Section 8.03(a).
(c) Upon the Company's exercise under paragraph (a) hereof of
the option applicable to this paragraph (c), the Company (and the Guarantors, to
the extent applicable) shall, subject to the satisfaction of the conditions set
forth in Section 8.03 hereof, be released from its or their obligations under
the covenants set forth in Sections 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 5.01(a)(ii) and 5.01(d)(iv) 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 Indebtedness or Guarantor Senior Indebtedness
under Article Nine or Twelve or otherwise ("Covenant Defeasance"). 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), and
Sections 6.01(4) and 6.01(5) shall not be deemed to be Events of Default;
provided, that except as specified above, the remainder of this Indenture and
such Notes shall be unaffected by a Covenant Defeasance.
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 cash in U.S. Legal Tender, 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 and Liquidated Damages, if any, on the
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Notes on the stated date for payment thereof or on the applicable
redemption date, as the case may be;
(b) the Company shall have delivered to the Trustee (i) in the
case of a Legal Defeasance only, either (x) an Opinion of Counsel to
the effect that Holders will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise of
its option under Section 8.02(b) and will be subject to federal income
tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit, defeasance and discharge had
not occurred, which Opinion of Counsel must be based upon (and
accompanied by a copy of) a ruling of the Internal Revenue Service to
the same effect unless there has been a change in applicable federal
income tax law after the Issue Date such that a ruling is no longer
required or (y) a ruling directed to the Trustee received from the
Internal Revenue Service to the same effect as the aforementioned
Opinion of Counsel and (ii) an Opinion of Counsel to the effect that
the creation of the defeasance trust does not violate the Investment
Company Act, and after the passage of 91 days following the deposit,
the trust fund will not be subject to the effect of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law;
(c) in the case of Covenant Defeasance, 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 will
not recognize income, gain or loss for Federal income tax purposes as a
result of such Covenant Defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not
occurred;
(d) immediately after giving effect to such deposit on a pro
forma basis, no Event of Default, or event that after the giving of
notice or lapse of time or both would become an Event of Default, shall
have occurred and be continuing on the date of such deposit or during
the period ending on the 91st day after the date of such deposit, and
such deposit shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(e) the Company shall not be not prohibited from making
payments in respect of the Notes by the provisions of Article Nine
hereof;
(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;
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(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) if at such time the Notes are listed on a national
securities exchange, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Notes will not be delisted as
a result of such deposit, defeasance and discharge.
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 this Article Eight, and shall apply the deposited
U.S. Legal Tender and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of 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 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 Company. Subject to 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 to such money. 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
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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.
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 this 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 or if such U.S.
Legal Tender or U.S. Government Obligations are or become subject to turnover to
holders of Senior Indebtedness or Guarantor Senior Indebtedness pursuant to
Article Nine or Article Twelve, the Company's obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to this 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 Company has made any payment
of interest on or principal of any Notes because of the reinstatement of their
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
SUBORDINATION OF NOTES
SECTION 9.01 Notes Subordinated to Senior Indebtedness. The
Company covenants and agrees, and the Trustee and each Holder of the Notes by
his acceptance thereof likewise covenant and agree, that all Notes shall be
issued subject to the provisions of this Article Nine; and each person holding
any Note, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees that all payments on the Notes by the Company shall,
to the extent and in the manner set forth in this Article Nine, be subordinated
and junior in right of payment to the prior payment in full in cash or Cash
Equivalents of all amounts payable under Senior Indebtedness of the Company,
whether outstanding on the Issue Date or thereafter incurred.
SECTION 9.02 No Payment on Notes in Certain Circumstances. If
any default occurs and is continuing in the payment when due, whether at
maturity, upon any redemption, by acceleration 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 Indebtedness, no
payment of any kind or character shall be made by or on behalf of the Company or
any other Person on its behalf with respect to any Obligations on the Notes or
to acquire any of the Notes for cash or property or otherwise; provided, that
Holders of the Notes may receive payments made from amounts (out of funds not
deposited with the Trustee or Paying Agent in violation of this Article Nine)
held by the Paying Agent as contemplated by the last paragraph of Section 2.08
(so long as, on the respective Redemption Date, Purchase
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Offer Payment Date or Final Maturity Date, the payments to be made with respect
to the Notes would not violate the provisions of this Article Nine or Article
Twelve) or payments from a trust described under Article Eight (so long as, on
the date or dates the respective amounts were paid into the trust, such payments
were made with respect to the Notes without violating the provisions of this
Article Nine or Article Twelve) (with the payments described in this proviso
being herein called "Permitted Payments").
In addition, if any other event of default occurs and is
continuing with respect to any Designated Senior Indebtedness, as such event of
default is defined in the instrument creating or evidencing such Designated
Senior Indebtedness, permitting the holders (without any notice or lapse of
time, except any required notice of acceleration) of such Designated Senior
Indebtedness then outstanding to accelerate the maturity thereof and if the
Representative for the respective issue of Designated Senior Indebtedness gives
written notice of the event of default to the Trustee (a "Payment Blockage
Notice"), then, unless and until all events of default specified in the Payment
Blockage Notice have been cured or waived or have ceased to exist or the Trustee
receives notice from the Representative for the respective issue of Designated
Senior Indebtedness terminating the Payment Blockage Period, during the 179 days
after the delivery of such Payment Blockage Notice (the "Payment Blockage
Period"), neither the Company nor any other Person on either of their behalf
shall (x) make any payment of any kind or character with respect to any
Obligations on the Notes or (y) acquire any of the Notes for cash or property or
otherwise (except that holders of the Notes may receive Permitted Payments).
Notwithstanding anything herein to the contrary, in no event
will a Payment Blockage Period extend beyond 179 days from the date the Payment
Blockage Notice is delivered and only one such Payment 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 Payment Blockage Period
with respect to the Designated Senior Indebtedness shall be, or be made, the
basis for commencement of a second Payment Blockage Period by the Representative
of such Designated Senior Indebtedness 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 Payment 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).
SECTION 9.03 Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
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
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become due upon all Senior Indebtedness (including interest after the
commencement of any such proceeding at the rate specified in the applicable
Senior Indebtedness whether or not such interest is an allowed claim in such
proceeding) 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
Indebtedness, 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 (except that holders of the Notes
may receive Permitted Payments). Before any payment may be made by, or on behalf
of, the Company of the principal of, premium, if any, or interest on the Notes
upon any such dissolution or winding-up or total liquidation or reorganization,
any payment or distribution of assets or securities of the Company of any kind
or character, whether in cash, property or securities (excluding any Permitted
Payments), to which the Holders of the Notes or the Trustee on their behalf
would be entitled, but for the subordination provisions of this Indenture, shall
be made by the Company or by any receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution, directly to
the holders of the Senior Indebtedness of the Company (pro rata to such holders
on the basis of the respective amounts of Senior Indebtedness held by such
holders) or their representatives or to the trustee or trustees or agent or
agents under any agreement or indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests may appear, to
the extent necessary to pay all such Senior Indebtedness in full in cash or Cash
Equivalents after giving effect to any prior or concurrent payment, distribution
or provision therefor to or for the holders of such Senior Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Company of any kind or character, whether in cash, property
or securities (excluding any Permitted Payments), shall be received by the
Trustee or any Holder of Notes at a time when such payment or distribution is
prohibited by Section 9.03(a) and before all obligations in respect of Senior
Indebtedness of the Company are paid in full in cash or Cash Equivalents, such
payment or distribution shall be received and held in trust for the benefit of,
and shall be paid over or delivered to, the holders of Senior Indebtedness of
the Company (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders) or their representatives, or to the
trustee or trustees or agent or agents under any indenture pursuant to which any
of such Senior Indebtedness may have been issued, as their respective interests
may appear, for application to the payment of such Senior Indebtedness remaining
unpaid until all such Senior Indebtedness has been paid in full in cash or Cash
Equivalents after giving effect to any prior or concurrent payment, distribution
or provision therefor to or for the holders of such Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company with or into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of its property as an entirety,
or substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 9.03
if
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the Company shall comply with the conditions stated in Article Five.
