EXHIBIT 4.4
EXECUTION VERSION
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SWIFT & COMPANY,
as Issuer
12 1/2% SENIOR SUBORDINATED NOTES DUE JANUARY 1, 2010
----------
INDENTURE
Dated as of September 19, 2002
----------
THE BANK OF NEW YORK TRUST COMPANY
OF FLORIDA, N.A.,
as Trustee
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TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE........................................1
Section 1.01. Definitions..................................................................1
Section 1.02. Other Definitions...........................................................26
Section 1.03. Incorporation by Reference of Trust Indenture Act...........................26
Section 1.04. Rules of Construction.......................................................26
ARTICLE 2. THE NOTES........................................................................27
Section 2.01. Form and Dating.............................................................27
Section 2.02. Execution and Authentication................................................28
Section 2.03. Registrar and Paying Agent..................................................28
Section 2.04. Paying Agent to Hold Money in Trust.........................................29
Section 2.05. Holder Lists................................................................29
Section 2.06. Transfer and Exchange.......................................................29
Section 2.07. Replacement Notes...........................................................39
Section 2.08. Outstanding Notes...........................................................39
Section 2.09. Treasury Notes..............................................................39
Section 2.10. Temporary Notes.............................................................39
Section 2.11. Cancellation................................................................40
Section 2.12. Payment of Interest; Defaulted Interest.....................................40
Section 2.13. CUSIP or ISIN Numbers.......................................................40
Section 2.14. Special Interest............................................................40
Section 2.15. Issuance of Additional Notes................................................41
ARTICLE 3. REDEMPTION AND PREPAYMENT........................................................41
Section 3.01. Notices to Trustee..........................................................41
Section 3.02. Selection of Notes to Be Redeemed...........................................41
Section 3.03. Notice of Redemption........................................................42
Section 3.04. Effect of Notice of Redemption..............................................42
Section 3.05. Deposit of Redemption Price.................................................42
Section 3.06. Notes Redeemed in Part......................................................43
Section 3.07. Optional Redemption.........................................................43
Section 3.08. Mandatory Redemption........................................................44
Section 3.09. Offer To Purchase by Application of Excess Proceeds.........................44
ARTICLE 4. COVENANTS........................................................................45
Section 4.01. Payment of Notes............................................................45
Section 4.02. Maintenance of Office or Agency.............................................46
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 4.03. Reports.....................................................................46
Section 4.04. Compliance Certificate......................................................46
Section 4.05. Taxes.......................................................................47
Section 4.06. Stay, Extension and Usury Laws..............................................47
Section 4.07. Corporate Existence.........................................................47
Section 4.08. Payments for Consent........................................................47
Section 4.09. Incurrence of Additional Debt and Issuance of Capital Stock.................47
Section 4.10. Restricted Payments.........................................................48
Section 4.11. Liens.......................................................................52
Section 4.12. Asset Sales.................................................................52
Section 4.13. Restrictions on Distributions from Restricted Subsidiaries..................53
Section 4.14. Affiliate Transactions......................................................55
Section 4.15. Layered Debt................................................................56
Section 4.16. Issuance or Sale of Capital Stock of Restricted Subsidiaries................57
Section 4.17. Designation of Restricted and Unrestricted Subsidiaries.....................57
Section 4.18. Repurchase at the Option of Holders Upon a Change of Control................57
Section 4.19. Future Subsidiary Guarantors................................................59
Section 4.20. Business Activities.........................................................59
Section 4.21. Guarantees of Debt by Restricted Subsidiaries...............................59
Section 4.22. Seller Note.................................................................60
ARTICLE 5. SUCCESSORS.......................................................................60
Section 5.01. Merger, Consolidation and Sale of Assets....................................60
Section 5.02. Successor Corporation Substituted...........................................62
ARTICLE 6. DEFAULTS AND REMEDIES............................................................62
Section 6.01. Events of Default...........................................................62
Section 6.02. Acceleration................................................................63
Section 6.03. Other Remedies..............................................................64
Section 6.04. Waiver of Past Defaults.....................................................64
Section 6.05. Control by Majority.........................................................65
Section 6.06. Limitation on Suits.........................................................65
Section 6.07. Rights of Holders to Receive Payment........................................65
Section 6.08. Collection Suit by Trustee..................................................65
Section 6.09. Trustee May File Proofs of Claim............................................65
Section 6.10. Priorities..................................................................66
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 6.11. Undertaking for Costs.......................................................66
ARTICLE 7. TRUSTEE..........................................................................66
Section 7.01. Duties of Trustee...........................................................66
Section 7.02. Rights of Trustee...........................................................67
Section 7.03. Individual Rights of Trustee................................................68
Section 7.04. Trustee's Disclaimer........................................................68
Section 7.05. Notice of Defaults..........................................................69
Section 7.06. Reports by Trustee to Holders...............................................69
Section 7.07. Compensation and Indemnity..................................................69
Section 7.08. Replacement of Trustee......................................................70
Section 7.09. Successor Trustee by Merger, etc............................................70
Section 7.10. Eligibility; Disqualification...............................................71
Section 7.11. Preferential Collection of Claims Against Company...........................71
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.........................................71
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance....................71
Section 8.02. Legal Defeasance and Discharge..............................................71
Section 8.03. Covenant Defeasance.........................................................71
Section 8.04. Conditions to Legal or Covenant Defeasance..................................72
Section 8.05. Deposited Cash and U.S. Government Securities to be Held in Trust; Other
Miscellaneous Provisions....................................................73
Section 8.06. Repayment to Company........................................................73
Section 8.07. Reinstatement...............................................................74
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER.................................................74
Section 9.01. Without Consent of Holders of Notes.........................................74
Section 9.02. With Consent of Holders of Notes............................................75
Section 9.03. With Consent of Holders of Senior Debt......................................76
Section 9.04. Compliance with Trust Indenture Act.........................................76
Section 9.05. Revocation and Effect of Consents...........................................76
Section 9.06. Notation on or Exchange of Notes............................................76
Section 9.07. Trustee to Sign Amendments, etc.............................................76
ARTICLE 10. GUARANTEES.......................................................................77
Section 10.01. Guarantee...................................................................77
Section 10.02. Limitation on Guarantor Liability...........................................78
Section 10.03. Execution and Delivery of Guarantee.........................................78
Section 10.04. Guarantors May Consolidate, etc., on Certain Terms..........................79
iii
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 10.05. Releases Following Sale of Assets...........................................79
ARTICLE 11. SUBORDINATION....................................................................80
Section 11.01. Agreement to Subordinate....................................................80
Section 11.02. Liquidation, Dissolution, Bankruptcy........................................80
Section 11.03. Default on Senior Debt......................................................80
Section 11.04. Acceleration of Payment of Securities.......................................81
Section 11.05. When Distribution Must Be Paid Over.........................................81
Section 11.06. Subrogation.................................................................81
Section 11.07. Relative Rights.............................................................81
Section 11.08. Subordination May Not Be Impaired by Company................................82
Section 11.09. Rights of Trustee and Paying Agent..........................................82
Section 11.10. Distribution or Notice to Representative....................................82
Section 11.11. Article 11 Not to Prevent Events of Default or Limit Right to Accelerate....82
Section 11.12. Trust Moneys Not Subordinated...............................................82
Section 11.13. Trustee Entitled to Rely....................................................82
Section 11.14. Trustee to Effectuate Subordination.........................................83
Section 11.15. Trustee Not Fiduciary for Holders of Senior Debt............................83
Section 11.16. Reliance by Holders of Senior Debt on Subordination Provisions..............83
ARTICLE 12. SUBORDINATION OF GUARANTEES......................................................83
Section 12.01. Agreement to Subordinate....................................................83
Section 12.02. Liquidation, Dissolution, Bankruptcy........................................83
Section 12.03. Default on Senior Debt of Guarantor.........................................84
Section 12.04. Demand for Payment..........................................................84
Section 12.05. When Distribution Must Be Paid Over.........................................84
Section 12.06. Subrogation.................................................................84
Section 12.07. Relative Rights.............................................................84
Section 12.08. Subordination May Not Be Impaired by Guarantor..............................85
Section 12.09. Rights of Trustee and Paying Agent..........................................85
Section 12.10. Distribution or Notice to Representative....................................85
Section 12.11. Article 12 Not to Prevent Events of Default Under a Guarantee or Limit Right
to Demand Payment...........................................................85
Section 12.12. Trustee Entitled to Rely....................................................85
Section 12.13. Trustee to Effectuate Subordination.........................................86
Section 12.14. Trustee Not Fiduciary for Holders of Senior Debt of Guarantor...............86
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 12.15. Reliance by Holders of Senior Debt of a Guarantor on Subordination
Provisions................................................................. 86
ARTICLE 13. SATISFACTION AND DISCHARGE.......................................................86
Section 13.01. Satisfaction and Discharge..................................................86
Section 13.02. Deposited Cash and U.S. Government Securities to be Held in Trust; Other
Miscellaneous Provisions....................................................87
Section 13.03. Repayment to Company........................................................87
ARTICLE 14. MISCELLANEOUS....................................................................87
Section 14.01. Trust Indenture Act Controls................................................87
Section 14.02. Notices.....................................................................87
Section 14.03. Communication by Holders of Notes with Other Holders of Notes...............88
Section 14.04. Certificate and Opinion as to Conditions Precedent..........................88
Section 14.05. Statements Required in Certificate or Opinion...............................89
Section 14.06. Rules by Trustee and Agents.................................................89
Section 14.07. No Personal Liability of Directors, Officers, Employees and Stockholders....89
Section 14.08. Governing Law...............................................................89
Section 14.09. No Adverse Interpretation of Other Agreements...............................89
Section 14.10. Successors..................................................................90
Section 14.11. Severability................................................................90
Section 14.12. Counterpart Originals.......................................................90
Section 14.13. Table of Contents, Headings, etc............................................90
Section 14.14. Qualification of this Indenture.............................................90
v
CROSS-REFERENCE TABLE
TIA SECTION INDENTURE
REFERENCE SECTION
310(a)(1)............................................................................... 7.10
(a)(2).................................................................................. 7.10
(a)(3).................................................................................. N.A.
(a)(4).................................................................................. N.A.
(a)(5).................................................................................. 7.10
(b)..................................................................................... 7.08, 7.10
(c)..................................................................................... N.A.
311(a).................................................................................. 7.11
(b)..................................................................................... 7.11
(c)..................................................................................... N.A.
312(a).................................................................................. 2.05
(b)..................................................................................... 14.03
(c)..................................................................................... 14.03
313(a).................................................................................. 7.06
(b)(1).................................................................................. N.A.
(b)(2).................................................................................. 7.06, 7.07
(c)..................................................................................... 7.06, 14.02
(d)..................................................................................... 7.06
314(a).................................................................................. 4.03, 4.04, 14.02
(b)..................................................................................... N.A.
(c)(1).................................................................................. 14.04
(c)(2).................................................................................. 14.04
(c)(3).................................................................................. N.A.
(d)..................................................................................... N.A.
(e)..................................................................................... 14.05
315(a).................................................................................. 7.01
(b)..................................................................................... 7.05, 14.02
(c)..................................................................................... 7.01
(d)..................................................................................... 7.01
(e)..................................................................................... 6.11
316(a) (last sentence).................................................................. 2.09
(a)(1)(A)............................................................................... 6.05
(a)(1)(B)............................................................................... 6.04
(a)(2).................................................................................. N.A.
(b)..................................................................................... 6.07
317(a)(1)............................................................................... 6.08
(a)(2).................................................................................. 6.09
(b)..................................................................................... 2.04
318(a).................................................................................. 14.01
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this
Indenture.
This
INDENTURE dated as of September 19, 2002, is by and among
Swift & Company, a Delaware corporation (the "COMPANY"), the Guarantors listed
on the signature pages hereto, and The Bank of
New York Trust Company of
Florida, N.A., as trustee (the "TRUSTEE").
The Company, the Guarantors and the Trustee agree as follows
for the benefit of each other and for the equal and ratable benefit of the
Holders of the 12 1/2% Senior Subordinated Notes due January 1, 2010 (the
"NOTES"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. DEFINITIONS.
For all purposes of this
Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
"144A Global Note" means the Global Note in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with and registered in the name of the Depositary or its nominee
that will be issued in a denomination equal to the outstanding principal amount
of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means Debt of a Person or any of its
Subsidiaries existing at the time that Person becomes a Restricted Subsidiary of
the Company or at the time it merges or consolidates with the Company or any of
its Restricted Subsidiaries or assumed in connection with the acquisition of
assets from that Person.
"Acquisition Agreement" means the agreement by and among
ConAgra Foods, S&C Holdco, Inc. (now known as Swift Foods Company) and HMTF
Rawhide, L.P., dated as of May 20, 2002, as amended from time to time in
accordance with this
Indenture.
"Additional Notes" means any Notes (other than Initial Notes)
issued under this Indenture in accordance with Sections 2.02, 2.15 and 4.09
hereof, as part of the same series as the Initial Notes or as an additional
series.
"Additional Senior Notes" means any Senior Notes (other than
Initial Senior Notes and Senior Exchange Notes) issued under the Senior Notes
Indenture in accordance with Sections 2.02, 2.15 and 4.09 thereof, as part of
the same series as the Initial Senior Notes or as an additional series.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such 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 to the foregoing.
"Agent" means any Registrar, co-registrar, Paying Agent or
additional paying agent.
"Applicable Procedures" means, with respect to any transfer,
redemption or exchange of or for beneficial interests in any Global Note, the
rules and procedures of the Depositary, Euroclear and Clearstream that apply to
such transfer, redemption or exchange.
"Asset Sale" means any sale, lease (other than operating
leases entered into in the ordinary course of business), transfer, issuance or
other disposition (or series of related sales, leases, transfers, issuances or
dispositions that are part of a common plan) of shares of Capital Stock of a
Restricted Subsidiary (other than directors' qualifying shares), property or
other assets (each referred to for the purposes of this definition as a
"disposition") by the Company or any of its Restricted Subsidiaries (including
any disposition by means of a merger, consolidation or similar transaction)
other than:
(1) a disposition by a Restricted Subsidiary to the Company,
by the Company or a Restricted Subsidiary to a Wholly Owned Subsidiary
Guarantor or by a Foreign Restricted Subsidiary to another Foreign
Restricted Subsidiary;
(2) a disposition of inventory in the ordinary course of
business;
(3) a disposition of obsolete or worn out equipment or
equipment that is no longer useful in the conduct of the business of
the Company and its Restricted Subsidiaries and that is disposed of in
each case in the ordinary course of business;
(4) dispositions or a series of related dispositions of
property for net proceeds which, when taken collectively with the net
proceeds of any other such dispositions under this clause (4) that were
consummated since the beginning of the calendar year in which such
disposition is consummated, are less than $1.0 million;
(5) transactions permitted under Section 5.01 hereof;
(6) the making of a Permitted Investment or any other
transaction permitted by Section 4.10 hereof;
(7) licenses or similar agreements with respect to
intellectual property or other general intangibles owned or licensed by
the Company or any of its Restricted Subsidiaries in the ordinary
course of business;
(8) any transaction that constitutes a Change of Control;
(9) a disposition of Cash Equivalents in the ordinary course
of business;
(10) pro rata dispositions of property to joint venture
partners in connection with the dissolution or other termination of a
joint venture;
(11) a transfer resulting from a casualty or condemnation of
assets; and
(12) the trade or exchange by the Company or any Restricted
Subsidiaries of any assets used or useful in the Company's business or
any Related Business that are owned or held by the Company or such
Restricted Subsidiary solely for assets used or useful in the Company's
business or any Related Business that are owned or held by another
Person that the Board of Directors of the Company determines in good
faith by Board Resolution to be of approximately equivalent value;
provided, however, that for any trade or exchange or series of trades
or exchanges involving value in excess of $25.0 million the Company
must obtain a written opinion from an Independent Financial Advisor to
the effect that the assets received constitutes an exchange of
equivalent value.
"Attributable Debt" in respect of a Sale and Leaseback
Transaction under the Senior Note Indenture means, at any date of determination;
(1) if such Sale and Leaseback Transaction is a Capitalized
Lease Obligation, the amount of Debt represented thereby according to
the definition of "Capitalized Lease Obligation;" and
(2) in all other instances the present value (discounted at
the interest rate borne by the Senior Notes, compounded semi-annually)
of the total obligations of the lessee for rental payments during the
remaining term of the lease included in such Sale and Leaseback
Transaction (including any period for which such lease has been
extended).
2
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal, state or foreign law for the relief of debtors.
"Board of Directors" means:
(1) with respect to a corporation, the Board of Directors of
the corporation;
(2) with respect to a partnership, the Board of Directors or
similar board or committee or Person serving a similar function of the
managing general partner of the partnership; and
(3) with respect to any other Person, the board or committee
of that Person or any Person serving a similar function.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the applicable Person to have been
duly adopted by the Board of Directors of such Person and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capitalized Lease Obligation" means, as to any Person, the
obligation of such Person to pay rent or other amounts under a lease to which
such Person is a party that is required to be classified and accounted for as a
capital lease obligation under GAAP, and for purposes of this definition, the
amount of such obligation at any date shall be the capitalized amount of such
obligation at such date, determined in accordance with GAAP.
"Capital Stock" means:
(1) with respect to any Person that is a corporation, any and
all shares of corporate stock of that Person;
(2) with respect to any Person that is an association or
business entity, any and all shares, interests, participations, rights
or other equivalents, however designated, of capital stock of that
Person;
(3) with respect to any Person that is a partnership or
limited liability company, any and all partnership or membership
interests, whether general or limited, of that Person; and
(4) with respect to any other Person, any other interest or
participation that confers on a Person the right to receive a share of
the profits and losses of or distributions of assets of, the issuing
Person.
"Cash Equivalents" means any of the following:
(1) any Investment in direct obligations of the United States
of America or any agency thereof or obligations guaranteed by the
United States of America or any agency thereof;
(2) Investments in eurodollar time deposits, time deposit
accounts, certificates of deposit and money market deposits maturing
within 360 days of the date of acquisition thereof issued by a bank or
trust company which is organized under the laws of the United States of
America, any state thereof or any foreign country recognized by the
United States of America having capital, surplus and undivided profits
aggregating in excess of $250 million and whose long-term debt, or
whose parent holding company's long-term debt, is rated "A" (or such
similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436
under the Securities Act);
(3) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clause (1)
above entered into with a bank meeting the qualifications described in
clause (2) above;
3
(4) Investments in commercial paper, maturing not more than
360 days after the date of acquisition, issued by a corporation (other
than an Affiliate of the Company) organized and in existence under the
laws of the United States of America or any foreign country recognized
by the United States of America with a rating at the time as of which
any investment therein is made of "P-1" (or higher) according to
▇▇▇▇▇'▇ or "A-1" (or higher) according to S&P;
(5) Investments in securities maturing not more than 360 days
after the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least
"A" by S&P or "A" by ▇▇▇▇▇'▇; and
(6) Investments in mutual funds whose investment guidelines
restrict substantially all of such funds' investments to those
satisfying the provisions of clauses (1) through (5) above.
"Cattle Feed Companies" means Swift Cattle Holdco, Inc., a
Delaware corporation, ▇▇▇▇▇▇▇ Finance Company, Inc., a Colorado corporation, and
Northern Colorado Feed, LLC, a Colorado limited liability company.
"Change of Control" means the occurrence of any of the
following events:
(1) 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 Subsidiaries
taken as a whole to any Person or Group (whether or not otherwise in
compliance with the provisions of this Indenture), other than to one or
more of the Permitted Holders or their Related Parties;
(2) any Person or Group, other than one or more of the
Permitted Holders or of their Related Parties, becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities constituting more than 50% of the Company's
Voting Stock;
(3) the approval by the holders of Capital Stock of the
Company of any plan or proposal for the liquidation or dissolution of
the Company (whether or not otherwise in compliance with the provisions
of this Indenture); or
(4) a majority of the Board of Directors of the Company shall
consist of Persons who are not Continuing Directors.
"Clearstream" means Clearstream Banking S.A. and any successor
thereto.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Commodity Agreement" means any commodity futures contract,
commodity option or similar agreement or arrangement designed to protect against
fluctuations in the price of commodities used at the time in the ordinary course
of business.
"ConAgra Foods" means ConAgra Foods, Inc., a Delaware
corporation.
"Consolidated Coverage Ratio" means, with respect to any
Person as of any date of determination, the ratio of:
(1) Consolidated EBITDA for that Person for the period of the
most recent four consecutive fiscal quarters ending prior to the date
of such determination and as to which financial statements are
available and have been filed with the Commission and/or provided to
the Trustee, to
(2) Consolidated Interest Expense for that Person for those
four fiscal quarters.
4
In the event that such Person or any of its Restricted
Subsidiaries Incurs, assumes, guarantees, repurchases, repays or redeems any
Debt or issues any Preferred Stock or Disqualified Capital Stock subsequent to
the commencement of the period for which the Consolidated Coverage Ratio is
being calculated but prior to the event for which the calculation of the
Consolidated Coverage Ratio is made (the "CALCULATION DATE"), then the
Consolidated Coverage Ratio shall be calculated giving pro forma effect to such
Incurrence, assumption, guarantee, repurchase, repayment or redemption of Debt
or issuance of Preferred Stock or Disqualified Capital Stock as if the same had
occurred at the beginning of the applicable four-quarter period. For purposes of
making the computation referred to above, Investments, acquisitions,
dispositions, mergers, consolidations, restructurings, joint ventures and
discontinued operations that are made by such Person or any of its Restricted
Subsidiaries during the four-quarter reference period or subsequent to such
reference period and on or prior to or simultaneously with the Calculation Date
will be calculated on a pro forma basis assuming that all such Investments,
acquisitions, dispositions, mergers, consolidations, restructurings, joint
ventures and discontinued operations (and the increase or reduction of any
associated interest obligations and the change in Consolidated EBITDA resulting
therefrom) had occurred on the first day of the four-quarter reference period.
If since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary of or was merged with or into any
Restricted Subsidiary since the beginning of such period) shall have made any
Investment, acquisition, disposition, merger, consolidation, restructuring,
joint venture or discontinued operation that would have required adjustment
pursuant to this definition, then the Consolidated Coverage Ratio shall be
calculated giving pro forma effect thereto for such period as if such
Investment, acquisition, disposition, merger, consolidation, restructuring,
joint venture or discontinued operation had occurred at the beginning of the
applicable four-quarter period.
Without limiting the two preceding paragraphs, if any portion
of the four-quarter reference period is prior to the date of the issuance of the
Notes, then the Consolidated Coverage Ratio shall be adjusted (on a pro rata
basis for such period or portion thereof occurring prior to such date) to give
pro forma effect to each of the following, as if each of the following had
occurred on the first day of the four-quarter reference period: (a) the
elimination of businesses and assets not acquired in connection with the
Transaction (including the elimination of the Cattle Feed Companies, the
Divested Companies and Weld Insurance Company), (b) the elimination of
historical allocated corporate costs, (c) an adjustment necessary to reflect the
incremental allocated corporate costs as if the Transaction was consummated on
the first day of the four-quarter reference period and (d) the non-inclusion of
certain pension and retiree medical plans as part of the Transaction.
For purposes of this definition, whenever pro forma effect is
to be given to a transaction, the pro forma calculations shall be made in good
faith by a responsible financial or accounting officer of the Person. If any
Debt bears a floating rate of interest and is being given pro forma effect, the
interest on such Debt will be calculated as if the rate in effect on the
Calculation Date had been the applicable rate for the entire period (taking into
account any Hedging Obligations applicable to that Debt). Interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by a responsible financial or accounting officer of the
Person to be the rate of interest implicit in such Capitalized Lease Obligation
in accordance with GAAP.
For purposes of making the computation referred to above,
interest on any Debt under a revolving credit facility or similar arrangement
computed on a pro forma basis shall be computed based on the average balance of
such Debt during the applicable period. Interest on Debt that may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rate, shall be deemed to have been
based upon the rate actually chosen, or, if none, then based upon such optional
rate chosen as the Person may designate.
"Consolidated Current Liabilities" means, as of any date of
determination, the aggregate amount of liabilities of the Company and its
consolidated Restricted Subsidiaries which may properly be classified as current
liabilities (including taxes accrued as estimated), after eliminating:
(1) all intercompany items between the Company and any
Restricted Subsidiary or between Restricted Subsidiaries, and
(2) all short-term debt and all current maturities of
long-term Debt.
5
"Consolidated EBITDA" means, with respect to any Person for
any period, the Consolidated Net Income of the Person and its Restricted
Subsidiaries for that period plus, to the extent such amount was deducted in
calculating Consolidated Net Income and as determined in conformance with GAAP:
(1) Consolidated Interest Expense;
(2) income tax expense;
(3) depreciation expense;
(4) amortization expense;
(5) exchange or translation losses on foreign currencies;
(6) upfront expenses resulting from or charges relating to
equity offerings, investments, mergers, recapitalizations, option
buyouts, dispositions, acquisitions and similar transactions to the
extent those expenses reduce net income;
(7) restructuring charges or write-offs;
(8) gains or losses on dispositions;
(9) any costs or charges which would otherwise reduce
Consolidated EBITDA as a result of an increase in value to the
pre-acquisition historical amounts of accounts receivable, inventories
or any other current assets (the "WRITE-UP"), to the extent the
write-up is required by GAAP, and occurs as a result of any acquisition
permitted under this Indenture;
(10) the amount of any minority interest expense;
(11) without duplication, all other non-cash items (excluding
any charge which represents the accrual of, or a reserve for,
anticipated cash charges for any future period), extraordinary items
and nonrecurring and unusual items reducing such Consolidated Net
Income; and
(12) any decrease in Consolidated Net Income resulting solely
from the marking to market of open positions on beef and pork contracts
required by the application of Statement of Financial Accounting
Standards No. 133, "Accounting for Derivative Instruments and Hedging
Activities" of the Financial Accounting Standards Board (and any
replacement or successor statement);
less all non-cash items (excluding items which represent the reversal of a
charge referred to in the parenthetical to clause (11) above) and nonrecurring
and unusual items increasing such Consolidated Net Income.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the sum, without duplication of:
(1) consolidated interest expense of that Person and its
Restricted Subsidiaries for that period, to the extent such expense was
deducted in computing Consolidated Net Income, including:
(a) amortization of debt discount;
(b) the interest component of Capitalized Lease
Obligations;
(c) commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance
financing;
(d) interest actually paid by that Person or any of
its Restricted Subsidiaries under any guarantee of Debt or
other obligation of any other Person;
6
(e) net payments (whether positive or negative)
pursuant to Interest Rate Protection Agreements;
(f) the cash contributions to any employee stock
ownership plan or similar trust to the extent such
contributions are used by such plan or trust to pay interest
or fees to any Person (other than the Company) in connection
with Debt Incurred by that plan or trust; and
(g) cash and Disqualified Capital Stock dividends in
respect of all Preferred Stock of Restricted Subsidiaries and
Disqualified Capital Stock of the Company held by Persons
other than the Company or a Wholly Owned Subsidiary; and
(2) consolidated capitalized interest of that Person and its
Restricted Subsidiaries for that period, whether paid or accrued;
less, to the extent included in the consolidated interest expense of that
Person, (A) non-cash interest on any Debt (provided that such Debt does not
require any repayment of all or any portion of the principal amount thereof
prior to the final maturity of the Notes) and (B) debt discount solely to the
extent relating to the issuance and sale of Debt together with any equity
security as part of an investment unit and (C) the amortization of capitalized
debt issuance costs.
