Exhibit 4.1
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TABLETOP HOLDINGS, INC.
Issuer
12 1/4% SENIOR SUBORDINATED DISCOUNT NOTES DUE 2014
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INDENTURE
Dated as of November 12, 2003
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▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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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) ........................................................ 13.03
(c) ........................................................ 13.03
313(a) ........................................................ 7.06
(b)(1) ........................................................ N.A.
(b)(2) ........................................................ 7.06
(c) ........................................................ 13.02
(d) ........................................................ 7.06
314(a) ........................................................ 4.02; 4.11
(b) ........................................................ N.A.
(c)(1) ........................................................ 13.04
(c)(2) ........................................................ 13.04
(c)(3) ........................................................ N.A.
(d) ........................................................ N.A.
(e) ........................................................ 13.05
(f) ........................................................ N.A.
315(a) ........................................................ 7.01
(b) ........................................................ 7.05; 13.02
(c) ........................................................ 7.01
(d) ........................................................ 7.01
(e) ........................................................ 6.11
316(a)(last ........................................................ 13.06
sentence)
(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) ........................................................ 13.01
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this
Indenture.
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE................................................ 1
SECTION 1.01. Certain Definitions........................................................... 1
SECTION 1.02. Other Definitions............................................................. 36
SECTION 1.03. Incorporation by Reference of Trust Indenture Act............................. 37
SECTION 1.04. Rules of Construction......................................................... 37
ARTICLE 2 THE NOTES................................................................................. 38
SECTION 2.01. Form and Dating............................................................... 38
SECTION 2.02. Execution and Authentication.................................................. 39
SECTION 2.03. Registrar and Paying Agent.................................................... 39
SECTION 2.04. Paying Agent To Hold Money in Trust........................................... 40
SECTION 2.05. Noteholder Lists. 40
SECTION 2.06. Transfer and Exchange......................................................... 40
SECTION 2.07. Replacement Notes............................................................. 41
SECTION 2.08. Outstanding Notes............................................................. 41
SECTION 2.09. Temporary Notes............................................................... 42
SECTION 2.10. Cancellation.................................................................. 42
SECTION 2.11. Defaulted Interest............................................................ 42
SECTION 2.12. CUSIP Numbers................................................................. 43
SECTION 2.13. Additional Notes.............................................................. 43
ARTICLE 3 REDEMPTION................................................................................ 43
SECTION 3.01. Notices to Trustee............................................................ 44
SECTION 3.02. Selection of Notes To Be Redeemed............................................. 44
SECTION 3.03. Notice of Redemption.......................................................... 44
SECTION 3.04. Effect of Notice of Redemption................................................ 45
SECTION 3.05. Deposit of Redemption Price................................................... 45
SECTION 3.06. Notes Redeemed in Part........................................................ 46
ARTICLE 4 COVENANTS................................................................................. 46
SECTION 4.01. Payment of Notes.............................................................. 46
SECTION 4.02. SEC Reports................................................................... 46
SECTION 4.03. Compliance Certificate........................................................ 47
SECTION 4.04. Change of Control............................................................. 48
SECTION 4.05. Limitation on Restricted Payments............................................. 50
SECTION 4.06. Limitation on Indebtedness.................................................... 54
SECTION 4.07. Limitation on Liens........................................................... 58
SECTION 4.08. Anti-Layering................................................................. 58
SECTION 4.09. Limitation on Restrictions on Distributions from Restricted Subsidiaries...... 58
SECTION 4.10. Limitation on Sales of Assets and Subsidiary Stock............................ 60
SECTION 4.11. Limitation on Affiliate Transactions.......................................... 63
SECTION 4.12. Guarantors.................................................................... 65
SECTION 4.13. Limitation on Activities...................................................... 66
TABLE OF CONTENTS
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SECTION 4.14. Further Instruments and Acts.................................................. 66
ARTICLE 5 MERGER.................................................................................... 66
SECTION 5.01. Merger and Consolidation...................................................... 66
ARTICLE 6 DEFAULTS AND REMEDIES..................................................................... 68
SECTION 6.01. Events of Default............................................................. 68
SECTION 6.02. Acceleration.................................................................. 71
SECTION 6.03. Other Remedies................................................................ 71
SECTION 6.04. Waiver of Past Defaults....................................................... 72
SECTION 6.05. Control by Majority........................................................... 72
SECTION 6.06. Limitation on Suits........................................................... 72
SECTION 6.07. Rights of Holders to Receive Payment.......................................... 73
SECTION 6.08. Collection Suit by Trustee.................................................... 73
SECTION 6.09. Trustee May File Proofs of Claim.............................................. 73
SECTION 6.10. Priorities.................................................................... 74
SECTION 6.11. Undertaking for Costs......................................................... 74
SECTION 6.12. Waiver of Stay or Extension Laws.............................................. 75
ARTICLE 7 TRUSTEE................................................................................... 75
SECTION 7.01. Duties of Trustee............................................................. 75
SECTION 7.02. Rights of Trustee............................................................. 76
SECTION 7.03. Individual Rights of Trustee.................................................. 77
SECTION 7.04. Trustee's Disclaimer.......................................................... 77
SECTION 7.05. Notice of Defaults............................................................ 77
SECTION 7.06. Reports by Trustee to Holders................................................. 78
SECTION 7.07. Compensation and Indemnity.................................................... 78
SECTION 7.08. Replacement of Trustee........................................................ 79
SECTION 7.09. Successor Trustee by Merger................................................... 80
SECTION 7.10. Eligibility; Disqualification................................................. 80
SECTION 7.11. Preferential Collection of Claims Against Company............................. 81
ARTICLE 8 DISCHARGE OF INDENTURE; DEFEASANCE........................................................ 81
SECTION 8.01. Discharge of Liability on Notes; Defeasance................................... 81
SECTION 8.02. Conditions to Defeasance...................................................... 82
SECTION 8.03. Application of Trust Money.................................................... 83
SECTION 8.04. Repayment to Company.......................................................... 84
SECTION 8.05. Indemnity for Government Obligations.......................................... 84
SECTION 8.06. Reinstatement................................................................. 84
ARTICLE 9 AMENDMENTS................................................................................ 84
SECTION 9.01. Without Consent of Holders.................................................... 84
SECTION 9.02. With Consent of Holders....................................................... 85
SECTION 9.03. Compliance with Trust Indenture Act........................................... 87
SECTION 9.04. Revocation and Effect of Consents and Waivers................................. 87
TABLE OF CONTENTS
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SECTION 9.05. Notation on or Exchange of Notes.............................................. 88
SECTION 9.06. Trustee To Sign Amendments.................................................... 88
SECTION 9.07. Payment for Consent........................................................... 88
ARTICLE 10 SUBORDINATION............................................................................ 88
SECTION 10.01. Agreement To Subordinate...................................................... 88
SECTION 10.02. Liquidation, Dissolution, Bankruptcy.......................................... 89
SECTION 10.03. Default on Senior Indebtedness of the Company................................. 89
SECTION 10.04. Acceleration of Payment of Notes.............................................. 91
SECTION 10.05. When Distribution Must Be Paid Over........................................... 91
SECTION 10.06. Reinstatement of Senior Indebtedness.......................................... 91
SECTION 10.07. Subrogation................................................................... 91
SECTION 10.08. Relative Rights............................................................... 91
SECTION 10.09. Subordination May Not Be Impaired by Company.................................. 92
SECTION 10.10. Rights of Trustee and Paying Agent............................................ 92
SECTION 10.11. Rights of Holders of Senior Indebtedness...................................... 92
SECTION 10.12. Distribution or Notice to Representative...................................... 93
SECTION 10.13. Article 10 Not To Prevent Events of Default or Limit Right To Accelerate...... 93
SECTION 10.14. Trust Moneys Not Subordinated................................................. 93
SECTION 10.15. Trustee Entitled To Rely...................................................... 94
SECTION 10.16. Trustee To Effectuate Subordination........................................... 94
SECTION 10.17. Trustee Not Fiduciary for Holders of Senior Indebtedness of the Company....... 94
SECTION 10.18. Reliance by Holders of Senior Indebtedness of the Company on
Subordination Provisions...................................................... 95
ARTICLE 11 GUARANTIES............................................................................... 95
SECTION 11.01. Guaranties.................................................................... 95
SECTION 11.02. Limitation on Liability....................................................... 97
SECTION 11.03. Successors and Assigns........................................................ 98
SECTION 11.04. No Waiver..................................................................... 98
SECTION 11.05. Modification.................................................................. 98
SECTION 11.06. Release of Guarantor.......................................................... 98
ARTICLE 12 SUBORDINATION OF GUARANTIES.............................................................. 99
SECTION 12.01. Agreement To Subordinate...................................................... 99
SECTION 12.02. Liquidation, Dissolution, Bankruptcy.......................................... 99
SECTION 12.03. Default on Senior Indebtedness of Guarantor................................... 100
SECTION 12.04. Demand for Payment............................................................ 101
SECTION 12.05. When Distribution Must Be Paid Over........................................... 101
SECTION 12.06. Reinstatement of Senior Indebtedness.......................................... 101
SECTION 12.07. Subrogation................................................................... 102
SECTION 12.08. Relative Rights............................................................... 102
SECTION 12.09. Subordination May Not Be Impaired by Guarantor................................ 102
TABLE OF CONTENTS
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SECTION 12.10. Rights of Trustee and Paying Agent............................................ 102
SECTION 12.11. Rights of Holders of Senior Indebtedness...................................... 103
SECTION 12.12. Distribution or Notice to Representative...................................... 103
SECTION 12.13. Article 12 Not To Prevent Events of Default or Limit Right To Demand
Payment....................................................................... 104
SECTION 12.14. Trust Moneys Not Subordinated................................................. 104
SECTION 12.15. Trustee Entitled To Rely...................................................... 104
SECTION 12.16. Trustee To Effectuate Subordination........................................... 105
SECTION 12.17. Trustee Not Fiduciary for Holders of Senior Indebtedness of Guarantor......... 105
SECTION 12.18. Reliance by Holders of Senior Indebtedness of the Guarantors on
Subordination Provisions...................................................... 105
ARTICLE 13 MISCELLANEOUS............................................................................ 105
SECTION 13.01. Trust Indenture Act Controls.................................................. 105
SECTION 13.02. Notices....................................................................... 106
SECTION 13.03. Communication by Holders with Other Holders................................... 107
SECTION 13.04. Certificate and Opinion as to Conditions Precedent............................ 107
SECTION 13.05. Statements Required in Certificate or Opinion................................. 108
SECTION 13.06. When Notes Disregarded........................................................ 108
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar.................................. 108
SECTION 13.08. Legal Holidays................................................................ 108
SECTION 13.09. Governing Law................................................................. 109
SECTION 13.10. No Recourse Against Others.................................................... 109
SECTION 13.11. Successors.................................................................... 109
SECTION 13.12. Multiple Originals............................................................ 109
SECTION 13.13. Table of Contents; Headings................................................... 109
APPENDIX A - Provisions Relating to Initial Notes, Private Exchange Notes and
Exchange Notes
EXHIBIT 1 - Form of Initial Note
EXHIBIT 2 - Form of Exchange Note or Private Exchange Note
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INDENTURE dated as of November 12, 2003, by and between Tabletop
Holdings, Inc., a Delaware corporation (the "COMPANY"), and ▇▇▇▇▇ Fargo Bank
Minnesota, National Association, as Trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Company's Initial Notes,
Exchange Notes and Private Exchange Notes (collectively, the "NOTES"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. CERTAIN DEFINITIONS.
"ACCRETED VALUE" means, as of any date (the "SPECIFIED DATE"), the
amount provided below for each $1,000 stated principal amount at maturity of
Notes:
(1) if the Specified Date occurs on one of the following dates
(each, a "SEMI-ANNUAL ACCRUAL DATE"), the Accreted Value will equal the
amount set forth below for such Semi-Annual Accrual Date:
Semi-Annual Accrual Date Accreted Value
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May 15, 2004 ........................................... $ 585.64
November 15, 2004 ...................................... $ 621.51
May 15, 2005 ........................................... $ 659.58
November 15, 2005 ...................................... $ 699.98
May 15, 2006 ........................................... $ 742.86
November 15, 2006 ...................................... $ 788.36
May 15, 2007 ........................................... $ 836.65
November 15, 2007 ...................................... $ 887.90
May 15, 2008 ........................................... $ 942.28
November 15, 2008 ...................................... $ 1000.00
(2) if the Specified Date occurs before the first Semi-Annual
Accrual Date, the Accreted Value will equal the sum of (A) the original
issue price of a Note and (B) an amount equal to the product of (x) the
Accreted Value for the first Semi-Annual Accrual Date less such original
issue price, multiplied by (y) a fraction, the numerator of which is the
number of days from the Issue Date to the Specified Date, using a 360-day
year of twelve 30-day months, and the denominator of which is the number of
days from the Issue Date to the first Semi-Annual Accrual Date, using a
360-day year of twelve 30-day months;
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(3) if the Specified Date occurs between two Semi-Annual Accrual
Dates, the Accreted Value will equal the sum of (A) the Accreted Value for
the Semi-Annual Accrual Date immediately preceding such Specified Date and
(B) an amount equal to the product of (x) the Accreted Value for the
immediately following Semi-Annual Accrual Date less the Accreted Value for
the immediately preceding Semi-Annual Accrual Date, multiplied by (y) a
fraction, the numerator of which is the number of days from the immediately
preceding Semi-Annual Accrual Date to the Specified Date, using a 360-day
year of twelve 30-day months, and the denominator of which is 180; or
(4) if the Specified Date occurs after the last Semi-Annual Accrual
Date, the Accreted Value will equal $1,000.
Notwithstanding the foregoing, if additional interest accrues on the Notes on or
prior to November 15, 2008 as a result of a Registration Default under the
Registration Rights Agreement, such additional interest will be added to the
Accreted Value, and the Accreted Value as of any Specified Date will equal the
sum of (A) the Accreted Value, as calculated above, as of the date such
additional interest began to accrue, plus (B) the amount of interest that would
accrue on the Accreted Value from time to time on a daily basis at a rate of
interest per annum equal to the sum of 12 1/4% per annum plus the rate of such
additional interest as applicable from time to time, compounded semi-annually on
each Semi-Annual Accrual Date from the date such additional interest began to
accrete through the Specified Date, computed on the basis of a 360-day year of
twelve 30-day months. If such an event were to occur, the Accreted Value on and
after the last Semi-Annual Accrual Date would exceed $1,000.