SECTION 9.04 Subrogation. Upon the payment in full in cash or
Cash Equivalents of all Senior Indebtedness of the Company, or provision for
payment, the Holders of the Notes shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company made on such Senior Indebtedness
until the principal of and interest on the Notes shall be paid in full in cash
or Cash Equivalents; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of the Company of any
cash, property or securities to which the Holders of the Notes or the Trustee on
their behalf would be entitled except for the provisions of this Article Nine,
and no payment over pursuant to the provisions of this Article Nine to the
holders of Senior Indebtedness of the Company by Holders of the Notes or the
Trustee on their behalf shall, as between the Company, its creditors other than
holders of Senior Indebtedness of the Company, and the Holders of the Notes, be
deemed to be a payment by the Company to or on account of the Senior
Indebtedness of the Company. It is understood that the provisions of this
Article Nine 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 Indebtedness of the Company, on the other hand.
If any payment or distribution to which the Holders of the
Notes would otherwise have been entitled but for the provisions of this Article
Nine shall have been applied, pursuant to the provisions of this Article Nine,
to the payment of all amounts payable under Senior Indebtedness, then and in
such case, the Holders of the Notes shall be entitled to receive from the
holders of such Senior Indebtedness any payments or distributions received by
such holders of Senior Indebtedness in excess of the amount required to make
payment in full in cash of such Senior Indebtedness.
SECTION 9.05 Obligations of the Company Unconditional. Nothing
contained in this Article Nine or elsewhere in this Indenture or in the Notes is
intended to or shall impair, as among the Company and the Holders of the Notes,
the obligation of the Company, which is absolute and unconditional, to pay to
the Holders of the Notes the principal of and 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 of the Notes and
creditors of the Company other than the holders of the Senior Indebtedness of
the Company, nor shall anything herein or therein prevent the Holder of any Note
or the Trustee on their behalf from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article Nine of the holders of the Senior Indebtedness of the
Company in respect of cash, property or securities of the Company received upon
the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing
contained in this Article Nine shall restrict the right of the Trustee or the
Holders of Notes to take any action to declare the Notes to be due and payable
prior to their stated maturity pursuant to Section 6.02
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or to pursue any rights or remedies hereunder; provided, however, that all
Designated Senior Indebtedness of the Company then due and payable shall first
be paid in full in cash or Cash Equivalents before the Holders of the Notes or
the Trustee are entitled to receive any direct or indirect payment from the
Company of principal of or interest on the Notes.
SECTION 9.06 Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company 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 Nine. The Trustee shall not be
charged with knowledge of the existence of any event of default with respect to
any Senior Indebtedness of the Company or of any other facts which would
prohibit the making of any payment to or by the Trustee unless and until the
Trustee shall have received notice in writing at its Corporate Trust Office to
that effect signed by an Officer of the Company, or by a holder of Senior
Indebtedness or trustee or agent therefor; and prior to the receipt of any such
written notice, the Trustee shall, subject to Article Seven, be entitled to
assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section 9.06 at least two
Business Days prior to the date upon which by the terms of this Indenture any
moneys shall become payable for any purpose (including, without limitation, the
payment of the principal of or interest on any Note), then, regardless of
anything herein to the contrary, the Trustee shall have full power and authority
to receive any moneys from the Company and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date. Nothing
contained in this Section 9.06 shall limit the right of the holders of Senior
Indebtedness of the Company to recover payments as contemplated by Section 9.03.
The Trustee shall be entitled to rely on the delivery to it of a written notice
by a Person representing himself or itself to be a holder of any Senior
Indebtedness of the Company (or a trustee on behalf of, or other representative
of, such holder) to establish that such notice has been given by a holder of
such Senior Indebtedness or a trustee or representative on behalf of any such
holder.
In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness of the Company to participate in any payment or distribution
pursuant to this Article Nine, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness of the Company 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 Nine, and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 9.07 Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets or securities
referred to in this Article Nine, the Trustee 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 bankruptcy, dissolution,
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winding-up, liquidation or reorganization proceedings are pending, or upon a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making such payment or distribution, delivered to the Trustee or
to the Holders of the Notes for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of the Senior Indebtedness of
the Company 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 Nine.
SECTION 9.08 Trustee's Relation to Senior Indebtedness. The
Trustee and any Paying Agent shall be entitled to all the rights set forth in
this Article Nine with respect to any Senior Indebtedness of the Company 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 Indebtedness of the Company, and
nothing in this Indenture shall deprive the Trustee or any Paying Agent of any
of its rights as such holder.
With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article Nine,
and no implied covenants or obligations with respect to the holders of Senior
Indebtedness of the Company shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company (except as provided in Section
9.03(b)). The Trustee 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 Indebtedness of the Company shall be entitled by virtue of
this Article Nine or otherwise.
SECTION 9.09 Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of Senior Indebtedness. No right of any
present or future holders of any Senior Indebtedness of the Company 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. The
provisions of this Article Nine are intended to be for the benefit of, and shall
be enforceable directly by, the holders of Senior Indebtedness of the Company.
SECTION 9.10 Holders Authorize Trustee To Effectuate
Subordination of Notes. Each Holder of Notes by his acceptance of such Notes
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article Nine, and appoints the Trustee his attorney-in-fact for such
purposes, including, in the event of any dissolution, winding-up, total
liquidation or reorganization of the Company (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the
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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 the
principal of and interest on its or his Notes in the form required in those
proceedings.
SECTION 9.11 This Article 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 Nine shall not be construed as
preventing the occurrence of an Event of Default pursuant to Section 6.01.
SECTION 9.12 Trustee's Compensation Not Prejudiced. Nothing in
this Article Nine shall apply to amounts due to the Trustee pursuant to other
sections in this Indenture.
SECTION 9.13 No Waiver of Subordination Provisions. Without in
any way limiting the generality of Section 9.09, the holders of Senior
Indebtedness of the Company may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Notes, without
incurring responsibility to the Holders of the Notes and without impairing or
releasing the subordination provided in this Article Nine or the obligations
hereunder of the Holders of the Notes to the holders of Senior Indebtedness of
the Company, do any one or more of the following: (a) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness or any instrument evidencing the same or any agreement under
which such Senior Indebtedness is outstanding or secured; (b) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (c) release any Person liable in any manner
for the collection of such Senior Indebtedness; and (d) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 9.14 Subordination Provisions Not Applicable to Money
Held in Trust for Holders. All money and U.S. Government Obligations deposited
in trust with the Trustee pursuant to and in accordance with Article Eight shall
be for the sole benefit of the Holders and shall not be subject to this Article
Nine.
SECTION 9.15 Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Holder by accepting a Note acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Notes, to acquire and continue to hold, or to continue to hold,
such Senior Indebtedness and such holder of Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Indebtedness. It is
further acknowledged and agreed that no amendment to the provisions of this
Article Nine or to the definition of any defined terms as they are used in this
Article Nine shall be effective with respect to any Senior Indebtedness
outstanding at the time of such amendment, unless the
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respective modification has been consented to by a majority of the then
outstanding amount of the respective issue of Senior Indebtedness.
SECTION 9.16 Reinstatement. Each Holder of a Note agrees that
these subordination provisions shall continue to be effective or be reinstated,
as the case may be, if at any time any payment (in whole or in part) of any of
the Senior Indebtedness is rescinded or must otherwise be restored by any holder
of Senior Indebtedness, upon the insolvency, bankruptcy or reorganization of the
Company or any obligor upon the Notes or otherwise, all as though such payment
had not been made.