Notwithstanding the foregoing, the Consolidated Interest
Expense with respect to any Restricted Subsidiary of the Person that was not a
Wholly Owned Subsidiary will be included only to the extent (and in the same
proportion) that the net income of such Restricted Subsidiary was included in
calculating Consolidated Net Income.
"Consolidated Net Income" means, with respect to any Person
for any period, the net income (loss) of that Person and its consolidated
Restricted Subsidiaries, determined in accordance with GAAP and before any
reduction in respect of Preferred Stock dividends; provided, however, that
Consolidated Net Income for that Person for that period will exclude, without
duplication:
(1) any net income of any Restricted Subsidiary of the Person
if and to the extent that Restricted Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends or
the making of distributions by such Restricted Subsidiary, directly or
indirectly, to that Person, other than restrictions in effect on the
date the Notes are first issued with respect to a Restricted Subsidiary
of that Person and other than restrictions that are either created or
exist in compliance with the provisions of Section 4.13 or are legally
waived;
(2) any net after-tax gain or loss (including all fees and
expenses related thereto) realized upon the sale or other disposition
of any assets of the Person or its consolidated Restricted
Subsidiaries, including pursuant to any Sale and Leaseback Transaction,
which are not sold or otherwise disposed of in the ordinary course of
business;
(3) any net after-tax extraordinary gain or loss (including
all fees and expenses related thereto);
(4) the cumulative effect of a change in accounting
principles;
(5) any net after-tax income (loss) from discontinued
operations and any net after-tax gains or losses on disposal of
discontinued operations;
(6) the net income of any Person, other than a Restricted
Subsidiary, except to the extent of the lesser of:
7
(a) dividends or distributions paid to the Company or
any of its Restricted Subsidiaries by that Person: and
(b) the net income of that Person, but in no event
less than zero;
(7) any non-cash expenses attributable to grants or exercises
of employee or independent contractor stock options or equity
compensation arrangements; and
(8) any costs relating to the Transaction that would be
required to be expensed under GAAP;
provided, further, however, that solely when determining Consolidated Net Income
for purposes of paragraph (a)(iii)(A) under Section 4.10, the following items
shall be added back to Consolidated Net Income to the extent such amount was
deducted in calculating Consolidated Net Income and as determined in accordance
with GAAP:
(a) extraordinary items and nonrecurring and unusual
items;
(b) the ▇▇▇▇-to-market impact of open positions
accounted for in accordance with Statement of Financial
Accounting Standards No. 133, "Accounting for Derivative
Instruments and Hedging Activities;" and
(c) the amount of any non-cash items related to the
compensation of employees, officers, directors or consultants
and impairments of intangible assets.
"Consolidated Net Tangible Assets" means, as of any date of
determination, the sum of the amounts that would appear on a consolidated
balance sheet of the Company and its consolidated Restricted Subsidiaries as the
total assets (less accumulated depreciation and amortization, allowances for
doubtful receivables, other applicable reserves and other properly deductible
items) of the Company and its Restricted Subsidiaries, after giving effect to
purchase accounting and after deducting therefrom Consolidated Current
Liabilities and, to the extent otherwise included, the amounts of (without
duplication):
(1) the excess of cost over fair market value of assets or
businesses acquired;
(2) any revaluation or other write-up in book value of assets
subsequent to the last day of the fiscal quarter of the Company
immediately preceding the date the Notes are first issued as a result
of a change in the method of valuation in accordance with GAAP;
(3) unamortized debt discount and expenses and other
unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, licenses, organization or developmental
expenses and other intangible items;
(4) minority interests in consolidated Subsidiaries held by
Persons other than the Company or any Restricted Subsidiary;
(5) treasury stock;
(6) cash or securities set aside and held in a sinking or
other analogous fund established for the purpose of redemption or other
retirement of Capital Stock to the extent such obligation is not
reflected in Consolidated Current Liabilities; and
(7) Investments in and assets of Unrestricted Subsidiaries.
"Continuing Directors" means (a) at any time during the first
two years after the closing of the Transaction, individuals who are directors of
the Company on the closing date (after giving effect to the Transaction) or
whose election was approved by a vote of at least a majority of individuals who
were Continuing Directors as of the time of such election and (b) at any time
thereafter, individuals who, two years prior to such time,
8
were directors of the Company or whose election was approved by a vote of at
least a majority of individuals who were Continuing Directors as of the time of
such election.
"Contribution Agreement" means the agreement by and among the
Company, Swift Foods Company, S&C Holdco 2, Inc. and Parent entered into as of
the date the Notes are first issued, pursuant to which Swift Foods Company, S&C
Holdco 2, Inc. and Parent will contribute or otherwise pay over, or cause any of
their Subsidiaries (other than Swift Cattle Holdco, Inc. and ▇▇▇▇▇▇▇ Finance
Company, Inc.) to contribute or otherwise pay over, to the Company any amounts
they receive from ConAgra Foods or its Affiliates pursuant to indemnification
claims under the Acquisition Agreement and any amounts obtained from other
sources which are applied to offset any indemnification claims that the Company
could otherwise make under the Acquisition Agreement.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 14.02 hereof or such other address
as to which the Trustee may give notice to the Company.
"Currency Protection Agreement" means any currency protection
agreement entered into with one or more financial institutions in the ordinary
course of business that is designed to protect the person or entity entering
into the agreement against fluctuations in currency exchange rates with respect
to Debt Incurred and not for purposes of speculation.
"Custodian" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as Custodian with respect to the Notes, any and all successors thereto
appointed as custodian hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"Debt" means, with respect to any Person on any date of
determination, without duplication, any indebtedness of that Person:
(1) for borrowed money;
(2) evidenced by bonds, debentures, notes or other similar
instruments;
(3) constituting Capitalized Lease Obligations and all
Attributable Debt in respect of Sale and Leaseback Transactions;
(4) Incurred or assumed as the deferred and unpaid purchase
price of property or services, or pursuant to conditional sale
obligations and title retention agreements (but excluding trade
accounts payable and accrued expenses arising in the ordinary course of
business), which purchase price is due more than six months after the
date of placing such property in service or taking delivery and title
thereto or the completion of such services;
(5) for reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction;
(6) for Debt of other Persons to the extent guaranteed by such
Person;
(7) for Hedging Obligations; and
(8) for Debt of any other Person of the type referred to in
clauses (1) through (7) which is secured by any Lien on any property or
asset of such first referred to Person, the amount of such Debt being
deemed to be the lesser of the value of the property or asset
underlying the Lien or the amount of the Debt so secured.
9
The amount of Debt of any Person at any date will be:
(a) the sum of (I) the outstanding principal amount
of all unconditional obligations described above, as such
amount would be reflected on a balance sheet prepared in
accordance with GAAP and (II) the maximum liability, upon the
occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date; and
(b) the accreted value of that Debt, in the case of
any Debt issued with original issue discount.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.06 hereof, in
substantially the form of Exhibit A hereto except that such Note shall not bear
the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Demand Registration Statement" means the Demand Registration
Statement as defined in the Registration Rights Agreement.
"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
hereof as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"Designated Preferred Stock" means Preferred Stock of a
Person, other than Preferred Stock that is Disqualified Capital Stock, that is
issued to another Person other than to a Restricted Subsidiary, for cash and is
so designated as "Designated Preferred Stock," pursuant to an Officers'
Certificate executed by the principal executive officer and the principal
financial officer of the Person, on the issuance date of that Preferred Stock,
the cash proceeds of which are excluded from the calculation set forth in clause
(a)(iii)(B) of Section 4.10.
"Designated Senior Debt" means:
(1) any Senior Debt that has, at the time of determination, an
aggregate principal amount outstanding of at least $25.0 million
(including the amount of all undrawn commitments and matured and
contingent reimbursement obligations pursuant to letters of credit
thereunder) that is specifically designated in the instrument
evidencing such Senior Debt and in an Officers' Certificate delivered
to the Trustee as "Designated Senior Debt" of the Company for purposes
of this Indenture;
(2) any Senior Debt outstanding under the Senior Credit
Facilities; and
(3) any Senior Debt outstanding under the Senior Notes
Indenture.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets or Capital Stock.
"Disqualified Capital Stock" means any Capital Stock that, by
its terms or by the terms of any security into which it is convertible or for
which it is exchangeable, or upon the happening of any event,
(1) matures (excluding any maturity as the result of an
optional redemption by the issuer of that Capital Stock);
(2) is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise; or
(3) is redeemable at the sole option of its holder,
10
in whole or in part, on or prior to the final maturity date of the Notes;
provided, however, that only the portion of Capital Stock that so matures or is
mandatorily redeemable or is so redeemable at the sole option of its holder
prior to the final maturity date of the Notes will be deemed Disqualified
Capital Stock.
"Distribution Compliance Period" means the 40-day distribution
compliance period as defined in Regulation S.
"Divested Companies" shall have the meaning set forth in the
Acquisition Agreement.
"Domestic Restricted Subsidiary" means a Restricted Subsidiary
incorporated or otherwise organized or existing under the laws of the United
States, any state thereof or any territory or possession of the United States.
"Equity Interests" means Qualified Capital Stock and all
warrants, options or other rights to acquire Qualified Capital Stock, but
excluding any debt security that is convertible into, or exchangeable for,
Qualified Capital Stock.
"Equity Offering" means any public or private sale of common
stock or Preferred Stock or options, warrants or rights with respect to such
common stock or Preferred Stock of the Company or the direct or indirect parent
of the Company, excluding Disqualified Capital Stock of the Company and public
offerings with respect to common stock registered on Form S-8 or any successor
form thereto under the Securities Act.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of
the Euroclear systems, and any successor thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excluded Proceeds" means the net cash proceeds received by a
Person from
(1) contributions to its equity capital other than
contributions from the issuance of Disqualified Capital Stock of the
Company or any of its Subsidiaries; and
(2) the sale, other than to a Subsidiary or to any management
equity or stock option plan or employee benefit plan of the Company, of
Qualified Capital Stock of the Person;
in each case designated as Excluded Proceeds pursuant to an Officers'
Certificate on the date the contributions are made or the date those Equity
Interests are sold, as the case may be, the cash proceeds of which are excluded
from the calculation set forth in clause (a)(iii)(B) of Section 4.10.
"Foreign Restricted Subsidiary" means any Restricted
Subsidiary which is not organized under the laws of the United States of America
or any State thereof or the District of Columbia.
"Foreign Subsidiary" means any Subsidiary which is not
organized under the laws of the United States of America or any State thereof or
the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America, including those 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 the Commission or in such other statements by such
other entity as approved by a significant segment of the accounting profession
as may from time to time be in effect. All ratios and computations based on GAAP
contained in this Indenture will be computed in conformity with GAAP.
"Global Note Legend" means the legend set forth in Section
2.06(f)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
11
"Global Notes" means the global Notes in the form of Exhibit A
hereto issued in accordance with Article 2 hereof.
"Group" means a group of related Persons for purposes of
Section 13(d) of the Exchange Act.
"guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof), of all or any part of any Debt. The term "guarantee" used as a
verb has a corresponding meaning.
"Guarantee" means a Guarantor's guarantee of the Notes,
subject to the provisions of Article 12 hereof.
"Guarantor" means: (1) Parent; (2) each of the Company's
Domestic Restricted Subsidiaries existing as of the date of this Indenture; and
(3) 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 Guarantee is released in accordance with the terms
of this Indenture.
"Hedging Obligations" means, with respect to any specified
entity, the obligations of that entity under:
(1) any Interest Rate Protection Agreement;
(2) foreign exchange contracts and Currency Protection
Agreements;
(3) any Commodity Agreement; and
(4) other agreements or arrangements entered into in the
ordinary course of business and designed to protect that entity against
fluctuations in interest rates, currency exchange rates or commodity
prices.
"▇▇▇▇▇ Muse" means Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated and
each of its successors.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold to Institutional Accredited Investors, if any.
"Incur" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by merger, conversion, exchange or
otherwise), extend, assume, guarantee or become liable in respect of such Debt
or other obligation or the recording, as required pursuant to GAAP or otherwise,
of any such Debt or obligation on the balance sheet of such Person (and
"Incurrence" and "Incurred" shall have meanings correlative to the foregoing);
provided, however, that a change in GAAP that results in an obligation of such
Person that exists at such time, and is not theretofore classified as Debt,
becoming Debt shall not be deemed an Incurrence of such Debt; provided further,
however, that any Debt or other obligations of a Person existing at the time
such Person becomes a Subsidiary (whether by merger, consolidation, acquisition
or otherwise) shall be deemed to be Incurred by such Subsidiary at the time it
becomes a Subsidiary.
"Indenture" means this instrument, as originally executed or
as it may from time to time be supplemented or amended in accordance with
Article 9 hereof.
12
"Independent Financial Advisor" means an accounting,
appraisal, investment banking firm or consultant to Persons engaged in the
Company's business of nationally recognized standing that is, in the judgment of
the Company's Board of Directors, qualified to perform the task for which it has
been engaged.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Notes" means $150,000,000 aggregate principal amount
of Notes issued under this Indenture on the date hereof.
"Initial Senior Notes" means $268,000,000 in aggregate
principal amount of Senior Notes issued under the Senior Notes Indenture on the
date hereof.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act.
"Interest Payment Dates" shall have the meaning set forth in
paragraph 1 of the Note.
"Interest Rate Protection Agreement" means, with respect to
any Person, 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 or other similar agreement or arrangement as to which that Person is a
party or beneficiary.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business) or other extension of credit (including by way of guarantee or similar
arrangement, but excluding any debt or extension of credit represented by a bank
deposit other than a time deposit) or capital contribution to (by means of any
transfer of cash or other property to other Persons or any payment for property
or services for the account or use of other Persons), or any purchase or
acquisition of Capital Stock, Debt or other similar instruments issued by such
Person.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of
New York, the city in which the Corporate
Trust Office of the Trustee is located, or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any
successor to the rating agency business of ▇▇▇▇▇'▇ Investors Service, Inc.
"Net Available Cash" from an Asset Sale means cash or Cash
Equivalents received, including any payments received by way of deferred payment
of principal pursuant to a note or installment receivable or otherwise, but only
as and when received, but excluding any other consideration received in the form
of assumption by the acquiring Person of Debt or other obligations relating to
the properties or assets subject to that Asset Sale, from that Asset Sale, in
each case net of
(1) all legal, accounting, investment banking, title and
recording tax expenses, commissions and other fees and expenses
incurred, and all U.S. federal, state, foreign and local taxes required
to be paid or accrued as a liability under GAAP in connection with such
Asset Sale;
(2) all payments made on any Debt which is secured by any
assets subject to such Asset Sale, other than the Senior Credit
Facilities, in accordance with the terms of any Lien upon such assets,
or which must by its terms, or in order to obtain a necessary consent
to the Asset Sale, or by applicable law, be repaid out of the proceeds
from the Asset Sale;
13
(3) all distributions and other payments required to be made
to any Person owning a beneficial interest in assets subject to sale or
minority interest holders in Subsidiaries or joint ventures as a result
of the Asset Sale;
(4) the deduction of appropriate amounts to be provided by the
seller as a reserve, in accordance with GAAP, against any liabilities
associated with the assets disposed of in the Asset Sale and retained
by the Company or any Restricted Subsidiary of the Company after that
Asset Sale; and
(5) any portion of the purchase price from an Asset Sale
placed in escrow, whether as a reserve for adjustment of the purchase
price, for satisfaction of indemnities in respect of such Asset Sale or
otherwise in connection with that Asset Sale; provided, however, that
upon the termination of that escrow, Net Available Cash will be
increased by any portion of funds in the escrow that are released to
the Company or any Restricted Subsidiary.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Debt.
"Officer" means the Chief Executive Officer, the President,
the Chief Financial Officer or any Executive Vice President of the Company.
"Officers' Certificate" means a certificate, in form and
substance reasonably satisfactory to the Trustee, signed by two Officers of the
Company, at least one of whom shall be the principal executive officer or
principal financial officer of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion, in form and
substance reasonably satisfactory to the Trustee, from legal counsel who is
acceptable to the Trustee and which meets the requirements of Section 12.05
hereof. The counsel may be an employee of or counsel to the Company or the
Trustee.
"Parent" means S&C Holdco 3, Inc., a Delaware corporation, and
its successors.
"Participant" means, with respect to the Depositary, Euroclear
or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively, and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream.
"Permitted Debt" means, without duplication:
(1) Debt outstanding on the date the Notes are first issued;
(2) Debt of the Company or a Restricted Subsidiary under the
Senior Credit Facilities, including guarantees thereof; provided that
the aggregate principal amount of all such Debt under the Senior Credit
Facilities at any one time outstanding shall not exceed the greater of
(a) $550.0 million, or (b) the sum of (I) 85% of the book value of the
accounts receivable of the Company and its Restricted Subsidiaries,
plus (II) 70% of the book value of the inventory (other than supplies)
of the Company and its Restricted Subsidiaries, (III) 15% of the book
value of the supplies of the Company and its Restricted Subsidiaries,
plus (IV) 100% of the book value of the plant, property and equipment
of the Company and its Restricted Subsidiaries (provided that any
amount under this clause (IV) shall not exceed $110.0 million), in each
case determined on a consolidated basis and to the extent eligible to
be included in the Borrowing Base (as defined in the Senior Credit
Facilities); less the amount of all repayments of term Debt with Net
Available Cash from Asset Sales applied pursuant to Section 4.12;
(3) Debt of the Company owing to and held by any Wholly Owned
Restricted Subsidiary or Debt of a Restricted Subsidiary owing to and
held by the Company or any Wholly Owned Restricted
14
Subsidiary; provided, however, that any Debt of the Company owing to
and held by any Wholly Owned Restricted Subsidiary that is not a
Guarantor is unsecured and is subordinated in right of payment to the
payment and performance of the Company's obligations under the Notes;
provided, further, however, that any subsequent issuance or transfer of
any Capital Stock or any other event which results in any such Wholly
Owned Restricted Subsidiary ceasing to be a Wholly Owned Restricted
Subsidiary or any subsequent transfer of any such Debt, except to the
Company or a Wholly Owned Restricted Subsidiary, will be deemed, in
each case, to constitute the Incurrence of that Debt by the issuer
thereof;
(4) Debt evidenced by or arising under (a) the Initial Notes,
the Guarantees and this Indenture and (b) the Initial Senior Notes, the
Senior Exchange Notes, the Senior Guarantees and the Senior Notes
Indenture;
(5) Hedging Obligations; provided, however, that the
agreements governing those Hedging Obligations are entered into for
bona fide hedging purposes and not for speculative purposes, as
determined in good faith by the Board of Directors or senior management
of the Company;
(6) additional Debt of the Company or any of its Restricted
Subsidiaries not otherwise permitted under Section 4.09, in an
aggregate principal amount, which when aggregated with the aggregate
principal amount of all other Debt then outstanding and Incurred
pursuant to this clause (6), does not at any one time outstanding
exceed $40.0 million (which amount may, but need not, be incurred under
the Senior Credit Facilities);
(7) Refinancing Debt;
(8) subject to compliance with Section 4.21, guarantees by the
Company or Restricted Subsidiaries of the Company of any Debt permitted
by this Indenture to be Incurred;
(9) Debt in respect of performance bonds, reimbursement
obligations with respect to letters of credit, bankers' acceptances,
completion guarantees and surety or appeal bonds provided by the
Company or any of its Restricted Subsidiaries in the ordinary course of
their business or Debt with respect to reimbursement type obligations
regarding workers' compensation claims;
(10) pledges, deposits or payments made or given in the
ordinary course of business in connection with or to secure statutory,
regulatory or similar obligations, including obligations under health,
safety or environmental obligations, or arising from guarantees to
suppliers, lessors, licensees, contractors, franchisees or customers of
obligations, other than Debt, made in the ordinary course of business;
(11) Debt arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations,
or from guarantees or letters of credit, surety bonds or performance
bonds securing any obligations of the Company or any of its Restricted
Subsidiaries pursuant to those agreements, in each case Incurred in
connection with the disposition of any business assets or Restricted
Subsidiaries of the Company, other than guarantees of Debt or other
obligations Incurred by any Person acquiring all or any portion of
those business assets or Restricted Subsidiaries of the Company for the
purpose of financing that acquisition, in a principal amount not to
exceed the gross proceeds, including non-cash proceeds, actually
received by the Company or any of its Restricted Subsidiaries in
connection with that disposition; provided, however, that such Debt is
not reflected on the balance sheet of the Company or any of its
Restricted Subsidiaries, other than as contingent obligations referred
to in a footnote to financial statements and not otherwise reflected on
the balance sheet;
(12) Debt, including but not limited to Capitalized Lease
Obligations, mortgage financings or purchase money obligations,
Incurred for the purpose of financing all or any part of the purchase
price or cost of construction or improvement of property or assets,
whether through direct purchase of assets or the Capital Stock of any
Person owning those assets, or Incurred to refinance any such purchase
price or cost of construction or improvement in an aggregate amount not
to exceed at any one time outstanding $25.0 million;
15
(13) Acquired Debt or Disqualified Capital Stock of Persons
that are acquired by the Company or any of its Restricted Subsidiaries
or merged into a Restricted Subsidiary in accordance with the terms of
this Indenture; provided, however, that such Acquired Debt or
Disqualified Capital Stock is not Incurred in contemplation of that
acquisition or merger; and provided, further, that after giving effect
to the acquisition or merger, the Company would be permitted to Incur
at least $1.00 of additional Debt, other than Permitted Debt, under
paragraph (a) of Section 4.09; and
(14) Debt arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn
inadvertently against insufficient funds in the ordinary course of
business, provided that such Debt is extinguished within five business
days of incurrence of such Debt.
"Permitted Holders" means ▇▇▇▇▇ Muse, its Affiliates and each
of their respective principals, employees, partners, officers, members and
directors.
"Permitted Investment" means an Investment by the Company or
any of its Restricted Subsidiaries in:
(1) cash or Cash Equivalents;
(2) an Investment existing on the date the Notes are first
issued;
(3) receivables owing to the Company or any of its Restricted
Subsidiaries, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms,
including any receivables from livestock suppliers;
(4) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary
course of business;
(5) loans and advances to employees or independent contractors
made in the ordinary course of business in an aggregate amount
outstanding at any one time not to exceed $1.0 million;
(6) stock, obligations or securities received in settlement of
debts created in the ordinary course of business and owing to the
Company or any of its Restricted Subsidiaries or in satisfaction of
judgments or claims or pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of a debtor;
(7) Hedging Obligations permitted under clause (5) of the
definition of "Permitted Debt;"
(8) other Investments by the Company or any of its Restricted
Subsidiaries, together with all other Investments made pursuant to this
clause (8), in an aggregate amount at any time outstanding not to
exceed $75.0 million; provided that the value of any such Investment
shall be determined at the time such Investment was made;
(9) Persons to the extent such Investment is received by the
Company or any Restricted Subsidiary as non-cash consideration for
Asset Sales effected in compliance with Section 4.12;
(10) prepayments and other credits to suppliers made in the
ordinary course of business;
(11) Investments in connection with pledges, deposits,
payments or performance bonds made or given in the ordinary course of
business in connection with or to secure statutory, regulatory or
similar obligations, including obligations under health, safety or
environmental obligations;
(12) any transaction to the extent it constitutes an
Investment that is permitted by and made in accordance with the
provisions of the second paragraph of Section 4.14;
16
(13) the Company or a Wholly Owned Restricted Subsidiary;
provided, however, that the primary business of such Wholly Owned
Restricted Subsidiary or of its Wholly Owned Restricted Subsidiaries,
as the case may be, is a Related Business; and
(14) another Person if as a result of such Investment such
other Person becomes a Wholly Owned Restricted Subsidiary or is merged
or consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Company or a Wholly Owned
Restricted Subsidiary; provided, however, that in each case such
Person's primary business is a Related Business.
"Permitted Junior Securities" means:
(1) Capital Stock in the Company or any Subsidiary Guarantor
of the Notes; or
(2) debt securities that are subordinated to all Senior Debt
and debt securities that are issued in exchange for Senior Debt to
substantially the same extent as, or to a greater extent than, the
Notes and the Subsidiary Guarantees are subordinated to Senior Debt
under this Indenture and have a Stated Maturity after (and do not
provide for scheduled principal payments prior to) the Stated Maturity
of any Senior Debt and any debt securities issued in exchange for
Senior Debt;
provided, however, that, if such Capital Stock or debt securities are
distributed in a bankruptcy or insolvency proceeding, such Capital Stock or debt
securities are distributed pursuant to a plan of reorganization consented to by
each class of Designated Senior Debt.