"ADDITIONAL ASSETS" means:
(1) any property, plant or equipment used in a Related Business;
(2) the Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the
Company or another Restricted Subsidiary; or
(3) Capital Stock constituting a minority interest in any Person
that at such time is a Restricted Subsidiary;
3
PROVIDED, HOWEVER, that any such Restricted Subsidiary described in clause (2)
or (3) above is primarily engaged in a Related Business.
"ADDITIONAL NOTES" means, subject to Section 2.13 and subject to the
Company's compliance with Section 4.06, 12 1/4% Senior Subordinated Discount
Notes Due 2014 issued from time to time after the Issue Date under the terms of
this
Indenture (other than pursuant to Section 2.06, 2.07, 2.09, 3.06 or 9.05 of
this
Indenture and other than Exchange Notes or Private Exchange Notes issued
pursuant to an exchange offer for other Notes outstanding under this Indenture).
"AFFILIATE" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the foregoing. For
purposes of Sections 4.05, 4.10 and 4.11 only, "AFFILIATE" shall also mean any
beneficial owner of Capital Stock representing 5% or more of the total voting
power of the Voting Stock (on a fully diluted basis) of the Company or of rights
or warrants to purchase such Capital Stock (whether or not currently
exercisable)and any Person who would be an Affiliate of any such beneficial
owner pursuant to the first sentence hereof.
"APPLICABLE PREMIUM" means, with respect to a Note at the Change of
Control Redemption Date, the greater of (i) 1.0% of the Accreted Value of such
Note, and (ii) the excess of (A) the present value at such time of (1) the
redemption price of such Note at the First Call Date (such redemption price
being described in Section 5(c) of the Notes) plus (2) all required interest
payments due on such Note through the First Call Date computed using a discount
rate equal to the Treasury Rate plus 0.50% per annum, over (B) the Accreted
Value of such Note.
"ASSET DISPOSITION" means any sale, lease, issuance, transfer or other
disposition (or series of related sales, leases, issuances, transfers or
dispositions) by the Company or any Restricted Subsidiary, including any
disposition by means of a merger, consolidation or similar transaction (each
referred to for the purposes of this definition as a "DISPOSITION"), of:
4
(1) any shares of Capital Stock of a Restricted Subsidiary (other
than directors' qualifying shares or shares required by applicable law to
be held by a Person other than the Company or a Restricted Subsidiary);
(2) all or substantially all the assets of any division or line of
business of the Company or any Restricted Subsidiary; or
(3) any other assets of the Company or any Restricted Subsidiary
outside of the ordinary course of business of the Company or such
Restricted Subsidiary.
Notwithstanding the foregoing, the following shall be deemed not to be
Asset Dispositions:
(A) a disposition to the Company or a Restricted Subsidiary;
(B) for purposes of Section 4.10 only, (i) a disposition that
constitutes a Restricted Payment permitted by Section 4.05 or a
Permitted Investment and (ii) a transaction governed by, and
consummated in compliance with, Section 5.01;
(C) the granting of a Lien;
(D) for purposes of Section 4.10 only, any commercially reasonable
foreclosure on a Lien on assets; PROVIDED, that an amount equal
to the Net Available Cash, if any, to the Company and its
Restricted Subsidiaries from such foreclosure are applied in
accordance with Section 4.10(a)(3);
(E) dispositions of Receivables Assets to a Receivables Subsidiary
for the fair market value of those assets, less amounts required
to be established as reserves and customary discounts pursuant
to contractual agreements with entities that are not Affiliates
of the Company entered into as part of a Qualified Receivables
Transaction, if at least 75% of the consideration for such
disposition would constitute cash or cash equivalents for
purposes of Section 4.10(a)(2);
5
(F) dispositions of Receivables Assets by a Receivables Subsidiary
in a Qualified Receivables Transaction;
(G) issuances of Capital Stock by a Receivables Subsidiary in
connection with a Qualified Receivables Transaction;
(H) dispositions of obsolete, damaged or worn out equipment no
longer used or useful to the business of the Company and its
Restricted Subsidiaries; and
(I) a disposition of assets with a fair market value of less than
$1.0 million.
"ATTRIBUTABLE DEBT" in respect of a Sale/Leaseback Transaction means,
as at the time of determination, the present value (discounted at the interest
rate borne by the 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/Leaseback Transaction (including any period for which such lease
has been extended); PROVIDED, HOWEVER, that if such Sale/Leaseback Transaction
results in a Capital Lease Obligation, the amount of Indebtedness represented
thereby will be determined in accordance with the definition of "Capital Lease
Obligation."
"AVERAGE LIFE" means, as of the date of determination, with respect to
any Indebtedness, the quotient obtained by dividing:
(1) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment
of or redemption or similar payment with respect to such Indebtedness
multiplied by the amount of such payment, by
(2) the sum of all such payments.
"BANK INDEBTEDNESS" means all Obligations pursuant to the Credit
Agreement.
"BOARD OF DIRECTORS" with respect to a Person means the board of
directors of such Person or any committee thereof duly authorized to act on
behalf of such board, and unless specified to the contrary or inappropriate in
the context, refers to the Board of Directors of the Company.
6
"BUSINESS DAY" means each day which is not a Legal Holiday.
"CAPITAL LEASE OBLIGATION" means an obligation that is required to be
classified and accounted for as a capital lease for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"CAPITAL STOCK" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"CHANGE OF CONTROL" means the occurrence of any of the following
events:
(1) prior to the first public offering of common stock of Parent,
the Company or Merisant, (A) the Permitted Holders cease to be the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act), directly or indirectly, of a majority in the aggregate of the total
voting power of the Voting Stock of Merisant, whether as a result of
issuance of securities of the Company or Merisant, any merger,
consolidation, liquidation or dissolution of the Company or Merisant, or
otherwise, or (B) Pegasus Partners II, L.P. and its Related Parties cease
to have the right or ability, by voting power, contract or otherwise, to
elect or designate for election a majority of the managers or directors of
Parent (for purposes of this clause (1) and clause (2) below, the Permitted
Holders shall be deemed to beneficially own any Voting Stock of a Person
(the "SPECIFIED PERSON") held by any other Person (the "PARENT ENTITY") so
long as the Permitted Holders beneficially own (as so defined), directly or
indirectly, in the aggregate a majority of the voting power of the Voting
Stock of the parent entity);
(2) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act), other than one or more Permitted Holders, is or
becomes the beneficial owner (as defined in clause (1) above, except that
for purposes
7
of this clause (2) such person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 35% of the total voting power
of the Voting Stock of Merisant; PROVIDED, HOWEVER, that the Permitted
Holders beneficially own (as defined in clause (1) above), directly or
indirectly, in the aggregate a lesser percentage of the total voting power
of the Voting Stock of Merisant than such other person and do not have the
right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of Merisant
(for the purposes of this clause (2), such other person shall be deemed to
beneficially own any Voting Stock of a specified person held by a parent
entity, if such other person is the beneficial owner (as defined in this
clause (2)), directly or indirectly, of more than 35% of the voting power
of the Voting Stock of such parent entity and the Permitted Holders
beneficially own (as defined in clause (1) above), directly or indirectly,
in the aggregate a lesser percentage of the voting power of the Voting
Stock of such parent entity and do not have the right or ability by voting
power, contract or otherwise to elect or designate for election a majority
of the board of directors of such parent entity);
(3) individuals who on the Merisant Issue Date constituted the Board
of Directors of Merisant or, so long as the Company owns a majority of the
total voting power of the Voting Stock of Merisant, the Board of Directors
of the Company (together with any new directors whose election by such
Board of Directors of Merisant or the Company or whose nomination for
election by the shareholders of Merisant or the Company, as the case may
be, was approved by a vote of a majority of the directors of Merisant or
the Company, as the case may be, then still in office who were either
directors on the Merisant Issue Date or whose election or nomination for
election was previously so approved or whose election was approved by the
Permitted Holders) cease for any reason to constitute a majority of the
Board of Directors of Merisant or the Company then in office;
(4) the adoption of a plan relating to the liquidation or
dissolution of Merisant; or
(5) the merger or consolidation of Parent, the Company or Merisant
with or into another Person or the merger of another Person with or into
Parent, the Company
8
or Merisant, or the sale of all or substantially all the assets of the
Company or Merisant (determined on a consolidated basis) to another Person
(other than, in all such cases, a Person that is controlled by the
Permitted Holders), other than a transaction following which (A) in the
case of a merger or consolidation transaction, holders of securities that
represented 100% of the Voting Stock of Parent, the Company or Merisant, as
appropriate, immediately prior to such transaction (or other securities
into which such securities are converted as part of such merger or
consolidation transaction) own directly or indirectly at least a majority
of the voting power of the Voting Stock of the surviving Person in such
merger or consolidation transaction immediately after such transaction and
in substantially the same proportion as before the transaction and (B) in
the case of a sale of assets transaction, the transferee Person becomes the
obligor in respect of the Notes and a Subsidiary of the transferor of such
assets; PROVIDED, HOWEVER, that it shall not constitute a Change of Control
under this clause (5) if, after giving effect to such transaction, the
Permitted Holders beneficially own (as defined in clause (1) above) a
majority or more of the total voting power of the Voting Stock of the
surviving Person in such transaction immediately after such transaction.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMON STOCK" of any Person means Capital Stock of such Person that
does not rank senior in any respect to, and does not have any preference or
priority over, any shares of Capital Stock of any other class of such Person,
including with respect to the payment of dividends or the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of such
Person.
"COMPANY" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
"CONSOLIDATED COVERAGE RATIO" of the Company (or Merisant, as
appropriate) as of any date of determination means the ratio of (x) the
aggregate amount of EBITDA of the Company (or Merisant, as appropriate) for the
period of the most recent four consecutive fiscal quarters ending at least 45
days prior
9
to the date of such determination to (y) Consolidated Interest Expense of the
Company (or Merisant, as appropriate) for such four fiscal quarters; PROVIDED,
HOWEVER, that:
(1) if the Company (or Merisant, as appropriate) or any Restricted
Subsidiary has Incurred any Indebtedness since the beginning of such period
that remains outstanding or if the transaction giving rise to the need to
calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness,
or both, then EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving effect on a PRO FORMA basis to such
Indebtedness and the use of proceeds thereof as if such Indebtedness had
been Incurred on the first day of such period and such proceeds had been
applied as of such date;
(2) if the Company (or Merisant, as appropriate) or any Restricted
Subsidiary has repaid, repurchased, defeased or otherwise discharged any
Indebtedness since the beginning of such period or if any Indebtedness is
to be repaid, repurchased, defeased or otherwise discharged (in each case
other than Indebtedness Incurred under any revolving credit facility unless
such Indebtedness has been permanently repaid and has not been replaced) on
the date of the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio, then EBITDA and Consolidated Interest Expense
for such period shall be calculated on a PRO FORMA basis as if such
discharge had occurred on the first day of such period and as if the
Company (or Merisant, as appropriate) or such Restricted Subsidiary had not
earned the interest income actually earned, if any, during such period in
respect of cash or Temporary Cash Investments used to repay, repurchase,
defease or otherwise discharge such Indebtedness;
(3) if, since the beginning of such period, the Company (or
Merisant, as appropriate) or any Restricted Subsidiary shall have made any
Asset Disposition, then EBITDA for such period shall be reduced by an
amount equal to EBITDA (if positive) directly attributable to the assets
which were the subject of such Asset Disposition for such period, or
increased by an amount equal to EBITDA (if negative) directly attributable
thereto for such period, and Consolidated Interest Expense for such period
shall be reduced by an amount equal to the Consolidated Interest Expense
directly attributable to any Indebtedness of the Company (or Merisant, as
appropriate) or any Restricted Subsidiary repaid, repurchased, defeased or
otherwise
10
discharged with respect to the Company (or Merisant, as appropriate) and
its continuing Restricted Subsidiaries in connection with such Asset
Disposition for such period (or, if the Capital Stock of any Restricted
Subsidiary is sold, the Consolidated Interest Expense for such period
directly attributable to the Indebtedness of such Restricted Subsidiary to
the extent the Company and its continuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such sale);
(4) if, since the beginning of such period, the Company (or
Merisant, as appropriate) or any Restricted Subsidiary (by merger or
otherwise) shall have made an Investment in any Restricted Subsidiary (or
any Person which becomes a Restricted Subsidiary) or an acquisition of
material assets, then EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving PRO FORMA effect thereto (including
the Incurrence of any Indebtedness) as if such Investment or acquisition
had occurred on the first day of such period; and
(5) if, since the beginning of such period, any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Company (or Merisant, as appropriate) or any Restricted Subsidiary since
the beginning of such period) shall have made any Asset Disposition, any
Investment or acquisition of assets that would have required an adjustment
pursuant to clause (3) or (4) above if made by the Company (or Merisant, as
appropriate) or a Restricted Subsidiary during such period, then EBITDA and
Consolidated Interest Expense for such period shall be calculated after
giving PRO FORMA effect thereto as if such Asset Disposition, Investment or
acquisition had occurred on the first day of such period.
For purposes of this definition, whenever PRO FORMA effect is to be given to an
acquisition of assets, the amount of income or earnings relating thereto and the
amount of Consolidated Interest Expense associated with any Indebtedness
Incurred in connection therewith, the PRO FORMA calculations shall be determined
in good faith by a responsible financial or accounting Officer of the Company.
If any Indebtedness bears a floating rate of interest and is being
given PRO FORMA effect, the interest on such Indebtedness shall be calculated as
if the rate in effect on the date of determination had been the applicable rate
for the entire period (taking into account any Interest Rate Agreement
11
applicable to such Indebtedness, but if the remaining term of such Interest Rate
Agreement is less than twelve months, then such Interest Rate Agreement shall
only be taken into account for that portion of the period equal to the remaining
term thereof).
The Consolidated Interest Expense attributable to interest on any
Indebtedness under a revolving credit facility the outstanding principal balance
of which is required to be computed on a PRO FORMA basis in accordance with the
foregoing shall be computed based on the average daily balance of such
Indebtedness during the applicable period, PROVIDED, that such average daily
balance shall take into account the amount of any repayment of Indebtedness
under such revolving credit facility during the applicable period, to the extent
such repayment permanently reduced the commitments or amounts available to be
borrowed under such facility.