SECTION 9.17 Filing of Claims. If any proceeding of the type
described in Section 9.03(a) is in existence with respect to the Company, and if
neither the Trustee nor the relevant Holders files 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 any of the holders of
the Senior Indebtedness or their Representative is hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Notes. Nothing herein
contained shall be deemed to authorize the Trustee or the holders of Senior
Indebtedness or their Representative 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 Indebtedness or
their Representative to vote in respect of the claim of any Holder in any such
proceeding.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01 Without Consent of Holders. The Company and each
Guarantor, when authorized by a resolution of their respective Boards of
Directors, and the Trustee may amend or supplement this Indenture or the Notes
without notice to or consent of any Holder:
(a) to evidence the succession of another Person to the
Company or any Guarantor and the assumption by any such successor of
the covenants of the Company or any Guarantor in this Indenture and in
the Notes;
(b) to add to the covenants of the Company or any Guarantor
for the benefit of the Holders, or to surrender any right or power
herein conferred upon the Company or any Guarantor;
(c) to add additional Events of Default;
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(d) to provide for uncertificated Notes in addition to or in
place of the certificated Notes;
(e) to evidence and provide for the acceptance of appointment
under this Indenture by a successor Trustee;
(f) to secure the Notes or any Subsidiary Guarantee;
(g) to cure any ambiguity, to correct or supplement any
provision in this Indenture that may be defective or inconsistent with
any other provisions in this Indenture, or to make any other provisions
with respect to matters or questions arising under this Indenture,
provided that such actions taken pursuant to this clause (g) do not, in
the opinion of the Trustee, adversely affect the interests of the
Holders in any material respect;
(h) to comply with any requirements of the SEC in order to
effect and maintain the qualification of this Indenture under the TIA;
(i) to add any Subsidiary as a Guarantor in accordance with
the provisions of this Indenture; or
(j) to release any Guarantor from its Subsidiary Guarantee
(including in connection with a sale of all of the Capital Stock of
such Guarantor) pursuant to the requirements of Section 4.08(b);
provided, however, that the Company deliver to the Trustee an Opinion
of Counsel stating that such amendment or supplement complies with the
provisions of this Section 10.01.
In formulating its opinion on the matters in clause (g), the
Trustee will be entitled to rely on such evidence as it deems appropriate,
including, without limitation, solely on an Opinion of Counsel.
SECTION 10.02 With Consent of Holders. Subject to Section
6.07, the Company and each Guarantor, when authorized by a resolution of their
respective boards of directors, and the Trustee may amend or supplement this
Indenture or the Notes, or waive compliance with any provision hereof or
thereof, with the written consent of the Holders of at least a majority in
principal amount of the outstanding Notes (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes). However, without the consent of each Holder affected, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.05,
may not:
(a) reduce the amount of Notes whose Holders must consent to
an amendment;
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(b) reduce the rate of or change or have the effect of
changing the time for payment of interest, including defaulted
interest, on any Notes;
(c) reduce the principal of or change or have the effect of
changing the fixed maturity of any Notes, or change the scheduled date
on which any Notes may be subject to redemption or repurchase, or
reduce the redemption or repurchase price therefor;
(d) make any Notes payable in money other than that stated in
the Notes;
(e) make any change in the express 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, or permitting Holders of a
majority in principal amount of Notes to waive Defaults or Events of
Default;
(f) amend, change or modify in any material respect the
obligation of the Company to make and consummate an Offer to Purchase
in the event of a Change of Control or make and consummate an Offer to
Purchase with respect to any Asset Sale, or modify any of the
provisions or definitions with respect thereto;
(g) modify or change any provision of this Indenture or the
related definitions affecting the ranking or subordination of the
Notes; or
(h) release any Guarantor from any of its obligations under
its Subsidiary Guarantee or this Indenture otherwise than in accordance
with the terms of this Indenture.
It shall not be necessary for the consent of the Holders under
this Section 10.02 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
10.02 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 amendment, supplement or
waiver.
SECTION 10.03 Compliance with Trust Indenture Act. Every
amendment to or supplement of this Indenture or the Notes shall comply with the
TIA as then in effect.
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SECTION 10.04 Revocation and Effect of Consents. Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
is a continuing consent by the Holder and every subsequent Holder of that Note
or portion of that 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 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 of Notes entitled to consent to
any amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the last sentence of the immediately preceding paragraph, those
persons who were Holders of Notes at such record date (or their duly designated
proxies), and only those persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be Holders of such Notes 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
(a) through (h) of Section 10.02. In that case the amendment, supplement or
waiver shall bind 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.
SECTION 10.05 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 the 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 determine, the
Company in exchange for the Note shall issue and the Trustee shall authenticate
a new Note that reflects the changed terms. Failure to make the appropriate
notation or issue a new Note shall not affect the validity and effect of such
amendment, supplement or waiver.
SECTION 10.06 Trustee to Sign Amendments, etc. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article Ten is authorized or permitted by
this Indenture and that such amendment, supplement or waiver constitutes the
legal, valid and binding obligation of the Company and each Guarantor,
enforceable in accordance with its terms (subject to customary exceptions). 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 or otherwise. In signing any amendment,
supplement or waiver, the Trustee shall be entitled to receive an
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indemnity reasonably satisfactory to it.
ARTICLE ELEVEN
SUBSIDIARY GUARANTEE
SECTION 11.01 Unconditional Guarantee. Each Guarantor hereby
unconditionally guarantees to each Holder of a Note authenticated by the Trustee
and to the Trustee and its successors and assigns that: the principal of,
premium (if any) and interest on, and Liquidated Damages and all other
obligations with respect to, the Notes and under this Indenture will be promptly
paid in full when due, subject to any applicable grace period, whether at
maturity, by acceleration or otherwise, and interest on the overdue principal
and interest on any overdue interest on the Notes and all other obligations of
the Company to the Holders or the Trustee hereunder or under the Notes will be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof (with all of the foregoing being collectively called the "Guaranteed
Obligations"); subject, however, to the limitations set forth in Section 11.04.
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 such 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 this Guarantee will not be discharged except by complete
performance of the obligations contained in the Notes and this Indenture. If any
Holder or the Trustee is required by any court or otherwise to return to the
Company or any Guarantor or any custodian, trustee, liquidator or other similar
official acting in relation to the Company or a Guarantor, any amount paid by
the Company or a Guarantor to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between such Guarantor, 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 purpose of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Six, such obligations (whether or not due and payable)
shall become due and payable by such Guarantor for the purpose of this
Guarantee.
SECTION 11.02 Severability. In case any provision of this
Article Eleven 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.
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SECTION 11.03 Contribution. At any time a payment in respect
of the Guaranteed Obligations is made under this Guarantor shall be determined
as provided in the immediately following sentence, with the right of
contribution of each Guarantor to be revised and restated as of each date on
which payment (a "Relevant Payment") is made on the Guaranteed Obligations under
this Guarantee. At any time that a Relevant Payment is made by a Guarantor that
results in the aggregate payments made by such Guarantor hereunder in respect of
the Guaranteed Obligations to and including the date of the Relevant Payment
exceeding such Guarantor's Contributing Percentage (as defined below) of the
aggregate payments made by all Guarantors hereunder in respect of the Guaranteed
Obligations to and including the date of the Relevant Payment (such excess, the
"Aggregate Excess Amount"), each such Guarantor shall have a right of
contribution against each other Guarantor who has made payments hereunder in
respect of the Guaranteed Obligations to and including the date of the Relevant
Payment in an aggregate amount less than such other Guarantor's Contribution
Percentage of the aggregate payments made to and including the date of the
Relevant Payment by all Guarantors hereunder in respect of the Guaranteed
Obligations (the aggregate amount of such deficit, the "Aggregate Deficit
Amount") in an amount equal to (x) a fraction the numerator of which is the
Aggregate Excess Amount of such Guarantor and the denominator of which is the
Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate
Deficit Amount of such other Guarantor. A Guarantor's right of contribution
pursuant to the preceding sentence shall arise at the time of each computation,
subject to adjustment to the time of any subsequent computation; provided, that
no Guarantor may take any action to enforce such right until the Guaranteed
Obligations have been paid in full, it being expressly recognized and agreed by
all parties hereto that any Guarantor's right of contribution arising pursuant
to this Guarantee against any other Guarantor shall be expressly junior and
subordinate to such other Guarantor's obligations and liabilities in respect of
the Guaranteed Obligations and any other obligations owing under this Guarantee.