"Permitted Liens" means:
(1) Liens to secure Debt permitted to be Incurred under clause
(2) of the definition of "Permitted Debt;"
(2) Liens on the outstanding Capital Stock or assets of
Foreign Subsidiaries to secure any intercompany notes issued by a
Foreign Subsidiary to the Company and any guarantee of such
intercompany notes by a Foreign Subsidiary evidencing a loan by the
Company to such Foreign Subsidiary of proceeds from the Senior Credit
Facilities;
(3) Liens to secure Debt permitted to be Incurred under clause
(12) of the definition of "Permitted Debt;" provided that any such Lien
may not extend to any property of the Company or any Restricted
Subsidiary, other than the property acquired, constructed or leased
with the proceeds of such Debt and such Liens secure Debt in an amount
not in excess of the original purchase price or the original cost of
any such property and any improvements or accessions to such property;
(4) Liens for taxes, assessments or governmental charges or
levies on the property of the Company or any Restricted Subsidiary if
the same shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by
appropriate proceedings promptly instituted and diligently concluded;
(5) Liens imposed by law, such as carriers', warehousemen's
and mechanics' Liens and other similar Liens, on the property of the
Company or any Restricted Subsidiary arising in the ordinary course of
business and securing payment of obligations that are not more than 60
days past due or are being contested in good faith and by appropriate
proceedings;
(6) Liens on the property of the Company or any Restricted
Subsidiary Incurred in the ordinary course of business to secure
performance of obligations with respect to statutory or regulatory
requirements, performance or return-of-money bonds, surety bonds or
other obligations of a like nature and Incurred in a manner consistent
with industry practice, in each case which are not Incurred in
connection with the borrowing of money, the obtaining of advances or
credit or the payment of the deferred purchase price of property and
which do not in the aggregate impair in any material respect the use of
property in the operation of the business of the Company and the
Restricted Subsidiaries taken as a whole;
17
(7) Liens on property or assets of, or any shares of stock or
secured debt of, any Person at the time the Company or any Restricted
Subsidiary acquired such property or the Person owning such property,
including any acquisition by means of a merger or consolidation with or
into the Company or any Restricted Subsidiary; provided, however, that
any such Lien may not extend to any other property of the Company or
any Restricted Subsidiary; provided, further, however, that such Liens
shall not have been Incurred in anticipation of or in connection with
the transaction or series of transactions pursuant to which such
property was acquired by the Company or any Restricted Subsidiary;
(8) Liens on the property of a Person at the time such Person
becomes a Restricted Subsidiary; provided, however, that any such Lien
may not extend to any other property of the Company or any other
Restricted Subsidiary that is not a direct Subsidiary of such Person;
provided further, however, that any such Lien was not Incurred in
anticipation of or in connection with the transaction or series of
transactions pursuant to which such Person became a Restricted
Subsidiary;
(9) pledges or deposits by the Company or any Restricted
Subsidiary under workmen's compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of Debt) or leases
to which the Company or any Restricted Subsidiary is party, or deposits
to secure public or statutory obligations of the Company, or deposits
for the payment of rent, in each case Incurred in the ordinary course
of business;
(10) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character;
(11) Liens securing Hedging Obligations;
(12) Liens existing on the date the Notes are first issued not
otherwise described in clauses (1) through (11) above;
(13) Liens on the property of the Company or any Restricted
Subsidiary to secure any refinancing, refunding, extension, renewal or
replacement, in whole or in part, of any Debt secured by Liens referred
to in clause (3), (7), (8) or (12) above; provided, however, that any
such Lien shall be limited to all or part of the same property that
secured the original Lien (together with improvements and accessions to
such property) and the aggregate principal amount of Debt that is
secured by such Lien shall not be increased to an amount greater than
the sum of:
(a) the outstanding principal amount, or, if greater,
the committed amount, of the Debt secured by Liens described
under clause (3), (7), (8) or (12) above, as the case may be,
at the time the original Lien became a Permitted Lien under
this Indenture; and
(b) an amount necessary to pay any fees and expenses,
including premiums and defeasance costs, incurred by the
Company or such Restricted Subsidiary in connection with such
refinancing, refunding, extension, renewal or replacement; and
(14) Liens not otherwise permitted by clauses (1) through (13)
above encumbering assets having an aggregate fair market value not in
excess of 5% of Consolidated Net Tangible Assets at the time of the
incurrence of such Lien.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same Debt as that evidenced by such
particular Note; and for the purposes of this definition, any Note
18
authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the same Debt as the lost, destroyed or
stolen Note.
"Preferred Stock" of any Person means any Capital Stock of
that Person that has preferential rights to any other Capital Stock of that
Person with respect to dividends or redemptions or upon liquidation.
"Private Placement Legend" means the legend set forth in
Section 2.06(f)(i) hereof to be placed on all Notes issued under this Indenture
except as otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Refinancing Debt" means any Indebtedness that is Incurred by
the Company or any Restricted Subsidiaries to refund, refinance, replace, renew,
repay or extend any Indebtedness Incurred in accordance with Section 4.09 that
does not:
(1) result in an increase in the aggregate principal amount of
Debt (such principal amount to include, for purposes of this definition
only, any premiums, fees, penalties or accrued interest paid with the
proceeds of the Refinancing Debt) of the Company or that Restricted
Subsidiary; or
(2) create Debt with:
(a) a Weighted Average Life to Maturity that is less
than the Weighted Average Life to Maturity of the Debt being
refinanced; or
(b) a final maturity earlier than the final maturity
of the Debt being refinanced;
provided that in the event the obligor on the Debt being refunded, refinanced,
renewed, repaid or extended is the Company or a Subsidiary Guarantor, the
Refinancing Debt may only be incurred by the Company or a Subsidiary Guarantor.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the date hereof, among the Company, Parent, the Subsidiary
Guarantors and ConAgra Foods, as such agreement may be amended, modified or
supplemented from time to time and, with respect to any Additional Notes, one or
more registration rights agreements between the Company and the other parties
thereto, as such agreement(s) may be amended, modified or supplemented from time
to time, relating to rights given by the Company to the purchasers of Additional
Notes to register such Additional Notes under the Securities Act.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the date specified on the face of the Note.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a Regulation S Temporary
Global Note or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent Global
Note in the form of Exhibit A hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with and registered in the name of the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Distribution Compliance Period.
"Regulation S Temporary Global Note" means a temporary Global
Note in the form of Exhibit A hereto bearing the Global Note Legend, the Private
Placement Legend and Regulation S Temporary Global Note
19
Legend and deposited with and registered in the name of the Depository or its
nominee, issued in a denomination equal to the outstanding principal amount of
the Notes initially sold in reliance on Rule 903 of Regulation S.
"Regulation S Temporary Global Note Legend" means the legend
set forth in Section 2.06(f)(iii) hereof to be placed on all Regulation S
Temporary Global Notes issued under this Indenture.
"Related Business" means any business which is the same as or
related, ancillary or complementary to any of the businesses of the Company and
its Restricted Subsidiaries on the date the Notes are first issued, as
reasonably determined by the Company's Board of Directors.
"Related Parties" means any Person controlled by a Permitted
Holder, including any partnership of which a Permitted Holder or its Affiliates
is the general partner.
"Representative" means the trustee, agent or representative
expressly authorized to act in such capacity, if any, for an issue of Senior
Debt.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means one or more Definitive
Notes bearing the Private Placement Legend.
"Restricted Global Notes" means the 144A Global Note, the IAI
Global Note and the Regulation S Global Note.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Payment" means:
(1) the declaration or payment of any dividend or the making
of any other distribution (other than dividends or distributions
payable solely in Qualified Capital Stock or in options, rights or
warrants to acquire Qualified Capital Stock) on shares of the Company's
Capital Stock;
(2) the declaration or payment of any dividend or the making
of any other distribution on shares of the Capital Stock of a
Restricted Subsidiary to any Person (other than (a) to the Company or
any of its Wholly Owned Restricted Subsidiaries, (b) dividends or
distributions made by a Restricted Subsidiary on a pro rata basis to
all stockholders of such Restricted Subsidiary (or owners of an
equivalent interest in the case of a Restricted Subsidiary that is not
a corporation) or (c) dividends or distributions payable solely in its
Qualified Capital Stock or in options, rights or warrants to acquire
Qualified Capital Stock);
(3) the purchase, redemption, retirement or other acquisition
for value of any Capital Stock of the Company held by Persons other
than the Company or a Restricted Subsidiary of the Company or any
Capital Stock of a Restricted Subsidiary held by Persons other than the
Company or another Restricted Subsidiary (in either case, other than in
exchange for its Qualified Capital Stock or options, rights or warrants
to acquire Qualified Capital Stock or to the extent that after giving
effect to such purchase, redemption, retirement or acquisition, such
Restricted Subsidiary would become a Wholly Owned Subsidiary);
(4) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment, of any
Subordinated Debt of the Company or a Restricted Subsidiary (other than
the purchase, repurchase or other acquisition of Subordinated Debt
purchased (A) in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one
year of the date of purchase, repurchase
20
or acquisition or (B) in compliance with Section 4.12 to the extent
required by the indenture or other agreement or instrument pursuant to
which such Subordinated Debt was issued); or
(5) the making of any Investment (other than a Permitted
Investment) in any Person.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 903" means Rule 903 promulgated under the Securities
Act.
"Rule 904" means Rule 904 promulgated under the Securities
Act.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., or any successor to the rating agency business thereof.
"Sale and Leaseback Transaction" has the meaning set forth in
the Senior Note Indenture.
"Secured Debt" means any Debt of the Company or a Guarantor
secured by a Lien.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller Note" means the note in the principal amount of $150.0
million issued by Swift Foods Company to ConAgra Foods, and assigned by Swift
Foods Company to S&C Holdco 2, Inc., in connection with the Transaction.
"Senior Credit Facilities" means the Debt represented by:
(1) the Credit Agreement, dated as of the date of this
Indenture, among Parent, the Company, certain of its Subsidiaries, the
lenders party thereto, Citicorp USA, Inc., as Administrative Agent, and
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, as Syndication Agent, together with the related
documents thereto (including, without limitation, any guarantee
agreements and security documents), as the same may be amended,
supplemented or otherwise modified from time to time, including
amendments, supplements or modifications relating to the addition or
elimination of Subsidiaries of the Company as borrowers, guarantors or
other credit parties thereunder; and
(2) any renewal, extension, refunding, restructuring,
replacement or refinancing thereof (whether with the original
Administrative Agent and lenders or another administrative agent or
agents or one or more other lenders and whether provided under the
original Senior Credit Facilities or one or more other credit or other
agreements or indentures).
"Senior Debt" of the Company means all of its Obligations with
respect to Debt, whether outstanding on the date the Notes are first issued or
thereafter Incurred, and shall include (i) all obligations for interest accruing
on or after the filing of any petition in bankruptcy or for reorganization
relating to the Company whether or not such post-filing interest is allowed in
such proceeding and (ii) all fees, expenses and indemnities and all other
amounts payable with respect to Debt; provided, however, that Senior Debt shall
not include:
(1) any obligation in respect of the Notes or other Debt of
the Company that is by its terms subordinate or pari passu in right of payment
to the Notes;
(2) any Debt Incurred in violation of the provisions of this
Indenture;
21
(3) any obligation of the Company to any Subsidiary; or
(4) any obligations with respect to any Capital Stock of the
Company.
To the extent that any payment of Senior Debt (whether by or
on behalf of the Company as proceeds of security or enforcement or any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to a trustee, receiver or other similar party under any
Bankruptcy Law, then if such payment is recovered by, or paid over to, such
trustee, receiver or other similar party, the Senior Debt or part thereof
originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred. "Senior Debt" of any Guarantor
has a correlative meaning and shall not include any obligation of such Guarantor
to the Company or any other Subsidiary of the Company.
"Senior Exchange Notes" means Senior Notes issued in the
Exchange Offer pursuant to Section 2.06(f) of the Senior Notes Indenture.
"Senior Guarantee" means a Guarantor's guarantee of the Senior
Notes.
"Senior Notes" means the 10-1/8% Senior Notes due 2009 of the
Company, including the Initial Senior Notes, the Senior Exchange Notes and any
Additional Senior Notes.
"Senior Notes Indenture" means the Indenture, dated as of the
date hereof, by and among the Company, the Guarantors and The Bank of
New York
Trust Company of Florida, N.A., as Trustee, governing the Company's Senior
Notes.
"Senior Subordinated Debt" of the Company means the Notes and
any other subordinated Debt of the Company that specifically provides that such
Debt is to rank pari passu with the Notes and is not subordinated by its terms
to any other subordinated Debt or other obligation of the Company which is not
Senior Debt. "Senior Subordinated Debt" of any Guarantor has a correlative
meaning.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "significant subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the Commission.
"Special Interest" shall have the meaning set forth in the
Registration Rights Agreement.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Debt (including, without limitation, a
scheduled repayment or a scheduled sinking fund payment), the date on which the
payment of interest or principal was scheduled to be paid in the original
documentation governing such Debt, and will not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment hereof.
"Subordinated Debt" means any Debt of the Company or a
Restricted Subsidiary, whether outstanding on the date the Notes are first
issued or thereafter Incurred, which is subordinate or junior in right of
payment to the Notes or the Guarantee of such Restricted Subsidiary, as the case
may be, pursuant to a written agreement.
"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, through one or
more intermediaries, 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, through one or more intermediaries, owned by such
Person. Notwithstanding anything in this Indenture to the contrary, all
references to the Company and its consolidated Subsidiaries or to financial
information prepared on a consolidated basis in accordance with GAAP shall be
deemed to include the Company and its
22
Subsidiaries as to which financial statements are prepared on a combined basis
in accordance with GAAP and to financial information prepared on such a combined
basis. Notwithstanding anything in this Indenture to the contrary, an
Unrestricted Subsidiary shall not be deemed to be a Restricted Subsidiary for
purposes of this Indenture.
"Subsidiary Guarantee" means the Guarantee of the Notes by
each of the Subsidiary Guarantors pursuant to Article 10 and in the form of the
Guarantee attached as Exhibit E and any additional Guarantee of the Notes to be
executed by any Subsidiary of the Company pursuant to Section 4.19.
"Subsidiary Guarantor" means all of the Company's existing and
future Subsidiaries incorporated or otherwise organized or existing under the
laws of the United States, any state thereof or any territory or possession of
the United States and any other Subsidiary that becomes a Guarantor pursuant to
Section 4.19.
"Surviving Person" means, with respect to any Person involved
in or that makes any Disposition, the Person formed by or surviving such
Disposition or the Person to which such Disposition is made.
"Tax Sharing Agreement" means the agreement by and among the
Company, on the one hand, and certain of its direct and indirect parent entities
and the entities that will acquire and operate the domestic cattle feeding
operations of ConAgra Foods, on the other hand.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trademark License Agreements" means the Armour Transition
Trademark License Agreement among ConAgra Foods, ConAgra Brands, Inc. and Swift
Brands Company and the Swift Transition Trademark License Agreement between
Swift Brands Company and ConAgra Foods each dated as of the date the Notes are
first issued.
"Transaction" means the acquisition by the Company of the
United States beef, pork and lamb processing businesses and the Australian beef
business of ConAgra Foods pursuant to the Acquisition Agreement.
"Transaction Documents" means the Acquisition Agreement,
together with related documents, including the following documents all of which
will be dated as of the date the Notes are first issued:
(1) Cattle Supply Agreement, between Swift Beef Company and
▇▇▇▇▇▇▇ Finance Company, Inc.;
(2) Preferred Supplier Agreement, between ConAgra Foods and
Swift & Company;
(3) By-Products Marketing Agreement, between ConAgra Trade
Group, Inc. and Swift & Company;
(4) Transition Services Agreement, among ConAgra Foods,
▇▇▇▇▇▇▇ Finance Company, Inc., Swift Foods Company, Swift Beef Company,
Swift & Company, Swift Cattle Holdco, Inc., S&C Holdco 3, Inc., Swift
Pork Company, Kabushiki Kaisha SAC Japan, Australia Meat Holdings Pty.
Limited, Burcher Pty. Limited, Swift Refrigerated Foods, S.A. de C.V.,
▇▇▇▇▇▇ Bros. Co., Inc., ▇▇▇▇▇▇▇ Food Distribution Company, ▇▇▇▇▇▇▇
International Sales Corporation and ▇▇▇▇▇▇▇, Inc., as amended;
(5) Trademark License Agreements;
(6) Hangar License Agreement, between ConAgra Foods and Swift
Beef Company;
(7) Risk Management Agreement, between ConAgra Foods and
▇▇▇▇▇▇▇ Finance Company, Inc.;
(8) Seller Note;
23
(9) the promissory note(s) issued by S&C Australia Holdco Pty.
Ltd. to the Company;
(10) Monitoring and Oversight Agreement, among Swift Foods
Company, Swift & Company, Swift Pork Company, Swift Beef Company, S&C
Australia Holdco Pty. Ltd., Australia Meat Holdings Pty. Limited, S&C
Holdco 2, Inc., S&C Holdco 3, Inc. and ▇▇▇▇▇ Muse & Co. Partners, L.P.;
(11) Financial Advisory Agreement, among Swift Foods Company,
Swift & Company, Swift Pork Company, Swift Beef Company, S&C Australia
Holdco Pty. Ltd., Australia Meat Holdings Pty. Limited, S&C Holdco 2,
Inc., S&C Holdco 3, Inc. and ▇▇▇▇▇ Muse & Co. Partners, L.P.;
(12) Stockholders' Agreement, among HMTF Rawhide, L.P.,
ConAgra Foods, Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated and Swift Foods
Company;
(13) the employment and severance arrangements with senior
management of the Company;
(14) Indemnification and Release Agreement, among ConAgra
Foods, Swift Foods Company, S&C Holdco 2, Inc., S&C Holdco 3, Inc.,
Swift & Company, S&C Australia Holdco Pty. Ltd., Swift Cattle Holdco,
Inc., Swift Brands Company, Swift Beef Company, Swift Pork Company,
Kabushiki Kaisha SAC Japan, Swift Refrigerated Foods, S.A. de C.V.,
▇▇▇▇▇▇▇ Finance Company, Inc., Burcher Pty. Limited, ▇▇▇▇▇▇▇, Inc.,
Australia Meat Holdings Pty. Limited, ▇▇▇▇▇▇ Bros. Co., Inc., ▇▇▇▇▇▇▇
Food Distribution Company and ▇▇▇▇▇▇▇ International Sales Corporation;
(15) Contribution Agreement;
(16) Tax Sharing Agreement;
(17) Indemnity Side Letter from ConAgra Foods and Swift Foods
Company to HMTF Rawhide, L.P.;
(18) the lease for the Hyrum, Utah facilities from ConAgra
Foods or its Affiliates to the Company or its Affiliates;
(19) the side letter from ConAgra Foods to HMTF Rawhide, L.P.
and the initial purchasers regarding certain undertakings;
(20) intercompany promissory notes; and
(21) Patent License Agreement between ConAgra Foods and Swift
Brands Company;
and, in each case, the schedules, annexes and exhibits thereto.
"Treasury Yield" means, as of any redemption date, the yield
to maturity as of such redemption date of United States Treasury securities with
a constant maturity (as compiled by and published in the most recent Federal
Reserve Statistical Release H.15(519) that has become publicly available at
least two business days prior to the date fixed for redemption or, if such
statistical release is no longer published, any publicly available source of
similar market data) most nearly equal to the then remaining maturity of that
note. If the remaining maturity of such note is less than one year, the weekly
average yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year will be used.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Definitive Notes" means one or more Definitive
Notes that do not and are not required to bear the Private Placement Legend.
24
"Unrestricted Global Notes" means one or more Global Notes, in
the form of Exhibit A attached hereto, that do not and are not required to bear
the Private Placement Legend and are deposited with and registered in the name
of the Depositary or its nominee.
"Unrestricted Subsidiary" means any direct or indirect
Subsidiary of a Person that is designated by the Board of Directors of that
Person as an Unrestricted Subsidiary and any Subsidiary of that Unrestricted
Subsidiary. The Company and any of its Restricted Subsidiaries will only be
permitted to provide credit support for Debt of an Unrestricted Subsidiary,
including by way of intercompany Debt, Guarantee or otherwise, to the extent
that the Company is permitted to Incur such Debt under Section 4.09 and to make
an Investment under Section 4.10.
Any designation of a Subsidiary of the Company as an
Unrestricted Subsidiary will be evidenced to the Trustee by filing with the
Trustee a certified copy of the Board Resolution of the Board of Directors of
the Company giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the preceding conditions and was
permitted by Section 4.10 hereof. If, at any time, any Unrestricted Subsidiary
would fail to meet the preceding requirements as an Unrestricted Subsidiary, it
will thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred
by a Restricted Subsidiary of the Company as of such date and, if such
Indebtedness is not permitted to be incurred as of such date under Section 4.09,
the Company will be in default of such covenant. The Board of Directors of the
Company may at any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that such designation will be deemed to be an incurrence of
Indebtedness by one of the Company's Restricted Subsidiaries of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation will only be
permitted if (1) such Indebtedness is permitted under Section 4.09, calculated
on a pro forma basis as if such designation had occurred at the beginning of the
four-quarter reference period; (2) no Default or Event of Default would be in
existence following such designation; and (3) such Subsidiary executes and
delivers to the Trustee a supplemental indenture providing for a Subsidiary
Guarantee.
"U.S. Government Securities" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of any Person as of any date means the Capital
Stock of that Person that is at the time entitled to vote in the election of
that Person's Board of Directors.
"Weighted Average Life to Maturity" means, when applied to any
Debt at any date, the number of years obtained by dividing
(1) the then outstanding aggregate principal amount of such
Debt into
(2) the total of the product obtained by multiplying
(a) 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
(b) the number of years (calculated to the nearest
one-twelfth) which will elapse between such date and the
making of such payment.
"Weld Insurance Company" means Weld Insurance Company, a
Colorado corporation.
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary that is a Wholly Owned Subsidiary.
"Wholly Owned Subsidiary" means a Subsidiary of any Person,
all of the outstanding Capital Stock of which (other than any director's
qualifying shares or shares owned by foreign nationals to the extent mandated by
applicable law) is owned by such Person or one or more Wholly Owned Subsidiaries
of such Person.
25
"Wholly Owned Subsidiary Guarantor" means any Subsidiary
Guarantor that is a Wholly Owned Subsidiary.
Section 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Acceleration Notice"......................................................6.02
"Affiliate Transaction"....................................................4.14
"Asset Sale Offer".........................................................3.09
"Authentication Order".....................................................2.02
"Benefited Party"..........................................................10.01
"Change of Control Offer"..................................................4.18
"Change of Control Payment Date"...........................................4.18
"Change of Control Purchase Price".........................................4.18
"Covenant Defeasance"......................................................8.03
"DTC"......................................................................2.03
"Event of Default".........................................................6.01
"Legal Defeasance".........................................................8.02
"losses"...................................................................7.07
"Offer Amount".............................................................3.09
"Offer Period".............................................................3.09
"pay its Guarantee"........................................................12.03
"pay the Notes"............................................................11.03
"Paying Agent".............................................................2.03
"Payment Blockage Notice"..................................................11.03
"Payment Blockage Period"..................................................11.03
"Purchase Date"............................................................3.09
"Registrar"................................................................2.03
"Security Register"........................................................4.18
Section 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
(a) Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this Indenture.
(b) The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
(c) All other terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule under the TIA and not otherwise defined herein have the meanings so
assigned to them.
Section 1.04. RULES OF CONSTRUCTION.
(a) Unless the context otherwise requires:
26
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined herein
has the meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in
the plural include the singular;
(v) all references in this instrument to designated
"Articles," "Sections" and other subdivisions are to the
designated Articles, Sections and subdivisions of this
instrument as originally executed;
(vi) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
(vii) "including" means "including without
limitation;"
(viii) provisions apply to successive events and
transactions; and
(ix) references to sections of or rules under the
Securities Act shall be deemed to include substitute,
replacement or successor sections or rules adopted by the
Commission from time to time.
ARTICLE 2.
THE NOTES
Section 2.01. FORM AND DATING.
(a) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto, which is
hereby incorporated in and expressly made part of this Indenture. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage in addition to those set forth on Exhibit A. Each Note shall be dated the
date of its authentication. The Notes shall be in denominations of $1,000 and
integral multiples thereof. The terms and provisions contained in the Notes
shall constitute, and are hereby expressly made, a part of this Indenture and
the Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) FORM OF NOTES. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Notes issued in definitive form shall be substantially
in the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Each Global Note shall represent such of the outstanding
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions and transfers of interests
therein. Any endorsement of a Global Note to reflect the amount of any increase
or decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
(c) TEMPORARY GLOBAL NOTES. Notes offered and sold in reliance
on Regulation S shall be issued initially in the form of the Regulation S
Temporary Global Note, which shall be deposited on behalf of the
27
purchasers of the Notes represented thereby with the Trustee, at its
New York
office, as custodian for the Depositary, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated
agents holding on behalf of Euroclear or Clearstream, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The
Distribution Compliance Period shall be terminated upon the receipt by the
Trustee of (i) a written certificate from the Depositary, together with copies
of certificates from Euroclear and Clearstream certifying that they have
received certification of non-United States beneficial ownership of 100% of the
aggregate principal amount of the Regulation S Temporary Global Note (except to
the extent of any beneficial owners thereof who acquired an interest therein
during the Distribution Compliance Period pursuant to another exemption from
registration under the Securities Act and who will take delivery of a beneficial
ownership interest in a Global Note, bearing a Private Placement Legend, all as
contemplated by Section 2.06(b) hereof), and (ii) an Officers' Certificate from
the Company. Following the termination of the Distribution Compliance Period,
beneficial interests in the Regulation S Temporary Global Note shall be
exchanged for beneficial interests in the Regulation S Permanent Global Note
pursuant to the Applicable Procedures. Simultaneously with the authentication of
the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation
S Temporary Global Note. The aggregate principal amount of the Regulation S
Temporary Global Note and the Regulation S Permanent Global Notes may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee, as the case may be, in connection
with transfers of interests as hereinafter provided.
(d) BOOK-ENTRY PROVISIONS. This Section 2.01(d) shall only
apply to Global Notes deposited with the Trustee, as custodian for the
Depositary. Participants and Indirect Participants shall have no rights under
this Indenture with respect to any Global Note held on their behalf by the
Depositary or by the Trustee as the custodian for the Depositary or under such
Global Note, and the Depositary shall be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such 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 its Participants or Indirect Participants, the Applicable Procedures or the
operation of customary practices of the Depositary governing the exercise of the
rights of a holder of a beneficial interest in any Global Note.
Section 2.02. EXECUTION AND AUTHENTICATION.
(a) One Officer shall sign the Notes for the Company by manual
or facsimile signature.
(b) If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
(c) A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence that
the Note has been authenticated under this Indenture.
(d) The Trustee shall, upon a written order of the Company
signed by an Officer (an "AUTHENTICATION ORDER"), authenticate Notes for
original issue.
(e) The Trustee may appoint an authenticating agent 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 has the same
rights as an Agent to deal with Holders or an Affiliate of the Company or any of
their respective Subsidiaries.
Section 2.03. REGISTRAR AND PAYING AGENT.
(a) The Company shall maintain an office or agency where Notes
may be presented for registration of transfer or for exchange ("REGISTRAR") and
an office or agency where Notes may be presented for payment ("PAYING AGENT").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent. The Company may
28
change any Paying Agent or Registrar without notice to any Holder. The Company
shall notify the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such. The Company
or any of its Subsidiaries may act as Paying Agent or Registrar.
(b) The Company initially appoints The Depository Trust
Company ("DTC") to act as Depositary with respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Notes, and the Trustee hereby initially agrees so to act.