"CONSOLIDATED INTEREST EXPENSE" of the Company (or Merisant, as
appropriate) means, for any period, the total interest expense of the Company
(or Merisant, as appropriate) and its consolidated Restricted Subsidiaries,
PLUS, to the extent not included in such total interest expense, and to the
extent incurred by the Company (or Merisant, as appropriate) or its Restricted
Subsidiaries, without duplication:
(1) interest expense attributable to capital leases and the interest
expense attributable to leases constituting part of a Sale/Leaseback
Transaction;
(2) amortization of debt discount and debt issuance cost;
(3) capitalized interest;
(4) non-cash interest expense;
(5) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing;
(6) net payments pursuant to Hedging Obligations;
(7) Preferred Stock dividends in respect of all Preferred Stock held
by Persons other than the Company (or Merisant, as appropriate) or a Wholly
Owned Subsidiary (other than dividends payable solely in Capital Stock
(other than Disqualified Stock) of the Company (or
12
Merisant, as appropriate)); PROVIDED, HOWEVER, that such dividends will be
multiplied by a fraction of the numerator of which is one and the
denominator of which is one minus the effective combined tax rate of the
issuer of such Preferred Stock (expressed as a decimal) for such period (as
estimated by the chief financial officer of the Company in good faith);
(8) interest incurred in connection with Investments in discontinued
operations;
(9) interest accruing on any Indebtedness of any other Person to the
extent such Indebtedness is Guaranteed by (or secured by the assets of) the
Company (or Merisant, as appropriate) or any Restricted Subsidiary; and
(10) 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 (or
Merisant, as appropriate)) in connection with Indebtedness Incurred by such
plan or trust.
"CONSOLIDATED NET INCOME" of the Company (or Merisant, as appropriate)
means, for any period, the net income of the Company (or Merisant, as
appropriate) and its consolidated Subsidiaries; PROVIDED, HOWEVER, that there
shall not be included in such Consolidated Net Income:
(1) any net income of any Person (other than the Company (or
Merisant, as appropriate)) if such Person is not a Restricted Subsidiary,
except that:
(A) subject to the exclusion contained in clause (4)
below, the Company's (or Merisant's, as appropriate) equity in the net
income of any such Person for such period shall be included in such
Consolidated Net Income in an amount equal to the aggregate amount of
cash actually distributed by such Person during such period to the
Company (or Merisant, as appropriate) or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or
other distribution paid to a Restricted Subsidiary, to the limitations
contained in clause (3) below); and
(B) the Company's (or Merisant's, as appropriate) equity
in a net loss of any such Person
13
for such period shall be included in determining such Consolidated Net
Income;
(2) any net income (or loss) of any Person acquired by the Company
(or Merisant, as appropriate) or a Subsidiary in a pooling of interests
transaction for any period prior to the date of such acquisition;
(3) any net income of any Restricted Subsidiary if such 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 the Company (or Merisant, as
appropriate), except that:
(A) subject to the exclusion contained in clause (4)
below, the net income of any such Restricted Subsidiary for such
period shall be included in such Consolidated Net Income in an amount
equal to the aggregate amount of cash actually distributed by such
Restricted Subsidiary during such period to the Company (or Merisant,
as appropriate) or another Restricted Subsidiary as a dividend or
other distribution (subject, in the case of a dividend or other
distribution paid to another Restricted Subsidiary, to the limitation
contained in this clause);
(B) the net loss of any such Restricted Subsidiary for
such period shall be included in determining such Consolidated Net
Income; and
(C) the net income of any such Restricted Subsidiary
for such period shall not be excluded solely as a result of the
restrictions on the payment of dividends and the making of
distributions set forth in (i) the Merisant Notes, (ii) any Credit
Facility Incurred pursuant to Section 4.06(b)(iv)(1), or (iii) any
Credit Linked Hedge related to any such Credit Facility;
(4) any gain (but not loss) realized upon the sale or other
disposition of any assets of the Company, its consolidated Subsidiaries or
any other Person (including pursuant to any sale-and-leaseback arrangement)
which is not sold or otherwise disposed of in the ordinary course of
business and any gain (but not loss) realized upon the sale or other
disposition of any Capital Stock of any Person;
14
(5) extraordinary gains or losses;
(6) the cumulative effect of a change in accounting principles; and
(7) any unrealized non-cash gain or loss in respect of Currency
Agreements.
Notwithstanding the foregoing, for the purposes of Section 4.05 only, there
shall be excluded from Consolidated Net Income any repurchases, repayments or
redemptions of Investments, proceeds realized on the sale of Investments or
return of capital to the Company (or Merisant, as appropriate) or a Restricted
Subsidiary to the extent such repurchases, repayments, redemptions, proceeds or
returns increase the amount of Restricted Payments permitted under Section
4.05(a)(3)(D).
"CONSOLIDATED TANGIBLE ASSETS" means, as of any date, the amount
which, in accordance with GAAP, would be set forth under the caption "Total
Assets" (or any like caption) on the most recent quarterly consolidated balance
sheet of the Company and its Restricted Subsidiaries, less all intangible
assets, including, without limitation, goodwill, organization costs, patents,
trademarks, copyrights, franchises, and research and development costs.
"CREDIT AGREEMENT" means the Credit Agreement, dated as of July 11,
2003, among Merisant, the Company, the lenders referred to therein, and Credit
Suisse First Boston, as administrative agent, together with the related
documents thereto (including all promissory notes, guarantees and security
documents), as amended, extended, renewed, restated, supplemented or otherwise
modified (in whole or in part, and without limitation as to amount, terms,
conditions, covenants and other provisions) from time to time, and any agreement
(and related document) governing Indebtedness incurred to Refinance, in whole or
in part, the borrowings and commitments then outstanding or permitted to be
outstanding under such Credit Agreement or a successor Credit Agreement, whether
by the same or any other lender or group of lenders.
"CREDIT FACILITIES" means, with respect to Merisant or any of its
Restricted Subsidiaries, one or more debt facilities (including the Credit
Agreement) or commercial paper facilities with banks or other institutional
lenders providing revolving credit loans, term loans, receivables financing
(including through the sale of receivables) or letters of credit, in each
15
case, as amended, restated, modified, renewed, refunded, replaced or refinanced
in whole or in part from time to time.
"CREDIT LINKED HEDGE" means, with respect to a Credit Facility, all
Hedging Obligations that (1) constitute or are directly related to Indebtedness
Incurred under such Credit Facility or are entered into with counterparties who
are lenders or Affiliates of lenders under such Credit Facility, (2) are secured
by all collateral securing such Credit Facility on an equal and ratable basis
and guaranteed by all guarantors of such Credit Facility on a PARI PASSU basis,
in each case pursuant to common documentation, (3) contains covenants not less
favorable to the Noteholders than those set forth in such Credit Facility, and
(4) are permitted under this Indenture.
"CREDIT OBLIGATIONS" means Obligations under Credit Facilities and all
related Credit Linked ▇▇▇▇▇▇.
"CURRENCY AGREEMENT" means in respect of a Person any foreign exchange
contract, currency swap agreement or other similar agreement designed to protect
such Person against fluctuations in currency values.
"DEBT SECURITIES" means any debt securities issued in a public
offering or in a traditional debt securities private placement to institutional
accredited investors (as defined in Rule 501 of the Securities Act) or pursuant
to Rule 144A or Regulation S under the Securities Act.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DESIGNATED SENIOR INDEBTEDNESS" with respect to a Person means:
(1) the Bank Indebtedness; and
(2) any other Senior Indebtedness of such Person which, at the date
of determination, has an aggregate principal amount outstanding of, or
under which, at the date of determination, the holders thereof are
committed to lend up to, at least $25.0 million and is specifically
designated by such Person in the instrument evidencing or governing such
Senior Indebtedness as "Designated Senior Indebtedness" for purposes of
this Indenture.
"DISQUALIFIED STOCK" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of
16
any security into which it is convertible or for which it is exchangeable at the
option of the holder) or upon the happening of any event:
(1) matures or is mandatorily redeemable (other than redeemable only
for Capital Stock of such Person which is not itself Disqualified Stock)
pursuant to a sinking fund obligation or otherwise;
(2) is convertible or exchangeable at the option of the holder for
Indebtedness or Disqualified Stock; or
(3) is mandatorily redeemable or must be purchased upon the
occurrence of certain events or otherwise, in whole or in part;
in each case on or prior to the date that is 91 days after the Stated Maturity
of the Notes; PROVIDED, HOWEVER, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require such Person to purchase or redeem such Capital Stock upon
the occurrence of an "asset sale" or "change of control" occurring prior to the
first anniversary of the Stated Maturity of the Notes shall not constitute
Disqualified Stock if:
(1) the "asset sale" or "change of control" provisions applicable to
such Capital Stock are not more favorable to the holders of such Capital
Stock than the terms applicable to the Notes and described in Sections 4.04
and 4.10; and
(2) any such requirement only becomes operative after compliance
with such terms applicable to the Notes, including the purchase of any
Notes tendered pursuant thereto.
The amount of any Disqualified Stock that does not have a fixed
redemption, repayment or repurchase price will be calculated in accordance with
the terms of such Disqualified Stock as if such Disqualified Stock were
redeemed, repaid or repurchased on any date on which the amount of such
Disqualified Stock is to be determined pursuant to this Indenture; PROVIDED,
HOWEVER, that if such Disqualified Stock could not be required to be redeemed,
repaid or repurchased at the time of such determination, the redemption,
repayment or repurchase price will be the book value of such Disqualified Stock
as reflected in the most recent financial statements of such Person.
17
"EBITDA" of the Company (or Merisant, as appropriate) for any period
means the sum of Consolidated Net Income of the Company (or Merisant, as
appropriate), plus the following to the extent deducted in calculating such
Consolidated Net Income:
(1) all income tax expense of the Company (or Merisant, as
appropriate) and its consolidated Restricted Subsidiaries;
(2) Consolidated Interest Expense;
(3) depreciation and amortization expense of the Company (or
Merisant, as appropriate) and its consolidated Restricted Subsidiaries
(excluding amortization expense attributable to a prepaid operating
activity item that was paid in cash in a prior period); and
(4) all other non-cash charges of the Company (or Merisant, as
appropriate) and its consolidated Restricted Subsidiaries (excluding any
such non-cash charge to the extent that it represents an accrual of or
reserve for cash expenditures in any future period);
in each case for such period.
Notwithstanding the foregoing, the provision for taxes based on the
income or profits of, and the depreciation and amortization and non-cash charges
of, a Restricted Subsidiary shall be added to Consolidated Net Income to compute
EBITDA only to the extent (and in the same proportion, including by reason of
minority interests) that the net income of such Restricted Subsidiary was
included in calculating Consolidated Net Income and only if a corresponding
amount would be permitted at the date of determination to be dividended to the
Company (or Merisant, as appropriate) by such Restricted Subsidiary without
prior approval (that has not been obtained), pursuant to the terms of its
charter and all agreements, instruments, judgments, decrees, orders, statutes,
rules and governmental regulations applicable to such Restricted Subsidiary or
its stockholders.
"ESOP" means any employee stock ownership plan or a trust established
by Parent or any of its Subsidiaries for the benefit of their employees.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended.
"FIRST CALL DATE" means November 15, 2008.
18
"FOREIGN REQUIRED MINORITY SHARES" means Capital Stock of a Foreign
Subsidiary that is required by the applicable laws and regulations of such
foreign jurisdiction to be owned by the government of such foreign jurisdiction
or individual or corporate citizens of such foreign jurisdiction in order for
such Foreign Subsidiary to transact business in such foreign jurisdiction.
"FOREIGN SUBSIDIARY" means any Restricted Subsidiary that (1) is not
organized under the laws of the United States, any state thereof or the District
of Columbia and (2) conducts substantially all of its business operations
outside of the United States. For purposes of this definition, Puerto Rico shall
be deemed not to be a part of the United States so long as a Puerto Rican
corporation is treated as a foreign corporation under Section 7701 of the Code.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Merisant Issue Date, including those
set forth in:
(1) the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants;
(2) statements and pronouncements of the Financial Accounting
Standards Board;
(3) such other statements by such other entity as approved by a
significant segment of the accounting profession; and
(4) the rules and regulations of the SEC governing the inclusion of
financial statements (including PRO FORMA financial statements) in periodic
reports required to be filed pursuant to Section 13 of the Exchange Act,
including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC.
"GUARANTEE" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any Person and
any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness of such Person (whether arising by virtue
of partnership
19
arrangements, or by agreements to keep-well, to purchase assets, goods,
securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise); or
(2) entered into for the purpose of assuring in any other manner the
obligee of such Indebtedness of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part);
PROVIDED, HOWEVER, that the term "GUARANTEE" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "GUARANTEE"
used as a verb has a corresponding meaning.
"GUARANTOR" means any Subsidiary of the Company that Guarantees the
Notes pursuant to the terms of this Indenture, in each case unless and until
such Subsidiary is released from its obligations under its Guaranty pursuant to
the terms of this Indenture.
"GUARANTY" means a Guarantee by a Guarantor of the Company's
Obligations with respect to the Notes.
"HEDGING OBLIGATIONS" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"HOLDER" or "NOTEHOLDER" means the Person in whose name a Note is
registered on the Registrar's books.
"INCUR" means issue, assume, Guarantee, incur or otherwise become
liable for; PROVIDED, HOWEVER, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Restricted Subsidiary (whether
by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Person at the time it becomes a Restricted Subsidiary. The term
"INCURRENCE" when used as a noun shall have a correlative meaning. Solely for
purposes of determining compliance with Section 4.06, (1) amortization of debt
discount or the accretion of principal with respect to a non-interest bearing or
other discount security, (2) the payment of regularly scheduled interest in the
form of additional Indebtedness of the same instrument or the payment of
regularly scheduled dividends on Capital Stock in the form of additional Capital
Stock of the same class and with the same terms, and (3) unrealized losses or
charges in respect of Hedging Obligations (including those resulting from the
application of FAS 133), in each case will be deemed not to be Incurrences of
Indebtedness.
20
"INDEBTEDNESS" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal in respect of (A) indebtedness of such Person for
money borrowed and (B) indebtedness evidenced by notes, debentures, bonds
or other similar instruments for the payment of which such Person is
responsible or liable, including, in each case, any premium on such
indebtedness to the extent such premium has become due and payable;
(2) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered into by
such Person;
(3) all obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such Person
and all obligations of such Person under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of
business);
(4) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit
issued otherwise than under the Credit Agreement securing obligations
(other than obligations described in clauses (1) through (3) above) entered
into in the ordinary course of business of such Person to the extent such
letters of credit are not drawn upon or, if and to the extent drawn upon,
such drawing is reimbursed no later than the tenth Business Day following
payment on the letter of credit);
(5) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock of such
Person or, with respect to any Preferred Stock of any Subsidiary of such
Person, the principal amount of such Preferred Stock to be determined in
accordance with this Indenture (but excluding, in each case, any accrued
dividends);
(6) all obligations of the types referred to in clauses (1) through
(5) of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
Guarantee;
21
(7) all obligations of the types referred to in clauses (1) through
(6) of other Persons secured by any Lien on any property or asset of such
Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of
such property or assets and the amount of the obligation so secured; and
(8) to the extent not otherwise included in this definition, Hedging
Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date; PROVIDED,
HOWEVER, that in the case of Indebtedness sold at a discount, the amount of such
Indebtedness at any time will be the accreted value thereof at such time.