As used in this Section 11.03: (i) each Guarantor's "Contribution Percentage"
shall mean the percentage obtained by dividing (x) the Adjusted Net Worth (as
defined below) of such Guarantor by (y) the aggregate Adjusted Net Worth of all
Guarantors; (ii) the "Adjusted Net Worth" of each Guarantor shall mean the
greater of (x) the Net Worth (as defined below) of such Guarantor and (y) zero;
and (iii) the "Net Worth" of each Guarantor shall mean the amount by which the
fair salable value of such Guarantor's assets on the date of any Relevant
Payment exceeds its existing debts and other liabilities (including contingent
liabilities, but without giving effect to any Guaranteed Obligations arising
under this Guarantee) on such date. All parties hereto recognize and agree that,
except for any right of contribution arising pursuant to this Section 11.03,
each Guarantor who makes any payment in respect of the Guaranteed Obligations
shall have no right of contribution or subrogation against any other Guarantor
in respect of such payment. Each of the Guarantors recognizes and acknowledges
that the rights to contribution arising hereunder shall constitute an asset in
favor of the party entitled to such contribution.
SECTION 11.04 Limitation of Guarantor's Liability. Each
Guarantor, and by its acceptance hereof each Holder and the Trustee, hereby
confirm that it is the intention of all such parties that this Guarantee does
not constitute a fraudulent transfer or conveyance
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for purposes of title 11 of the United States Code, as amended, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
U.S. Federal or state or other applicable law. To effectuate the foregoing
intention, each Holder and each Guarantor hereby irrevocably agree that the
obligations of a Guarantor under this Guarantee shall be limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor, and after giving effect to any collections from
or payments made by or on behalf of such Guarantor in respect of the obligations
of such Guarantor pursuant to Section 11.05, result in the obligations of such
Guarantor not constituting such a fraudulent transfer or conveyance.
SECTION 11.05 Execution of Subsidiary Guarantee. To further
evidence the Subsidiary Guarantees to the Holders, each Guarantor hereby agrees
to execute a Subsidiary Guarantee, substantially in the form of Exhibit C
hereto, to be endorsed on and made a part of each Note ordered to be
authenticated and delivered by the Trustee. Each Guarantor hereby agrees that
its Subsidiary Guarantee set forth in Section 11.01 shall remain in full force
and effect notwithstanding any failure to endorse on each Note a Subsidiary
Guarantee. Each such Subsidiary Guarantee shall be signed on behalf of each
Guarantor by its Chairman of the Board, its President or one of its Vice
Presidents, or, if the Guarantor is a limited liability company or limited
partnership, by any such Officer of the managing member of such limited
liability company or general partner of such limited partnership, as the case
may be, 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 Subsidiary Guarantee on behalf
of such Guarantor. Such signature upon the Subsidiary Guarantee may be a manual
or facsimile signature of such officer and may be imprinted or otherwise
reproduced on the guarantee, and in case such officer who shall have signed the
Subsidiary Guarantee shall cease to be such officer before the Note on which
such Subsidiary 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 Subsidiary Guarantee had not ceased to be such officer of such
Guarantor.
SECTION 11.06 Subordination of Subrogation and Other Rights.
Each Guarantor hereby agrees that any claim against the Company that arises from
the payment, performance or enforcement of such Guarantor's obligations under
the Subsidiary Guarantee or this Indenture, including, without limitation, any
right of subrogation, shall be subject and subordinate to, and no payment with
respect to any such claim of such Guarantor shall be made before, the payment in
full in cash of all outstanding Notes in accordance with the provisions provided
therefor in this Indenture.
SECTION 11.07 Additional Guarantors; Releases of Guarantors.
(a) Any Person that was not a Guarantor on the date of this Indenture may become
a Guarantor by executing and delivering to the Trustee (a) a supplemental
indenture in form and substance satisfactory to the Trustee, which subjects such
Person to the provisions of this Indenture as a
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Guarantor and (b) an Opinion of Counsel to the effect that such supplemental
indenture has been duly authorized and executed by such Person and constitutes
the legal, valid, binding and enforceable obligation of such Person (subject to
such customary exceptions concerning creditors' rights and equitable principles
as may be acceptable to the Trustee in its discretion). The Subsidiary Guarantee
of each Person described in this Section 11.07 shall apply to all Notes
theretofore executed and delivered, notwithstanding any failure of such Notes to
contain a notation of such Subsidiary Guarantee thereon.
(b) The Subsidiary Guarantee furnished by a Guarantor shall be
automatically and unconditionally released and discharged (at which time the
respective such Person shall cease to be a Guarantor), without any further
action required on the part of the Trustee or any Holder, upon the occurrence of
the circumstances with respect to the respective Guarantor as expressly provided
in clause (i) through (iv) of Section 4.08(b).
SECTION 11.08 Successors and Assigns. This Article Eleven
shall be binding upon each Guarantor and its successors and assigns and shall
inure to the benefit of the successors and assigns of the Trustee and the
Noteholders and, in the event of any transfer or assignment of rights by any
Noteholder or the Trustee, the rights and privileges conferred upon that party
in this Indenture and in the Notes shall automatically extend to and be vested
in such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 11.09 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 each such Guarantor from performing its
Subsidiary 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 such
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 SUBSIDIARY GUARANTEE
SECTION 12.01 Subsidiary Guarantee Obligations Subordinated to
Senior Indebtedness. Each Guarantor covenants and agree, and the Trustee and
each Holder of the Notes by its acceptance thereof likewise covenant and agrees,
that each Subsidiary Guarantee shall be issued subject to the provisions of this
Article Twelve; and each person holding any Note, whether upon original issue or
upon transfer, assignment or exchange thereof, accepts and agrees that all
payments on the Notes pursuant to the Subsidiary Guarantee made by or on behalf
of each Guarantor shall, to the extent and in the manner set forth in this
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Article Twelve, be subordinated and junior in right of payment to the prior
payment in full in cash or Cash Equivalents of all amounts payable under
Guarantor Senior Indebtedness of such Guarantor, whether outstanding on the
Issue Date or thereafter incurred.
SECTION 12.02 Payment Over of Proceeds Upon Dissolution, etc.;
No Payment in Certain Circumstances. (a) Upon any payment or distribution of
assets of any Guarantor of any kind or character, whether in cash, property or
securities, to creditors upon any liquidation, dissolution, winding up,
reorganization, assignment for the benefit of creditors or marshaling of assets
of such Guarantor or in a bankruptcy, reorganization, insolvency, receivership
or other similar proceeding relating to such Guarantor or its property, whether
voluntary or involuntary, all Obligations due or to become due upon all
Guarantor Senior Indebtedness (including interest after the commencement of any
such proceeding at the rate specified in the applicable Guarantor Senior
Indebtedness whether or not such interest is an allowed claim in such
proceeding) 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 such Guarantor Senior Indebtedness, before any payment or
distribution of any kind or character is made by or on behalf of such Guarantor
on account of any of its Obligations on the Subsidiary Guarantee or for the
acquisition of any of the Notes for cash or property or otherwise (except that
holders of the Notes may receive Permitted Payments). Before any payment may be
made by, or on behalf of, a Guarantor of the principal of, premium, if any, or
interest on the Notes upon any such dissolution or winding-up or total
liquidation or reorganization, any payment or distribution of assets or
securities of such Guarantor of any kind or character, whether in cash, property
or securities (excluding any Permitted Payments), to which the Holders of the
Notes or the Trustee on their behalf would be entitled, but for the
subordination provisions of this Indenture, shall be made by such Guarantor or
by any receiver, trustee in bankruptcy, liquidation trustee, agent or other
Person making such payment or distribution, directly to the holders of the
Guarantor Senior Indebtedness of the respective Guarantor (pro rata to such
holders on the basis of the respective amounts of such Guarantor Senior
Indebtedness held by such holders) or their representatives or to the trustee or
trustees or agent or agents under any agreement or indenture pursuant to which
any of such Guarantor Senior Indebtedness may have been issued, as their
respective interests may appear, to the extent necessary to pay all such
Guarantor Senior Indebtedness of the respective Guarantor in full in cash or
Cash Equivalents after giving effect to any prior or concurrent payment,
distribution or provision therefor to or for the holders of such Guarantor
Senior Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Guarantor of any kind or character, whether in cash,
property or securities (excluding any Permitted Payments), shall be received by
the Trustee or any Holder of Notes at a time when such payment or distribution
is prohibited by Section 12.02(a) and before all obligations in respect of the
Guarantor Senior Indebtedness of the respective Guarantor are paid in full in
cash or Cash Equivalents, such payment or distribution shall be received and
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of such Guarantor Senior
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Indebtedness (pro rata to such holders on the basis of the respective amounts of
such Guarantor Senior Indebtedness held by such holders) or their respective
representatives, or to the trustee or trustees or agent or agents under any
indenture pursuant to which any of such Guarantor Senior Indebtedness may have
been issued, as their respective interests may appear, for application to the
payment of such Guarantor Senior Indebtedness remaining unpaid until all such
Guarantor Senior Indebtedness has been paid in full in cash or Cash Equivalents
after giving effect to any prior or concurrent payment, distribution or
provision therefor to or for the holders of such Guarantor Senior Indebtedness.