Section 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium, if any, or interest and Special Interest, if any,
on the Notes, and shall notify the Trustee of any default by the Company in
making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date or such shorter time as the Trustee may allow, as the Trustee may
reasonably require of the names and addresses of the Holders and the Company
shall otherwise comply with TIA Section 312(a).
Section 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
will be exchanged by the Company for Definitive Notes if (1) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary or (2) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the
Trustee; or (3) an Event of Default entitling the Holders to accelerate shall
have occurred and be continuing and the Registrar has received a written request
from the Depositary to issue Definitive Notes; provided that in no event shall
the Regulation S Temporary Global Note be exchanged by the Company for
Definitive Notes prior to (x) the expiration of the Distribution Compliance
Period and (y) the receipt by the Registrar of any certificates required
pursuant to Rule 903(a)(3)(ii)(B) under the Securities Act. Upon the occurrence
of any of the preceding events in (1), (2) or (3) above, Definitive Notes shall
be issued in denominations of $1,000 or integral multiples thereof and in such
names as the Depositary shall instruct the Trustee in writing. Global Notes also
may be exchanged or replaced, in whole or in part, as provided in Sections 2.07
and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in
lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b) or (c) hereof.
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(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE
GLOBAL NOTES. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Notes also shall require
compliance with either clause (i) or (ii) below, as applicable, as well as one
or more of the other following clauses, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Distribution
Compliance Period, transfers of beneficial interests in the Regulation
S Temporary Global Note may not be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than a distributor (as
defined in Rule 902(d) of the Securities Act)). Beneficial interests in
any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either (A)(1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase or (B)(1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary
to the Registrar containing information regarding the Person in whose
name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (B)(1) above; provided that in no event shall
Definitive Notes be issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Note prior to (x) the
expiration of the Distribution Compliance Period and (y) the receipt by
the Registrar of any certificates required pursuant to Rule
903(a)(3)(ii)(B) under the Securities Act. Upon satisfaction of all of
the requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section
2.06(g) hereof.
(iii) Transfer of Beneficial Interests in a Restricted Global
Note to Another Restricted Global Note. A beneficial interest in any
Restricted Global Note may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in another
Restricted Global Note if the transfer complies with the requirements
of Section 2.06(b)(ii) above and the Registrar receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Temporary Global
Note or the Regulation S Permanent Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form
of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications and certificates and
Opinion of Counsel required by item (3) thereof, if
applicable.
30
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) above and:
(A) such transfer is effected pursuant to the Demand
Registration Statement or the Shelf Registration Statement in
accordance with the Registration Rights Agreement; or
(B) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof;
or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note,
a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this clause (B), if the
Registrar and the Company so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to clause (A) or (B)
above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to clause (A) or (B) above.
(v) Transfer or Exchange of Beneficial Interests in
Unrestricted Global Notes for Beneficial Interests in Restricted Global
Notes Prohibited. Beneficial interests in an Unrestricted Global Note
cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, a beneficial interest in a Restricted Global
Note.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR
DEFINITIVE NOTES.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
31
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in clauses (B) through (D) above,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of
Counsel required by item (3)(d) thereof, if applicable;
(F) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(g) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c) shall be registered in
such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall instruct the Registrar
through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall mail or deliver such Definitive
Notes to the Persons in whose names such Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear
the Private Placement Legend and shall be subject to all restrictions
on transfer contained therein.
(ii) Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Note may not
be exchanged for a Definitive Note or transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to (x) the
expiration of the Distribution Compliance Period and (y) the receipt by
the Registrar of any certificates required pursuant to Rule
903(a)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such transfer is effected pursuant to the Demand
Registration Statement or the Shelf Registration Statement in
accordance with the Registration Rights Agreement; or
(B) the Registrar receives the following:
32
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for an Unrestricted Definitive Note, a certificate
from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from
such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this clause (B), if the
Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(g) hereof, and the Company shall execute and the
Trustee shall authenticate and mail or deliver to the Person designated
in the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall be registered in
such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall instruct the Registrar
through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall mail or deliver such Definitive
Notes to the Persons in whose names such Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(iii) shall not bear the Private Placement
Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL
INTERESTS.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in
33
accordance with Rule 144, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in clauses (B)
through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3)(d) thereof, if
applicable;
(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case
of clause (B) above, the 144A Global Note, in the case of clause (C)
above, the Regulation S Global Note, and in all other cases, the IAI
Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such transfer is effected pursuant to the Demand
Registration Statement or the Shelf Registration Statement in
accordance with the Registration Rights Agreement; or
(B) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes
to exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes
to transfer such Notes to a Person who shall take delivery
thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this clause (B), if the
Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses in
this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes
and increase or cause to be increased the aggregate principal amount of
the Unrestricted Global Note.
34
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Unrestricted Definitive Note to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
(iv) Transfer or Exchange of Unrestricted Definitive Notes to
Beneficial Interests in Restricted Global Notes Prohibited. An
Unrestricted Definitive Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, beneficial interests
in a Restricted Global Note.
(v) Issuance of Unrestricted Global Notes. If any such
exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to clauses (ii)(A), (ii)(B) or (iii) above at a time
when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE
NOTES. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule
144A, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item
(1) thereof;
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) any such transfer is effected pursuant to the
Demand Registration Statement or the Shelf Registration
Statement in accordance with the Registration Rights
Agreement; or
(B) the Registrar receives the following:
35
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof;
or
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this clause (B), if the
Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar and the Company to the
effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the
Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) LEGENDS. The following legends shall appear on the face of
all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by clause (B) below, each
Global Note and each Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES,
ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS
PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR
TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE OF THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF
$250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F)
PURSUANT
36
TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF,
REPRESENTS THAT (A) IT IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), PLAN, INDIVIDUAL
RETIREMENT ACCOUNT OR OTHER ARRANGEMENT SUBJECT TO SECTION 4975 OF THE INTERNAL
REVENUE CODE ("CODE") OR PROVISIONS UNDER APPLICABLE FEDERAL, STATE, LOCAL,
NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF
ERISA OR THE CODE ("SIMILAR LAWS"), AN ENTITY WHOSE UNDERLYING ASSETS ARE
CONSIDERED TO INCLUDE "PLAN ASSETS" OF SUCH PLANS, ACCOUNTS AND ARRANGEMENTS
(EACH A "PLAN") AND IS NOT PURCHASING THE NOTES ON BEHALF OF OR WITH "PLAN
ASSETS" OF ANY PLAN OR (B) ITS PURCHASE, HOLDING AND SUBSEQUENT DISPOSITION OF
THE NOTES IS EITHER NOT A PROHIBITED TRANSACTION UNDER ERISA OR THE CODE AND IS
OTHERWISE PERMISSIBLE UNDER ALL SIMILAR LAWS, OR IS ENTITLED TO EXEMPTIVE RELIEF
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE IN ACCORDANCE
WITH ONE OR MORE OF THE PROHIBITED TRANSACTION CLASS EXEMPTIONS, AND IS
OTHERWISE PERMISSIBLE UNDER ALL APPLICABLE SIMILAR LAWS."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to clauses (b)(iv), (c)(iii),
(c)(iv), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) to this
Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement
Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(iii) Regulation S Temporary Global Note Legend. Each
Regulation S Temporary Global Note shall bear a legend in substantially
the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
37
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER
NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(g) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such
time as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed, repurchased
or cancelled in whole and not in part, each such Global Note shall be returned
to or retained and cancelled by the Trustee in accordance with Section 2.11
hereof. At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by such Global Note
shall be reduced accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(h) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and, upon receipt of an Authentication Order in
accordance with Section 2.02, the Trustee shall authenticate Global
Notes and Definitive Notes upon the Company's order or at the
Registrar's request.
(ii) No service charge shall be made to a Holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.12, 4.18 and
9.06 hereof).
(iii) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such registration
of transfer or exchange.
(iv) Neither the Registrar nor the Company shall be required
(A) to issue, to register the transfer of or to exchange any Notes
during a period beginning at the opening of business 15 days before the
day of any selection of Notes for redemption under Section 3.02 hereof
and ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest
Payment Date.
(v) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(vii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by
facsimile.
38
(viii) The Trustee is hereby authorized to enter into a letter
of representation with the Depositary in the form provided by the
Company and to act in accordance with such letter.
Section 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of them may suffer
if a Note is replaced. The Company may charge for its expenses in replacing a
Note.
In case any such mutilated, destroyed, lost or stolen Note had
become or is about to become due and payable, the Company, in its discretion,
may, instead of issuing a new Note, pay such Note, upon satisfaction of the
conditions set forth in the preceding paragraph.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
The provisions of this Section 2.07 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies of any Holder with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Notes.
Section 2.08. OUTSTANDING NOTES.
(a) The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not cease to be outstanding because the Company
or an Affiliate of the Company holds the Note; however, Notes held by the
Company or a Subsidiary of the Company shall not be deemed to be outstanding for
purposes of Section 3.07(c) hereof.
(b) If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced note is held by a bona fide purchaser.
(c) If the principal amount of any Note is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary
or an Affiliate of any thereof) holds, on a redemption date or maturity date,
money sufficient to pay Notes payable on that date, then on and after that date
such Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, amendment, supplement, waiver
or consent, Notes owned by the Company, or by any Affiliate of the Company,
shall be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, amendment, supplement, waiver or consent, only Notes that the Trustee
knows are so owned shall be so disregarded.
Section 2.10. TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery,
the Company may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Notes. Temporary Notes shall be
39
substantially in the form of certificated Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate Definitive Notes in exchange for temporary
Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
upon direction by the Company and no one else shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Notes (subject to the record retention requirements of
the Exchange Act). Certification of the destruction of all cancelled Notes shall
be delivered to the Company from time to time upon request. The Company may not
issue new Notes to replace Notes that it has paid or that have been delivered to
the Trustee for cancellation.
Section 2.12. PAYMENT OF INTEREST; DEFAULTED INTEREST.
Interest on any Note which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Note (or one or more Predecessor Notes) is being registered
at the close of business on the Regular Record Date for such interest payment.
If the Company defaults in a payment of interest or Special
Interest, if any, on the Notes, it shall pay the defaulted interest in any
lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in
each case at the rate provided in the Notes and in Section 4.01 hereof. The
Company shall notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Note and the date of the proposed payment. The
Company shall fix or cause to be fixed each such special record date and payment
date, provided that no such special record date shall be less than 10 days prior
to the related payment date for such defaulted interest. At least 15 days before
the special record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Company) shall mail
or cause to be mailed to Holders a notice that states the special record date,
the related payment date and the amount of such interest to be paid.
Section 2.13. CUSIP OR ISIN NUMBERS.
The Company in issuing the Notes may use "CUSIP" or "ISIN"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" or
"ISIN" numbers in notices of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" or "ISIN" numbers.
Section 2.14. SPECIAL INTEREST.
If Special Interest is payable by the Company pursuant to the
Registration Rights Agreement and paragraph 1 of the Notes, the Company shall
deliver to the Trustee a certificate to that effect stating (i) the amount of
such Special Interest that is payable and (ii) the date on which such interest
is payable. Unless and until a Responsible Officer of the Trustee receives such
a certificate or instruction or direction from the Holders in accordance with
the terms of this Indenture, the Trustee may assume without inquiry that no
Special Interest is payable. The foregoing shall not prejudice the rights of the
Holders with respect to their entitlement to Special Interest as otherwise set
forth in this Indenture or the Notes and pursuing any action against the Company
directly or otherwise directing the Trustee to take any such action in
accordance with the terms of this Indenture and the Notes.
40
If the Company has paid Special Interest directly to the persons entitled to it,
the Company shall deliver to the Trustee a certificate setting forth the
particulars of such payment.
Section 2.15. ISSUANCE OF ADDITIONAL NOTES.
The Company shall be entitled, subject to its compliance with
Section 4.09 hereof, to issue Additional Notes under this Indenture which shall
have identical terms as the Initial Notes issued on the date hereof, other than
with respect to the date of issuance and issue price. The Initial Notes issued
on the date hereof and any Additional Notes shall be treated as a single class
for all purposes under this Indenture, including without limitation, waivers,
amendments, redemptions and offers to purchase.
With respect to any Additional Notes, the Company shall set
forth in a resolution of its Board of Directors and an Officers' Certificate, a
copy of each which shall be delivered to the Trustee, the following information:
(a) the aggregate principal amount of such Additional Notes to
be authenticated and delivered pursuant to this Indenture;
(b) the issue price, the issue date and the CUSIP number of
such Additional Notes; provided, however, that no Additional Notes may be issued
at a price that would cause such Additional Notes to have "original issue
discount" within the meaning of Section 1273 of the Code; and
(c) whether such Additional Notes shall be subject to
restrictions on transfer.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof and paragraph 5 of the Notes, it
shall furnish to the Trustee, at least 30 days but not more than 60 days before
a redemption date unless a shorter notice shall be satisfactory to the Trustee,
an Officers' Certificate setting forth (i) the clause of this Indenture pursuant
to which the redemption shall occur, (ii) the redemption date, (iii) the
principal amount of Notes to be redeemed and (iv) the redemption price. Any such
notice may be cancelled at any time prior to notice of such redemption being
mailed to any Holder and shall, therefore, be void and of no effect.
Section 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed among the Holders of the Notes
in compliance with any applicable depositary and legal requirements and the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, at
random or in accordance with any other method the Trustee considers fair and
appropriate. In the event of partial redemption at random, the particular Notes
to be redeemed shall be selected, unless otherwise provided herein, not less
than 30 nor more than 60 days prior to the redemption date by the Trustee from
the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
41
Section 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its
registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price or if the redemption is made pursuant
to Section 3.07(b) a calculation of the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest and Special Interest, if any, on Notes called for
redemption ceases to accrue on and after the redemption date;
(g) the paragraph of the Notes or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days, or such shorter
period allowed by the Trustee, prior to the redemption date, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in this Section 3.03.
Section 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before 11:00 a.m. Eastern Time on any redemption date,
the Company shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued interest and Special
Interest, if any, on all Notes (or portions of Notes) to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued interest and
Special Interest, if any, on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest and Special Interest, if
any, shall cease to accrue on the Notes or the portions of Notes called for
redemption, whether or not such Notes are presented for payment. If a Note is
redeemed on or after a Regular Record Date but on or prior to the related
Interest Payment Date, then any accrued and unpaid interest shall
42
be paid to the Person in whose name such Note was registered at the close of
business on such Regular Record Date. If any Note called for redemption shall
not be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest and Special Interest,
if any, shall be paid on the unpaid principal from the redemption date until
such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.
Section 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
Section 3.07. OPTIONAL REDEMPTION.
(a) Except as set forth in clauses (b) and (c) of this Section
3.07, the Notes will not be redeemable at the option of the Company prior to
October 1, 2006. Beginning on October 1, 2006, the Company may redeem all or any
portion of the Notes, at once or over time, after giving the required notice
under this Indenture. The Notes may be redeemed at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued and
unpaid interest and Special Interest, if any, on the Notes redeemed, to the
applicable redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant Interest Payment
Date), if redeemed during the twelve-month period commencing on October 1 of the
years indicated below:
Year Percentage
---- ----------
2006........................................................................... 106.250%
2007........................................................................... 103.125%
2008 and thereafter............................................................ 100.000%
(b) At any time prior to October 1, 2006, the Company may
redeem all or any portion of the Notes, at once or over time, after giving the
required notice under this Indenture, at a redemption price equal to the greater
of:
(i) 100% of the principal amount of the Notes to be redeemed;
and
(ii) the sum of the present values of (A) the redemption price
of the Notes at October 1, 2006 (as set forth above) and (B) the
remaining scheduled payments of interest from the redemption date to
October 1, 2006, but excluding accrued and unpaid interest to the
redemption date, discounted to the redemption date at the Treasury
Yield (determined on the second Business Day immediately preceding the
date of redemption) plus 75 basis points;
plus, in either case, accrued and unpaid interest, including Special
Interest, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due
on the relevant Interest Payment Date).
Any notice to the Holders of Notes of a redemption pursuant to
this Section 3.07(b) shall include the appropriate calculation of the redemption
price, but need not include the redemption price itself. The actual redemption
price, calculated as described above, shall be set forth in an Officers'
Certificate delivered to the Trustee no later than two Business Days prior to
the redemption date.
(c) At any time and from time to time prior to October 1,
2005, the Company may redeem up to 35% of the aggregate principal amount of the
Notes issued under this Indenture at a redemption price (expressed as a
percentage of principal amount) equal to 112.500% of the principal amount
thereof, plus accrued and unpaid interest and Special Interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant Interest Payment Date) with
the net cash proceeds of one or more Equity Offerings by the Company or the
direct or indirect parent of the Company (to the extent, in the case of the
direct or
43
indirect parent, that the net cash proceeds of the Equity Offerings are
contributed to the common or non-redeemable preferred equity capital of the
Company); provided, however, that after giving effect to any such redemption, at
least 65% of the aggregate principal amount of the Notes initially issued under
this Indenture (excluding Notes held by the Company and its Subsidiaries)
remains outstanding immediately after giving effect to such redemption. Any such
redemption shall be made within 180 days after the consummation of such Equity
Offering.
(d) Any prepayment pursuant to this Section 3.07 shall be made
subject to the terms of the Senior Notes Indenture and the Company's other
Senior Debt and pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08. MANDATORY REDEMPTION.
Except as set forth in Sections 4.12 and 4.18 hereof, the
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
Section 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
(a) In the event that, pursuant to Section 4.12 hereof, the
Company shall be required to commence an offer to all Holders to purchase Notes
(an "ASSET SALE OFFER"), it shall follow the procedures specified below.
(b) The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "OFFER PERIOD"). No
later than five Business Days after the termination of the Offer Period (the
"PURCHASE DATE"), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.12 hereof (the "OFFER AMOUNT")
or, if less than the Offer Amount has been tendered, all Notes tendered in
response to the Asset Sale Offer. Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.
If the Purchase Date is on or after a Regular Record Date and
on or before the related Interest Payment Date, any accrued and unpaid interest
and Special Interest, if any, shall be paid to the Person in whose name a Note
is registered at the close of business on such Regular Record Date, and no
additional interest shall be payable to Holders who tender Notes pursuant to the
Asset Sale Offer.
Upon the commencement of the Asset Sale Offer, the Company
shall send, by first class mail, a notice to the Trustee and each of the
Holders, with a copy to the Trustee. The notice shall contain all instructions
and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice,
which shall govern the terms of the Asset Sale Offer, shall state:
(i) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.12 hereof and the length of time the Asset
Sale Offer shall remain open;
(ii) the Offer Amount, the purchase price and the Purchase
Date;
(iii) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(iv) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest and Special Interest, if any, after the
Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may elect to have Notes purchased in integral
multiples of $1,000 only;
(vi) that Holders electing to have a Note purchased pursuant
to any Asset Sale Offer shall be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Note completed, or transfer by book-entry transfer, to the
Company, a depositary, if appointed by the
44
Company, or a Paying Agent at the address specified in the notice at
least three days before the Purchase Date;
(vii) that Holders shall be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent, as the
case may be, receives, not later than the expiration of the Offer
Period, a telegram, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased;
(viii) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company shall
select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of $1,000 or integral multiples thereof shall be
purchased); and
(ix) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Notes or portions thereof tendered pursuant to the Asset
Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and shall deliver to the Trustee an Officers' Certificate stating that
such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in any case not later
than five Business Days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by
such Holder and accepted by the Company for purchase, and the Company shall
promptly issue a new Note, and the Trustee, upon written request from the
Company shall authenticate and mail or deliver such new Note to such Holder, in
a principal amount equal to any unpurchased portion of the Note surrendered. Any
Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company shall publicly announce the results of the Asset
Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Section 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
Section 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of,
premium, if any, interest and Special Interest, if any, on, the Notes on the
dates and in the manner provided in the Notes. Principal, premium, if any, and
interest and Special Interest, if any, shall be considered paid on the date due
if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as
of 11:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest and Special Interest, if any, then due.
The Company shall pay Special Interest, if any, in the same manner, on the dates
and in the amounts set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 1% per annum in
excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest, if any (without regard to any
applicable grace periods), from time to time on demand at the same rate to the
extent lawful.
Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
45
Section 4.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company shall maintain an office or agency (which may
be an office or drop facility of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Notes may be presented or surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
(c) The Company hereby designates the Corporate Trust Office
of the Trustee, as one such office, drop facility or agency of the Company in
accordance with Section 2.03.
Section 4.03. REPORTS.
(a) Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as
any Notes are outstanding the Company and each of the Guarantors shall file with
the Commission, to the extent such submissions are accepted for filing with the
Commission, and shall furnish to the Trustee, within 15 days after it is or
would have been required to be filed with the Commission:
(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 information that would be required to be filed with
the Commission on Form 8-K if the Company were required to file such
reports.
(b) For so long as any Notes remain outstanding and the
Company does not have or shall cease to have a class of equity securities
registered under Section 12(g) of the Exchange Act or is not or shall cease to
be subject to Section 15(d) of the Exchange Act, the Company shall furnish to
the Holders, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company and its Subsidiaries
have kept, observed, performed and fulfilled their obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company and its
Subsidiaries have kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or,
if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or interest
or Special Interest, if any, on the Notes is
46
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) The Company shall comply with TIA Section 314(a)(2).
(c) The Company shall deliver to the Trustee, within 5
Business Days after becoming aware of the occurrence thereof, written notice in
the form of an Officers' Certificate of any event that with the giving of notice
and the lapse of time would become an Event of Default, its status and what
action the Company is taking or proposes to take with respect thereto.
Section 4.05. TAXES.
The Company shall pay or discharge, and shall cause each of
its Restricted Subsidiaries to pay or discharge, prior to delinquency, all
material taxes, assessments, and governmental levies; provided that neither the
Company nor any such Restricted Subsidiary shall be required to pay or
discharge, or cause to be paid or discharged, any such tax, assessment, charge
or claim the amount, applicability or validity of which is being contested in
good faith by appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP or where the failure to effect such payment
is not adverse in any material respect to the Holders.
Section 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.07. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate existence, and the corporate, partnership or other existence of
each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Restricted Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its Restricted
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Restricted Subsidiaries, if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Restricted Subsidiaries, taken as
a whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
Section 4.08. PAYMENTS FOR CONSENT.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to or for the
benefit of any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Notes
unless such consideration is offered to be paid or is paid to all Holders that
consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
Section 4.09. INCURRENCE OF ADDITIONAL DEBT AND ISSUANCE OF CAPITAL STOCK.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, Incur any Debt (including
Additional Notes and Acquired Debt), other than Permitted Debt, and the Company
shall not issue any Disqualified Capital Stock and its Restricted Subsidiaries
shall not issue any Preferred
47
Stock, except Preferred Stock issued to the Company or a Restricted Subsidiary
of the Company; provided, however, that the Company and any of the Subsidiary
Guarantors may Incur Debt or issue shares of such Capital Stock, in either case,
if on the date of that Incurrence or issuance, and after giving effect to the
Incurrence of such Debt or the issuance of such Capital Stock and the
application of the proceeds therefrom, the Consolidated Coverage Ratio would be
greater than 2.00 to 1.00.
(b) For purposes of determining compliance with paragraph (a)
of this Section 4.09, in the event that an item of proposed Debt meets the
criteria of more than one of the categories of Permitted Debt or is entitled to
be Incurred pursuant to paragraph (a) of this Section 4.09, the Company may, in
its sole discretion, at the time the proposed Debt is Incurred:
(i) classify all or a portion of that item of Debt on the date
of its Incurrence under either paragraph (a) of this Section 4.09 or
under any category of Permitted Debt;
(ii) reclassify at a later date all or a portion of that or
any other item of Debt as being or having been Incurred in any manner
that complies with this Section 4.09; and
(iii) elect to comply with this Section 4.09 and the
applicable definitions in any order;
provided, however, that all outstanding Debt under the Senior Credit Facilities
immediately following the date the Notes are first issued shall be deemed to
have been incurred pursuant to clause (2) of the definition of Permitted Debt.
Section 4.10. RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not cause or permit any
of its Restricted Subsidiaries to, directly or indirectly, make any Restricted
Payment if at the time of that Restricted Payment and immediately after giving
effect to that Restricted Payment:
(i) a Default or Event of Default shall have occurred and be
continuing or would result from that Restricted Payment;
(ii) the Company is not able to Incur an additional $1.00 of
Debt pursuant to paragraph (a) of Section 4.09; or
(iii) the aggregate amount of the Restricted Payment and all
other Restricted Payments declared or made subsequent to the date the
Notes are first issued would exceed the sum of:
(A) 50% of Consolidated Net Income of the Company
accrued subsequent to May 26, 2002 to the most recent date for
which financial information is available to the Company, taken
as one accounting period (or if the aggregate amount of
Consolidated Net Income for such period shall be a deficit,
minus 100% of such deficit); plus
(B) 100% of the aggregate net proceeds, including the
net fair market value of property other than cash as
determined by the Board of Directors of the Company in good
faith, received subsequent to the date the Notes are first
issued by the Company from any Person, other than a Subsidiary
of the Company, from (x) the issue or sale of Equity Interests
of the Company (other than Disqualified Capital Stock)
(including, without limitation, in a merger, consolidation,
acquisition of property or any other form of transaction where
the consideration involved consists solely of Capital Stock
(other than Disqualified Capital Stock)) or (y) the issue or
sale of Disqualified Capital Stock or debt securities of the
Company or any of its Restricted Subsidiaries that have been
converted into or exchanged for Equity Interests of the
Company (other than Disqualified
48
Capital Stock) (including, without limitation, in a merger,
consolidation, acquisition of property or any other form of
transaction where the consideration involved consists solely
of Capital Stock (other than Disqualified Capital Stock))
subsequent to the date the Notes are first issued, excluding,
in each case, Excluded Proceeds and excluding
(1) any net proceeds from issuances and
sales financed directly or indirectly using funds
borrowed from the Company or any Restricted
Subsidiary, until and to the extent that borrowing is
repaid, but including the proceeds from the issuance
and sale of any securities convertible into or
exchangeable for Qualified Capital Stock to the
extent those securities are so converted or exchanged
and including any additional proceeds received by the
Company upon the conversion or exchange;
(2) any net proceeds received from issuances
and sales that are used to consummate a transaction
described in paragraph (b)(ii) of this Section 4.10;
(3) any net cash proceeds received from the
issuance and sale of Designated Preferred Stock; plus
(C) an amount equal to the sum, without duplication,
of:
(1) the net reduction in Investments (other
than Permitted Investments) made by the Company or
any of its Restricted Subsidiaries in any Person
resulting from repurchases, repayments or redemptions
of that Investment by that Person;
(2) proceeds realized on the sale of that
Investment to an unaffiliated purchaser; and
(3) proceeds representing the return of
capital (excluding dividends and distributions),
in each case, received by the Company or any of its
Restricted Subsidiaries; plus
(D) an amount equal to the sum, without limitation,
of any amounts, including the net fair market value of
property other than cash as determined by the Board of
Directors of the Company in good faith, received by the
Company or any of its Restricted Subsidiaries as a capital
contribution (including, without limitation, in a merger,
consolidation, acquisition of property or any other form of
transaction where the consideration involved consists solely
of Capital Stock (other than Disqualified Capital Stock))
subsequent to the date the Notes are first issued (including,
without limitation, (A) any contributions to the Company or
any of its Restricted Subsidiaries of net proceeds received by
Parent or Affiliates of Parent from ConAgra Foods attributable
to the Garden City beef business interruption claim pursuant
to the Acquisition Agreement, (B) any contributions to the
Company or any of its Restricted Subsidiaries of net proceeds
received by Parent or Affiliates of Parent from the
disposition of the domestic cattle feeding operation acquired
from ConAgra Foods, (C) any contributions to the Company or
any of its Restricted Subsidiaries from Parent or Affiliates
of Parent under the Contribution Agreement or the Tax Sharing
Agreement, (D) any payments or contributions made directly to
the Company or any of its Restricted Subsidiaries by any of
the parties to the Contribution Agreement or the Tax Sharing
Agreement or (E) any indemnification payments made directly to
the Company
49
or any of its Restricted Subsidiaries by any of the parties to
the Acquisition Agreement); plus
(E) if the Company designates any Unrestricted
Subsidiary as a Restricted Subsidiary after the date the Notes
are first issued, an amount equal to the fair market value of
the Investment in that Unrestricted Subsidiary by the Company
and its Restricted Subsidiaries at the time the Unrestricted
Subsidiary is designated as a Restricted Subsidiary; plus
(F) $25.0 million.