"INDENTURE" means this Indenture as amended or supplemented from time
to time.
"INDEPENDENT QUALIFIED PARTY" means an investment banking firm,
accounting firm or appraisal firm of national standing; PROVIDED, HOWEVER, that
such firm is not an Affiliate of the Company.
"INTEREST RATE AGREEMENT" means, in respect of a Person, any interest
rate swap agreement, interest rate cap agreement or other financial agreement or
arrangement designed to reduce such Person's interest expense or protect such
Person against fluctuations in interest rates.
"INVESTMENT" in any Person means any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of the lender) or other
extensions of credit (including by way of Guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by such Person. Except as otherwise provided for
herein, the amount of an Investment shall be its fair value at the time the
Investment is made and without giving effect to subsequent changes in value.
22
For purposes of the definition of "Unrestricted Subsidiary," the definition of
"Restricted Payment" and Section 4.05:
(1) "INVESTMENT" shall include the portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market value of
the net assets of any Subsidiary of the Company at the time that such
Subsidiary is designated an Unrestricted Subsidiary; and
(2) any property transferred to or from an Unrestricted Subsidiary
shall be valued at its fair market value at the time of such transfer, in
each case as determined in good faith by the Board of Directors.
"ISSUE DATE" means November 12, 2003.
"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).
"MERISANT" means Merisant Company, a Delaware corporation.
"MERISANT ISSUE DATE" means July 11, 2003.
"MERISANT NOTES" means the $225.0 million of 9 1/2% Senior
Subordinated Notes Due 2013 issued by Merisant on the Merisant Issue Date, and
up to an equal aggregate principal amount of such notes issued under the same
indenture upon exchange of such original notes pursuant to the related
registration rights agreement.
"MERISANT NOTES DIVIDEND" means the payment by the Company of one or
more dividends to its stockholders on or after the Merisant Issue Date but prior
to the Issue Date in an aggregate amount of up to $197.0 million in cash
utilizing the net proceeds of the Merisant Notes.
"MERISANT OFFERING CIRCULAR" means the Confidential Offering Circular
dated July 7, 2003 issued by Merisant in relation to $225,000,000 aggregate
principal amount of 9 1/2% Senior Subordinated Notes Due 2013 issued on the
Merisant Issue Date.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
23
"MSD" means MSD Capital, L.P., its Related Parties, and any other
Person to the extent MSD Capital, L.P. makes all relevant investment decisions
for such Person.
"NET AVAILABLE CASH" from an Asset Disposition means cash payments
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to such properties or assets or
received in any other non-cash form), in each case net of:
(1) all legal, title and recording tax expenses, commissions and
other fees and expenses incurred, and all Federal, state, provincial,
foreign and local taxes required to be accrued as a liability under GAAP,
as a consequence of such Asset Disposition;
(2) all payments made on any Indebtedness which is secured by any
assets subject to such Asset Disposition, in accordance with the terms of
any Lien upon or other security agreement of any kind with respect to such
assets, or which must by its terms, or in order to obtain a necessary
consent to such Asset Disposition, or by applicable law, be repaid out of
the proceeds from such Asset Disposition;
(3) all distributions and other payments required to be made to
minority interest holders in Restricted Subsidiaries as a result of such
Asset Disposition; and
(4) the deduction of appropriate amounts provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with
the property or other assets disposed in such Asset Disposition and
retained by the Company or any Restricted Subsidiary after such Asset
Disposition.
"NET CASH PROCEEDS" means, with respect to any issuance or sale of
Capital Stock, the cash proceeds of such issuance or sale net of attorneys'
fees, accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
24
"NOTES" has the meaning set forth in the second paragraph of this
Indenture.
"OBLIGATIONS" means all obligations for principal, premium, interest
penalties, fees, indemnifications, reimbursements and other amounts payable.
"OFFICER" means the Chairman of the Board, the President, any Vice
President, the Treasurer or the Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers.
"ONE YEAR'S COUPON" means, with respect to an optional redemption, the
difference between (1) the scheduled Accreted Value of the Notes on the date
that is one year after the redemption date and (2) the Accreted Value of the
Notes as of the redemption date.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"PARENT" means Tabletop Holdings, LLC.
"PERMITTED CLOSING DATE PAYMENT" means the payment by the Company of
one or more dividends to its stockholders on the Issue Date or promptly
thereafter in an aggregate amount of up to $72.5 million in cash.
"PERMITTED HOLDERS" means (i) Pegasus Partners II, L.P., (ii) MSD,
(iii) Carolwood Tabletop Holdings, LLC, and (iv) any Related Party of any of the
foregoing.
"PERMITTED INVESTMENT" means an Investment by the Company or any
Restricted Subsidiary in:
(1) the Company, a Wholly Controlled Subsidiary or a Person that will,
upon the making of such Investment, become a Wholly Controlled
Subsidiary; PROVIDED, HOWEVER, that the primary business of such
Wholly Controlled Subsidiary is a Related Business;
(2) another Person if as a result of such Investment such other Person is
merged or consolidated with or into, or transfers or conveys all or
substantially all its
25
assets to, the Company or a Restricted Subsidiary; PROVIDED, HOWEVER,
that such Person's primary business is a Related Business;
(3) cash and Temporary Cash Investments;
(4) receivables owing to the Company or any Restricted Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; PROVIDED,
HOWEVER, that such trade terms may include such concessionary trade
terms as the Company or any such Restricted Subsidiary deems
reasonable under the circumstances;
(5) 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;
(6) loans or advances to employees made in the ordinary course of business
of the Company or such Restricted Subsidiary;
(7) stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Company or
any Restricted Subsidiary or in satisfaction of judgments;
(8) any Person to the extent such Investment represents the non-cash
portion of the consideration received for an Asset Disposition as
permitted pursuant to Section 4.10;
(9) any Person where such Investment was acquired by the Company or any of
its Restricted Subsidiaries (A) in exchange for any other Investment
or accounts receivable held by the Company or any such Restricted
Subsidiary in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such other
Investment or accounts receivable or (B) as a result of a foreclosure
by the Company or any of its Restricted Subsidiaries with respect to
any secured Investment or other transfer of title with respect to any
secured Investment in default;
26
(10) any Investment by the Company or a Restricted Subsidiary of the
Company in a Receivables Subsidiary, or any Investment by a
Receivables Subsidiary in any other Person, in each case in connection
with a Qualified Receivables Transaction and in a manner, and for
consideration, customary for transactions of that type;
(11) any Person to the extent such Investments consist of prepaid expenses,
negotiable instruments held for collection, and lease, workers'
compensation, performance and similar deposits made in the ordinary
course of business by the Company or any Restricted Subsidiary;
(12) any Person to the extent such Investments consist of Hedging
Obligations otherwise not prohibited under Section 4.06;
(13) any Person if (A) the primary business of such Person is a Related
Business, (B) such Person conducts substantially all of its business
operations outside of the United States, and (C) the amount of such
Investment, when taken together with all other Investments made
pursuant to this clause (13), does not exceed $4.0 million; and
(14) any Person, not otherwise permitted to be made pursuant to the
preceding clauses of this definition, in an aggregate amount which,
when taken together with all other Investments made pursuant to this
clause (14), does not exceed the greater of (A) $5.0 million, and (B)
2.5% of Consolidated Tangible Assets.
"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.
"PREFERRED STOCK", as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.
27
"PRINCIPAL" of a Note means the principal of the Note plus the
premium, if any, payable on the Note which is due or overdue or is to become due
at the relevant time, and "PRINCIPAL AMOUNT AT MATURITY" means the Accreted
Value of the Notes at the Stated Maturity thereof, without regard to any
additional interest that may accrue or accrete thereon as a result of a
Registration Default under the Registration Rights Agreement.
"QUALIFIED EQUITY OFFERING" means either (i) an underwritten primary
public offering of Capital Stock (other than Disqualified Stock) of the Company
pursuant to an effective registration statement under the Securities Act, or
(ii) a privately negotiated sale of Capital Stock (other than Disqualified
Stock) of the Company to a Person that, immediately prior to the time of such
sale, is not an Affiliate of the Company, and resulting in aggregate gross
proceeds to the Company of at least $25.0 million.
"QUALIFIED RECEIVABLES TRANSACTION" means any transaction or series of
transactions entered into by the Company or any of its Restricted Subsidiaries
pursuant to which the Company or any of its Restricted Subsidiaries sells,
conveys or otherwise transfers to (i) a Receivables Subsidiary (in the case of a
transfer by the Company or any of its Restricted Subsidiaries) and (ii) any
other Person (in the case of a transfer by a Receivables Subsidiary), or grants
a security interest in, any Receivables Assets, in each case in a manner
customary for asset securitization transactions.
"RECEIVABLES ASSETS" means any accounts receivable, instruments,
chattel paper, general intangibles and similar assets (whether now existing or
arising in the future, "RECEIVABLES") of the Company or any of its Subsidiaries,
and any assets related thereto including all collateral securing such
Receivables, all contracts, contract rights and all guarantees or other
obligations in respect of such Receivables, proceeds of such Receivables and any
other assets which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions.
"RECEIVABLES SUBSIDIARY" means a Subsidiary of the Company that
satisfies all of the following requirements:
(1) such Receivables Subsidiary engages in no activities other than in
connection with the financing of Receivables Assets;
28
(2) such Receivables Subsidiary is designated by the Board of Directors of
the Company (as provided below) as a Receivables Subsidiary;
(3) no portion of any Obligations (contingent or otherwise) of such
Receivables Subsidiary (a) is Guaranteed by the Company or any other
Subsidiary of the Company (excluding Guarantees of Obligations (other
than the principal of, and interest on, Indebtedness) pursuant to
representations, warranties, covenants and indemnities entered into in
the ordinary course of business in connection with a Qualified
Receivables Transaction); (b) is recourse to or obligates the Company
or any other Subsidiary of the Company in any way other than pursuant
to customary representations, warranties, covenants and indemnities
entered into in connection with a Qualified Receivables Transaction;
or (c) subjects any property or asset of the Company or any other
Subsidiary of the Company (other than Receivables Assets), directly or
indirectly, contingently or otherwise, to the satisfaction of such
Obligations, other than pursuant to customary representations,
warranties, covenants and indemnities entered into in connection with
a Qualified Receivables Transaction;
(4) neither the Company nor any other Subsidiary of the Company has any
material contract, agreement, arrangement or understanding with such
Receivables Subsidiary other than on terms no less favorable to the
Company or such other Subsidiary than those that might be obtained at
the time from Persons who are not Affiliates of the Company, other
than as may be customary in a Qualified Receivables Transaction
including for fees payable in the ordinary course of business in
connection with servicing Receivables Assets; and
(5) neither the Company nor any other Subsidiary of the Company has any
obligation to maintain or preserve such Receivables Subsidiary's
financial condition or cause such Receivables Subsidiary to achieve
certain levels of operating results.
Any such designation of a Receivables Subsidiary by the Board of
Directors of the Company will be evidenced to the Trustee by filing with the
Trustee a certified copy of the resolution of the Board of Directors of the
Company giving
29
effect to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing conditions.
"REFINANCE" means, in respect of any Indebtedness, to refinance,
extend, renew or refund, or to issue other Indebtedness in exchange or
replacement for, such Indebtedness. "REFINANCED" and "REFINANCING" shall have
correlative meanings.
"REFINANCING INDEBTEDNESS" means Indebtedness that Refinances any
Indebtedness of the Company or any Restricted Subsidiary existing on the Issue
Date or Incurred in compliance with this Indenture, including Indebtedness that
Refinances Refinancing Indebtedness; PROVIDED, HOWEVER, that:
(1) such Refinancing Indebtedness has a Stated Maturity no earlier
than the Stated Maturity of the Indebtedness being Refinanced;
(2) such Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is Incurred that is equal to or greater than
the Average Life of the Indebtedness being Refinanced; and
(3) such Refinancing Indebtedness has an aggregate principal amount
(or if Incurred with original issue discount, an aggregate issue price)
that is equal to or less than the aggregate principal amount (or if
Incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus fees and expenses, including any premium and
defeasance costs) under the Indebtedness being Refinanced;
PROVIDED FURTHER, HOWEVER, that Refinancing Indebtedness shall not include (A)
Indebtedness of a Subsidiary that Refinances Indebtedness of the Company or (B)
Indebtedness of the Company or a Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted Subsidiary.
"RELATED BUSINESS" means any business in which Merisant was engaged on
the Merisant Issue Date and any business related, ancillary or complementary to
any business of Merisant in which Merisant was engaged on the Merisant Issue
Date.
"RELATED PARTY" means (1) any controlling stockholder, controlling
member, general partner, majority owned Subsidiary, or spouse or immediate
family member (in the case of an individual) of any Permitted Holder, (2) any
estate, trust,
30
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons holding a controlling interest of which consist
solely of one or more Permitted Holders and/or such other Persons referred to in
the immediately preceding clause (1), or (3) any executor, administrator,
trustee, manager, director or other similar fiduciary of any Person referred to
in the immediately preceding clause (2) acting solely in such capacity.
"REPRESENTATIVE" means with respect to a Person any trustee, agent or
representative (if any) for an issue of Senior Indebtedness of such Person.
"RESTRICTED PAYMENT" with respect to any Person means:
(1) the declaration or payment of any dividends or any other
distributions of any sort in respect of its Capital Stock (including any
payment in connection with any merger or consolidation involving such
Person) or similar payment to the direct or indirect holders of its Capital
Stock (other than (A) dividends or distributions payable solely in its
Capital Stock (other than Disqualified Stock), (B) dividends or
distributions payable solely to the Company or a Restricted Subsidiary, and
(C) dividends or other distributions made by a Subsidiary to the holders of
any class of its Capital Stock on a PRO RATA basis);
(2) the purchase, redemption or other acquisition or retirement for
value of any Capital Stock of the Company held by any Person or of any
Capital Stock of a Restricted Subsidiary held by any Affiliate of the
Company (other than a Restricted Subsidiary), including the exercise of any
option to exchange any Capital Stock (other than into Capital Stock of the
Company that is not Disqualified Stock);
(3) 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 Obligations
of such Person (other than (A) payments made solely to the Company or a
Wholly Controlled Subsidiary and (B) the purchase, repurchase or other
acquisition of Subordinated Obligations purchased in anticipation of
satisfying a sinking fund obligation, principal installment or final
maturity, in each case due within one year of the date of such purchase,
repurchase or other acquisition); or
31
(4) the making of any Investment (other than a Permitted Investment)
in any Person.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company (or, if
appropriate in the context, any Subsidiary of Merisant) that is not an
Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Group.