The consolidation of the Guarantor with, or the merger of the
Guarantor with or into, another corporation or the liquidation or dissolution of
the Guarantor following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the terms
and conditions provided in Article Five shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 12.02
if such Guarantor complies with the conditions stated in Article Five.
If any default occurs and is continuing in the payment when
due, whether at maturity, upon any redemption, by acceleration 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 Guarantor
Senior Indebtedness, no payment of any kind or character shall be made by or on
behalf of the Guarantor or any other Person on its behalf with respect to any
Obligations on the Subsidiary Guarantee or to acquire any of the Notes for cash
or property or otherwise (except that holders of the Notes may receive Permitted
Payments).
In addition, during any Payment Blockage Period, no Guarantor,
and no other Person on any Guarantor's behalf, shall (x) make any payment of any
kind or character with respect to any Guaranteed Obligations or (y) acquire any
of the Notes for cash or property or otherwise (except that holders of the Notes
may receive Permitted Payments).
SECTION 12.03 Subrogation. Upon the payment in full in cash or
Cash Equivalents of all Guarantor Senior Indebtedness of a Guarantor, or
provision for payment, the Holders of the Notes shall be subrogated to the
rights of the holders of such Guarantor Senior Indebtedness to receive payments
or distributions of cash, property or securities of such Guarantor made on such
Guarantor Senior Indebtedness until the principal of and interest on the Notes
shall be paid in full in cash or Cash Equivalents; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Guarantor
Senior Indebtedness of any cash, property or securities to which the Holders of
the Notes or the Trustee on their behalf would be entitled except for the
provisions of this Article Twelve, and no payment over pursuant to the
provisions of this Article Twelve to the holders of such Guarantor Senior
Indebtedness by Holders of the Notes or the Trustee on their behalf shall, as
between such Guarantor, its creditors other than holders of such Guarantor
Senior Indebtedness, and the Holders of the Notes, be deemed to be a payment by
such Guarantor to or on account of such Guarantor Senior Indebtedness. It is
understood that the provisions of this Article
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Twelve 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
Guarantor Senior Indebtedness of any such Guarantor on the other hand.
If any payment or distribution to which the Holders of the
Notes would otherwise have been entitled but for the provisions of this Article
Twelve shall have been applied, pursuant to the provisions of this Article
Twelve, to the payment of all amounts payable under Guarantor Senior
Indebtedness of any Guarantor, then and in such case, the Holders of the Notes
shall be entitled to receive from the holders of such Guarantor Senior
Indebtedness any payments or distributions received by such holders of such
Guarantor Senior Indebtedness in excess of the amount required to make payment
in full in cash of such Guarantor Senior Indebtedness.
SECTION 12.04 Obligations of 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 any Guarantor and the Holders of the
Notes, the obligation of such Guarantor, which is absolute and unconditional, to
pay to the Holders of the Notes the principal of and interest on the Notes as
and when the same shall become due and payable in accordance with the terms of
the Subsidiary Guarantee, or is intended to or shall affect the relative rights
of such Guarantor of the Notes and creditors of any Guarantor other than the
holders of Guarantor Senior Indebtedness of such Guarantor, as the case may be,
nor shall anything herein or therein prevent the Holder of any Note or the
Trustee on their behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article Twelve of the holders of Guarantor Senior Indebtedness in
respect of cash, property or securities of such Guarantor received upon the
exercise of any such remedy.
Without limiting the generality of the foregoing, nothing
contained in this Article Twelve shall restrict the right of the Trustee or the
Holders of Notes to take any action to declare the Notes to be due and payable
prior to their stated maturity pursuant to Section 6.02 or to pursue any rights
or remedies hereunder; provided, however, that all Designated Guarantor Senior
Indebtedness of each Guarantor then due and payable shall first be paid in full
in cash or Cash Equivalents before the Holders of the Notes or the Trustee are
entitled to receive any direct or indirect payment from such Guarantor of
principal of or interest on the Notes pursuant to the Subsidiary Guarantee.
SECTION 12.05 Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company 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. The Trustee shall not be
charged with knowledge of the existence of any event of default with respect to
any Guarantor Senior Indebtedness of a Guarantor or of any other facts which
would prohibit the making of any payment to or by the Trustee unless and until
the Trustee shall have received notice in writing at its Corporate Trust Office
to that effect
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signed by an Officer of the Company, or by a holder of Guarantor Senior
Indebtedness of a Guarantor or trustee or agent therefor; and prior to the
receipt of any such written notice, the Trustee shall, subject to Article Seven,
be entitled to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section 12.05 at
least two Business Days prior to the date upon which by the moneys shall become
payable for any purpose (including, without limitation, the payment of the
principal of or interest on any Note), then, regardless of anything herein to
the respective contrary, the Trustee shall have full power and authority to
receive any moneys from the Guarantor and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date. Nothing
contained in this Section 12.05 shall limit the right of the holders of Senior
Indebtedness of the Company to recover payments as contemplated by Section
12.02. Nothing contained in this Section 12.05 shall limit the right of the
holders of Guarantor Senior Indebtedness of a Guarantor to recover payments as
contemplated by Section 12.03. The Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself or itself to
be a holder of any Guarantor Senior Indebtedness of a Guarantor (or a trustee on
behalf of, or other representative of, such holder) to establish that such
notice has been given by a holder of such Guarantor Senior Indebtedness or a
trustee or representative on behalf of any such holder.
In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Guarantor Senior Indebtedness of a Guarantor to participate in any payment or
distribution pursuant to this Article Twelve, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Guarantor Senior Indebtedness 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 furnished, the Trustee may defer any payment
to such Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 12.06 Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets or securities of a
Guarantor referred to in this Article Twelve, the Trustee 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 bankruptcy, dissolution, winding-up, liquidation
or reorganization proceedings are pending, or upon a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
of the Notes for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of Guarantor Senior Indebtedness 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.
SECTION 12.07 Trustee's Relation to Guarantor Senior
Indebtedness of a Guarantor. The Trustee and any Paying Agent shall be entitled
to all the rights set forth
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in this Article Twelve with respect to any Guarantor Senior Indebtedness of a
Guarantor which may at any time be held by them in their individual or any other
capacity to the same extent as any other holder of Guarantor Senior Indebtedness
of such Guarantor, and nothing in this Indenture shall deprive the Trustee or
any Paying Agent of any of its rights as such holder.
With respect to the holders of Guarantor Senior Indebtedness
of any Guarantor, the Trustee 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
such Guarantor Senior Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Indebtedness of any Guarantor (except as provided in
Section 12.02(b)). The Trustee 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 Guarantor Senior Indebtedness of a Guarantor shall be
entitled by virtue of this Article Twelve or otherwise.
SECTION 12.08 Subordination Rights Not Impaired by Acts or
Omissions of Holders of Guarantor Senior Indebtedness. No right of any present
or future holders of any Guarantor Senior Indebtedness of a Guarantor 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 such Guarantor or by any
act or failure to act, in good faith, by any such holder, or by any
noncompliance by such Guarantor with the terms of this Indenture, regardless of
any knowledge thereof which any such holder may have or otherwise be charged
with. The provisions of this Article Twelve are intended to be for the benefit
of, and shall be enforceable directly by, the holders of Guarantor Senior
Indebtedness of any Guarantor.
SECTION 12.09 Holders Authorize Trustee to Effectuate
Subordination of Subsidiary Guarantee. Each Holder of Notes by his acceptance of
such Notes authorizes and expressly directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article Twelve, and appoints the Trustee his attorney-in-fact
for such purposes, including, in the event of any dissolution, winding-up, total
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 any Guarantor, the filing of a claim
for the unpaid balance of the principal of and interest in its or his Notes in
the form required in those proceedings.