(b) The provisions of the first paragraph of this "Restricted
Payments" covenant will not prohibit:
(i) the payment of any dividend or the making of any
distribution within 60 days after the date of its declaration if the
dividend or distribution would have been permitted on the date it is
declared;
(ii) the declaration and payment of dividends to holders of
any class or series of Designated Preferred Stock (other than
Disqualified Capital Stock) issued after the date the Notes are first
issued; provided, however, that after giving effect to such issuance or
declaration on a pro forma basis, the Company would be able to Incur an
additional $1.00 of Debt under paragraph (a) of Section 4.09;
(iii) the purchase, redemption or other acquisition or
retirement of any Capital Stock or Subordinated Debt of the Company or
any warrants, options or other rights to acquire shares of any of that
Capital Stock either:
(A) solely in exchange for shares of Qualified
Capital Stock or other warrants, options or rights to acquire
Qualified Capital Stock,
(B) through the application of the net proceeds of a
substantially concurrent sale for cash, other than to a
Subsidiary of the Company, of shares of Qualified Capital
Stock or warrants, options or other rights to acquire
Qualified Capital Stock, or
(C) in the case of Disqualified Capital Stock, solely
in exchange for, or through the application of the net
proceeds of a substantially concurrent sale for cash, other
than to a Subsidiary of the Company, of Disqualified Capital
Stock;
(iv) repurchases of Capital Stock, warrants, options or rights
to acquire Capital Stock deemed to occur upon exercise of warrants,
options or rights to acquire Capital Stock if such Capital Stock,
warrants, options or rights represent a portion of the exercise price
of such warrants, options or rights;
(v) payments or distributions, directly or indirectly through
any direct or indirect parent of the Company, to dissenting
stockholders pursuant to applicable law or in connection with the
settlement or other satisfaction of legal claims made pursuant to or in
connection with a consolidation, merger or transfer of assets;
(vi) cash payments in lieu of the issuance of fractional
shares;
(vii) payments made to the holders of Equity Interests in any
Person that is merged or consolidated with or into the Company or any
Restricted Subsidiary pursuant to any merger, consolidation or sale of
assets effected in accordance with Section 5.01; provided, however,
that no such payment may be made pursuant to this clause (vii) unless,
after giving pro forma effect to such transaction (and the Incurrence
of any Debt in connection with that transaction and the use of the
proceeds of that transaction), the Company would be able to Incur $1.00
of additional Debt under paragraph (a) of Section 4.09;
50
(viii) payments made to purchase, redeem, defease or otherwise
acquire or retire for value any Capital Stock or Subordinated Debt of
the Company pursuant to provisions requiring the Company to offer to
purchase, redeem, defease or otherwise acquire or retire for value such
Capital Stock or Subordinated Debt upon the occurrence of a "change of
control," as defined in the charter provisions, agreements or
instruments governing such Capital Stock or Subordinated Debt;
provided, however, that the Company has made a Change of Control Offer
and has purchased all Notes tendered in connection with that Change of
Control Offer;
(ix) dividends on the Company's Capital Stock (other than
Disqualified Capital Stock) or payments to any direct or indirect
parent of the Company to pay dividends on its Capital Stock after the
first underwritten Equity Offering in an annual amount not to exceed
6.0% of the gross proceeds (before deducting underwriting discounts and
commissions and other fees and expenses of the offering) received from
shares of Capital Stock (other than Disqualified Capital Stock of the
Company) sold for the account of the issuer of those shares (and not
for the account of any stockholder) in any underwritten Equity
Offering; provided that in the case of any such Equity Offering by any
direct or indirect parent of the Company, the net cash proceeds of such
Equity Offering are contributed to the common or non-redeemable
preferred equity capital of the Company;
(x) payments of dividends, distributions or other amounts by
the Company to fund the payment by any direct or indirect parent of the
Company of administrative, legal, financial, accounting or other
similar expenses relating to such parent's direct or indirect ownership
of the Company and to pay other corporate overhead expenses relating to
such ownership interest, including directors' fees, indemnifications
and similar arrangements, so long as such payments are fair and
reasonable and are paid as and when needed by any such direct or
indirect parent of the Company;
(xi) payments of dividends, distributions or other amounts to
fund the repurchase, redemption or other acquisition or retirement for
value of any of the Company's or its direct or indirect parent's Equity
Interests or any Equity Interests of any Restricted Subsidiaries held
by any then-existing or former director, officer, employee, independent
contractor or consultant of the Company, its direct or indirect parent
or any Restricted Subsidiary or their respective assigns, estates or
heirs; provided, however, that the price paid for all repurchased,
redeemed, acquired or retired Equity Interests in all cases, other than
as a result of death or disability, does not exceed $1.0 million in the
aggregate;
(xii) payments of fees and expenses incurred in connection
with the consummation of the Transaction;
(xiii) the redemption, repurchase or other acquisition or
retirement of Subordinated Debt made by exchange for, or out of the
proceeds of the substantially concurrent sale of, Refinancing Debt;
provided that such Refinancing Debt shall also constitute Subordinated
Debt;
(xiv) payments by the Company under the terms of the
Transaction Documents as such documents are in effect on the date the
Notes are first issued or as amended in accordance with Section 4.14;
(xv) Investments in Unrestricted Subsidiaries that are made
with Excluded Proceeds; and
(xvi) the redemption, repurchase or other acquisition or
retirement of Debt from Net Available Cash to the extent permitted
under Section 4.12;
provided, however, that no Default or Event of Default shall have occurred or be
continuing at the time of the payment or as a result of that payment.
In determining the aggregate amount of Restricted Payments
made subsequent to the date the Notes are first issued, amounts expended
pursuant to clauses (i), (vi), (ix) and (xii) shall be included in such
calculation.
51
The amount of all Restricted Payments (other than cash) shall
be the fair market value on the date of such Restricted Payment of the asset(s)
or securities proposed to be paid, transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment.
The fair market value of any non-cash Restricted Payment shall be determined
conclusively by the Board of Directors acting in good faith whose Board
Resolution with respect thereto shall be delivered to the Trustee.
Section 4.11. LIENS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, Incur or suffer to exist any Lien (other
than Permitted Liens or Liens securing Senior Debt) upon any of its property
(including Capital Stock of a Restricted Subsidiary), whether owned at the date
the Notes are first issued or thereafter acquired, or any interest therein or
any income or profits therefrom, unless:
(a) if such Lien secures Senior Subordinated Debt, the Notes
or the Guarantees are secured on an equal and ratable basis with such Debt for
so long as such Senior Subordinated Debt is secured by such Lien; and
(b) if such Lien secures Subordinated Debt, the Lien securing
such Subordinated Debt will be subordinated and junior to a Lien securing the
Notes or the Guarantees, as the case may be, with the same relative priority as
such Debt has with respect to the Notes or the Guarantees.
Section 4.12. ASSET SALES.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make an Asset Sale unless:
(i) the Company or that Restricted Subsidiary receives
consideration at the time of the Asset Sale at least equal to the fair
market value, as determined in good faith by the Company's senior
management or Board of Directors, including as to the value of all
non-cash consideration, of the shares, property or assets being
disposed of in the Asset Sale;
(ii) at least 75% of the consideration received by the Company
or its Restricted Subsidiary, as the case may be, from the Asset Sale
is in the form of cash or Cash Equivalents; and
(iii) an amount equal to 100% of the Net Available Cash from
the Asset Sale is applied by the Company or the Restricted Subsidiary,
as the case may be,
(A) first, within one year from the receipt of that
Net Available Cash and solely at the Company's election or as
required by the terms of the Senior Credit Facilities or the
Senior Notes Indenture either:
(1) to
(x) invest in or acquire any one or more
Related Businesses,
(y) make capital expenditures or
acquisitions of other assets, in each case, used or
useful in a Related Business, or
(z) invest in or acquire properties or
assets that replace the properties and assets
disposed of in the Asset Sale; or
(2) to prepay, repay or purchase indebtedness under
the Senior Credit Facilities or Senior Debt of the Company or
a Wholly Owned Restricted Subsidiary (other than Debt owed to
the Company); and
52
(B) second, within 45 days after the later of the
application of Net Available Cash in accordance with clause
(A) and the date that is one year following the receipt of the
Net Available Cash, to the extent of the balance of that Net
Available Cash after application in accordance with clause
(A), to make an offer to purchase the Notes and other pari
passu Debt, to the extent required pursuant to the terms of
that pari passu Debt, pro rata at 100% of the tendered
principal amount of the other pari passu Debt or 100% of the
accreted value of the pari passu Debt so tendered if that pari
passu Debt was issued at a discount, plus accrued and unpaid
interest, if any, on the Notes and the pari passu Debt to the
date of purchase.
(b) The balance of the Net Available Cash after application in
accordance with clauses (A) and (B) above may be used by the Company or its
Restricted Subsidiaries in any manner not otherwise prohibited by this
Indenture. Notwithstanding the foregoing provisions, the Company and its
Restricted Subsidiaries shall not be required to apply any Net Available Cash in
accordance herewith until the aggregate Net Available Cash from all Asset Sales
following the date the Notes are first issued exceeds $15.0 million. Thereafter,
once the Company or its Restricted Subsidiaries accumulates an additional
aggregate $15.0 million of Net Available Cash from all Asset Sales, the Company
shall, after application of the additional aggregate $15.0 million of Net
Available Cash as provided in clause (A), make an offer for Notes pursuant to
this Section 4.12 by applying the Net Available Cash in excess of $15.0 million
as required pursuant to clause (a)(iii)(B) above.
(c) Solely for the purposes of clause (a)(ii) above of this
Section 4.12 and the definition of "Net Available Cash," the following will be
deemed to be cash:
(i) the assumption by the transferee in connection with the
Asset Sale pursuant to a customary novation agreement that releases the
Company or any of its Restricted Subsidiaries, as the case may be, from
further liability with respect to Debt of the Company or any Restricted
Subsidiary, other than contingent Debt and Debt that is by its terms
subordinated to the Notes or to any Subsidiary Guarantee, in which case
the Company will, without further action, be deemed to have applied the
assumed Debt in accordance with clause (a)(iii)(A) above, and
(ii) securities received by the Company or any Restricted
Subsidiary of the Company from the transferee that are converted within
60 days into cash or Cash Equivalents.
(d) In the event of an Asset Sale that requires the purchase
of Notes pursuant to clause (a)(iii)(B) above of this Section 4.12, the Company
will be required to purchase Notes tendered pursuant to an offer by the Company
for the Notes in accordance with Section 3.09 hereof. If the aggregate purchase
price of the Notes tendered pursuant to the Asset Sale Offer is less than the
Net Available Cash allotted to the purchase of the Notes, the Company may use
the remaining Net Available Cash for any purpose not prohibited by this
Indenture, including the repurchase of any subordinated notes required by the
indenture pursuant to which such subordinated notes were issued. Upon the
consummation of the purchase of Notes properly tendered in response to the Asset
Sale Offer, the amount of Net Available Cash subject to future offers to
purchase will be deemed to be reset to zero.
(e) The Company shall comply with the requirements of Rule
14e-1 of the Exchange Act and, to the extent applicable, any other securities
laws or regulations in connection with the repurchase of Notes pursuant to this
Indenture. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this covenant, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Indenture by virtue of complying with
those laws and regulations.
Section 4.13. RESTRICTIONS ON DISTRIBUTIONS FROM RESTRICTED SUBSIDIARIES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, create or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any such Restricted
Subsidiary to:
53
(a) pay dividends, in cash or otherwise, or make any other
distributions on its Capital Stock or pay any Debt or other obligation owed to
the Company or any other Restricted Subsidiary;
(b) make any loans or advances to the Company or any other
Restricted Subsidiary; or
(c) transfer any of its property or assets to the Company or
any other Restricted Subsidiary.
The foregoing limitations will not apply to:
(i) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the date the Notes are first issued, and
any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof; provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are no more
restrictive than those contained in such agreements as in effect on the
date the Notes are first issued, as determined in good faith by the
senior management or Board of Directors of the Company;
(ii) any encumbrance or restriction existing under or by
reason of the Senior Credit Facilities or the Senior Notes Indenture
and any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof; provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are not
materially more restrictive, taken as a whole, with respect to dividend
and other payment restrictions than those contained in the Senior
Credit Facilities or the Senior Notes Indenture, as in effect on the
date the Notes are first issued;
(iii) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any Debt
Incurred or Preferred Stock issued by such Restricted Subsidiary on or
prior to the date on which such Restricted Subsidiary became a
Restricted Subsidiary or was acquired by the Company or any Restricted
Subsidiary and outstanding on such date, other than Debt Incurred or
Preferred Stock issued as consideration in, or to provide all or any
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Restricted Subsidiary became a Restricted Subsidiary of the Company or
was acquired by the Company or any Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement evidencing Debt Incurred
or Preferred Stock issued without violation of this Indenture or
effecting a refinancing of Debt Incurred or Preferred Stock issued
pursuant to an agreement referred to in clauses (i), (ii), (iii) or
this clause (iv) contained in any amendment to an agreement referred to
in clauses (i), (ii), (iii) or this clause (iv); provided, however,
that the encumbrances and restrictions with respect to such Restricted
Subsidiary contained in any such agreement, refinancing agreement or
amendment, taken as a whole, are not materially less favorable to the
Holders of the Notes, as determined in good faith by the senior
management or Board of Directors of the Company, than encumbrances and
restrictions with respect to that Restricted Subsidiary contained in
agreements in effect at, or entered into on, the date the Notes are
first issued; and
(v) in the case of clause (c) of the first paragraph of this
Section 4.13, any encumbrance or restriction:
(A) that restricts in a customary manner the
subletting, assignment or transfer of any property or asset
that is subject to a lease, license, conveyance or contract or
similar property or asset or the assignment of any such lease,
license or other contract;
(B) 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;
54
(C) that is included in a licensing agreement to the
extent such restrictions limit the transfer of the property
subject to such licensing agreement;
(D) arising or agreed to in the ordinary course of
business and that does not, individually or in the aggregate,
detract from the value of property or assets of the Company or
any of its Subsidiaries in any manner material to the Company
or any such Restricted Subsidiary as determined in good faith
by senior management or the Board of Directors of the Company;
and
(E) contained in security agreements, mortgages or
similar documents securing Debt of a Restricted Subsidiary
incurred in accordance with this Indenture to the extent those
encumbrances or restrictions restrict the transfer of the
property subject to such security agreements;
(vi) any restriction with respect to a Restricted Subsidiary
or any of its properties or assets imposed pursuant to an agreement
entered into for the sale or disposition of all or substantially all
the Capital Stock or assets of that Restricted Subsidiary (whether by
stock sale, asset sale, merger, consolidation or otherwise) pending the
closing of such sale or disposition;
(vii) encumbrances or restrictions arising or existing by
reason of applicable law, regulation or order;
(viii) any encumbrance or restriction under Capitalized Lease
Obligations and purchase money obligations for property leased or
acquired in the ordinary course of business that impose encumbrances or
restrictions of the nature described in clause (c) of the first
paragraph of this Section 4.13 on the property so leased or acquired;
(ix) customary provisions with respect to the distribution of
assets or property in joint venture agreements; and
(x) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business.
Section 4.14. AFFILIATE TRANSACTIONS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions, including, without
limitation, the purchase, sale, lease, contribution or exchange of any property
or the rendering of any service, with any of its or any of its Restricted
Subsidiaries' Affiliates (excluding transactions between the Company and a
Wholly Owned Restricted Subsidiary or between Wholly Owned Restricted
Subsidiaries) (an "AFFILIATE TRANSACTION"), other than Affiliate Transactions on
terms that are no less favorable than those that might reasonably have been
obtained in a comparable transaction on an arm's-length basis from a Person that
is not an Affiliate; provided, however, that for a transaction or series of
related transactions involving value of $10.0 million or more, such
determination will be made in good faith by a majority of members of the Board
of Directors of the Company and by a majority of the disinterested members of
the Board of Directors of the Company, if any; provided, further, however, that
for a transaction or series of related transactions involving value of $25.0
million or more, the Company obtains a written opinion from an Independent
Financial Advisor to the effect that the consideration to be paid or received in
connection with such transaction or series of related transactions is fair, from
a financial point of view, to the Company or such Restricted Subsidiary.
The foregoing restrictions will not apply to:
(a) reasonable and customary directors' fees, indemnification
and similar arrangements and payments thereunder;
55
(b) any obligations of the Company under any employment,
noncompetition or confidentiality agreement with any officer or employee of the
Company, as in effect on the date the Notes are first issued;
(c) any Restricted Payment permitted to be made pursuant to
Section 4.10;
(d) any issuance of securities or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans and other fair
and reasonable fees, compensation, benefits and indemnities paid or entered into
by the Company or its Restricted Subsidiaries to or with officers, directors or
employees of the Company and its Restricted Subsidiaries approved by the Board
of Directors of the Company;
(e) loans or advances to officers, directors or employees in
the ordinary course of business of the Company or any of its Restricted
Subsidiaries; provided that such loans or advances do not exceed $2.0 million
outstanding at any one time;
(f) payments (including, without limitation, fees payable to
and expenses of ▇▇▇▇▇ Muse and ConAgra Foods) made pursuant to the Transaction
Documents as in effect on the date the Notes are first issued or any amendments
thereto; provided that the terms, taken as a whole, of any such amendment of any
of the foregoing agreements are not otherwise disadvantageous to the Holders of
the Notes in any material respect;
(g) 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 date the Notes are
first issued and any similar agreements which it may enter into thereafter;
provided, however, that the existence of, 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 date the Notes are first issued shall only be permitted by this clause (g)
to the extent that the terms, taken as a whole, of any such amendment or new
agreement are not otherwise disadvantageous to the Holders of the Notes in any
material respect;
(h) transactions with customers, clients, suppliers or
purchasers or sellers of goods or services, in each case in the ordinary course
of business and otherwise in compliance with the terms of this Indenture which
are fair to the Company or its Restricted Subsidiaries, in the reasonable
determination of the senior management and of the Board of Directors of the
Company, or are on terms, taken as a whole, at least as favorable as might
reasonably have been obtained at such time from an unaffiliated party;
(i) any agreement as in effect as of the date the Notes are
first issued or any amendment thereto, so long as any such amendment, taken as a
whole, is not disadvantageous to the Holders of the Notes in any material
respect, or any transaction contemplated thereby;
(j) any purchases of Equity Interests of the Company by its
Affiliates; and
(k) any purchases by the Company's Affiliates of Debt of the
Company or any of its Restricted Subsidiaries offered to Persons who are not
Affiliates; provided that such purchases must be on the same terms and
conditions as offered to Persons who are not Affiliates.
Section 4.15. LAYERED DEBT
The Company shall not, and shall not permit any Guarantor to,
Incur, directly or indirectly, any Debt that is subordinate or junior in right
of payment to any Senior Debt unless such Debt is Senior Subordinated Debt or is
expressly subordinated in right of payment to, or ranks pari passu with, the
Notes or the Guarantees, as the case may be. In addition, no Guarantor shall
Guarantee, directly or indirectly, any Debt of the Company that is subordinate
or junior in right of payment to any Senior Debt unless such Guarantee is
expressly subordinated in right of payment to, or ranks pari passu with, the
Guarantee of such Guarantor.
56
Section 4.16. ISSUANCE OR SALE OF CAPITAL STOCK OF RESTRICTED SUBSIDIARIES
The Company shall not, directly or indirectly:
(a) sell or otherwise dispose of any shares of Capital Stock
of a Restricted Subsidiary (or permit any Restricted Subsidiary to do the same);
or
(b) permit any Restricted Subsidiary to, directly or
indirectly, issue or sell or otherwise dispose of any shares of its Capital
Stock;
other than, in the case of either (a) or (b):
(i) directors' qualifying shares,
(ii) to the Company or a Wholly Owned Restricted Subsidiary,
or
(iii) a disposition of 100% of the shares of Capital Stock of
such Restricted Subsidiary; provided, however, that, in the case of
this clause (iii),
(A) such disposition is effected in compliance with
Section 4.12; and
(B) upon consummation of such disposition and
execution and delivery of a supplemental indenture, such
Restricted Subsidiary shall be released from any Guarantee
previously made by such Restricted Subsidiary; and
(iv) the issuance by a Restricted Subsidiary of Preferred
Stock permitted under paragraph (a) of Section 4.09.
Section 4.17. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
The Company's Board of Directors may designate any of its
Subsidiaries, including any newly formed Subsidiary or any Person that will
become a Subsidiary by way of acquisition, to be an Unrestricted Subsidiary if
that designation would not cause a Default. If any of the Company's Restricted
Subsidiaries is designated as an Unrestricted Subsidiary, the aggregate fair
market value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the newly designated Unrestricted Subsidiary will be
deemed to be an Investment made as of the time of that designation and will
either reduce the amount available for Restricted Payments under Section 4.10(a)
or 4.10(b) or reduce the amount available for future Investments under one or
more clauses of the definition of "Permitted Investments," as the Company
determines in its sole discretion. The designation of such a Subsidiary or
Person as an "Unrestricted Subsidiary" will only be permitted if, in the case of
a Restricted Subsidiary, the deemed Investment would be permitted at the time
the Restricted Subsidiary is designated as an Unrestricted Subsidiary and, in
any case, if that Subsidiary or Person otherwise satisfies the requirements set
forth in the definition of "Unrestricted Subsidiary." The Company's Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary if that designation would not cause a Default.
Section 4.18. REPURCHASE AT THE OPTION OF HOLDERS UPON A CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder
shall have the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple of $1,000) of such Holder's Notes pursuant to
the offer described below (the "CHANGE OF CONTROL OFFER") at a purchase price,
in cash (the "CHANGE OF CONTROL PURCHASE PRICE"), equal to 101% of the aggregate
principal amount of Notes repurchased, plus accrued and unpaid interest and
Special Interest, if any, on the Notes repurchased, to the purchase date
(subject to the right of Holders on the relevant record date to receive interest
to, but excluding, the Change of Control Payment Date (as defined below)).
57
Within 90 days following any Change of Control, unless the
Company has mailed a redemption notice with respect to all of the outstanding
Notes in accordance with Section 3.07, the Company shall:
(i) send, by first-class mail, with a copy to the Trustee, to
each Holder, at such Holder's address appearing in the securities
register maintained in respect of the Notes by the Registrar (the
"SECURITY REGISTER"), a notice stating:
(A) that a Change of Control has occurred and a
Change of Control Offer is being made pursuant to this Section
4.18 and that all Notes timely tendered will be accepted for
payment;
(B) the Change of Control Purchase Price and the
purchase date, which shall be, subject to any contrary
requirements of applicable law, a Business Day no earlier than
30 days and no later than 60 days from the date such notice is
mailed (the "CHANGE OF CONTROL PAYMENT DATE");
(C) the circumstances and relevant facts regarding
the Change of Control; and
(D) the procedures that Holders must follow in order
to tender their Notes (or portions thereof) for payment, and
the procedures that Holders must follow in order to withdraw
an election to tender Notes (or portions thereof) for payment.
The Company will comply, to the extent applicable, with the
requirements of Rule 14(e)-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control. To the extent that the provisions of any securities laws or
regulations conflict with the Change of Control provisions of the covenant
described hereunder or other provisions of this Indenture, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under the covenant described hereunder
by virtue of such conflict.
(b) On the Change of Control Payment Date, the Company shall,
to the extent lawful:
(i) accept for payment all Notes or portions of Notes properly
tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of Notes
properly tendered; and
(iii) deliver or cause to be delivered to the Trustee or
Paying Agent, on its behalf, the Notes properly accepted together with
an Officers' Certificate stating the aggregate principal amount of
Notes or portions of Notes being tendered and purchased by the Company.
The Paying Agent shall promptly mail to each Holder of Notes
properly tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate and mail (or cause to be transferred by book-entry)
to each Holder a new note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any; provided that each new note will be in a
principal amount of $1,000 or an integral multiple of $1,000.
(c) If the Change of Control Payment Date is on or after a
Regular Record Date and on or before the related Interest Payment Date, any
accrued and unpaid interest and Special Interest, if any, will be paid to the
Person in whose name a Note is registered, at the close of business on such
Regular Record Date, and no additional interest will be payable to Holders who
tender pursuant to the Change of Control Offer.
58
(d) The provisions described above that require the Company to
make a Change of Control Offer following a Change of Control will be applicable
whether or not any other provisions of this Indenture are applicable. Except as
described above with respect to a Change of Control, this Indenture does not
contain provisions that permit the Holders of the Notes to require that the
Company repurchase or redeem the Notes in the event of a takeover,
recapitalization or similar transaction that does not involve a Change of
Control.
(e) The Company will not be required to make a Change of
Control Offer upon a Change of Control if a third party makes a Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer
made by the Company and purchases all Notes properly tendered and not withdrawn
under the Change of Control Offer.
Section 4.19. FUTURE SUBSIDIARY GUARANTORS.