"SALE/LEASEBACK TRANSACTION" means an arrangement relating to property
owned by the Company or a Restricted Subsidiary on the Issue Date or thereafter
acquired by the Company or a Restricted Subsidiary whereby the Company or a
Restricted Subsidiary transfers such property to a Person and the Company or a
Restricted Subsidiary leases it from such Person.
"SEC" means the U.S. Securities and Exchange Commission.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
"SENIOR INDEBTEDNESS" means with respect to any Person:
(1) the Bank Indebtedness and any other Indebtedness of such Person,
whether outstanding on the Issue Date or thereafter Incurred; and
(2) accrued and unpaid interest (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization
relating to such Person whether or not post-filing interest is allowed in
such proceeding) in respect of (A) indebtedness of such Person for money
borrowed (and all Interest Rate Agreements directly related thereto) and
(B) indebtedness evidenced by notes, debentures, bonds or other similar
instruments for the payment of which such Person is responsible or liable;
UNLESS, in the case of clauses (1) and (2), in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are subordinate or PARI PASSU in right of payment to the
Notes or the Guaranty of such Person, as the case may be; PROVIDED, HOWEVER,
that Senior Indebtedness shall not include:
32
(A) any obligation of such Person to any Subsidiary;
(B) any liability for Federal, state, local or other
taxes owed or owing by such Person;
(C) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including
Guarantees thereof or instruments evidencing such liabilities);
(D) any Indebtedness of such Person (and any accrued and
unpaid interest in respect thereof) which is subordinate or junior in
right of payment to any other Indebtedness or other obligation of such
Person; or
(E) that portion of any Indebtedness which at the time of
Incurrence is Incurred in violation of the Indenture.
"SENIOR SUBORDINATED INDEBTEDNESS" means, with respect to a Person,
the Notes (in the case of the Company), the Guaranty (in the case of a
Guarantor) and any other Indebtedness of such Person that specifically provides
that such Indebtedness is to rank PARI PASSU with the Notes or such Guaranty, as
the case may be, in right of payment and is not subordinated by its terms in
right of payment to any Indebtedness or other obligation of such Person which is
not Senior Indebtedness of such Person.
"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 SEC.
"STATED MATURITY" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"SUBORDINATED OBLIGATION" means, with respect to a Person, any
Indebtedness of such Person (whether outstanding on the Issue Date or thereafter
Incurred) which is subordinate or
33
junior in right of payment to the Notes or a Guaranty of such Person, as the
case may be, pursuant to a written agreement to that effect.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Voting Stock is at the time owned or controlled,
directly or indirectly, by:
(1) such Person;
(2) such Person and one or more Subsidiaries of such Person; or
(3) one or more Subsidiaries of such Person.
Unless otherwise specified or inappropriate in the context, "SUBSIDIARY" means a
Subsidiary of the Company.
"SUPPLEMENTAL GUARANTY AGREEMENT" means a supplemental indenture, in a
form satisfactory to the Trustee, pursuant to which a Guarantor guarantees the
Company's obligations with respect to the Notes on the terms provided for in
this Indenture.
"TEMPORARY CASH INVESTMENTS" 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 demand accounts, time deposit accounts,
certificates of deposit and money market deposits maturing within 180 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,
and which bank or trust company has capital, surplus and undivided profits
aggregating in excess of $50.0 million (or the foreign currency equivalent
thereof) and has outstanding debt which 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) or any money-
34
market fund sponsored by a registered broker dealer or mutual fund
distributor;
(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;
(4) investments in commercial paper, maturing not more than 90 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 Moody's or "A-1" (or
higher) according to S&P; and
(5) investments in securities with maturities of six months or less
from 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 Moody's.
"TIA" or "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) as in effect on the Merisant Issue Date.
"TREASURY RATE" means the yield to maturity at the time of computation
of U.S. Treasury securities with a constant maturity (as compiled and published
in the most recent Federal Reserve Release H 15 (519) which has become publicly
available at least two Business Days prior to the Change of Control Redemption
Date (or, if such Statistical Release is no longer published, any publicly
available source or similar market data)) closest to the period from the Change
of Control Redemption Date to the First Call Date; PROVIDED, HOWEVER, that if
the period from the Change of Control Redemption Date to the First Call Date is
not equal to the constant maturity of a U.S. Treasury security for which a
weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of one year) from the
weekly average yields of U.S. Treasury securities for which such yields are
given, except that if the period from the Change of Control Redemption Date to
the First Call Date is less than one year, the weekly average yield on actually
traded U.S. Treasury
35
securities adjusted to a constant maturity of one year shall be used.
"TRUSTEE" means ▇▇▇▇▇ Fargo Bank Minnesota, National Association until
a successor replaces it and, thereafter, means the successor.
"TRUST OFFICER" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"UNIFORM COMMERCIAL CODE" means the
New York Uniform Commercial Code
as in effect from time to time.
"UNRESTRICTED SUBSIDIARY" means:
(1) any Subsidiary of the Company that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors in the
manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary,
in each case unless and until such Subsidiary is designated a Restricted
Subsidiary for purposes of this Indenture.
The Board of Directors of the Company may designate any Subsidiary of
the Company (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Capital Stock or Indebtedness of, or holds any Lien on any property of, the
Company or any other Subsidiary of the Company that is not a Subsidiary of the
Subsidiary to be so designated; PROVIDED, HOWEVER, that either (A) the
Subsidiary to be so designated has total assets of $1,000 or less or (B) if such
Subsidiary has assets greater than $1,000, such designation would be permitted
under Section 4.05 (the amount of such Restricted Payment being calculated in
the manner set forth in the definition of the term "Investment").
The Board of Directors of the Company may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; PROVIDED, HOWEVER, that immediately
after giving effect to such designation (A) the Company could Incur $1.00 of
additional Indebtedness under Section 4.06(a)(1) and (B) no Default shall have
occurred and be continuing. Any such designation by the Board of Directors shall
be evidenced to the Trustee by promptly
36
filing with the Trustee a copy of the resolution of the Board of Directors
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing provisions.
"U.S. GOVERNMENT OBLIGATIONS" 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 at the issuer's option.
"VOTING STOCK" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
"WHOLLY CONTROLLED SUBSIDIARY" means (i) any Wholly Owned Subsidiary
and (ii) any Foreign Subsidiary if (A) such Foreign Subsidiary is a Restricted
Subsidiary, (B) all of the Capital Stock of such Foreign Subsidiary (other than
directors' qualifying shares and Foreign Required Minority Shares, in each case
only to the extent required by applicable law) is owned by the Company or one or
more Wholly Owned Subsidiaries, and (C) the Company, by contract or otherwise,
controls the management and business of such Foreign Subsidiary and derives the
economic benefits of ownership of such Foreign Subsidiary to substantially the
same extent as if such Foreign Subsidiary were a Wholly Owned Subsidiary.
"WHOLLY OWNED SUBSIDIARY" means a Restricted Subsidiary all the
Capital Stock of which is owned by the Company or one or more Wholly Owned
Subsidiaries.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- ------------
"Affiliate Transaction"......................................................... 4.11
"Bankruptcy Law"................................................................ 6.01
"Blockage Notice"............................................................... 10.03/12.03
"Change of Control Offer"....................................................... 4.04(b)
"Change of Control Redemption Date" ............................................ 5(c) of the Notes
"covenant defeasance option".................................................... 8.01(b)
"Custodian"..................................................................... 6.01
"Event of Default".............................................................. 6.01
37
"Guaranteed Obligations" ....................................................... 11.01
"legal defeasance option"....................................................... 8.01(b)
"Legal Holiday"................................................................. 13.08
"Merisant Website" ............................................................. 4.02
"pay its Guaranty".............................................................. 12.03
"pay the Notes"................................................................. 10.03
"Paying Agent".................................................................. 2.03
"Payment Default"............................................................... 10.03/12.03
"Payment Blockage Period"....................................................... 10.03/12.03
"Registrar"..................................................................... 2.03
"Successor Company"............................................................. 5.01
In addition, terms defined in APPENDIX A shall have the meanings set
forth therein.
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Notes;
"indenture security holder" means a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
38
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate or
junior to secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(7) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP;
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater;
(9) all references to the date the Notes were originally issued
shall refer to the Issue Date; and
(10) in the event of a conflict between the definitions set forth in
Section 1.01 and the definitions set forth in the first paragraph of this
Indenture, the definitions set forth in Section 1.01 shall govern.
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING. Provisions relating to the Initial
Notes, the Private Exchange Notes and the Exchange Notes are set forth in the
APPENDIX A attached hereto which is hereby incorporated in and expressly made
part of this Indenture. The Initial Notes and the Trustee's certificate of
authentication shall be substantially in the form of EXHIBIT 1 to APPENDIX A
which is hereby incorporated in and expressly made a part of this Indenture. The
Exchange Notes, the Private Exchange Notes and the Trustee's certificate of
authentication shall be substantially in the form of EXHIBIT 2 to APPENDIX A,
which is hereby incorporated in and expressly made a part of this Indenture. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule, agreements to
39
which the Company is subject, if any, or usage (PROVIDED, that any such
notation, legend or endorsement is in a form acceptable to the Company). Each
Note shall be dated the date of its authentication. The terms of the Notes set
forth in EXHIBITS 1 and 2 to APPENDIX A are part of the terms of this Indenture.
SECTION 2.02. EXECUTION AND AUTHENTICATION. Two Officers shall
sign the Notes for the Company by manual or facsimile signature. The Company's
seal, if any, may be impressed, affixed, imprinted or reproduced on the Notes
and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture. The Trustee shall authenticate Notes in the amounts and at the times
specified in Section 2.2 of APPENDIX A attached hereto.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Notes. Unless limited by the terms of such
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 any Registrar, Paying Agent or agent for service of notices and
demands.
SECTION 2.03. REGISTRAR AND PAYING AGENT. The Company shall
maintain an office or agency where Notes may be presented for registration of
transfer or for exchange (the "REGISTRAR") and an office or agency where Notes
may be presented for payment (the "PAYING AGENT"). The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Company may have
one or more co-registrars and one or more additional paying agents. The term
"REGISTRAR" includes any appointed co-registrar and the term "PAYING AGENT"
includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this
40
Indenture that relate to such agent. The Company shall notify the Trustee of the
name and address of any such agent. If the Company fails to maintain a Registrar
or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07. The Company or any
Wholly Owned Subsidiary incorporated or organized within The United States of
America may act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. Prior to each
due date of the principal (or Accreted Value, if applicable) and interest on any
Note, the Company shall deposit with the Paying Agent a sum sufficient to pay
such principal (or Accreted Value, if applicable) and interest when so becoming
due. 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
Noteholders or the Trustee all money held by the Paying Agent for the payment of
principal (or Accreted Value, if applicable) of or interest on the Notes and
shall notify the Trustee of any default by the Company in making any such
payment. If the Company or a Subsidiary acts as Paying Agent, it shall segregate
the money held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and to account for any funds disbursed by the Paying Agent. Upon
complying with this Section 2.04, the Paying Agent shall have no further
liability for the money delivered to the Trustee.
SECTION 2.05. NOTEHOLDER 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 Noteholders and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee, in writing, at least five Business Days before each interest
payment date and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Noteholders.
SECTION 2.06. TRANSFER AND EXCHANGE. The Notes shall be issued in
registered form and shall be transferable only upon the surrender of a Note for
registration of transfer. When a Note is presented to the Registrar or a
co-registrar with a request to register a transfer, the Registrar shall register
the
41
transfer as requested if the requirements of this Indenture and Section 8-401(a)
of the Uniform Commercial Code are met. When Notes are presented to the
Registrar or a co-registrar with a request to exchange them for an equal
principal amount at maturity of Notes of other denominations, the Registrar
shall make the exchange as requested if the same requirements are met. The
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection with the transfer or exchange
of the Notes (other than any such transfer taxes or other similar governmental
charges payable upon exchange pursuant to Section 2.07, 2.09, 3.06 or 9.05).
SECTION 2.07. REPLACEMENT NOTES. If a mutilated Note is surrendered
to the Registrar or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue, and the Trustee shall
authenticate, a replacement Note if the requirements of Section 8-405 of the
Uniform Commercial Code are met and the Holder satisfies any other reasonable
requirements of the Trustee. If required by the Trustee or the Company, such
Holder shall furnish an indemnity bond sufficient in the judgment of the Company
and the Trustee to protect the Company, the Trustee, the Paying Agent, the
Registrar and any co-registrar from any loss which any of them may suffer if a
Note is replaced. The Company and the Trustee may charge the Holder for their
expenses in replacing a Note.
Every replacement Note is an additional Obligation of the Company.
SECTION 2.08. OUTSTANDING NOTES. Notes outstanding at any time are
all Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this Section 2.08 as not
outstanding. Subject to Section 13.06, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal (or Accreted Value, if applicable) and interest payable on that
date with respect to
42
the Notes (or portions thereof) to be redeemed or maturing, as the case may be,
and the Paying Agent is not prohibited from paying such money to the Noteholders
on that date pursuant to the terms of this Indenture, then on and after that
date such Notes (or portions thereof) cease to be outstanding, Accreted Value
will cease to accrete and interest on them will cease to accrue.
SECTION 2.09. TEMPORARY NOTES. Until Definitive Notes are ready
for delivery, the Company may prepare, and the Trustee shall authenticate,
temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company considers appropriate
for temporary Notes. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate Definitive Notes and deliver them in exchange for
temporary Notes.
SECTION 2.10. CANCELLATION. The Company at any time may deliver
Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Notes surrendered for registration of transfer, exchange, payment or
cancellation and deliver a certificate of such destruction to the Company unless
the Company directs the Trustee to deliver canceled Notes to the Company. The
Company may not issue new Notes to replace Notes it has redeemed, paid or
delivered to the Trustee for cancellation.
SECTION 2.11. DEFAULTED INTEREST. If the Company defaults in a
payment of interest on the Notes, the Company shall pay defaulted interest (plus
interest on such defaulted interest to the extent lawful) in any lawful manner.
The Company may pay the defaulted interest to the Persons who are Noteholders on
a subsequent special record date. The Company shall fix or cause to be fixed any
such special record date and payment date to the reasonable satisfaction of the
Trustee and shall promptly mail to each Noteholder a notice that states the
special record date, the payment date and the amount of defaulted interest to be
paid.
SECTION 2.12. CUSIP NUMBERS. The Company in issuing the Notes may
use "CUSIP" numbers and corresponding "ISINs" (if then generally in use) and, if
so, the Trustee shall use "CUSIP" numbers and corresponding "ISINs" in notices
of redemption as a convenience to Holders; PROVIDED, HOWEVER, that any such
notice
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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.