SECTION 12.10 This Article 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 Twelve shall not be construed
as preventing the occurrence of an Event of Default.
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SECTION 12.11 Trustee's Compensation Not Prejudiced. Nothing
in this Article Twelve shall apply to amounts due to the Trustee pursuant to
other sections in this Indenture.
SECTION 12.12 No Waiver of Subsidiary Guarantee Subordination
Provisions. Without in any way limiting the generality of Section 12.08, the
holders of Guarantor Senior Indebtedness of any Guarantor, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders of
the Notes, without incurring responsibility to 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 such
Guarantor Senior Indebtedness, do any one or more of the following: (a) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, such Guarantor Senior Indebtedness or any instrument evidencing the
same or any agreement under which such Guarantor Senior Indebtedness is
outstanding or secured, (b) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing such Guarantor Senior
Indebtedness; (c) release any Person liable in any manner for the collection of
such Guarantor Senior Indebtedness; and (d) exercise or refrain from exercising
any rights against the Guarantor and any other Person.
SECTION 12.13 Reliance by Holders of Guarantor Senior
Indebtedness on Subordination Provisions. Each Holder by accepting a Note
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any
Guarantor Senior Indebtedness, whether such Guarantor Senior Indebtedness was
created or acquired before or after the issuance of the Notes, to acquire and
continue to hold, or to continue to hold, such Guarantor Senior Indebtedness and
such holder of Guarantor Senior Indebtedness shall be deemed conclusively to
have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Guarantor Senior Indebtedness. It is
further acknowledged and agreed that no amendment to the provisions of this
Article Thirteen shall be effective with respect to any Guarantor Senior
Indebtedness outstanding at the time of such amendment unless the respective
modification has been consented to by a majority of the then outstanding amount
of the respective issue of Guarantor Senior Indebtedness.
SECTION 12.14 Reinstatement. Each Holder of a Note agrees that
these subordination provisions shall continue to be effective or be reinstated,
as the case may be, if at any time any payment (in whole or in part) of any of
the Guarantor Senior Indebtedness is rescinded or must otherwise be restored by
any holder of Guarantor Senior Indebtedness, upon the insolvency, bankruptcy or
reorganization of the respective Guarantor or any obligor upon the Notes or
otherwise, all as though such payment had not been made.
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ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls. This Indenture is
subject to the provisions of the TIA that are required to be a part of any
indenture subject to the TIA. If any provision of this Indenture modifies any
TIA provision that may be so modified, such TIA provision shall be deemed to
apply to this Indenture as so modified. If any provision of this Indenture
excludes any TIA provision that may be so excluded, such TIA provision shall be
excluded from this Indenture.
The provisions of TIA Sections 310 through 317 that
impose duties on any Person (including the provisions automatically deemed
included unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.
SECTION 13.02 Notices. Any notice or communication shall be
sufficiently given if in writing and delivered in person, by facsimile and
confirmed by overnight courier, or mailed by first-class mail addressed as
follows:
if to the Company:
New World Pasta Company
c/o Hershey Foods Corporation
Corporate Headquarters
▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Levy
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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if to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Each party by notice to the others may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed, first-class, postage
prepaid, to a Holder, including any notice delivered in connection with TIA
Section 310(b), TIA Section 313(c), TIA Section 314(a) and TIA Section 315(b)
shall be mailed to such Holder at the address as set forth on the list
maintained pursuant to Section 2.05 and shall be sufficiently given to him if so
mailed within the time prescribed. To the extent required by the TIA, any notice
or communication shall also be mailed to any Person described in TIA Section
313(c).
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.
Except for a notice to the Trustee, which is deemed given only when received, if
a notice or communication is mailed in the manner provided above, it is duty
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).
SECTION 13.04 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture after the date hereof,
the Company shall furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
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(2) an Opinion of Counsel in form and substance satisfactory
to the Trustee stating that, in the opinion of such counsel, all such
conditions precedent 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 shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 13.06 Rules by Trustee, Paying Agent, Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 13.07 GOVERNING LAW. THIS INDENTURE AND THE NOTES WILL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 13.08 No Recourse Against Others. No director,
officer, employee, stockholder or member of the Company, as such, shall 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. The waiver and release are part of the consideration for the issuance
of the Notes.
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SECTION 13.09 Successors. All agreements of a party to this
Indenture contained in this Indenture shall bind such party's successors.
SECTION 13.10 Counterpart Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
SECTION 13.11 Severability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby, and a Holder shall have no claim
therefor against any party hereto.
SECTION 13.12 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 13.13 Legal Holidays. If a payment date is a not a
Business Day at a place of payment, payment may be made at that place on the
next succeeding Business Day, and no interest shall accrue for the intervening
period.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties have caused this
Indenture to be duly executed as of the date first written above.
NEW WORLD PASTA COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance &
Chief Financial Officer
THE BANK OF NEW YORK, as Trustee
By /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
GUARANTORS:
PASTA GROUP, L.L.C.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance &
Chief Financial Officer
WINCHESTER PASTA, L.L.C.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance &
Chief Financial Officer
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EXHIBIT A
TO INDENTURE
[FORM OF FACE OF NOTE]
[UNLESS THIS NOTE IS AN EXCHANGE NOTE OR IS OTHERWISE PERMITTED BY
THE INDENTURE NOT TO BEAR THE PRIVATE PLACEMENT LEGEND, INSERT THE
PRIVATE PLACEMENT LEGEND.]
[IF THIS NOTE IS THE TEMPORARY REG. S. GLOBAL NOTE, INSERT THE REG. S
LEGEND.]
[IF THIS NOTE IS A GLOBAL NOTE, INSERT THE LEGEND SET FORTH IN EXHIBIT
B TO THE INDENTURE.]
117
TO INDENTURE
PAGE 2
$______________________ No._________
_____________Cusip No._________
NEW WORLD PASTA COMPANY
9 1/4% Senior Subordinated Note Due 2009
NEW WORLD PASTA COMPANY, a Delaware corporation, promises to
pay to ________, or registered assigns, the principal sum of __________ Dollars
on February 15, 2009.
Interest Payment Dates: February 15 and August 15
Interest Record Dates: February 1 and August 1
Additional provisions of this Note are set forth on the other side of
this Note.
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EXHIBIT A
TO INDENTURE
PAGE 3
NEW WORLD PASTA COMPANY
By:
Name:
Title:
By:
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this is one
of the Notes referred to in the
Indenture.
By:
Authorized Signatory
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EXHIBIT A
TO INDENTURE
PAGE 4
[FORM OF REVERSE OF NOTE]
9 1/4% Senior Subordinated Note Due 2009
1. Interest
NEW WORLD PASTA COMPANY, a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
unpaid principal amount of this Note at the Applicable Interest Rate.
The Company will pay interest on each Interest Payment Date,
beginning August 15, 1999. Interest shall accrue from the most recent date to
which interest has been paid, or, if no interest has been paid, from the date of
issuance of this Note.
Interest will be computed on the basis of a 360-day year
composed of twelve 30-day months. The Company shall pay interest on overdue
principal at the rate per annum that is 2% in excess of the Applicable Interest
Rate from the date of such nonpayment until the amount not so paid is paid in
full (as well after as before judgment).
"Applicable Interest Rate" means 9.25% per annum.
2. Method of Payment
The Company will pay interest on the Notes (except defaulted
interest) to the Persons who are registered Noteholders at the close of business
on the relevant Interest Record Date even if Notes are canceled after such
Interest Record Date and on or before such Interest Payment Date; provided, that
payments of interest on a Redemption Date, Purchase Offer Payment Date or the
Final Maturity Date shall be made to the Person to whom principal is paid.
Noteholders must surrender Notes to a Paying Agent to collect principal
payments. The Company will pay principal and interest in U.S. Legal Tender.
However, the Company may pay principal and interest by check payable in such
money. It may mail an interest check to a Noteholder's registered address.