If the Company or any of its Restricted Subsidiaries acquires
or creates another Domestic Restricted Subsidiary after the date hereof, then
that newly acquired or created Domestic Restricted Subsidiary shall execute and
deliver to the Trustee a supplemental indenture providing for a Guarantee and
deliver an Opinion of Counsel satisfactory to the Trustee on the date on which
such Domestic Restricted Subsidiary was acquired or created; provided, however,
that the foregoing shall not apply to Subsidiaries that have properly been
designated as Unrestricted Subsidiaries in accordance with this Indenture for so
long as they continue to constitute Unrestricted Subsidiaries.
Section 4.20. BUSINESS ACTIVITIES.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, engage in any business other than a
Related Business. The Parent shall not directly or indirectly engage in any
business other than the holding of Capital Stock of the Company.
Section 4.21. GUARANTEES OF DEBT BY RESTRICTED SUBSIDIARIES.
The Company shall not permit any Restricted Subsidiary that is
not a Guarantor to guarantee the payment of any of the Company's Debt or any
Debt of any other Domestic Restricted Subsidiary unless:
(a) such Restricted Subsidiary simultaneously executes and
delivers a supplemental indenture to this Indenture providing for a Guarantee of
payment of the Company's obligations under this Indenture and the Notes by such
Restricted Subsidiary; except that if such Debt is by its express terms
subordinated in right of payment to the Notes, any such Guarantee of such
Restricted Subsidiary with respect to such Debt will be subordinated in right of
payment to such Restricted Subsidiary's Guarantee with respect to the Notes
substantially to the same extent as such Debt is subordinated to the Notes;
(b) such Restricted Subsidiary waives and shall not in any
manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Restricted Subsidiary as a result of any payment by such Restricted
Subsidiary under its Guarantee of the Notes; and
(c) such Restricted Subsidiary shall deliver to the Trustee an
Opinion of Counsel to the effect that:
(i) such Guarantee of the Notes has been duly executed and
authorized; and
(ii) such Guarantee of the Notes constitutes a valid, binding
and enforceable obligation of such Restricted Subsidiary, except
insofar as enforcement thereof may be limited by bankruptcy, insolvency
or similar laws (including, without limitation, all laws relating to
fraudulent transfers) and except insofar as enforcement thereof is
subject to general principles of equity;
provided, however, that the foregoing provisions of this Section 4.21 will not
be applicable to any Guarantee of any
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Restricted Subsidiary that existed at the time such Person became a Restricted
Subsidiary of the Company and was not Incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary of the Company.
Notwithstanding the provisions of the foregoing paragraph and
the other provisions of this Indenture, any Guarantee by a Restricted Subsidiary
of the Notes will provide by its terms that it shall be automatically and
unconditionally released and discharged upon:
(a) any sale, exchange or transfer, to any Person not an
Affiliate of the Company, of all of the Company's Capital Stock in, or all or
substantially all the assets of, such Restricted Subsidiary, which sale,
exchange or transfer is not prohibited by this Indenture; or
(b) in the case of a guarantee by a Foreign Restricted
Subsidiary, the release or discharge of the Guarantee that resulted in the
creation of such Guarantee of the Notes, except a discharge or release by or as
a result of payment under such Guarantee.
In addition, any Guarantee by a Restricted Subsidiary will be
automatically and unconditionally released and discharged if the Company
designates such Restricted Subsidiary as an Unrestricted Subsidiary in
accordance with this Indenture.
Section 4.22. SELLER NOTE.
The Company shall not, and shall not permit any Restricted
Subsidiary to, and Parent shall not, consolidate with or merge with or into the
issuer of or other obligor under (or any guarantor of) the Seller Note or
otherwise assume, directly or indirectly, the Debt represented by the Seller
Note, unless immediately after giving pro forma effect to such consolidation,
merger or assumption:
(a) no Default or Event of Default shall have occurred and be
continuing;
(b) the Company would be able to Incur an additional $1.00 of
Debt under paragraph (a) of Section 4.09; and
(c) the assumption of the Seller Note is treated as a
Restricted Payment in an amount equal to the aggregate principal amount
outstanding of the Seller Note at the time of such assumption; provided,
however, that if such assumption is made by merger or consolidation with the
obligor under the Seller Note, the aggregate principal amount outstanding of the
Seller Note at the time of such assumption shall be excluded from the
calculation of the value of the assets being contributed as part of such merger
or consolidation for purposes of paragraph (a)(iii)(B)(x) or (a)(iii)(D) of
Section 4.10.
ARTICLE 5.
SUCCESSORS
Section 5.01. MERGER, CONSOLIDATION AND SALE OF ASSETS.
The Company shall not, in a single transaction or a series of
related transactions, consolidate with or merge with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets determined on a consolidated basis to another Person or adopt a plan of
liquidation unless:
(a) either
(i) the Company is the Surviving Person; or
(ii) the Person, if other than the Company, formed by such
consolidation or into which the Company is merged or the Person that
acquires by conveyance, transfer or lease the properties and assets of
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the Company substantially as an entirety or in the case of a plan of
liquidation, the Person to which assets of the Company have been
transferred, will be a corporation, partnership or limited liability
company organized and existing under the laws of the United States or
any State of the United States or the District of Columbia; provided,
however, that if the Person formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance,
transfer or lease the properties and assets of the Company
substantially as an entirety is a partnership or limited liability
company, the Company or such Surviving Person shall cause a Restricted
Subsidiary that is a corporation to become a co-obligor on the Notes;
(b) such Surviving Person, if other than the Company, assumes
all of the obligations of the Company under the Notes and this Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Trustee;
(c) immediately after giving effect to that transaction and
the use of the proceeds from that transaction, on a pro forma basis, including
giving effect to any Debt Incurred or anticipated to be Incurred in connection
with that transaction and the use of the proceeds from that transaction,
(i) no Default or Event of Default shall have occurred and be
continuing; and
(ii) except in the case of a consolidation or merger of the
Company with or into a Wholly Owned Restricted Subsidiary that is a
Guarantor or a sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the Company's assets to a
Wholly Owned Restricted Subsidiary that is a Guarantor, immediately
after giving effect to such transaction, either (i) such Surviving
Person shall be able to Incur $1.00 of additional Debt under paragraph
(a) of Section 4.09 or (ii) the Consolidated Coverage Ratio of the
Surviving Person would not be less than the Consolidated Coverage Ratio
of the Company immediately prior to the transaction; and
(d) the Company delivers to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger or transfer complies
with this Indenture and that all conditions precedent in this Indenture relating
to such transaction have been satisfied.
(e) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of related
transactions) of all or substantially all of the properties and assets of one or
more Restricted Subsidiaries, the Capital Stock of which constitutes all or
substantially all of the properties or assets of the Company, will be deemed to
be the transfer of all or substantially all of the properties and assets of the
Company. Notwithstanding the foregoing clauses (b) and (c),
(A) any Restricted Subsidiary may consolidate with,
merge into or transfer all or part of its properties and
assets to the Company, and
(B) the Company may merge with one of its Affiliates
that is organized solely for the purpose of reorganizing the
Company in another jurisdiction in the United States to
realize tax or other benefits.
(f) Each Guarantor (other than any Guarantor whose Guarantee
is to be released in accordance with the terms of the Guarantee and this
Indenture in connection with any transaction complying with the provisions of
Section 4.12) shall not, and the Company shall 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:
(i) the entity formed by or surviving any such consolidation
or merger (if other than the Guarantor) is a corporation, partnership
or limited liability company organized and existing under the laws of
the United States or any State of the United States or the District of
Columbia;
(ii) such entity surviving any such consolidation or merger
(if other than the Guarantor) assumes by supplemental indenture all of
the obligations of the Guarantor on the Guarantee;
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(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 clause (c)(ii) hereof.
In connection with any merger or consolidation of a Guarantor
with and into the Company (with the Company being the surviving entity) or
another Guarantor that is a Wholly Owned Restricted Subsidiary, the Company must
deliver to the Trustee prior to the consummation of the proposed transaction an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer complies with this Indenture and that all
conditions precedent in this Indenture relating to such transaction have been
satisfied.
Section 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
The Surviving Person shall succeed to, and be substituted for,
and may exercise every right and power of the Company under this Indenture, but
the predecessor Company in the case of:
(a) a sale, transfer, assignment, conveyance or other
disposition (unless such sale, transfer, assignment, conveyance or other
disposition is of all the assets of the Company as an entirety or virtually as
an entirety), or
(b) a lease,
shall not be released from any of the obligations or covenants under this
Indenture, including with respect to the payment of the Notes.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. EVENTS OF DEFAULT.
Each of the following is an "Event of Default:"
(i) the failure to pay interest including Special Interest, if
any, on the Notes when that interest or Special Interest becomes due
and payable and the Default continues for 30 days;
(ii) the failure to pay principal of or premium, if any, on
the Notes when that principal or premium, if any, becomes due and
payable, at maturity, upon redemption or otherwise;
(iii) the failure to observe or perform any other covenant or
agreement contained in the Notes or this Indenture, which failure
continues for a period of 60 days after the Company receives a written
notice specifying the default from the Trustee or Holders of at least
25% in aggregate principal amount of outstanding Notes;
(iv) the failure by the Company or any Restricted Subsidiary
to pay Debt at the final stated maturity, after giving effect to any
extensions, or upon the acceleration of the final stated maturity of
that Debt, if the aggregate principal amount of that Debt, together
with the aggregate principal amount of any other such Debt in default
for failure to pay principal at the final stated maturity, after giving
effect to any extensions, or upon the acceleration of the final stated
maturity of that Debt, aggregates $20.0 million or more at any time and
such default shall not have been cured or such acceleration shall not
have been rescinded after a 10-day period;
(v) one or more judgments in an aggregate amount in excess of
$20.0 million, which judgments are not covered by insurance, or if
covered by insurance, as to which the insurer has disclaimed coverage,
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being rendered against the Company or any of its Restricted
Subsidiaries and such judgment or judgments remain undischarged,
unwaived or unstayed for a period of 60 days after such judgment or
judgments become final and nonappealable;
(vi) the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a custodian of it
or for all or substantially all of its property;
(D) makes a general assignment for the benefit of its
creditors; or
(E) admits in writing its inability to pay its debts
as they become due; and
(vii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case; or
(B) appoints a custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of
the property of the Company or any of its Significant
Subsidiaries; or
(C) orders the liquidation of the Company or any of
its Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days; or
(viii) any Guarantee of a Significant Subsidiary ceases to be
in full force and effect or any Guarantee of a Significant Subsidiary
is declared to be null and void and unenforceable by a judicial
determination or any Guarantee of a Significant Subsidiary is found to
be invalid by a judicial determination or any Guarantor that is a
Significant Subsidiary denies its obligations under its Guarantee (in
each case, other than by reason of release of a Guarantor in accordance
with the terms of this Indenture).
Section 6.02. ACCELERATION.
If any Event of Default (other than those of the type
described in Section 6.01(vi) or (vii)) occurs and is continuing, the Trustee
may, and the Trustee upon the request of Holders of 25% in principal amount of
the outstanding Notes will, or the Holders of at least 25% in principal amount
of outstanding Notes may, declare the principal of all the Notes, together with
all accrued and unpaid interest, premium, if any, and Special Interest, if any,
to be due and payable by notice in writing to the Company and the Trustee
specifying the respective Event of Default and that such notice is a notice of
acceleration (the "ACCELERATION NOTICE"), and the same shall become immediately
due and payable.
In the case of an Event of Default specified in Section (vi)
or (vii) of Section 6.01 hereof, such amount with respect to all the Notes will
become due and payable immediately without any declaration or other act on the
part of the Trustee or the holders of the Notes. Holders may not enforce this
Indenture or the Notes except as provided in this Indenture.
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At any time after a declaration of acceleration with respect
to the Notes, the Holders of a majority in principal amount of the Notes then
outstanding (by notice to the Trustee) may rescind and cancel that declaration
and its consequences if:
(a) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction;
(b) all existing Defaults and Events of Default have been
cured or waived except nonpayment of principal of or interest on the Notes that
has become due solely by such declaration of acceleration;
(c) to the extent the payment of such interest is lawful,
interest (at the same rate specified in the Notes) on overdue installments of
interest and overdue payments of principal which has become due otherwise than
by such declaration of acceleration has been paid;
(d) the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its reasonable expenses,
disbursements and advances; and
(e) in the event of the cure or waiver of an Event of Default
of the type described in Section 6.01(vi) or (vii), the Trustee has received an
Officers' Certificate and Opinion of Counsel that such Event of Default has been
cured or waived.
In the case of an Event of Default occurring by reason of any
willful action or inaction taken or not taken by the Company or on the Company's
behalf with the intention of avoiding payment of the premium that the Company
would have been required to pay if the Company had then elected to redeem the
Notes pursuant to Section 3.07 hereof, an equivalent premium will also become
and be immediately due and payable to the extent permitted by law upon the
acceleration of the Notes. If an Event of Default occurs prior to October 1,
2006, by reason of any willful action or inaction taken or not taken by the
Company or on the Company's behalf with the intention of avoiding the
prohibition on redemption of the Notes prior to October 1, 2006, then the
premium specified in Section 3.07 will also become immediately due and payable
to the extent permitted by law upon acceleration of the Notes.
Section 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium, if
any, and interest and Special Interest, if any, 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
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Notes may
waive by consent (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Notes) any then
existing or potential Default, and its consequences, except a default in the
payment of the principal of or interest on any Notes. In the event of any Event
of Default specified in clause (iv) of the first paragraph of Section 6.01, such
Event of Default and all consequences of that Event of Default, including
without limitation any acceleration or resulting payment default, will be
annulled, waived and rescinded, automatically and without any action by the
Trustee or the Holders of the Notes, if within 60 days after the Event of
Default arose:
(a) the Debt that is the basis for the Event of Default has
been discharged;
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(b) the holders of that Debt have rescinded or waived the
acceleration, notice or action, as the case may be, giving rise to the Event of
Default; or
(c) if the default that is the basis for such Event of Default
has been cured.
When a Default or Event of Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any consequent right.
Section 6.05. CONTROL BY MAJORITY.
Subject to Section 7.01, Section 7.02(f) (including the
Trustee's receipt of the security or indemnification described therein) and
Section 7.07, in case an Event of Default shall occur and be continuing, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding will have the right to 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 with respect to the Notes.
Section 6.06. LIMITATION ON SUITS.
No Holder will have any right to institute any proceeding with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any remedy thereunder, unless:
(a) such Holder has previously given to the Trustee written
notice of a continuing Event of Default,
(b) Holders of at least 25% in aggregate principal amount of
the Notes then outstanding have made written request and offered reasonable
indemnity to the Trustee to institute such proceeding as trustee, and
(c) the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of the Notes then outstanding a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days.
A Holder may not use this Indenture to affect, disturb or
prejudice the rights of another Holder or to obtain a preference or priority
over another Holder.
Section 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture
(including, without limitation, Section 6.06), the right of any Holder to
receive payment of principal, premium, if any, and interest and Special
Interest, if any, on the Notes held by such Holder, on or after the respective
due dates expressed in the Notes (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(i) or (ii)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium, if any, and interest and Special Interest, if
any, then due and owing (together with interest on overdue principal and, to the
extent lawful, interest) and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
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compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Notes), its creditors or its property and
shall be entitled and empowered to participate as a member, voting or otherwise,
of any official committee of creditors appointed in such matter and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that any such compensation, expenses and
advances of the Trustee and its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, moneys, securities and
any other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or any plan of reorganization or arrangement
or otherwise. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation, expenses
and liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest and Special Interest, if any, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, and interest and Special
Interest, if any, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10.
Section 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by
the Company, a suit by a Holder pursuant to Section 6.07 hereof, or a suit by
Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default which the Trustee has, or is deemed
to have, notice hereunder has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture,
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and use the same degree of care and skill in its exercise, as a prudent Person
would exercise or use under the circumstances in the conduct of such Person's
own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and the
Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein or otherwise verify the contents
thereof).
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.05 hereof; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any
liability.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.
(e) Except for information provided by the Trustee concerning
the Trustee, the Trustee shall have no responsibility for any information in any
prospectus or other disclosure material distributed with respect to the Notes.
Section 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in any such
document. Any facsimile signature of any Person on a document required or
permitted in this Indenture to be delivered to the Trustee shall constitute a
legal, valid and binding execution thereof by such Person.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
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(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(g) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a Default or Event of Default is received by a Responsible Officer of the
Trustee at the Corporate Trust Office of the Trustee from the Company or the
Holders of 25% in aggregate principal amount of the outstanding Notes, and such
notice references the specific Default or Event of Default, the Notes and this
Indenture and, in the absence of any such notice, the Trustee may conclusively
assume that no such Default or Event of Default exists.
(h) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
(i) The Trustee shall not be required to give any bond or
surety in respect of the performance of its power and duties hereunder.
(j) The Trustee shall have no duty to inquire as to the
performance of the Company's covenants herein.
(k) The Trustee's immunities and protections from liability
and its right to indemnification in connection with the performance of its
duties under this Indenture shall extend to the Trustee's officers, directors,
agents, attorneys and employees. Such immunities and protections and right to
indemnification, together with the Trustee's right to compensation, shall
survive the Trustee's resignation or removal, the defeasance or discharge of
this Indenture and final payment of the Notes.
(l) The right of the Trustee to take the actions permitted by
this Indenture shall not be construed as an obligation or duty to do so.
Section 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the Commission
for permission to continue as Trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
Section 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it
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shall not be responsible for any statement or recital herein or any statement in
the Notes or any other document in connection with the sale of the Notes or
pursuant to this Indenture other than its certificate of authentication.
Section 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to Holders a notice of the
Default or Event of Default within 90 days after it occurs unless such Default
or Event of Default has since been cured. Except in the case of a Default or
Event of Default in payment of principal of, premium, if any, or interest or
Special Interest, if any, on any Note, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of the Holders.
Section 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders a brief report dated as of
such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months preceding
the reporting date, no report need be transmitted). The Trustee also shall
comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange and any delisting thereof.
Section 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder as the Company and the Trustee shall agree in writing. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee (in its capacity as
Trustee) or any predecessor Trustee (in its capacity as Trustee) against any and
all losses, claims, damages, penalties, fines, liabilities or expenses,
including incidental and out-of-pocket expenses and reasonable attorneys fees
("LOSSES") incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company (including this Section
7.07) and defending itself against any claim (whether asserted by the Company or
any Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim, and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel if the Trustee
has been reasonably advised by counsel that there may be one or more legal
defenses available to it that are different from or additional to those
available to the Company and in the reasonable judgment of such counsel it is
advisable for the Trustee to engage separate counsel, and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably
withheld. The Company need not reimburse any expense or indemnify against any
loss incurred by the Trustee through the Trustee's own willful misconduct, gross
negligence or bad faith.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture, the resignation or
removal of the Trustee and payment in full of the Notes.
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To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal,
premium, if any, and interest and Special Interest, if any, on particular Notes.
Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(vi) or (vii) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
Section 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time upon 30 days
prior notice to the Company and be discharged from the trust hereby created by
so notifying the Company. The Holders of a majority in principal amount of the
then outstanding Notes may remove the Trustee by so notifying the Trustee and
the Company in writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason (the 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 then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 30 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 then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has
been a Holder for at least six months, fails to comply with Section 7.10, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. Subject to the Lien provided for in Section 7.07 hereof,
the retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee. Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
Section 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or banking
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association, the successor corporation or banking association without any
further act shall, if such successor corporation or banking association is
otherwise eligible hereunder, be the successor Trustee.
Section 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
Person organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50,000,000 (or a wholly-owned subsidiary of a bank or trust company, or
of a bank holding company, the principal subsidiary of which is a bank or trust
company having a combined capital and surplus of at least $50,000,000) as set
forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option and at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE") and each Guarantor shall be released from all of its obligations
under its Guarantee. For this purpose, Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Debt represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a), (b), (c) and (d) below, and to have satisfied all its other
obligations under the Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal of, premium, if any, or interest and Special Interest, if any, on
such Notes when such payments are due, (b) the Company's obligations with
respect to such Notes under Article 2 and Sections 4.01 and 4.02 hereof, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company's obligations in connection therewith and (d) this Article 8. If the
Company exercises under Section 8.01 hereof the option applicable to this
Section 8.02, subject to the satisfaction of the conditions set forth in Section
8.04 hereof, payment of the Notes may not be accelerated because of an Event of
Default. Subject to compliance with this Article 8, the Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof.
Section 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
71
from its obligations under the covenants contained in Sections 4.08 through 4.22
hereof, and the operation of Section 5.01(c) hereof, with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
are satisfied (hereinafter, "COVENANT DEFEASANCE") and each Guarantor shall be
released from all of its obligations under its Guarantee with respect to such
covenants in connection with such outstanding Notes and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby. If the Company exercises under Section 8.01 hereof the
option applicable to this Section 8.03, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, payment of the Notes may not be
accelerated because of an Event of Default specified in clause (iii) (with
respect to the covenants contained in Sections 4.08 through 4.22 hereof), (iv),
(v), (vi), (vii) and (viii) (but in the case of (vi) and (vii) of Section 6.01
hereof, with respect to Significant Subsidiaries only) or because of the
Company's failure to comply with clause (c) of Section 5.01.
Section 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes.
The Legal Defeasance or Covenant Defeasance may be exercised
only if:
(a) the Company irrevocably deposits with the Trustee, in
trust (the "DEFEASANCE TRUST"), for the benefit of the Holders of the Notes,
cash in U.S. dollars, non-callable U.S. Government Securities, or a combination
of cash in U.S. dollars and non-callable U.S. Government Securities, sufficient,
in the opinion of a firm of independent public accountants of recognized
international standing, to pay the principal, premium, if any, and interest and
Special Interest, if any, on the outstanding Notes on the Stated Maturity or on
the next available redemption date, as the case may be, and the Company must
specify whether the Notes are being defeased to maturity or to that particular
redemption date;
(b) in the case of Legal Defeasance, the Company delivers to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that (a) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (b) since the date hereof, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel will confirm that,
the Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal 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 Legal Defeasance had not
occurred;
(c) in the case of Covenant Defeasance, the Company delivers
to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(d) no Event of Default under Sections 6.01(vi) or (vii) shall
have occurred at any time in the period ending on the 91st day after the cash
and/or non-callable U.S. Government Securities have been deposited in the
defeasance trust;
(e) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or any
of its Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
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(f) the Company delivers to the Trustee an Opinion of Counsel,
subject to customary exceptions, to the effect that on the 91st day following
the deposit, the defeasance trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws generally
affecting creditors' rights;
(g) the Company delivers to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of Notes over the Company's other creditors with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company; and
(h) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.
(i) Notwithstanding the foregoing, the Opinion of Counsel
required by clause (b) above with respect to a Legal Defeasance need not be
delivered if all Notes not theretofore delivered to the Trustee for cancellation
(A) have become due and payable, (B) will become due and payable on the maturity
date within one year or (C) as to which a redemption notice has been given
calling the Notes for redemption within one year, under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Section 8.05. DEPOSITED CASH AND U.S. GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all cash and non-callable U.S.
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of all sums due and
to become due thereon in respect of principal, premium, if any, and interest and
Special Interest, if any, but such cash and securities need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or U.S.
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any cash or non-callable U.S. Government Securities held
by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent certified public accountants of recognized
international standing expressed in a written certification thereof delivered to
the Trustee (which may be the certification delivered under Section 8.04(a)
hereof), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. REPAYMENT TO COMPANY.
Any cash or non-callable U.S. Government Securities deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal, premium, if any, or interest or Special Interest,
if any, on any Note and remaining unclaimed for two years after such principal,
premium, if any, or interest or Special Interest, if any, has become due and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder shall thereafter,
as an unsecured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such cash and
securities, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in The
New York Times and The Wall Street Journal (national
edition), notice
73
that such cash and securities remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such notification
or publication, any unclaimed balance of such cash and securities then remaining
shall be repaid to the Company.
Section 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any cash or
non-callable U.S. Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such cash and securities in accordance with Section 8.02
or 8.03 hereof, as the case may be; provided, however, that, if the Company
makes any payment of principal of, premium, if any, or interest or Special
Interest, if any, on any Note following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders to receive such
payment from the cash and securities held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company
and the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder to:
(a) cure any ambiguity, omission, defect or inconsistency;
(b) provide for the assumption by a successor corporation,
partnership or limited liability company of the obligations of the Company under
this Indenture;
(c) provide for uncertificated Notes in addition to or in
place of certificated Notes (provided that the uncertificated Notes are issued
in registered form for purposes of Section 163(f) of the Code, or in a manner
such that the uncertificated Notes are described in Section 163(f)(2)(B) of the
Code);
(d) add additional Guarantees or additional obligors with
respect to the Notes;
(e) secure the Notes;
(f) add to the covenants of the Company for the benefit of the
Holders of the Notes or to surrender any right or power conferred upon the
Company;
(g) make any other change that does not adversely affect the
legal rights hereunder of any such Holder;
(h) make any change to comply with any requirement of the
Commission in order to effect or maintain the qualification of this Indenture
under the TIA;
(i) to provide for the issuance of Additional Notes in
accordance with this Indenture; or
(j) subject to Section 9.03, make any change to the
subordination provisions of this Indenture that would limit or terminate the
benefits available to any holder of Senior Debt under such provisions.
74
Section 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company and
the Trustee may amend or supplement this Indenture and the Notes with the
consent of the Holders of a majority in principal amount of the Notes, including
Additional Notes, if any, then outstanding voting as a single class (including
consents obtained in connection with a purchase of or tender offer or exchange
offer for the Notes), and, subject to Sections 6.04 and 6.07 hereof, any
existing Default or Event of Default (except a continuing Default or Event of
Default in the payment of principal, premium, if any, or interest or Special
Interest, if any, on the Notes) or compliance with any provision of this
Indenture or the Notes (except for certain covenants and provisions of this
Indenture which cannot be amended without the consent of each Holder) may be
waived with the consent of the Holders of a majority in principal amount of the
Notes, including Additional Notes, if any, then outstanding voting as a single
class (including consents obtained in connection with a purchase of or tender
offer or exchange offer for the Notes).