SECTION 2.13. ADDITIONAL NOTES. The Company shall be entitled,
subject to its compliance with this Section and Section 4.06, to issue
Additional Notes under this Indenture. Additional Notes shall have the same
terms and conditions as the Initial Notes issued on the Issue Date or Exchange
Notes, except for issue date, issue price, pre-issuance accrued interest,
accreted value at issuance and first interest payment date. The Initial Notes,
any Additional Notes and all Exchange Notes shall be treated as a single class
for all purposes under this Indenture, including waivers, amendments,
redemptions and offers to purchase, but may be treated as separate classes,
with, among other things, separate issue prices, for United States federal tax
purposes.
With respect to any issuance of Additional Notes, the Company shall
deliver to the Trustee a resolution of the Board of Directors and an Officers'
Certificate, and, if the Company elects, a supplemental indenture, which shall
together provide the following information:
(1) the stated aggregate principal amount at maturity of such
Additional Notes to be authenticated and delivered pursuant to this
Indenture;
(2) the issue date, issue price, pre-issuance accrued interest,
accreted value at issuance and first interest payment date, and the CUSIP
number and corresponding ISIN of such Additional Notes; and
(3) whether such Additional Notes shall be Transfer Restricted
Securities and issued in the form of Initial Notes as set forth in EXHIBIT
1 to APPENDIX A or shall be issued in the form of Exchange Notes as set
forth in EXHIBIT 2 to APPENDIX A.
In addition, the Officers' Certificate shall certify that such
issuance is in compliance with Section 4.06.
ARTICLE 3
REDEMPTION
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SECTION 3.01. NOTICES TO TRUSTEE. If the Company elects to redeem
Notes pursuant to paragraph 5 of the Notes, it shall notify the Trustee in
writing of the redemption date, the principal amount at maturity of Notes to be
redeemed and the paragraph and clause of the Notes pursuant to which the
redemption will occur.
The Company shall give each notice to the Trustee provided for in this
Section at least 60 days before the redemption date unless the Trustee consents
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED. If fewer than all
the Notes are to be redeemed, the Trustee shall select the Notes to be redeemed
pro rata or by lot or by a method that complies with applicable legal and
securities exchange requirements, if any, and that the Trustee in its sole
discretion shall deem to be fair and appropriate and in accordance with methods
generally used at the time of selection by fiduciaries in similar circumstances.
The Trustee shall make the selection from outstanding Notes not previously
called for redemption. The Trustee may select for redemption portions of the
principal amount at maturity of Notes that have denominations larger than
$1,000. Notes and portions of them the Trustee selects shall be in principal
amounts at maturity of $1,000 or a whole multiple of $1,000. Provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption. The Trustee shall notify the Company promptly of
the Notes or portions of Notes to be redeemed.
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not more
than 60 days before a date for redemption of Notes, the Company shall mail a
notice of redemption by first-class mail to each Holder of Notes to be redeemed
at such Holder's registered address.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price (expressed as a percentage of Accreted
Value of the Notes at the redemption date);
(3) the name and address of the Paying Agent;
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(4) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Notes are to be redeemed, the
identification and principal amounts at maturity of the particular Notes to
be redeemed;
(6) that, unless the Company defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment pursuant
to the terms of this Indenture, the Accreted Value of the Notes shall cease
to accrete and interest on Notes (or portion thereof) called for redemption
shall cease to accrue on and after the redemption date; and
(7) that no representation is made as to the correctness or accuracy
of the CUSIP number or corresponding ISIN, 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 the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section 3.03.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is mailed, Notes called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon surrender
to the Paying Agent, such Notes shall be paid at the redemption price stated in
the notice, plus accrued interest to the redemption date (subject to the right
of Holders of record on the relevant record date to receive interest due on the
related interest payment date). Failure to give notice or any defect in the
notice to any Holder shall not affect the validity of the notice to any other
Holder.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. Prior to the redemption
date, the Company shall deposit with the Paying Agent (or, if the Company or a
Subsidiary is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of and accrued interest on all Notes to
be redeemed on that date other than Notes or portions of Notes called for
redemption which have been delivered by the Company to the Trustee for
cancellation.
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SECTION 3.06. NOTES REDEEMED IN PART. Upon surrender of a Note
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate for the Holder (at the Company's expense) a new Note equal in
principal amount at maturity to the unredeemed portion of the Note surrendered.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES. The Company shall promptly pay the
principal of and interest on the Notes on the dates and in the manner provided
in the Notes and in this Indenture. Payment shall be made in
New York,
New York
unless the Trustee otherwise specifies. Principal and interest shall be
considered paid on the date due if on such date the Trustee or the Paying Agent
holds in accordance with this Indenture money sufficient to pay all principal
and interest then due and the Trustee or the Paying Agent, as the case may be,
is not prohibited from paying such money to the Noteholders on that date
pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal (or Accreted
Value, if applicable) at the rate specified therefor in the Notes, and it shall
pay interest on overdue installments of interest at the same rate to the extent
lawful.
SECTION 4.02. SEC REPORTS. Notwithstanding that the Company may
not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the SEC (to the extent the SEC will
accept such filings) and provide the Trustee and Noteholders with such annual
reports and such information, documents, certifications and other reports as are
specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S.
corporation subject to such Sections, such information, documents,
certifications and other reports to be so filed and provided at the times
specified for the filings of such information, documents, certifications and
reports under such Sections. Notwithstanding the foregoing, the Company may
satisfy such requirements prior to the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement by posting on the
Merisant Website and making freely accessible the same information as would be
required to be filed by the Company if it were subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, and will include a
representation that the Company has received a review report of the Company's
then current independent auditors as contemplated by Statement on Auditing
47
Standards No. 100 of the American Institute of Certified Public Accountants,
Inc. with respect to any interim financial information so posted on the Merisant
Website; PROVIDED, that the Company may (A) redact those portions of any
exhibits that are required to be posted pursuant hereto with respect to which
the Company expects to request confidential treatment in connection with the
filing of the Exchange Offer Registration Statement or the Shelf Registration
Statement, (B) omit such information as the Company believes in good faith is
not applicable as a result of the fact that the Company is not actually filing
reports with the SEC and is otherwise immaterial and (C) change the form of
certificate that would otherwise be required pursuant to 18 U.S.C. Section 1350
as a result of the preceding clauses (A) and (B). In such event, notwithstanding
the time of filing that would otherwise be required pursuant to the first
sentence of this Section 4.02, the Company shall post quarterly information on
the Merisant Website not later than 60 days after the end of the applicable
quarterly reporting period. Notwithstanding the foregoing, the Company shall not
be required to prepare and post on the Merisant Website a quarterly report for
the nine-month period ended September 30, 2003 to the extent that the management
of the Company has reasonably determined that the consolidated financial
statements of the Company at and for the nine-month period ended September 30,
2003 do not differ in any material respect from the consolidated financial
statements of Merisant at and for such date and period and a statement to that
effect is posted on the Merisant Website. For purposes of this Section 4.02, the
term "MERISANT WEBSITE" means the collection of web pages that may be accessed
on the World Wide Web using the URL address ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ or such
other address as the Company may from time to time designate in writing to the
Trustee.
In addition, the Company shall furnish to the Holders of the Notes and
to prospective investors, upon the requests of such Holders, any information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so
long as the Notes are not freely transferable under the Securities Act. The
Company also shall comply with the other provisions of TIA Section 314(a).
SECTION 4.03. COMPLIANCE CERTIFICATE. The Company shall deliver to
the Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default and whether or not the signers know of
48
any Default that occurred during such period. If they do, the certificate shall
describe the Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with TIA
Section 314(a)(4).
SECTION 4.04. CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, if the Company has
not exercised the Three-Year Change of Control Redemption Right (if applicable),
each Holder shall have the right to require that the Company repurchase such
Holder's Notes at a purchase price in cash equal to 101% of the Accreted Value
thereof on the date of purchase PLUS accrued and unpaid interest, if any, to the
date of purchase (subject to the right of holders of record on the relevant
record date to receive interest due on the relevant interest payment date), in
accordance with the terms of Section 4.04(b). In the event that at the time of
such Change of Control, the terms of the Credit Agreement or any other Credit
Facility prohibit the Company from making a Change of Control Offer or from
purchasing the Notes pursuant to this Section 4.04, the Company shall, prior to
the mailing of the notice to Holders provided for in Section 4.04(b) below but,
in any event within 30 days following any Change of Control: (1) repay in full
all Indebtedness outstanding under the relevant Credit Facility; or (2) obtain
the requisite consent under the relevant Credit Facility to permit the purchase
of the Notes as provided for in Section 4.04(b).
(b) If the Company has not mailed notice to the Holders that it elects
to exercise the Three-Year Change of Control Redemption Right (if applicable),
within 30 days following any Change of Control, the Company shall mail a notice
to each Holder with a copy to the Trustee (the "CHANGE OF CONTROL OFFER")
stating:
(1) that a Change of Control has occurred and that such Holder has
the right to require the Company to purchase such Holder's Notes at a
purchase price in cash equal to 101% of the Accreted Value thereof on the
date of purchase, plus accrued and unpaid interest, if any, to the date of
purchase (subject to the right of Holders of record on the relevant record
date to receive interest on the relevant interest payment date);
(2) the circumstances and relevant facts regarding such Change of
Control (including information with respect to PRO FORMA historical income,
cash flow and
49
capitalization, in each case after giving effect to such Change of
Control);
(3) the purchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(4) the instructions, determined by the Company, consistent with
this Section 4.04, that a Holder must follow in order to have its Notes
purchased;
(5) that if the Change of Control Offer is accepted by Holders of
not less than 75% of the Notes then outstanding, the Company shall have the
option to redeem the Untendered Notes as described in Section 5(c) of the
Notes, and setting forth the formula used to determine the redemption price
in such circumstances; and
(6) if applicable, that the Company has not exercised and will not
exercise the Three-Year Change of Control Redemption Right.
(c) Holders electing to have a Note purchased will be required to
surrender the Note, with an appropriate form duly completed, to the Company at
the address specified in the notice at least three Business Days prior to the
purchase date. Holders will be entitled to withdraw their election if the
Trustee or the Company receives not later than one Business Day prior to the
purchase date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount at maturity of the Note which was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing their election to have such Note purchased.
(d) On the purchase date, all Notes purchased by the Company under
this Section 4.04 shall be delivered by the Company to the Trustee for
cancellation, and the Company shall pay the purchase price plus accrued and
unpaid interest, if any, to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section 4.04,
the Company shall not be required to make a Change of Control Offer following a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Indenture applicable to a Change of Control Offer made by the Company
and purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
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(f) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.04. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.04, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.04 by virtue of its
compliance with such securities laws or regulations.
(g) The provisions under this Indenture relative to the Company's
obligation to make an offer to purchase the Notes as a result of a Change of
Control may be waived or modified with the written consent of the holders of a
majority in principal amount at maturity of the Notes.
SECTION 4.05. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, make a Restricted Payment if at the time
the Company or such Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would result
therefrom);
(2) (A) in the case of a Restricted Payment by the Company, the
Company is not entitled to Incur an additional $1.00 of Indebtedness under
Section 4.06(a)(1) (it being understood that for purposes of calculating
the Consolidated Coverage Ratio for this purpose only, any of the Company's
non-cash interest expense and amortization of original issue discount shall
be excluded) or (B) in the case of a Restricted Payment by any Restricted
Subsidiary of the Company, Merisant is not entitled to Incur an additional
$1.00 of Indebtedness under Section 4.06(a)(2); or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments since the Merisant Issue Date made pursuant to this
Section 4.05(a)(3) and all Restricted Payments since the Merisant Issue
Date made pursuant to Section 4.05 (b)(1), (b)(3), (b)(4) and (b)(8) (in
each case determined as if this Indenture had been in effect at all times
since the Merisant Issue Date) would exceed the sum of (without
duplication):
51
(A) 50% of the Consolidated Net Income of the Company
(it being understood that for purposes of calculating Consolidated Net
Income pursuant to this Section 4.05(a)(3)(A) only, any of the
Company's non-cash interest expense and amortization of original issue
discount shall be excluded) accrued during the period (treated as one
accounting period) from the beginning of the fiscal quarter
immediately following the fiscal quarter during which the Merisant
Issue Date occurs to the end of the most recent fiscal quarter ending
at least 45 days prior to the date of such Restricted Payment (or, in
case such Consolidated Net Income shall be a deficit, minus 100% of
such deficit); PLUS
(B) 100% of the aggregate Net Cash Proceeds received by
the Company from the issuance or sale of its Capital Stock (other than
Disqualified Stock) subsequent to the Merisant Issue Date (other than
an issuance or sale to a Subsidiary of the Company and other than an
issuance or sale to an ESOP) and 100% of any cash capital contribution
received by the Company from its shareholders subsequent to the
Merisant Issue Date; PLUS
(C) the amount by which Indebtedness of the Company is
reduced on the Company's balance sheet upon the conversion or exchange
(other than by a Subsidiary of the Company) subsequent to the Merisant
Issue Date of any Indebtedness of the Company convertible or
exchangeable for Capital Stock (other than Disqualified Stock) of the
Company (less the amount of any cash, or the fair value of any other
property, distributed by the Company upon such conversion or
exchange); PLUS
(D) an amount equal to the sum of (x) the net reduction
in the Investments (other than Permitted Investments) made by the
Company or any Restricted Subsidiary in any Person resulting from
repurchases, repayments or redemptions of such Investments by such
Person, proceeds realized on the sale of such Investment and proceeds
representing the return of capital (excluding amounts that contribute
to Consolidated Net Income), in each case received by the Company or
any Guarantor and (y) the portion (proportionate to the Company's
equity interest in such Subsidiary) of the fair market value of the
net
52
assets of an Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary; PROVIDED, HOWEVER,
that the foregoing sum shall not exceed, in the case of any such
Person or Unrestricted Subsidiary, the amount of Investments
(excluding Permitted Investments) previously made (and treated as a
Restricted Payment) by the Company or any Restricted Subsidiary in
such Person or Unrestricted Subsidiary.