3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking
corporation (the "Trustee"), will act as Paying Agent and Registrar. The Company
may have one or more co-
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EXHIBIT A
TO INDENTURE
PAGE 5
registrars or one or more additional Paying Agents. The Company or any Guarantor
may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Notes under an Indenture dated as of
February 19, 1999 ("Indenture"), among the Company, the Guarantors and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (the "TIA"). Terms defined in the Indenture and not defined herein have
the meanings ascribed thereto in the Indenture. The Notes are subject to all
such terms, and Noteholders are referred to the Indenture and the TIA for a
statement of those terms.
The Notes are general unsecured obligations of the Company.
The Indenture imposes certain limitations on the Incurrence of Indebtedness by
the Company, the Incurrence of Indebtedness and Preferred Stock by certain of
its Subsidiaries, investments, the payment of dividends and other distributions
and acquisitions or retirements of the Capital Stock of the Company and certain
of its Subsidiaries, certain repayments, purchases or redemptions of
subordinated obligations, the sale or transfer of assets and Subsidiary stock,
transactions with Affiliates, the lines of business in which the Company or
certain of its Subsidiaries may operate and the ability of the Company to merge
with or into another entity. In addition, the Indenture limits the ability of
the Company and its Subsidiaries to restrict distributions and dividends from
Subsidiaries and requires the Company, under certain circumstances, to offer to
purchase Notes. The limitations are subject to a number of important
qualifications and exceptions.
[INSERT ONLY IN INITIAL NOTES] [5. Registration Rights
The Company will be obligated to consummate a Registered Exchange Offer
pursuant to which the Holders of the Initial Notes shall have the right to
exchange their Notes for Notes which have been registered under the Securities
Act, in like principal amount and otherwise having terms identical in all
material respects to the Initial Notes.]
6. Optional Redemption
The Company may not optionally redeem this Note in whole at
any time or in part at any time prior to February 15, 2004. Beginning on
February 15, 2004, this Note shall be redeemable in whole or in part for an
amount equal to the following amounts, expressed as a percentage of the
principal amount of the Notes to be redeemed, if redeemed
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EXHIBIT A
TO INDENTURE
PAGE 6
during the 12-month period commencing on February 15 of the years set forth
below, plus accrued and unpaid interest and Liquidated Damages, if any, to the
Redemption Date:
Period Redemption
Price
2004........................................................... 104.6250%
2005........................................................... 103.0833%
2006........................................................... 101.5417%
2007........................................................... 100.0000%
(b) At any time, or from time to time, on or prior to February
15, 2002, the Company may, at its option, redeem up to 35% of sum of (i) the
initial aggregate principal amount of Notes issued in the Offering and (ii) the
respective initial aggregate principal amount of Initial Notes originally issued
under the Indenture after the Issue Date pursuant to clause (i) of the first
sentence of the fourth paragraph of Section 2.02 of the Indenture with Net Cash
Proceeds of one or more Equity Offerings, at a redemption price equal to 109.25%
of the principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the date of redemption; provided, however, that at
least 65% of the sum of (i) initial aggregate principal amount of Notes issued
in the Offering and (ii) the respective initial aggregate principal amounts of
Initial Notes issued under the Indenture after the Issue Date pursuant to clause
(i) of the first sentence of the fourth paragraph of Section 2.02 of the
Indenture, remain outstanding immediately after each 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 120 days after the consummation
of any such Equity Offering.
7. Mandatory Offers to Purchase with Proceeds of Asset Sales
Pursuant to the requirements of the Indenture, the Company
must make certain Offers to Purchase Notes (including this Note) at par plus
accrued and unpaid interest and Liquidated Damages, if any, with the Net Cash
Proceeds from certain Asset Sales; provided that such Net Cash Proceeds need not
be applied to make Offers to Purchase the Notes to the extent that such Net Cash
Proceeds are applied to make certain repayments of Indebtedness or to make
certain investments, in each case in accordance with the requirements of Section
4.10 of the Indenture.
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EXHIBIT A
TO INDENTURE
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8. Change of Control Put Provisions
Upon a Change of Control, any Noteholder will have the right,
subject to certain conditions, to cause the Company to repurchase all or any
part of the Notes of such Noteholder at a price equal to 101% of the principal
amount of the Notes to be repurchased plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of repurchase as provided in, and
subject to the terms of, the Indenture.
9. Subordination
The Notes are subordinated to Senior Indebtedness, as defined
in the Indenture. To the extent provided in the Indenture, Senior Indebtedness
must be paid before the Notes may be paid. The Company agrees, and each
Noteholder by accepting a Note agrees, to the subordination provisions contained
in the Indenture and authorizes the Trustee to give it effect and appoints the
Trustee as attorney-in-fact for such purpose.
10. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in
denominations of $1,000 and integral multiples thereof. A Noteholder may
transfer or exchange Notes in accordance with the Indenture. The Registrar may
require a Noteholder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange any
Notes selected for redemption (except, in the case of a Note to be redeemed in
part, the portion of the Note not to be redeemed) or any Notes for a period of
15 business days before a mailing of a notice of an offer to repurchase or
redeem Notes or 15 business days before an interest payment date.
11. Persons Deemed Owners
The registered Noteholder may 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 or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Noteholders entitled to the money must
look only to the Company and not to the
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EXHIBIT A
TO INDENTURE
PAGE 8
Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Notes and the Indenture if
the Company deposits with the Trustee U.S. Legal Tender or U.S. Government
Obligations for the payment of principal and interest on the Notes to redemption
or maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended with the written consent of the
Noteholders holding at least a majority in principal amount outstanding of the
Notes and (ii) any default or noncompliance with any provision may be waived
with the written consent of the Noteholders holding a majority in principal
amount outstanding of the Notes. Subject to certain exceptions set forth in the
Indenture, without the consent of any Noteholder, the Company and the Trustee
may amend the Indenture or the Notes to cure any ambiguity, omission, defect or
inconsistency, or to provide for uncertificated Notes in addition to or in place
of certificated Notes, or to add further guarantees with respect to the Notes or
to secure the Notes, or to add additional covenants or Events of Default or
surrender rights and powers conferred on the Company, or to comply with any
request of the SEC in connection with qualifying the Indenture under the TIA, or
to evidence the succession of another Person to the Company or any Guarantor and
the assumption by such successor of the covenants of the Company or any
Guarantor in the Indenture or in the Notes, or to evidence and provide for the
acceptance of an appointment under the Indenture by a successor Trustee, or to
release any Guarantor from its Subsidiary Guarantee in accordance with the
provisions of the Indenture.
15. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest or Liquidated Damages in respect of the Notes;
(ii) default in payment of principal on the Notes at maturity, upon redemption,
upon declaration or otherwise, or failure by the Company to redeem or purchase
Notes when required; (iii) failure by the Company to comply with other
agreements in the Indenture or the Notes, and continuance of such default for 30
days after written notice thereof to the Company; (iv) any Subsidiary Guarantee
of a Significant Restricted Subsidiary ceases to be in full force and effect, or
such Subsidiary Guarantee is declared to be null, void or unenforceable, or if
such Subsidiary Guarantee is found to be invalid, or the Guarantor denies its
liability under such Subsidiary Guarantee (other
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EXHIBIT A
TO INDENTURE
PAGE 9
than by reason of the release of such Guarantor from its obligations in
accordance with the terms of the Indenture); (v) certain accelerations, and
failures to pay, other Indebtedness of the Company if the amount accelerated (or
so unpaid) exceeds $10,000,000; (vi) certain events of bankruptcy or insolvency
with respect to the Company, its Significant Restricted Subsidiaries; and (vii)
certain judgments or decrees for the payment of money in excess of $10,000,000.
If an Event of Default occurs and is continuing, the Trustee or the Noteholders
holding of at least 25% in principal amount of the Notes may declare all the
Notes to be due and payable immediately. Certain events of bankruptcy or
insolvency relating to the Company are Events of Default which will result in
the Notes being due and payable immediately upon the occurrence of such Events
of Default.
Noteholders may not enforce the Indenture or the Notes except
as provided in the Indenture. Subject to certain limitations, including the
right of the Trustee to refuse to enforce the Indenture or the Notes unless it
receives indemnity or security satisfactory to it, Noteholders holding a
majority in principal amount of the Notes may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Noteholders notice of any
continuing Default (except a Default in payment of principal or interest) if it
determines that withholding notice is in the interest of the Noteholders.