Without the consent of each Holder, an amendment or waiver
under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the rate of or change the time for payment of
interest, including defaulted interest, on any Notes;
(c) reduce the principal of or change the fixed maturity of
any Notes, or change the date on which any Notes may be subject to redemption or
repurchase, or reduce the redemption or repurchase price for those Notes
(except, in the case of repurchases, as would otherwise be permitted under
clauses (g) and (j) hereof);
(d) make any Note payable in money other than that stated in
the Note and this Indenture;
(e) impair the right of any Holder to receive payment of
principal, premium, interest and Special Interest, if any, on that Holder's
Notes on or after the due dates for those payments, or to bring suit to enforce
that payment on or with respect to such Holder's Notes or any Guarantee;
(f) modify Section 6.04 hereof;
(g) after the Company's obligation to purchase the notes
arises under Section 4.18 hereof, amend, modify or change the obligation of the
Company to make or consummate a Change of Control Offer or waive any default in
the performance of that Change of Control Offer or modify any of the provisions
or definitions with respect to any such offer;
(h) release any Guarantor from any of its obligations under
its Guarantee or this Indenture otherwise than in accordance with the terms of
this Indenture;
(i) make any change to the subordination provisions of this
Indenture that would adversely affect the Holders of the Notes, subject to
Section 9.03;
(j) at any time after the Company is obligated to make an
Asset Sale Offer pursuant to Section 4.12 hereof, change the time at which such
offer to purchase must be made or at which the Notes must be repurchased
pursuant thereto; or
(k) make any change in any Guarantee that would adversely
affect the Holders of the Notes.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
supplemental indenture. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided that unless such consent
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shall have become effective by virtue of the requisite percentage having been
obtained prior to the date which is 120 days after such record date, any such
consent previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holder of each Note
affected thereby to such Holder's address appearing in the Security Register a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes, including Additional Notes,
if any, then outstanding voting as a single class may waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Notes.
Section 9.03. WITH CONSENT OF HOLDERS OF SENIOR DEBT.
No amendment or supplement may be made to the subordination
provisions of this Indenture that adversely affects the rights of any holder of
Senior Debt then outstanding unless the Representative of the holders of such
Senior Debt or, if there is no Representative, the holders of such Senior Debt
consent to such change.
Section 9.04. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental indenture that complies with
the TIA as then in effect.
Section 9.05. 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 of a Note and
every subsequent Holder of a Note or portion thereof that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder or subsequent Holder may revoke the
consent as to its Note or portion thereof if the Trustee receives written notice
of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.06. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall, upon receipt
of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.07. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be entitled to receive and (subject to Section 7.01 hereof)
shall be fully protected in relying upon an Officer's Certificate and an Opinion
of Counsel stating that the execution of such amended or supplemental indenture
is authorized or permitted by this Indenture and that such amended or
supplemental indenture is the legal, valid and binding obligations of the
76
Company enforceable against it in accordance with its terms, subject to
customary exceptions and that such amended or supplemental indenture complies
with the provisions hereof (including Section 9.03).
ARTICLE 10.
GUARANTEES
Section 10.01. GUARANTEE
Subject to this Article 10 and Article 12 hereof, each of the
Guarantors hereby unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns that: (a) the principal of, premium, if any, and interest and
Special Interest, if any, on the Notes shall be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, and interest
and Special Interest, if any, on, the Notes, if lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder
shall be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same shall be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration pursuant to
Section 6.02 hereof, redemption or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
Each Guarantor hereby agrees that its obligations with regard
to this Guarantee shall be joint and several, unconditional, irrespective of the
validity or enforceability of the Notes or the obligations of the Company under
this Indenture, the absence of any action to enforce the same, the recovery of
any judgment against the Company or any other obligor with respect to this
Indenture, the Notes or the Obligations of the Company under this Indenture or
the Notes, any action to enforce the same or any other circumstances (other than
complete performance) which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each Guarantor further, to the extent
permitted by law, waives and relinquishes all claims, rights and remedies
accorded by applicable law to guarantors and agrees not to assert or take
advantage of any such claims, rights or remedies, including but not limited to:
(a) any right to require any of the Trustee, the Holders or the Company (each a
"BENEFITED PARTY"), as a condition of payment or performance by such Guarantor,
to (1) proceed against the Company, any other guarantor (including any other
Guarantor) of the Obligations under the Guarantees or any other Person, (2)
proceed against or exhaust any security held from the Company, any such other
guarantor or any other Person, (3) proceed against or have resort to any balance
of any deposit account or credit on the books of any Benefited Party in favor of
the Company or any other Person, or (4) pursue any other remedy in the power of
any Benefited Party whatsoever; (b) any defense arising by reason of the
incapacity, lack of authority or any disability or other defense of the Company
including any defense based on or arising out of the lack of validity or the
unenforceability of the Obligations under the Guarantees or any agreement or
instrument relating thereto or by reason of the cessation of the liability of
the Company from any cause other than payment in full of the Obligations under
the Guarantees; (c) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal; (d) any defense based
upon any Benefited Party's errors or omissions in the administration of the
Obligations under the Guarantees, except behavior which amounts to bad faith;
(e)(1) any principles or provisions of law, statutory or otherwise, which are or
might be in conflict with the terms of the Guarantees and any legal or equitable
discharge of such Guarantor's obligations hereunder, (2) the benefit of any
statute of limitations affecting such Guarantor's liability hereunder or the
enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims
and (4) promptness, diligence and any requirement that any Benefited Party
protect, secure, perfect or insure any security interest or lien or any property
subject thereto; (f) notices, demands, presentations, protests, notices of
protest, notices of dishonor and notices of any action or inaction, including
acceptance of the Guarantees, notices of default under the Notes or any
agreement or instrument related thereto, notices of any renewal, extension or
modification of the Obligations under the Guarantees or any agreement related
thereto, and notices of any extension of credit to the Company and any right to
consent to any thereof; (g) to the extent permitted under applicable law, the
benefits of any "One Action" rule and (h) any defenses or benefits that may be
derived from or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms of the Guarantees.
Except to
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the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05,
each Guarantor hereby covenants that its Guarantee shall not be discharged
except by complete performance of the obligations contained in its Guarantee and
this Indenture.
If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section 6.02
hereof for the purposes of this Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby and (y) in the event of any declaration of acceleration of
such obligations as provided in Section 6.02 hereof, such obligations (whether
or not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Guarantee. The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Guarantee.
Section 10.02. LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Guarantee
of such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Guarantee. To effectuate the foregoing intention, the Trustee,
the Holders and the Guarantors hereby irrevocably agree that the obligations of
such Guarantor under this Article 10 shall be limited to the maximum amount as
shall, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Guarantor that are relevant under such laws,
including, if applicable, its guarantee of all obligations under the Senior
Credit Facilities and the Senior Notes, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article 10, result in the obligations of such Guarantor
under its Guarantee not constituting a fraudulent transfer or conveyance.
Section 10.03. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its Guarantee set forth in Section 10.01 hereof,
each Guarantor hereby agrees that a notation of such Guarantee in substantially
the form included in Exhibit E shall be endorsed by an Officer of such Guarantor
on each Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Guarantor by its President or one of its
Vice Presidents.
Each Guarantor hereby agrees that its Guarantee set forth in
Section 10.01 hereof shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
If an Officer whose signature is on this Indenture or on the
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
set forth in this Indenture on behalf of the Guarantors.
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Section 10.04. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Except as otherwise provided in Section 10.05 hereof, no
Guarantor may consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another Person whether or not affiliated with
such Guarantor unless:
(a) subject to Section 10.05 hereof, the Person formed by or
surviving any such consolidation or merger (if other than a Guarantor or the
Company) unconditionally assumes all the obligations of such Guarantor, pursuant
to a supplemental indenture in form and substance reasonably satisfactory to the
Trustee, under this Indenture, the Guarantee and the Registration Rights
Agreement on the terms set forth herein or therein; and
(b) the Guarantor complies with the requirements of Article 5
hereof.
In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the Guarantee endorsed upon the Notes and the due and punctual performance of
all of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a Guarantor.
Such successor Person thereupon may cause to be signed any or all of the
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Guarantees so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all
of such Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and
notwithstanding clauses (a) and (b) above, nothing contained in this Indenture
or in any of the Notes shall prevent any consolidation or merger of a Guarantor
with or into the Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
Section 10.05. RELEASES FOLLOWING SALE OF ASSETS.
In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale
or other disposition of all of the capital stock of any Guarantor, in each case
to a Person that is not (either before or after giving effect to such
transactions) a Subsidiary of the Company, then such Guarantor (in the event of
a sale or other disposition, by way of merger, consolidation or otherwise, of
all of the capital stock of such Guarantor) or the corporation acquiring the
property (in the event of a sale or other disposition of all or substantially
all of the assets of such Guarantor) shall be released and relieved of any
obligations under its Guarantee; provided that the net proceeds of such sale or
other disposition are applied in accordance with the applicable provisions of
this Indenture, including without limitation Section 4.12 hereof. Upon delivery
by the Company to the Trustee of an Officers' Certificate and an Opinion of
Counsel to the effect that such sale or other disposition was made by the
Company in accordance with the provisions of this Indenture, including without
limitation Section 4.12 hereof, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Guarantee.
Any Guarantor not released from its obligations under its
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under this Indenture
as provided in this Article 10.
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ARTICLE 11.
SUBORDINATION
Section 11.01. AGREEMENT TO SUBORDINATE
The Company agrees, and each Holder by accepting a Note
agrees, that the payment of principal of, premium, if any, and interest,
including Special Interest, if any, on, and all other amounts payable in respect
of, the Notes is subordinated in right of payment, to the extent and in the
manner provided in this Article 11 and subject to the provisions of Article 8
hereof, to the payment when due in cash of all Senior Debt of the Company and
that the subordination is for the benefit of and enforceable by the holders of
such Senior Debt. The Notes shall in all respects rank pari passu with any
future Senior Subordinated Debt and senior to all existing and future
Subordinated Debt of the Company, and only Senior Debt shall rank senior to the
Notes in accordance with the provisions set forth herein. All provisions of this
Article 11 shall be subject to Section 11.12. All references to "Senior Debt" in
this Article 11 are to Senior Debt of the Company.
Section 11.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY
(a) Upon any payment or distribution of the assets of the
Company to creditors upon a liquidation, dissolution or winding up of the
Company or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its property or upon an assignment for the
benefit of the Company's creditors or the marshaling of its assets and
liabilities, the holders of Senior Debt will be entitled to receive payment in
full in cash before the Holders of the Notes are entitled to receive any payment
of principal of, premium, if any, or interest, including Special Interest, if
any, on, the Notes, except that Holders of Notes may receive and retain such
payments made in Permitted Junior Securities and payments from the trust
described in Article 8 hereof; and
(b) Until the Senior Debt is paid in full in cash, any
distribution to which Holders of the Notes would be entitled but for this
Article 11 will be made to holders of the Senior Debt as their interests may
appear (except that Holders of Notes may receive and retain payments made in
Permitted Junior Securities and payments and other distributions made from the
trust described in Article 8 hereof; provided that (i) no Holder of the Notes
shall have the right to receive and retain any such Permitted Junior Securities
if the existence of such right would have the effect of causing the Notes to be
treated in the same class of claims as the Senior Debt of the Company or any
class of claims which is pari passu with such Senior Debt and (ii) holders of
Senior Debt shall be entitled to receive any cash payments made to any Holder of
Notes on the account of Permitted Junior Securities until all Obligations in
respect of Senior Debt have been paid in full in cash).
Section 11.03. DEFAULT ON SENIOR DEBT
The Company may not pay (except in Permitted Junior Securities
or from the trust described in Article 8 hereof) principal of, or premium, if
any, or interest on, the Notes, or make any deposit pursuant to Section 8.04,
and may not repurchase, redeem or otherwise retire any Notes (collectively, "PAY
THE NOTES") if (a) any principal, premium, interest or any other amount payable
in respect of any Senior Debt is not paid within any applicable grace period
(including at maturity) or (b) any other default on Senior Debt occurs and the
maturity of such Senior Debt is accelerated in accordance with its terms unless,
in either case, (1) the default has been cured or waived and any such
acceleration has been rescinded or (2) such Senior Debt has been paid in full in
cash; provided, however, that the Company may pay the Notes without regard to
the foregoing if the Company and the Trustee receive written notice approving
such payment from the Representative of the holders of such Senior Debt or, if
there is no Representative, from the holders of such Senior Debt.
During the continuance of any default (other than a default
described in clause (a) or (b) of the preceding sentence) with respect to any
Designated Senior Debt pursuant to which the maturity thereof may be accelerated
immediately without further notice (except any notice required to effect the
acceleration) or the expiration of any applicable grace period, the Company may
not pay the Notes for a period (a "PAYMENT BLOCKAGE PERIOD") commencing upon the
receipt by the Company and the Trustee of written notice of such default from
the Representative of the holders of such Designated Senior Debt or, if there is
no Representative, from the holders of such Designated Senior Debt, specifying
an election to effect a Payment Blockage Period (a "PAYMENT BLOCKAGE NOTICE")
and ending 179 days thereafter (unless such Payment Blockage Period is earlier
terminated (a) by written notice to the Trustee and the Company from the
Representative of the holders of such Designated Senior Debt or, if there is no
Representative, from the holders of such Designated Senior Debt that gave such
Payment ▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇, (▇) because such default is no longer continuing or (c) because such
Designated Senior Debt has been repaid in full in cash). Not more than one
Payment Blockage Notice with respect to all issues of Designated Senior Debt may
be given in any consecutive 360-day period, irrespective of the number of
defaults with respect to one or more issues of Designated Senior Debt during
such period. No non-payment default that existed or was continuing on the date
of delivery of any Payment Blockage Notice to the Trustee shall be the basis for
a subsequent Payment Blockage Notice. Following the expiration of any period
during which the Company is prohibited from making payments on the Notes
pursuant to a Payment Blockage Notice, the Company shall (unless otherwise
prohibited as described in the first two sentences of this paragraph) resume
making any and all required payments in respect of the Notes, including, without
limitation, any missed payments, unless the maturity of any Designated Senior
Debt has been accelerated, and such acceleration remains in full force and
effect.
The Company shall give prompt written notice to the Trustee of
any default in the payment of any Senior Debt or any acceleration under any
Senior Debt or under any agreement pursuant to which Senior Debt may have been
issued. Failure to give such notice shall not effect the subordination of the
Notes to the Senior Debt or the application of the other provisions provided in
this Article 11.
Section 11.04. ACCELERATION OF PAYMENT OF SECURITIES.
If payment of the Notes is accelerated when Designated Senior
Debt is outstanding, the Company may not pay the Notes until three Business Days
after the Representative of the holders of such Designated Senior Debt or, if
there is no Representative, the holders of such Designated Senior Debt receive
notice of such acceleration and, thereafter, may pay the Notes only if this
Indenture otherwise permits payment at that time.
Section 11.05. WHEN DISTRIBUTION MUST BE PAID OVER.
If a payment or distribution is made to Holders that because
of this Article 11 should not have been made to them, the Trustee or the Holders
who receive the distribution shall hold it in trust for holders of Senior Debt
(pro rata as to each of such holders of Senior Debt on the basis of the
respective amounts of Senior Debt paid to them) and pay it over to them or their
Representative as their interests may appear.
Section 11.06. SUBROGATION
After all Senior Debt is paid in full and until the Notes are
paid in full, Holders shall be subrogated (equally and ratably with all other
Debt that is pari passu with the Notes) to the rights of holders of Senior Debt
to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Article 11 to holders of Senior
Debt that otherwise would have been made to Holders is not, as between the
Company and Holders, a payment by the Company on such Senior Debt.
Section 11.07. RELATIVE RIGHTS
This Article 11 defines the relative rights of Holders and
holders of Senior Debt. Nothing in this Indenture shall:
(a) impair, as between the Company and Holders, the obligation
of the Company, which is absolute and unconditional, to pay principal of,
premium, if any, and interest, including Special Interest, if any, on, the Notes
in accordance with their terms;
(b) affect the relative rights of Holders and creditors of the
Company other then their rights in relation to holders of Senior Debt; or
(c) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or an Event of Default, subject to the rights
of holders of Senior Debt to receive distributions otherwise payable to Holders.
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Section 11.08. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY
No right of any holder of Senior Debt to enforce the
subordination of the Debt evidenced by the Notes shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
Section 11.09. RIGHTS OF TRUSTEE AND PAYING AGENT
Notwithstanding Section 11.03, the Trustee or Paying Agent may
continue to make payments on the Notes and shall not be charged with knowledge
of the existence of facts that would prohibit the making of any such payments
unless, not less than two Business Days prior to the date of such payment, a
Responsible Officer receives notice satisfactory to it that payments may not be
made under this Article 11. The Company, the Registrar or co-registrar, the
Paying Agent, a Representative or a holder of Senior Debt may give the notice;
provided, however, that, if an issue of Senior Debt has a Representative, only
the Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. The
Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article 11 with respect to any Senior Debt that may at any time be held by it,
to the same extent as any other holder of such Senior Debt; and nothing in
Article 7 shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article 11 shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 7.07.
Section 11.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the notice given to
their Representative (if any).
Section 11.11. ARTICLE 11 NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT RIGHT TO
ACCELERATE
Nothing in this Article 11 shall prevent an Event of Default
in accordance with Article 6 or have any effect on the right of the Holders or
the Trustee to accelerate the maturity of the Notes or to exercise the rights
and remedies in Article 6.
Section 11.12. TRUST MONEYS NOT SUBORDINATED
Notwithstanding anything contained herein to the contrary,
payments from cash or the proceeds of non-callable U.S. Government Securities
held in trust under Article 8 by the Trustee for the payment of principal of and
interest on the Notes shall not be subordinated to the prior payment of any
Senior Debt or subject to the restrictions set forth in this Article 11, and
none of the Holders shall be obligated to pay over any such amount to the
Company or any holder of Senior Debt or any other creditor of the Company.
Section 11.13. TRUSTEE ENTITLED TO RELY
Upon any payment or distribution pursuant to this Article 11,
the Trustee and the Holders shall be entitled to rely (a) upon any order or
decree of a court of competent jurisdiction in which any proceedings of the
nature referred to in Section 11.02 are pending, (b) upon a certificate of the
liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to the Holders or (c) upon a certificate of the Representative
of the holders of Senior Debt or, if there is no Representative, the holders of
Senior Debt for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Debt and other Debt 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
11. In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article 11, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and other facts pertinent to the rights of such Person
under this Article 11, and, if such evidence is not furnished, the Trustee may
defer any payment to such
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Person pending judicial determination as to the right of such Person to receive
such payment. The provisions of Section 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article 11.
Section 11.14. TRUSTEE TO EFFECTUATE SUBORDINATION
Each Holder by accepting a Note authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Holders and the holders
of Senior Debt as provided in this Article 11 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
Section 11.15. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders or the Company or any other
Person, money or assets to which any holders of Senior Debt shall be entitled by
virtue of this Article 11 or otherwise, except if such mistake was the result of
the Trustee's gross negligence or willful misconduct.
Section 11.16. RELIANCE BY HOLDERS OF SENIOR DEBT 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 Debt, whether such
Senior Debt 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 Debt and
such holder of such Senior Debt shall be deemed conclusively to have relied on
such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Debt.
ARTICLE 12.
SUBORDINATION OF GUARANTEES
Section 12.01. AGREEMENT TO SUBORDINATE
Each Guarantor agrees, and each Holder by accepting a Note
agrees, that the Obligations of such Guarantor are subordinated in right of
payment, to the extent and in the manner provided in this Article 12 and subject
to the provisions of Article 8 hereof, to the payment when due in cash of all
Senior Debt of such Guarantor and that the subordination is for the benefit of
and enforceable by the holders of such Senior Debt. The Obligations of a
Guarantor shall in all respects rank pari passu with any future Senior
Subordinated Debt of such Guarantor and senior to all existing and future
Subordinated Debt of such Guarantor, and only Senior Debt of the Guarantor shall
rank senior to the Obligations of such Guarantor in accordance with the
provisions set forth herein. All references to "Obligations" in this Article 12
are to Obligations of the Guarantors under the Guarantees.
Section 12.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY
(a) Upon any payment or distribution of the assets of any
Guarantor to creditors upon a liquidation, dissolution or winding up of such
Guarantor or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to such Guarantor or its property or upon an
assignment for the benefit of the Guarantor's creditors or the marshaling of its
assets and liabilities, holders of Senior Debt of such Guarantor shall be
entitled to receive payment in full in cash of such Senior Debt before Holders
shall be entitled to receive any payment pursuant to any Obligations of such
Guarantor, except that Holders of Notes may receive and retain such payments
made in Permitted Junior Securities.
(b) Until the Senior Debt of any Guarantor is paid in full in
cash, any distribution made by or on behalf of such Guarantor to which Holders
would be entitled but for this Article 12 shall be made to holders of such
Senior Debt as their interests may appear, except that Holders of Notes may
receive and retain payments made in
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Permitted Junior Securities; provided that (i) no Holder of the Notes shall have
the right to receive and retain any such Permitted Junior Securities if the
existence of such right would have the effect of causing the Notes to be treated
in the same class of claims as the Senior Debt of the Guarantor or any class of
claims which is pari passu with such Senior Debt and (ii) holders of Senior Debt
of the Guarantor shall be entitled to receive any cash payments made to any
Holder of Notes on the account of Permitted Junior Securities until all
Obligations in respect of Senior Debt of the Guarantor have been paid in full in
cash).
Section 12.03. DEFAULT ON SENIOR DEBT OF GUARANTOR
No Guarantor may make any payment pursuant to any of its
Obligations (collectively, "PAY ITS GUARANTEE") if (a) any principal, premium,
interest or other amount payable in respect of any Senior Debt of such Guarantor
is not paid within any applicable grace period (including at maturity) or (b)
any other default on Senior Debt of such Guarantor occurs and the maturity of
such Senior Debt is accelerated in accordance with its terms unless, in either
case, (1) the default has been cured or waived and any such acceleration has
been rescinded or (2) such Senior Debt has been paid in full in cash; provided,
however, that any Guarantor may pay its Guarantee without regard to the
foregoing if such Guarantor and the Trustee receive written notice approving
such payment from the Representative of the holders of such issue of Senior Debt
of such Guarantor or, if there is no Representative, from the holders of such
Senior Debt of such Guarantor. No Guarantor may pay its Guarantee during the
continuance of any Payment Blockage Period after receipt by the Company and the
Trustee of a Payment Blockage Notice under Section 11.03. Unless the
Representative of the holders of such issue of Designated Senior Debt giving
such Payment Blockage Notice or, if there is no Representative, the holders of
such Designated Senior Debt shall have accelerated the maturity of such
Designated Senior Debt and not rescinded such acceleration, any Guarantor shall
resume (unless otherwise prohibited as described in the first two sentences of
this paragraph) payments pursuant to its Guarantee after the end of such Payment
Blockage Period.
Section 12.04. DEMAND FOR PAYMENT
If a demand for payment is made on a Guarantor pursuant to
Article 10, such Guarantor may not pay its Guarantee until three Business Days
after the Representative of the holders of all issues of Designated Senior Debt
or, if there is no Representative, the holders of such Designated Senior Debt,
receive notice of such acceleration and, thereafter, may pay its Guarantee only
if this Indenture otherwise permits payment at that time.
Section 12.05. WHEN DISTRIBUTION MUST BE PAID OVER
If a payment or distribution is made to Holders that because
of this Article 12 should not have been made to them, the Trustee or the Holders
who receive the distribution shall hold it in trust for holders of the relevant
Senior Debt (pro rata as to each of such holders on the basis of the respective
amounts of Senior Debt of the Guarantors held by them) and pay it over to them
or their Representatives as their interests may appear.
Section 12.06. SUBROGATION
After all Senior Debt of a Guarantor is paid in full and until
the Notes are paid in full, Holders shall be subrogated (equally and ratably
with all other Debt that is pari passu with the Guarantors) to the rights of
holders of Senior Debt of such Guarantor to receive distributions applicable to
Senior Debt of such Guarantor to the extent that distributions otherwise payable
to the Holders have been applied to the payment of Senior Debt of the Guarantor.
A distribution made under this Article 12 to holders of such Senior Debt that
otherwise would have been made to Holders is not, as between the relevant
Guarantor and Holders, a payment by such Guarantor on such Senior Debt.
Section 12.07. RELATIVE RIGHTS.
This Article 12 defines the relative rights of Holders and
holders of Senior Debt of a Guarantor. Nothing in this Indenture shall:
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(a) impair, as between a Guarantor and Holders, the obligation
of such Guarantor, which is absolute and unconditional, to pay the Obligations
to the extent set forth in Article 10;
(b) affect the relative rights of Holders and creditors of the
Company other then their rights in relation to holders of Senior Debt of a
Guarantor; or
(c) prevent the Trustee or any Holder from exercising its
available remedies upon a default by such Guarantor under the Obligations,
subject to the rights of holders of Senior Debt of such Guarantor to receive
distributions otherwise payable to Holders.
Section 12.08. SUBORDINATION MAY NOT BE IMPAIRED BY GUARANTOR.
No right of any holder of Senior Debt of any Guarantor to
enforce the subordination of the Obligation of such Guarantor shall be impaired
by any act or failure to act by such Guarantor or by its failure to comply with
this Indenture.
Section 12.09. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding Section 12.03, the Trustee or Paying Agent may
continue to make payments on any Guarantee and shall not be charged with
knowledge of the existence of facts that would prohibit the making of any such
payments unless, not less than two Business Days prior to the date of such
payment, a Responsible Officer receives written notice satisfactory to it that
payments may not be made under this Article 12. The Company, the relevant
Guarantor, the Registrar or co-registrar, the Paying Agent, a Representative or
a holder of Senior Debt of any Guarantor may give the notice; provided, however,
that, if an issue of Senior Debt of any Guarantor has a Representative, only the
Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Debt of a Guarantor with the same rights it would have if it were not
Trustee. The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in
this Article 12 with respect to any Senior Debt of any Guarantor that may at any
time be held by it, to the same extent as any other holder of Senior Debt of a
Guarantor; and nothing in Article 7 shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article 12 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07.
Section 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE
Whenever a distribution is to be made or a notice given to
holders of Senior Debt of any Guarantor, the distribution may be made and the
notice given to their Representative (if any).
Section 12.11. ARTICLE 12 NOT TO PREVENT EVENTS OF DEFAULT UNDER A GUARANTEE OR
LIMIT RIGHT TO DEMAND PAYMENT
Nothing in this Article 12 shall prevent a default under any
Guarantee or have any effect on the right of the Holders or the Trustee to make
a demand for payment on any Guarantor pursuant to Article 10.
Section 12.12. TRUSTEE ENTITLED TO RELY
Upon any payment or distribution pursuant to this Article 12,
the Trustee and the Holders shall be entitled to rely (i) upon any order or
decree of a court of competent jurisdiction in which any proceedings of the
nature referred to in Section 12.02 are pending, (ii) upon a certificate of the
liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to the Holders or (iii) upon a certificate of the
Representative of the holders of Senior Debt of any Guarantor or, if there is no
Representative, the holders of such Senior Debt for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the holders
of Senior Debt of any Guarantor and other Debt 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 12. In the event that
the Trustee determines, in good faith, that evidence is required with respect to
the right of any Person as a
85
holder of Senior Debt of any Guarantor to participate in any payment or
distribution pursuant to this Article 12, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Debt of such Guarantor held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and other
facts pertinent to the rights of such Person under this Article 12, 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. The provisions of Sections 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article 12.