(b) The provisions of Section 4.05(a) shall not prohibit (but in the
case of subparagraphs (b)(3), (b)(4), (b)(7) and (b)(8) of this Section 4.05,
only if no Default has occurred and is continuing or would result therefrom):
(1) any Restricted Payment made out of the Net Cash Proceeds of the
substantially concurrent issuance or sale of, or made by conversion into or
exchange for, Capital Stock of the Company (other than Disqualified Stock
and other than Capital Stock issued or sold to a Subsidiary of the Company
or an ESOP) or a substantially concurrent cash capital contribution
received by the Company from one or more of its shareholders;
(2) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations of the
Company or a Guarantor made by exchange for, or out of the proceeds of the
substantially concurrent Issuance or sale of, Indebtedness which is
permitted to be Incurred pursuant to Section 4.06;
(3) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with this Section 4.05; PROVIDED, HOWEVER, that such dividend shall be
included in the calculation of the amount of Restricted Payments;
(4) the purchase, redemption or other acquisition or retirement for
value of shares of Capital Stock of the Company or any of its Subsidiaries
from employees, former employees, directors or former directors of the
Company or any of its Subsidiaries (or permitted transferees of such
employees, former employees, directors or former directors), pursuant to
the terms of the agreements (including employment agreements) or plans (or
amendments thereto) approved by the Board of Directors of the Company under
which such individuals purchase or sell or are granted the option to
purchase or sell, shares of such
53
Capital Stock; PROVIDED, HOWEVER, that the aggregate amount of such
purchases, redemptions and other acquisitions or retirements shall not
exceed the lesser of (A) the sum of (i) $1.5 million multiplied by the
number of calendar years that have commenced since the Merisant Issue Date,
plus (ii) $0.75 million, and (B) $5.0 million;
(5) dividends, distributions or advances to Parent to be used by
Parent to pay Federal, state and local taxes payable by Parent and directly
attributable to (or arising as a result of) the operations of the Company
and its Restricted Subsidiaries; PROVIDED, HOWEVER, that (A) the amount of
such dividends shall not exceed the amount that the Company and its
Restricted Subsidiaries would be required to pay in respect of such
Federal, state and local taxes were the Company to pay such taxes as a
stand-alone taxpayer and (B) such dividends pursuant to this clause (5) are
used by Parent for such purposes within 20 days of the receipt of such
dividends;
(6) dividends, distributions or advances to Parent to the extent
necessary to pay for general corporate and overhead expenses incurred by
Parent, in an aggregate amount not to exceed $0.5 million in any fiscal
year of the Company;
(7) the Merisant Notes Dividend and the Permitted Closing Date
Payment; and
(8) Restricted Payments in an aggregate amount which, when taken
together with all other Restricted Payments made pursuant to this clause
(8) and then outstanding, do not exceed $10.0 million.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the assets proposed
to be transferred by the Company or such Restricted Subsidiary, as the case may
be, in accordance with the Restricted Payment. The fair market value of any
non-cash Restricted Payment shall be determined in good faith by an executive
officer of the Company (if such fair market value is less than $1.0 million), or
by the Board of Directors (in all other cases), in each case pursuant to an
Officers' Certificate delivered to the Trustee.
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SECTION 4.06. LIMITATION ON INDEBTEDNESS.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur, directly or indirectly, any Indebtedness; PROVIDED,
HOWEVER, that (1) the Company shall be entitled to Incur Indebtedness if, on the
date of such Incurrence and after giving effect thereto on a PRO FORMA basis,
(A) no Default has occurred and is continuing, (B) the Company's Consolidated
Coverage Ratio exceeds 2.0 to 1, (C) the terms of such additional Indebtedness
do not require or permit the regularly scheduled payment of interest thereon at
any time prior to May 15, 2009, in any form other than accretion of principal
with respect to a discount security or payment of regularly scheduled interest
in the form of additional Indebtedness of the same instrument, (D) such
additional Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Notes, (E) such Additional Indebtedness has an Average Life at
the time Incurred that is equal to or greater than the Average Life of the
Notes, and (F) such additional Indebtedness constitutes Senior Subordinated
Indebtedness or Subordinated Obligations, and (2) the Company's Restricted
Subsidiaries will be entitled to Incur Indebtedness if, on the date of such
Incurrence and after giving effect thereto on a pro forma basis, no Default has
occurred and is continuing and Merisant's Consolidated Coverage Ratio exceeds
2.0 to 1.
(b) Notwithstanding the foregoing paragraph (a), (i) the Company may
Incur Guarantees of Credit Obligations Incurred by Merisant or any of its
Restricted Subsidiaries pursuant to paragraph (b)(iv)(1) or (b)(iv)(7) below,
(ii) the Company may Incur Guarantees of Credit Facilities Incurred by Merisant
or any of its Restricted Subsidiaries pursuant to paragraph (a)(2) above if such
Credit Facilities and all other Credit Facilities Guaranteed by the Company do
not constitute Debt Securities, (iii) the Company may Incur Senior Subordinated
Indebtedness or Subordinated Obligations pursuant to paragraphs (b)(iv)(2),
(b)(iv)(3)(B), (b)(iv)(7), (b)(iv)(8), (b)(iv)(10) or (b)(iv)(14) below or
paragraph (b)(iv)(6) below to the extent that such Refinancing Indebtedness
under paragraph (b)(iv)(6) below is Incurred in respect of Indebtedness Incurred
pursuant to paragraph (a), paragraph (b)(iv)(3)(B) or paragraph (b)(iv)(6), and
(iv) Merisant and its Restricted Subsidiaries shall be entitled to Incur any or
all of the following Indebtedness:
(1) Indebtedness Incurred pursuant to Credit Facilities; PROVIDED,
HOWEVER, that (A) after giving effect to any such Incurrence, the aggregate
principal amount of
55
all Indebtedness Incurred under this clause (1) and then outstanding does
not exceed $310.0 million, and (B) such amount specified in clause (A)
shall be reduced to the extent of any reduction or elimination of any
commitment under any Credit Facility or, without duplication, any permanent
repayment of principal of Indebtedness under any Credit Facility, in each
case resulting from or relating to the formation of any Receivables
Subsidiary or the consummation of any Qualified Receivables Transaction and
shall thereafter be increased to the extent of any subsequent increase in
the commitment under any Credit Facility resulting from or relating to the
termination of any Qualified Receivables Transaction or the elimination of
any Receivables Subsidiary (but in no event may such amount exceed the
amount specified in clause (A));
(2) Indebtedness owed to and held by the Company or a Wholly
Controlled Subsidiary; PROVIDED, HOWEVER, that (A) any subsequent issuance
or transfer of any Capital Stock which results in any such Wholly
Controlled Subsidiary ceasing to be a Wholly Controlled Subsidiary or any
subsequent transfer of such Indebtedness (other than to the Company or a
Wholly Controlled Subsidiary) shall be deemed, in each case, to constitute
the Incurrence of such Indebtedness by the obligor thereon and (B) if the
Company or a Guarantor is the obligor on such Indebtedness, such
Indebtedness is expressly subordinated to the prior payment in full in cash
of all obligations with respect to the Notes or such Guarantor's Guaranty;
(3) (A) the Merisant Notes and all Guarantees thereof, and (B) the
Notes and the Exchange Notes (other than any Additional Notes) and any
Guaranties;
(4) Indebtedness outstanding on the Merisant Issue Date (other than
Indebtedness described in clause (1), (2) or (3) of this Section 4.06(b));
(5) Indebtedness of a Restricted Subsidiary Incurred and outstanding
on or prior to the date on which such Subsidiary was acquired by the
Company (other than Indebtedness Incurred in connection with, 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
Subsidiary became a Subsidiary or was acquired by the Company); PROVIDED,
HOWEVER, that on the date of such acquisition and after giving PRO FORMA
effect thereto, the Company would have
56
been able to Incur at least $1.00 of additional Indebtedness pursuant to
Section 4.06(a);
(6) Refinancing Indebtedness in respect of Indebtedness Incurred
pursuant to Section 4.06(a) or pursuant to clause (3), (4) or (5) of this
Section 4.06(b) or this clause (6); PROVIDED, HOWEVER, that to the extent
such Refinancing Indebtedness directly or indirectly Refinances
Indebtedness of a Subsidiary Incurred pursuant to clause (5), such
Refinancing Indebtedness shall be Incurred only by such Subsidiary;
(7) Hedging Obligations consisting of (A) Interest Rate Agreements
directly related to Indebtedness of the Company and its Restricted
Subsidiaries, and (B) Currency Agreements directly related to the revenues
or expenses of the Company and its Restricted Subsidiaries;
(8) obligations in respect of performance, bid and surety bonds and
completion guarantees provided by the Company or any Restricted Subsidiary
in the ordinary course of business;
(9) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business; PROVIDED, HOWEVER,
that such Indebtedness is extinguished within two Business Days of its
Incurrence;
(10) Indebtedness consisting of any Guarantee by the Company or any
of its Restricted Subsidiaries of Indebtedness of the Company or any of its
Restricted Subsidiaries outstanding on the Merisant Issue Date or permitted
by this Indenture to be Incurred by the Company or any of its Restricted
Subsidiaries (determined as if this Indenture had been in effect at all
times since the Merisant Issue Date);
(11) Indebtedness (including Capital Lease Obligations) Incurred by
Merisant or any of its Restricted Subsidiaries to finance the purchase,
lease, construction or improvement of property (real or personal) or
equipment (whether through the direct purchase of assets or the purchase of
Capital Stock of any Person owning such assets), and any Refinancing
Indebtedness Incurred to Refinance such Indebtedness, in an aggregate
principal amount which, when taken together with all other
57
Indebtedness Incurred pursuant to this clause (11) and then outstanding,
does not exceed $2.0 million (determined as if this Indenture had been in
effect at all times since the Merisant Issue Date);
(12) Indebtedness of a Receivables Subsidiary Incurred pursuant to a
Qualified Receivables Transaction;
(13) Indebtedness consisting of indemnification, adjustment of
purchase price, earn-out or similar obligations (other than Guarantees of
Indebtedness), in each case incurred in connection with the acquisition or
disposition of assets; and
(14) Indebtedness of the Company or any of its Restricted
Subsidiaries in an aggregate principal amount which, when taken together
with all other Indebtedness of the Company and its Restricted Subsidiaries
outstanding under this clause (14) does not exceed the greater of (A) $15.0
million, and (B) 5% of Consolidated Tangible Assets (determined as if this
Indenture had been in effect at all times since the Merisant Issue Date).
(c) Notwithstanding the foregoing, the Company shall not, and shall
not permit any Guarantor to, Incur any Indebtedness pursuant to Section 4.06(b)
if the proceeds thereof are used, directly or indirectly, to Refinance (1) any
Subordinated Obligations of the Company or any Guarantor unless such new
Indebtedness shall be subordinated to the Notes or the applicable Guaranty to at
least the same extent as such Subordinated Obligations or (2) any Senior
Subordinated Indebtedness unless such new Indebtedness shall be Senior
Subordinated Indebtedness or Subordinated Obligations.
(d) For purposes of determining compliance with this Section 4.06,
in the event that an item of Indebtedness meets the criteria of more than one of
the categories of Indebtedness described in Section 4.06(a) or 4.06(b), (1) the
Company, in its sole discretion, is entitled to classify such item of
Indebtedness at the time of Incurrence, in any manner in compliance with this
Section 4.06, (2) the Company will only be required to include the amount and
type of such Indebtedness in one of the above categories and (3) the Company
will be entitled to divide and classify an item of Indebtedness in more than one
of the categories of Indebtedness described above. Notwithstanding the first
sentence of this Section 4.06(d), all Bank Indebtedness outstanding on the Issue
Date will be deemed to have been Incurred under Section 4.06(b)(iv)(1). For
58
purposes of determining compliance with Sections 4.06(b)(iv)(1) and
4.06(b)(iv)(14), Indebtedness Incurred in a currency other than U.S. dollars
shall at all times be deemed to be outstanding in U.S. dollars calculated at an
exchange rate equal to the applicable exchange rate at the time of the
Incurrence of such non-U.S. dollar Indebtedness (or, in case of revolving
Indebtedness, at the time of the most recent Incurrence of any Indebtedness
under such revolving credit facility).
(e) Notwithstanding Section 4.06(a) or 4.06(b), the Company shall
not, and shall not permit any of its Restricted Subsidiaries to, Incur any
Indebtedness, unless such Indebtedness is Incurred in compliance with Sections
4.07, 4.08 and 4.12.
SECTION 4.07. LIMITATION ON LIENS. The Company shall not, and
shall not permit any Guarantor to, directly or indirectly, create, incur, assume
or suffer to exist or become effective any Lien securing Indebtedness of any
kind (other than Senior Indebtedness), on or with respect to any of its assets,
whether owned at the Issue Date or thereafter acquired, unless (a) in the case
of any Lien securing Subordinated Obligations, the Notes (or the appropriate
Guaranty) are secured by a Lien on such assets that is senior in priority to
such Lien and (b) in the case of any other Lien, the Notes (or the appropriate
Guaranty) are either secured equally and ratably with such Indebtedness or are
secured by a Lien on such assets that is senior in priority to such Lien.
SECTION 4.08. ANTI-LAYERING. The Company shall not, and shall not
permit any Guarantor to, Incur any Indebtedness if such Indebtedness is
subordinate or junior in right of payment to any Senior Indebtedness of such
Person, unless such Indebtedness is Senior Subordinated Indebtedness or is
expressly subordinated in right of payment to Senior Subordinated Indebtedness
of such Person.
The Company shall not Incur any Senior Indebtedness other than
Guarantees of Credit Obligations.
SECTION 4.09. LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM
RESTRICTED SUBSIDIARIES. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock to the Company or a Restricted Subsidiary or pay any
Indebtedness owed to the
59
Company or a Restricted Subsidiary, (b) make any loans or advances to the
Company or a Restricted Subsidiary or (c) transfer any of its property or assets
to the Company or a Restricted Subsidiary, except:
(1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction pursuant to an
agreement in effect at or entered into on the Merisant Issue Date;
(B) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness Incurred by such Restricted Subsidiary on or prior to the
date on which such Restricted Subsidiary was acquired by the Company
(other than Indebtedness Incurred 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 or
was acquired by the Company) and outstanding on such date;
(C) any encumbrance or restriction pursuant to an
agreement effecting an amendment, modification, restatement, renewal,
replacement or Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in Section 4.09(1)(A) or 4.09(1)(B) or this
clause (C) or contained in any amendment to an agreement referred to
in Section 4.09(1)(A) or 4.09(1)(B) or this clause (C); PROVIDED,
HOWEVER, that the encumbrances and restrictions with respect to such
Restricted Subsidiary contained in any such refinancing agreement or
amendment are no less favorable to the Noteholders than encumbrances
and restrictions with respect to such Restricted Subsidiary contained
in such predecessor agreements;
(D) any encumbrance or restriction arising under any
applicable law, rule, regulation or order;
(E) any encumbrance or restriction that (i) arises
pursuant to the terms of any agreement entered into in connection with
any Qualified Receivables Transaction and (ii) applies only to a
Receivables Subsidiary; and
60
(F) any encumbrance or restriction if (i) such
encumbrance or restriction only restricts the ability of Merisant to
take such action, (ii) such encumbrance or restriction is set forth in
the documentation governing a Credit Linked Hedge, (iii) such
encumbrance or restriction is not less favorable to the Noteholders
than the corresponding encumbrance or restriction set forth in the
Credit Facility related to such Credit Linked Hedge, and (iv) the
corresponding encumbrance or restriction set forth in such Credit
Facility is permitted under this covenant; and
(2) with respect to clause (c) only,
(A) any encumbrance or restriction consisting of a
customary nonassignment provision in a lease, license or similar
ordinary course of business agreement;
(B) any restriction contained in a security agreement or
mortgage securing Indebtedness of a Restricted Subsidiary to the
extent such restriction restricts the transfer of the property subject
to such security agreement or mortgage; and
(C) any restriction with respect to a Restricted
Subsidiary imposed pursuant to an agreement entered into for the sale
or disposition of all or substantially all the Capital Stock or assets
of such Restricted Subsidiary pending the closing of such sale or
disposition.