[INSERT ONLY IN INITIAL NOTES] [16. Liquidated Damages.
If the Company has failed to file the Exchange Offer Registration
Statement or a Shelf Registration within 120 days of the Issue Date or if the
Registered Exchange Offer has not been consummated, or a Shelf Registration
Statement has not been declared effective, within 180 days of the Issue Date,
then the Company must pay liquidated damages of up to 1% of the principal amount
of this Note as set forth in the Registration Rights Agreement. The Company will
also pay Liquidated Damages in the same amounts if after having been filed, the
Shelf Registration Statement is not available for resales thereunder. Liquidated
Damages will be paid at the same time and in the same way as interest payments
on Notes, and must be paid entirely in cash.]
17. Trustee Dealings with the Company
Subject to certain limitations, 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 or its Affiliates with
the same rights it would have if it were not Trustee.
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EXHIBIT A
TO INDENTURE
PAGE 10
18. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations 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. By accepting a Note, each Noteholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
19. Authentication
This Note shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
20. Abbreviations
Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
21. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Noteholders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
22. GOVERNING LAW
THE NOTES WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
126
EXHIBIT A
TO INDENTURE
PAGE 11
The Company will furnish to any Noteholder upon written
request and without charge to the Noteholder a copy of the Indenture which has
in it the text of this Note in larger type. Requests may be made to:
New World Pasta Company
c/o Hershey Foods Corporation
Corporate Headquarters
▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
127
EXHIBIT A
TO INDENTURE
PAGE 12
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint __________ agent to transfer this Note on the books of
the Company. The agent may substitute another to act for him.
____________________________________________________
Date:_________________Your Signature:_________________________________________
Sign exactly as your name appears on the other side of this Note.
128
EXHIBIT B
TO INDENTURE
FORM OF LEGEND FOR GLOBAL NOTES
Any Global Note authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY 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) MAY
BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
129
EXHIBIT C
TO INDENTURE
[FORM OF SUBSIDIARY GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Guarantor (capitalized terms used herein have the meanings given
such terms in the Indenture referred to in the Note upon which this notation is
endorsed) hereby unconditionally guarantees on a senior subordinated basis (such
guaranty being referred to herein as the "Guarantee") the due and punctual
payment of the principal of, premium, if any, and interest on (and liquidated
damages, if any, with respect to) the Notes, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal, premium and interest on the Notes, 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.
The obligations of the Guarantor to the Holders of Notes and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth, and
are expressly subordinated and subject in right of payment to the prior payment
in full of all Guarantor Senior Indebtedness of the Guarantor, to the extent and
in the manner provided in Article Eleven and Article Twelve of the Indenture.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Notes shall have been executed by the
Trustee under the Indenture by the manual signature of one of its authorized
signatories.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflicts of
law.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
[ ]
By:
Name:
Title:
130
EXHIBIT D
TO INDENTURE
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 (Asset Sale) or 4.11 (Change of Control) of the
Indenture, check one of the following:
_____ Asset Sale _____ Change of Control
If you want to have only a part of this Note purchased by the
Company pursuant to either Section 4.10 or 4.11 of the Indenture, state the
amount:
US$ ____________
Date:_____________ Your Signature:____________________
(Sign exactly as your name appears on the other side of the Note)
Signature Guarantee:__________________________________
Signature must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor acceptable to the Trustee
131
EXHIBIT E
TO INDENTURE
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES
Re: Senior Subordinated Notes due 2009
(the "Notes")
New World Pasta Company
_______________________
__ ________________This Certificate relates to $___ principal amount of Notes
held in the form of* ________ a beneficial interest in a Global Note or* ______
Physical Notes by _______ (the "Transferor").
Reference is made to the Indenture, dated as of February __, 1999 (the
Indenture"), among New World Pasta Company (the "Company"), the Guarantors named
therein, and The Bank of New York, as trustee (the "Trustee"). Capitalized terms
used but not defined in this certificate are used as defined in the Indenture.
The Transferor: *
/ / Has requested by written order that the Registrar deliver in
exchange for its beneficial interest in the Global Note held by the Depositary a
Physical Note or Physical Notes in definitive, registered form of authorized
denominations and an aggregate number equal to its beneficial interest in such
Global Note (or the portion thereof indicated above).
/ / Has requested by written order that the Trustee register the
transfer of its interest in the Temporary Reg. S Global Note for an interest in
the Rule 144A Global Note.
/ / Has requested by written order that the Registrar exchange or
register the transfer of a Physical Note or Physical Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that the Transferor is familiar with the
Indenture and the restrictions on transfers thereof as provided in Section 2.16
of the Indenture, and that the
132
EXHIBIT E
TO INDENTURE
PAGE 2
transfer of the Notes does not require registration under the Securities Act of
1933, as amended (the "Act"), because*:
/ / Such Note is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.16 of the Indenture).
/ / Such Note is being transferred to a "qualified institutional buyer"
(as defined in Rule 144A under the Act), in reliance on Rule 144A.
/ / Such Note is being transferred to an institutional "accredited
investor" (within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 under the Act) which delivers a certificate to the Trustee in the form of
Exhibit F to the Indenture.
/ / Such Note is being transferred in reliance on Rule 144 under the
Act.
/ / Such Note is being transferred in an offshore transaction pursuant
to Rule 904 under the Act.
/ / Such Note is being transferred to the Company or a Subsidiary of
the Company.
[INSERT NAME OF TRANSFEROR]
By:
[Authorized Signatory]
Date:
*Check applicable box.
133
EXHIBIT F
TO INDENTURE
Form of Transferee Letter of Representation
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Dear Sirs:
This certificate is delivered to request a transfer of $
principal amount of the Senior Subordinated Notes due 2009 of New World Pasta
Company (the "Company") and any guarantee thereof (the "Notes"). Upon transfer,
the Notes would be registered in the name of the new beneficial owner as
follows:
Name:
Address:
Taxpayer ID Number:
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "Securities Act")) purchasing for our own account or for the account of
such an institutional accredited investor, and we are not acquiring the Notes
with a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act. We have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risk of our investment in the Notes and we invest in or purchase securities
similar to the Notes in the normal course of our business. We and any accounts
for which we are acting are each able to bear the economic risk of our or its
investment.
2. We understand that the Notes have not been registered under
the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date which is two years after the
later of the date of original issue and the last date on which the Company or
any affiliate of the Company was the owner of such Notes (or any predecessor
134
EXHIBIT F
TO INDENTURE
PAGE 2
thereto) (the "Resale Restriction Termination Date") only (a) to the Company or
one of its Subsidiaries, (b) pursuant to a registration statement which has been
declared effective under the Securities Act, (c) in a transaction complying with
the requirements of Rule 144A under the Securities Act, to a person we
reasonably believe is a qualified institutional buyer under Rule 144A (a "QIB")
that purchases for its own account or for the account of a QIB and to whom
notice is given that the transfer is being made in reliance on Rule 144A, (d) to
an institutional accredited investor that is purchasing for its own account or
for the account of such an institutional accredited investor, (e) in an offshore
transaction in compliance with Rule 904 under the Securities Act, or (f)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act, subject in each of the foregoing cases to any requirement of law
that the disposition of our property or the property of such investor account or
accounts be at all times within our or their control and in compliance with any
applicable state securities laws. If any resale or other transfer of the Notes
is proposed to be made pursuant to clause (d) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Company and the
Trustee, which shall provide, among other things, that the transferee is an
institutional accredited investor and that it is acquiring such Notes for
investment purposes and not for distribution in violation of the Securities Act.
The Company and the Trustee reserve the right prior to any offer, sale or other
transfer prior to the Resale Restriction Termination Date of the Notes pursuant
to clause (d) above to require the delivery of an opinion of counsel,
certificates and/or other information satisfactory to the Company and the
Trustee.
Reference is made to the Indenture, dated as of February __,
1999 (the Indenture"), among the Company, the Guarantors named therein, and The
Bank of New York, as trustee (the "Trustee"). Capitalized terms used but not
defined in this certificate are used as defined in the Indenture.
Dated:_________ TRANSFEREE:
By: ___________________________