Section 12.13. TRUSTEE TO EFFECTUATE SUBORDINATION
Each Holder by accepting a Note authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Holders and the holders
of Senior Debt of any Guarantor as provided in this Article 12 and appoints the
Trustee as attorney-in-fact for any and all such purposes.
Section 12.14. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT OF GUARANTOR
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt of any Guarantor and shall not be liable to any such
holders if it shall mistakenly pay over or distribute to Holders or the Company
or any other Person, money or assets to which any holders of such Senior Debt
shall be entitled by virtue of this Article 12 or otherwise, except if such
mistake was the result of the Trustee's gross negligence or willful misconduct.
Section 12.15. RELIANCE BY HOLDERS OF SENIOR DEBT OF A GUARANTOR 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 Debt of any
Guarantor, whether such Senior Debt 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 Debt and such holder of Senior Debt shall be deemed conclusively to
have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Debt.
ARTICLE 13.
SATISFACTION AND DISCHARGE
Section 13.01. SATISFACTION AND DISCHARGE.
This Indenture will be discharged and will cease to be of
further effect, except as to surviving rights of registration of transfer or
exchange of the Notes, as to all Notes issued hereunder, when:
(a) either:
(i) all Notes that have been previously authenticated (except
lost, stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has previously been deposited in trust or
segregated and held in trust by the Company and is thereafter repaid to
the Company or discharged from the trust) have been delivered to the
Trustee for cancellation; or
(ii) all Notes that have not been previously delivered to the
Trustee for cancellation (A) have become due and payable or (B) will
become due and payable at their maturity within one year or (C) are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of a notice of redemption by
the Trustee, and the Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust solely for the
benefit of the Holders, cash in U.S. dollars, non-callable U.S.
Government Securities, or a combination thereof, in such amounts as
will be sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire Debt on the Notes not
86
previously delivered to the Trustee for cancellation for principal,
premium, if any, and interest and Special Interest, if any, on the
Notes to the date of deposit, in the case of Notes that have become due
and payable, or to the Stated Maturity or redemption date, as the case
may be;
(b) the Company has paid or caused to be paid all other sums
payable by it under this Indenture; and
(c) the Company delivers to the Trustee an Officers'
Certificate and Opinion of Counsel stating that all conditions precedent under
this Indenture relating to the satisfaction and discharge of this Indenture have
been satisfied.
Section 13.02. DEPOSITED CASH AND U.S. GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 13.03 hereof, all cash and non-callable
U.S. Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
13.02, the "Trustee") pursuant to Section 13.01 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest and Special Interest, if any, but such cash and securities need not be
segregated from other funds except to the extent required by law.
Section 13.03. REPAYMENT TO COMPANY
Any cash or non-callable U.S. Government Securities deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of, premium, if any, or interest or Special
Interest, if any, on, any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest or Special Interest, if any, has
become due and payable shall be paid to the Company on its request or (if then
held by the Company) shall be discharged from such trust; and the Holder shall
thereafter, as an unsecured creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such cash and securities, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in The
New York Times and The Wall Street
Journal (national edition), notice that such cash and securities remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such notification or publication, any unclaimed balance
of such cash and securities then remaining will be repaid to the Company.
ARTICLE 14.
MISCELLANEOUS
Section 14.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the provision required by the TIA shall control.
Section 14.02. NOTICES.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in person or mailed by first
class mail (registered or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next-day delivery, to the other's address:
87
If to the Company:
Swift & Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
The Bank of
New York Trust Company of Florida, N.A.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to the
Trustee) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next-day delivery. All notices and communications to the
Trustee shall be deemed duly given and effective only upon receipt.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next-day delivery to its address shown on the
Security Register. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 14.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
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 anyone else shall have the
protection of TIA Section 312(c).
Section 14.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 14.05 hereof) stating that, in the opinion of the signers, all
conditions
88
precedent and covenants, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 14.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been complied with.
Section 14.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable such Person
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
With respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
Section 14.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 14.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, shall have
any liability for any obligations of the Company or of the Guarantors under the
Notes, this Indenture, the Guarantees or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes.
Section 14.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 14.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
89
Section 14.10. SUCCESSORS.
All covenants and agreements of the Company in this Indenture
and the Notes shall bind its successors. All covenants and agreements of the
Trustee in this Indenture shall bind its successors.
Section 14.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 14.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 14.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings in
this Indenture have been inserted for convenience of reference only, are not to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
Section 14.14. QUALIFICATION OF THIS INDENTURE.
The Company shall qualify this Indenture under the TIA in
accordance with the terms and conditions of the Registration Rights Agreement
and shall pay all reasonable costs and expenses (including attorneys' fees and
expenses for the Company, the Trustee and the Holders) incurred in connection
therewith, including, but not limited to, costs and expenses of qualification of
this Indenture and the Notes and printing this Indenture and the Notes. The
Trustee shall be entitled to receive from the Company any such Officers'
Certificates, Opinions of Counsel or other documentation as it may reasonably
request in connection with any such qualification of this Indenture under the
TIA.
[Signatures on following page]
90
SIGNATURES
Dated as of September 19, 2002
ISSUER:
SWIFT & COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
GUARANTORS:
S&C HOLDCO 3, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SWIFT BEEF COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
SWIFT PORK COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SWIFT BRANDS COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ BROS. CO., INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGES TO SUBORDINATED NOTE INDENTURE
▇▇▇▇▇▇▇ FOOD DISTRIBUTION COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ INTERNATIONAL SALES CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
SIGNATURE PAGES TO SUBORDINATED NOTE INDENTURE
TRUSTEE:
THE BANK OF NEW YORK TRUST COMPANY OF
FLORIDA, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGES TO SUBORDINATED NOTE INDENTURE
EXHIBIT A
================================================================================
(Face of Note)
12 1/2% SENIOR SUBORDINATED NOTES DUE JANUARY 1, 2010
CUSIP
NO. ----------
-------- $
-----------
SWIFT & COMPANY
promises to pay to [ ](1) or registered assigns, the principal
sum of ________________ Dollars ($______________) on January 1, 2010.
Interest Payment Dates: April 1 and October 1, commencing [ ], 20[ ].
Record Dates: March 15 and September 15.
Dated: , 20[ ].
---------------
----------
(1) Insert CEDE & CO., INC. if the Note is to be issued in Global Form
A-1
IN WITNESS WHEREOF, the Issuer has caused this Note to be
signed manually or by facsimile by its duly authorized officer.
SWIFT & COMPANY
By:
-----------------------------------
Name:
Title:
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
THE BANK OF NEW YORK TRUST COMPANY
OF FLORIDA, N.A.,
as Trustee
By:
--------------------------------
Authorized Signatory
Dated , 20
------------- --
A-2
(Back of Note)
12 1/2% Senior Subordinated Notes due January 1, 2010
[Insert the Global Note Legend, if applicable pursuant to the terms of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the terms of the
Indenture]
[Insert the Regulation S Temporary Global Note Placement Legend, if applicable
pursuant to the terms of the Indenture]
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Swift & Company, a Delaware corporation (the "ISSUER"),
promises to pay interest on the principal amount of this Note at 12 1/2% per
annum until maturity and shall pay Special Interest, if any, as provided in
Section 5 of the Registration Rights Agreement. The Issuer shall pay interest
semi-annually on April 1 and October 1 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "INTEREST PAYMENT
DATE"). Interest on the Notes shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance; provided, however, that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be the first of April 1 or October 1 to
occur after the date of issuance, unless such April 1 or October 1 occurs within
one calendar month of such date of issuance, in which case the first Interest
Payment Date shall be the second of April 1 and October 1 to occur after the
date of issuance. The Issuer shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time at a rate that is 1% per annum in excess of
the interest rate then in effect under the Indenture and this Note; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Special Interest, if any
(without regard to any applicable grace periods), from time to time at the same
rate to the extent lawful. Interest shall be computed on the basis of a 360-day
year of twelve 30-day months.
[Until this Regulation S Temporary Global Note is exchanged for one or
more Regulation S Permanent Global Notes, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Note shall in all other respects be entitled
to the same benefits as other Notes under the Indenture.](2)
2. METHOD OF PAYMENT. The Issuer shall pay interest on the Notes
(except defaulted interest) to the Persons in whose name this Note (or one or
more Predecessor Notes) is registered at the close of business on the March 15
or September 15 next preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes shall be payable as to principal, premium, if any, and
interest and Special Interest, if any, at the office or agency of the Issuer
maintained for such purpose, or, at the option of the Issuer, payment of
interest may be made by check mailed to the Holders at their addresses set forth
in the Security Register; provided, however, that payment by wire transfer of
immediately available funds shall be required with respect to principal of and
interest and Special Interest, if any, and premium, if any, on, all Global Notes
and all other Notes the Holders of which shall have provided wire transfer
instructions to the Issuer or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Trust
Company of Florida, N.A., the Trustee under the Indenture, shall act as Paying
Agent and Registrar. The Issuer may change any Paying Agent or Registrar without
notice to any Holder. The Issuer or any of its Subsidiaries may act in any such
capacity.
----------
(2) To be used for Temporary Regulation S Global Note only.
A-3
4. INDENTURE. The Issuer issued the Notes under an Indenture dated as
of September 19, 2002 ("INDENTURE") among the Issuer, the guarantors party
thereto (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 (15 U.S. Code Sections 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The Notes are
obligations of the Issuer unlimited in aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in clauses (b) and (c) of this
Paragraph 5, the Notes will not be redeemable at the option of the Issuer prior
to October 1, 2006. Starting on that date, the Issuer may redeem all or any
portion of the Notes, at once or over time, after giving the required notice
under the Indenture. The Notes may be redeemed at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued and
unpaid interest and Special Interest, if any, to the applicable redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant Interest Payment Date), if redeemed during
the twelve-month period commencing on October 1 of the years indicated below:
Year Percentage
---- ----------
2006.......................................................... 106.250%
2007.......................................................... 103.125%
2008 and thereafter........................................... 100.000%
(b) At any time prior to October 1, 2006, the Issuer may
redeem all or any portion of the Notes, at once or over time, after giving the
required notice under the Indenture, at a redemption price equal to the greater
of:
(i) 100% of the principal amount of the Notes to be
redeemed; and
(ii) the sum of the present values of (A) the redemption
price of the Notes at October 1, 2006 (as set forth
above) and (B) the remaining scheduled payments of
interest from the redemption date to October 1, 2006,
but excluding accrued and unpaid interest to the
redemption date, discounted to the redemption date at
the Treasury Yield (determined on the second Business
Day immediately preceding the date of redemption)
plus 75 basis points;
plus, in either case, accrued and unpaid interest, including Special Interest,
if any, to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant Interest Payment
Date).
Any notice to the Holders of Notes of a redemption pursuant to
this paragraph (5)(b) shall include the appropriate calculation of the
redemption price, but need not include the redemption price itself. The actual
redemption price, calculated as described above, shall be set forth in an
Officers' Certificate delivered to the Trustee no later than two Business Days
prior to the redemption date
(c) At any time and from time to time prior to October 1,
2005, the Issuer may redeem up to 35% of the aggregate principal amount of the
Notes issued under the Indenture at a redemption price (expressed as a
percentage of principal amount) equal to 112.500% of the principal amount
thereof, plus accrued and unpaid interest and Special Interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant Interest Payment Date) with
the net cash proceeds of one or more Equity Offerings by the Issuer or the
direct or indirect parent of the Issuer (to the extent, in the case of the
direct or indirect parent, that the net cash proceeds of the Equity Offerings
are contributed to the common or non-redeemable preferred equity capital of the
Issuer); provided, however, that after giving effect to any such redemption, at
least 65% of the aggregate principal amount of the Notes initially issued under
the Indenture (excluding Notes held by the Issuer and its Subsidiaries) remains
outstanding immediately after giving effect to such redemption. Any such
redemption shall be made within 180 days after the consummation of such Equity
Offering.
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(d) Any prepayment pursuant to this paragraph shall be made
subject to the terms of the Senior Notes Indenture and the Issuer's other Senior
Debt and pursuant to the provisions of Sections 3.01 through 3.06 of the
Indenture.
6. MANDATORY REDEMPTION. Except as set forth in Sections 4.12 and 4.18
of the Indenture, the Issuer shall not be required to make mandatory redemption
or sinking fund payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder shall have
the right to require the Issuer to repurchase all or any part (equal to $1,000
or an integral multiple of $1,000) of such Holder's Notes (a "CHANGE OF CONTROL
OFFER") at a purchase price in cash equal to 101% of the aggregate principal
amount of the Notes repurchased, plus accrued and unpaid interest and Special
Interest, if any, on the Notes repurchased to the purchase date (subject to the
right of Holders of record on the relevant record date to receive interest to,
but excluding, the Change of Control Payment Date).
(b) If the Issuer or one of its Restricted Subsidiaries consummates any
Asset Sales, they shall not be required to apply any Net Available Cash in
accordance with the Indenture until the aggregate Net Available Cash from all
Asset Sales following the date the Notes are first issued exceeds $15.0 million.
Thereafter, once the Issuer or its Restricted Subsidiaries accumulates an
additional aggregate $15.0 million of Net Available Cash from all Asset Sales,
the Issuer shall, after application of the additional aggregate $15.0 million of
Net Available Cash as provided in clause (a)(iii)(A) of Section 4.12 of the
Indenture, commence an offer for Notes pursuant to the Indenture by applying the
Net Available Cash in excess of $15.0 million (an "ASSET SALE OFFER") pursuant
to Section 3.09 of the Indenture to purchase the maximum principal amount of
Notes (including any Additional Notes) that may be purchased out of the Net
Available Cash at an offer price in cash equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Special Interest, if any, to the
date fixed for the closing of such offer in accordance with the procedures set
forth in the Indenture. To the extent that the aggregate amount of Notes
(including Additional Notes) tendered pursuant to an Asset Sale Offer is less
than the Net Available Cash, the Issuer (or such Restricted Subsidiary) may use
such deficiency for any purpose not prohibited by the Indenture, including the
repurchase of any subordinated notes required by the indenture pursuant to which
such subordinated notes were issued. If the aggregate principal amount of Notes
surrendered by Holders thereof exceeds the amount of Net Available Cash, the
Trustee shall select the Notes to be purchased on a pro rata basis. Holders of
Notes that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Issuer prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000.
This Note shall represent the aggregate principal amount of outstanding Notes
from time to time endorsed hereon and the aggregate principal amount of Notes
represented hereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Issuer may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Issuer need not exchange or register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Issuer need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
[This Regulation S Temporary Global Note is exchangeable in
whole or in part for one or more Global Notes only (i) on or after the
termination of the Distribution Compliance Period and (ii) upon presentation of
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certificates (accompanied by an Opinion of Counsel, if applicable) required by
Article 2 of the Indenture. Upon exchange of this Regulation S Temporary Global
Note for one or more Global Notes, the Trustee shall cancel this Regulation S
Temporary Global Note.](3)
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Issuer and the Trustee may amend or supplement the Indenture or the Notes
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes, including Additional Notes, if any, voting as a single class
(including consents obtained in connection with a purchase of or tender offer or
exchange offer for the Notes), and, subject to Sections 6.04 and 6.07 of the
Indenture, any existing Default or Event of Default (except a continuing Default
or Event of Default in the payment of principal, premium, if any, interest or
Special Interest, if any, on the Notes) or compliance with any provision of the
Indenture or the Notes (except for certain covenants and provisions of the
Indenture which cannot be amended without the consent of each Holder) may be
waived with the consent of the Holders of a majority in principal amount of the
then outstanding Notes, including Additional Notes, if any, then outstanding
voting as a single class (including consents obtained in connection with a
purchase of or tender offer or exchange offer for the Notes). Without the
consent of any Holder, the Issuer and the Trustee may amend or supplement the
Indenture or the Notes to cure any ambiguity, omission, defect or inconsistency,
to provide for the assumption by a successor corporation, partnership or limited
liability company of the obligations of the Issuer under the Indenture, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to add additional Guarantees or additional obligors with respect to the
Notes, to secure the Notes, to add to the covenants of the Issuer for the
benefit of the Holders of the Notes or to surrender any right or power conferred
upon the Issuer, to make any change that would provide any additional rights or
benefits to the Holders of Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder, to make any change to comply with
any requirement of the Commission in order to effect or maintain the
qualification of the Indenture under the TIA or to provide for the issuance of
Additional Notes.
12. DEFAULTS AND REMEDIES. Each of the following is an Event of Default
under the Indenture: the failure to pay interest, including Special Interest, if
any, on the Notes when that interest or Special Interest becomes due and payable
and the Default continues for 30 days; the failure to pay principal of or
premium, if any, on the Notes when that principal or premium, if any, becomes
due and payable, at maturity, upon redemption or otherwise; the failure to
observe or perform any other covenant or agreement contained in the Notes or the
Indenture, which failure continues for a period of 60 days after the Issuer
receives a written notice specifying the default from the Trustee or Holders of
at least 25% in aggregate principal amount of outstanding Notes; the failure by
the Issuer or any Restricted Subsidiary to pay Debt at the final stated
maturity, after giving effect to any extensions, or upon the acceleration of the
final stated maturity of that Debt, if the aggregate principal amount of that
Debt, together with the aggregate principal amount of any other such Debt in
default for failure to pay principal at the final stated maturity, after giving
effect to any extensions, or upon the acceleration of the final stated maturity
of that Debt, aggregates $20.0 million or more at any time and such default
shall not have been cured or such acceleration shall not have been rescinded
after a 10-day period; one or more judgments in an aggregate amount in excess of
$20.0 million, which judgments are not covered by insurance, or if covered by
insurance, as to which the insurer has disclaimed coverage, being rendered
against the Issuer or any of its Restricted Subsidiaries and such judgment or
judgments remain undischarged, unwaived or unstayed for a period of 60 days
after such judgment or judgments become final and nonappealable; certain events
of bankruptcy, insolvency or reorganization affecting the Issuer or any of its
Significant Subsidiaries; and any Guarantee of a Significant Subsidiary ceases
to be in full force and effect or any Guarantee of a Significant Subsidiary is
declared to be null and void and unenforceable by a judicial determination or
any Guarantee of a Significant Subsidiary is found to be invalid by a judicial
determination or any Guarantor that is a Significant Subsidiary denies its
obligations under its Guarantee (in each case, other than by reason of release
of a Guarantor in accordance with the terms of the Indenture).
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable. Notwithstanding the
----------
(3) To be used for Temporary Regulation S Global Note only.
A-6
foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency described in the Indenture, all outstanding Notes shall
become due and payable without further action or notice. Holders may not enforce
the Indenture or the Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
then outstanding Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment
of principal or interest or Special Interest) if it determines that withholding
notice is in their interest. The Holders of a majority in aggregate principal
amount of the Notes then outstanding by notice to the Trustee may on behalf of
the Holders of all of the Notes waive any existing Default or Event of Default
and its consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest or Special Interest on, or the principal of,
the Notes. The Issuer is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Issuer is required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH ISSUER. Subject to certain limitations, the
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer
with the same rights it would have if it were not Trustee.
14. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder of the Issuer or of any
Guarantor, as such, shall have any liability for any obligations of the Issuer
or any Guarantor under the Indenture, the Notes, the Guarantees 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.
15. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer 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 Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
The Issuer shall furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Swift & Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
18. GOVERNING LAW. The internal law of the State of New York shall
govern and be used to construe this Note without giving effect to applicable
principals of conflicts of law to the extent that the application of the laws of
another jurisdiction would be required thereby.
A-7
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Issuer pursuant to
Section 4.12 or 4.18 of the Indenture, check the box below:
[ ] Section 4.12
[ ] Section 4.18
If you want to elect to have only part of the Note purchased by the Issuer
pursuant to Section 4.12 or Section 4.18 of the Indenture, state the amount you
elect to have purchased: $____________________
Date: Your Signature:
------------------ --------------------------------
(Sign exactly as your name appears on the Note)
Tax Identification No.:
-----------------------------------------------
SIGNATURE GUARANTEE:
-----------------------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements
of the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may
be determined by the Registrar in addition to,
or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of
1934, as amended.
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
--------------------------------------------------------------------------------
(Insert assignee's social security or other tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
as agent to transfer this Note on the books of the Issuer. The agent may
substitute another to act for him.
________________________________________________________________________________
Date:
-------------- Your Signature:
---------------------------
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee:
----------------------
A-9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount
Amount of of this Global Note Signature of
decrease in Amount of increase following such authorized signatory
Principal Amount in Principal Amount decrease (or of Trustee or
Date of Exchange of this Global Note of this Global Note increase) Note Custodian
---------------- ------------------- ------------------- ------------------- --------------------
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Swift & Company
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
The Bank of New York Trust Company of Florida, N.A.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Re: 12 1/2% Senior Subordinated Notes due January 1, 2010
Reference is hereby made to the Indenture, dated as of
September 19, 2002 (the "Indenture"), among Swift & Company, as issuer (the
"Issuer"), the Guarantors party thereto and The Bank of New York Trust Company
of Florida, N.A., as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
___________________, (the "Transferor") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount of $___________ in such Note[s] or interests (the
"Transfer"), to ___________________________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO
REGULATION S. The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a Person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(a) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Distribution Compliance Period, the transfer is not being made
to a U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on
B-1
Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note, the Temporary Regulation S Global Note and/or the Definitive Note
and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF
A BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO
ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Issuer
or a subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to
an effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the Securities
Act;
or
(d) [ ] such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A,
Rule 144 or Rule 904, and the Transferor hereby further certifies that
it has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with
the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the
requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit
D to the Indenture and (2) if such Transfer is in respect of a
principal amount of Notes at the time of transfer of less than
$250,000, an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this
certification), to the effect that such Transfer is in compliance with
the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the IAI
Global Note and/or the Definitive Notes and in the Indenture and the
Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not
B-2
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no longer
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuer.
------------------------------------------
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated:
---------------------
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the
following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE OF (a), (b) OR (c)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(iv) [ ] Unrestricted Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Swift & Company
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
The Bank of New York Trust Company of Florida, N.A.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Re: 12 1/2% Senior Subordinated Notes due January 1, 2010
Reference is hereby made to the Indenture, dated as of
September 19, 2002 (the "Indenture"), among Swift & Company, as issuer (the
"Issuer"), the Guarantors party thereto and The Bank of New York Trust Company
of Florida, N.A., as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of $____________ in such Note[s] or interests (the "Exchange").
In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Restricted Global Note and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted
Definitive Note is being acquired for the Owner's own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Note and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted Definitive
Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without
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transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted Definitive
Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest in
the [CIRCLE ONE] 144A Global Note, Regulation S Global Note, IAI Global Note
with an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer and (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Definitive Note and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and
in the Indenture and the Securities Act.
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This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuer.
----------------------------------------
[Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
Dated:
-----------------------
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EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Swift & Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
The Bank of New York Trust Company of Florida, N.A.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Re: 12 1/2% Senior Subordinated Notes due January 1, 2010
Reference is hereby made to the Indenture, dated as of
September 19, 2002 (the "Indenture"), among Swift & Company, as issuer (the
"Issuer"), the Guarantors party thereto and The Bank of New York Trust Company
of Florida, N.A., as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________
aggregate principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or
any interest therein is subject to certain restrictions and conditions set forth
in the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Issuer or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Issuer a signed letter substantially in the form of this letter and, if such
transfer is in respect of a principal amount of Notes, at the time of transfer
of less than $250,000, an Opinion of Counsel in form reasonably acceptable to
the Issuer to the effect that such transfer is in compliance with the Securities
Act, (D) outside the United States in accordance with Rule 904 of Regulation S
under the Securities Act, (E) pursuant to the provisions of Rule 144(k) under
the Securities Act or (F) pursuant to an effective registration statement under
the Securities Act, and we further agree to provide to any Person purchasing the
Definitive Note or beneficial interest in a Global Note from us in a transaction
meeting the requirements of clauses (A) through (E) of this paragraph a notice
advising such purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Issuer such certifications, legal opinions and other information as you and the
Issuer may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment. We have had access to such
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financial and other information and have been afforded the opportunity to ask
such questions of representatives of the Issuer and receive answers thereto, as
we deem necessary in connection with our decision to purchase the Notes.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion and are not acquiring the Notes with a view to any
distribution thereof in a transaction that would violate the Securities Act of
the securities laws of any state of the United States or any other applicable
jurisdiction.
You and the Issuer are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. This letter shall be governed by,
and construed in accordance with, the laws of the State of New York.
--------------------------------------------
[Insert Name of Accredited Investor]
By:
----------------------------------------
Name:
Title:
Dated:
------------------
D-2
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any
successor Person under the Indenture), jointly and severally, unconditionally
guarantees, to the extent set forth in the Indenture and subject to the
provisions in the Indenture, dated as of September 19, 2002 (the "Indenture"),
among Swift & Company, as issuer (the "Issuer"), the Guarantors listed on the
signature pages thereto and The Bank of New York Trust Company of Florida, N.A.,
as trustee (the "Trustee"), (a) the due and punctual payment of the principal
of, premium, if any, and interest and Special Interest, if any, on the Notes,
whether at maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal and premium, if any, and, to
the extent permitted by law, interest and Special Interest, if any, and the due
and punctual performance of all other obligations of the Issuer to the Holders
or the Trustee all in accordance with the terms of the Indenture and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Guarantors to the
Holders of Notes and to the Trustee pursuant to the Guarantee and the Indenture
are expressly set forth in Article 10 of the Indenture and reference is hereby
made to the Indenture for the precise terms of the Guarantee. This Guarantee is
subject to release as and to the extent set forth in Sections 8.02, 8.03 and
10.05 of the Indenture. Each Holder of a Note, by accepting the same agrees to
and shall be bound by such provisions. Capitalized terms used herein and not
defined are used herein as so defined in the Indenture.
S&C HOLDCO 3, INC.
By:
-------------------------------------
Name:
Title:
SWIFT BEEF COMPANY
By:
-------------------------------------
Name:
Title:
SWIFT PORK COMPANY
By:
-------------------------------------
Name:
Title:
SWIFT BRANDS COMPANY
By:
-------------------------------------
Name:
Title:
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▇▇▇▇▇▇ BROS. CO., INC.
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ FOOD DISTRIBUTION COMPANY
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ INTERNATIONAL SALES CORPORATION
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇▇, INC.
By:
-------------------------------------
Name:
Title:
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