SECTION 4.10. LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary receives consideration
at the time of such Asset Disposition at least equal to the fair market
value (including as to the value of all non-cash consideration), as
determined in good faith by an executive officer of the Company (if such
fair market value is less than $1.0 million) or by the Board of Directors
(in all other cases), of the shares and assets subject to such Asset
Disposition;
61
(2) at least 75% of the consideration thereof received by the
Company or such Restricted Subsidiary is in the form of cash or cash
equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such
Asset Disposition is applied by the Company (or such Restricted Subsidiary,
as the case may be)
(A) to the extent the Company elects (or is required by
the terms of any Indebtedness), to prepay, repay, redeem or purchase
Senior Indebtedness of the Company or any Guarantor or Indebtedness of
a Wholly Controlled Subsidiary that is not a Guarantor (in each case
other than Indebtedness owed to the Company or an Affiliate of the
Company) from time to time within 400 days from the later of the date
of such Asset Disposition or the receipt of such Net Available Cash;
(B) to the extent the Company elects, to acquire
Additional Assets from time to time within 400 days from the later of
the date of such Asset Disposition or the receipt of such Net
Available Cash; and
(C) to the extent of the balance of such Net Available
Cash after application in accordance with clauses (A) and (B), to make
an offer to the holders of the Notes (and to holders of other Senior
Subordinated Indebtedness of the Company designated by the Company) to
purchase Notes (and such other Senior Subordinated Indebtedness of the
Company) pursuant to and subject to the conditions contained in this
Indenture;
PROVIDED, HOWEVER, that in connection with any prepayment, repayment or
purchase of Indebtedness pursuant to clause (A) or (C) of this Section
4.10(a), the Company or such Restricted Subsidiary shall permanently retire
such Indebtedness and shall cause the related loan commitment (if any) to
be permanently reduced in an amount equal to the principal amount so
prepaid, repaid or purchased.
Notwithstanding the foregoing provisions of this Section 4.10, the
Company and the Restricted Subsidiaries shall not be required to apply any Net
Available Cash in accordance with this Section 4.10 except to the extent that
the aggregate Net Available Cash from all Asset Dispositions which is not
applied in accordance with this Section 4.10 exceeds $10.0 million. Pending
application of Net Available Cash pursuant to
62
this Section 4.10, such Net Available Cash shall be invested in Temporary Cash
Investments or applied to temporarily reduce revolving credit indebtedness.
For the purposes of clause (a)(2) of this Section 4.10, the following
are deemed to be cash or cash equivalents: (1) the assumption of Senior
Indebtedness of the Company or any Guarantor or Indebtedness of any Wholly
Controlled Subsidiary that is not a Guarantor (in each case other than
Indebtedness owed to the Company or an Affiliate of the Company) and the release
of the Company or such Restricted Subsidiary from all liability on such
Indebtedness in connection with such Asset Disposition; and (2) securities
received by the Company or any Restricted Subsidiary from the transferee that
are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase
of Notes (and other Senior Subordinated Indebtedness of the Company) pursuant to
Section 4.10(a)(3)(C), the Company shall make such offer to purchase Notes on or
before the 401st day after the date of such Asset Disposition, and shall
purchase Notes tendered pursuant to an offer by the Company for the Notes (and
such other Senior Subordinated Indebtedness of the Company) at a purchase price
of 100% of the Accreted Value thereof on the date of purchase (or, in the case
of other Senior Subordinated Indebtedness of the Company, 100% of the principal
amount or accreted value thereof, as appropriate) without premium, PLUS accrued
but unpaid interest (or, in respect of such other Senior Subordinated
Indebtedness of the Company, such lesser price, if any, as may be provided for
by the terms of such Senior Subordinated Indebtedness of the Company) in
accordance with the procedures (including prorating in the event of
oversubscription) set forth in this Indenture. If the aggregate purchase price
of the Notes and other Senior Subordinated Indebtedness tendered exceeds the Net
Available Cash allotted to their purchase, the Company shall select the
securities to be purchased on a PRO RATA basis but in round denominations, which
in the case of the Notes shall be denominations of $1,000 principal amount at
maturity or multiples thereof. The Company shall not be required to make such an
offer to purchase Notes (and other Senior Subordinated Indebtedness of the
Company) pursuant to this Section 4.10 if the Net Available Cash available
therefor is less than $10.0 million (which lesser amount shall be carried
forward for purposes of determining whether such an offer is required with
respect to the Net Available Cash from any subsequent Asset
63
Disposition). Upon completion of any application of Net Available Cash in
accordance with the foregoing provisions of clause (a) (3) of this Section 4.10,
the amount of Net Available Cash shall be reset at zero.
(c) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.10. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.10, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.10 by virtue of its
compliance with such securities laws or regulations.
(d) The provisions under this Indenture relative to the Company's
obligation to make an offer to purchase the Notes as a result of an Asset
Disposition may be waived or modified with the written consent of the holders of
a majority in principal amount at maturity of the Notes.
SECTION 4.11. LIMITATION ON AFFILIATE TRANSACTIONS.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, enter into or permit to exist any transaction (including the
purchase, sale, lease or exchange of any property, employee compensation
arrangements or the rendering of any service) with, or for the benefit of, any
Affiliate of the Company (an "AFFILIATE TRANSACTION") unless:
(1) the terms of the Affiliate Transaction are no less favorable to
the Company or such Restricted Subsidiary than those that could be obtained
at the time of the Affiliate Transaction in arm's-length dealings with a
Person who is not an Affiliate;
(2) if such Affiliate Transaction involves an amount in excess of
$5.0 million, the terms of the Affiliate Transaction are set forth in
writing and a majority of the non-employee directors of the Company
disinterested with respect to such Affiliate Transaction shall have
determined in good faith that the criteria set forth in clause (1) of this
Section 4.11 are satisfied and shall have approved the relevant Affiliate
Transaction as evidenced by a resolution of the Board of Directors; and
64
(3) if such Affiliate Transaction involves an amount in excess of
$15.0 million, the Board of Directors shall also have received a written
opinion from an Independent Qualified Party to the effect that such
Affiliate Transaction is fair, from a financial standpoint, to the Company
and its Restricted Subsidiaries or is not less favorable to the Company and
its Restricted Subsidiaries than could reasonably be expected to be
obtained at the time in an arm's-length transaction with a Person who was
not an Affiliate.
(b) The provisions of Section 4.11(a) shall not prohibit:
(1) any Investment (other than a Permitted Investment) or other
Restricted Payment, in each case permitted to be made pursuant to Section
4.05;
(2) 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 approved by the Board
of Directors;
(3) loans or advances to employees in the ordinary course of
business in accordance with the past practices of the Company or its
Restricted Subsidiaries, but in any event not to exceed $0.5 million in the
aggregate outstanding at any one time;
(4) the payment of reasonable fees and compensation (including
health benefits, vacation, severance, compensation and similar benefits)
to, and provision of customary indemnification on behalf of, directors,
employees, consultants and agents of the Company or any Restricted
Subsidiary as determined in good faith by the Board of Directors or the
Company's senior management;
(5) any transaction (i) between or among the Company and/or its
Restricted Subsidiaries or (ii) between or among the Company, a Restricted
Subsidiary or any other Person that would constitute an Affiliate
Transaction solely because the Company or a Restricted Subsidiary owns an
equity interest in or otherwise controls such Person;
(6) the issuance or sale of any Capital Stock (other than
Disqualified Stock) of the Company;
65
(7) transactions with distributors, suppliers or other purchasers or
sellers of goods or services, in each case in the ordinary course of
business consistent with past practices and otherwise in compliance with
the terms of this Indenture, and which are on terms at least as favorable
to the Company as might reasonably have been obtained at such time from an
unaffiliated third party;
(8) any transaction in connection with a Qualified Receivables
Transaction between a Receivables Subsidiary and any Person in which the
Receivables Subsidiary has an Investment; and
(9) any agreement that was outstanding as of the Merisant Issue Date
and was disclosed in the Merisant Offering Circular under the heading
"Related Party Transactions" and any amendment to such agreement so long as
such amendment is not more disadvantageous to the Holders than the original
agreement as in effect on the Merisant Issue Date.
SECTION 4.12. GUARANTORS. The Company shall cause each Subsidiary
that Guarantees any Indebtedness of the Company (other than the Company's
Guarantees of Credit Obligations), in each case to, at the same time, execute
and deliver to the Trustee a Supplemental Guaranty Agreement pursuant to which
such Restricted Subsidiary will Guarantee payment of the Notes on the same terms
and conditions as those set forth in this Indenture.
The Guaranty of a Guarantor (other than Merisant US, Inc., if it were
to become a Guarantor) will be automatically released:
(1) upon the sale or other disposition (including by way of
consolidation or merger) of that Guarantor to a Person that is not (either
before or after giving effect to such transaction) the Company or an
Affiliate of the Company, if such sale or other disposition complies with
Section 4.10;
(2) upon the sale or other disposition of all or substantially all
the assets of that Guarantor to a Person that is not (either before or
after giving effect to such transaction) the Company or an Affiliate of the
Company, if such sale or other disposition complies with Section 4.10; or
66
(3) if the Company designates that Guarantor as an Unrestricted
Subsidiary in compliance with the applicable provisions of this Indenture.
SECTION 4.13. LIMITATION ON ACTIVITIES. The Company shall not
conduct, transact or otherwise engage in any material business or operations
other than those incidental to (a) its ownership of the Capital Stock of
Merisant, (b) Incurrences of Indebtedness permitted under Section 4.06 and
Section 4.08, and (c) the ownership of intercompany Indebtedness permitted under
this Indenture.
SECTION 4.14. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE 5
MERGER
SECTION 5.01. MERGER AND CONSOLIDATION.
(a) The Company shall not consolidate with or merge with or into, or
convey, transfer or lease, in one transaction or a series of transactions,
directly or indirectly, all or substantially all its assets to, any Person,
unless:
(1) the resulting, surviving or transferee Person (the "SUCCESSOR
COMPANY") shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and
the Successor Company (if not the Company) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations of the Company under
the Notes and this Indenture;
(2) immediately after giving PRO FORMA effect to such transaction
(and treating any Indebtedness of the Successor Company (if not the
Company) and its Subsidiaries as having been Incurred by the Successor
Company or such Subsidiary at the time of such transaction), no Default
shall have occurred and be continuing;
(3) immediately after giving PRO FORMA effect to such transaction,
the Successor Company would be able to Incur
67
an additional $1.00 of Indebtedness pursuant to Section 4.06(a);
(4) each Person that is required pursuant to the terms of this
Indenture to be a Guarantor shall have become a Guarantor pursuant to a
Supplemental Guaranty Agreement or shall have confirmed its Guaranty
pursuant to a supplemental indenture in form reasonably satisfactory to the
Trustee (but this clause (4) shall not apply to Guarantors that were
Guarantors prior to such transaction if, as a result of such transaction,
the Company is the Successor Company);
(5) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture; and
(6) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders will not recognize income, gain or
loss for Federal income tax purposes as a result of such transaction 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
transaction had not occurred;
PROVIDED, HOWEVER, that clause (3) will not be applicable (A) to the Company
consolidating with, merging into, conveying, transferring or leasing all or part
of its assets to the Company or a Guarantor or (B) to the Company merging with
an Affiliate of the Company solely for the purpose and with the sole effect of
reincorporating the Company in another jurisdiction within the United States of
America.
The Successor Company (if not the Company) shall be the successor to
the Company and shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture, and the predecessor
Company, except in the case of a lease, shall be released from the obligation to
pay the principal of and interest on the Notes.
(b) The Company shall not permit any Guarantor to consolidate with
or merge with or into, or convey, transfer or lease, in one transaction or a
series of transactions, all or substantially all of its assets to any Person
unless:
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(1) except in the case of a Guarantor that has been disposed of in
its entirety to another Person (other than to the Company or an Affiliate
of the Company), whether through a merger, consolidation or sale of Capital
Stock or assets, if in connection therewith the Company provides an
Officers' Certificate to the Trustee to the effect that the Company will
comply with, and does comply with, its obligations under Section 4.10 in
respect of such disposition, the resulting, surviving or transferee Person
(if not such Subsidiary) shall be a Person organized and existing under the
laws of the jurisdiction under which such Subsidiary was organized or under
the laws of the United States of America, or any State thereof or the
District of Columbia, and such Person shall expressly assume, by a
Supplemental Guaranty Agreement, in a form satisfactory to the Trustee, all
the obligations of such Subsidiary, if any, under its Guaranty; and
(2) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such Supplemental Guaranty Agreement, if any, complies with
this Indenture.
(c) Notwithstanding clauses (a) and (b) of this Section 5.01, any
Guarantor may consolidate with or merge with or into or convey, transfer or
lease, in one transaction or a series of transactions, all or substantially all
of its assets to the Company.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. Each of the following is an
"EVENT OF DEFAULT":
(1) the Company defaults in any payment of interest on any Note when
the same becomes due and payable, whether or not such payment shall be
prohibited by Article 10, and such default continues for 30 days;
(2) the Company (i) defaults in the payment of the principal of any
Note when the same becomes due and payable at its Stated Maturity, upon
optional redemption, upon declaration of acceleration or otherwise, or (ii)
fails to purchase any Note when required pursuant to this Indenture
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or the Notes, in each case whether or not such payment, redemption or
purchase shall be prohibited by Article 10;
(3) the Company fails to comply with Section 5.01;
(4) the Company fails to comply with Section 4.02, 4.04, 4.05, 4.06,
4.07, 4.08, 4.09, 4.10, 4.11, 4.12 or 4.13 (other than a failure to
purchase Notes when required under Section 4.04 or 4.10) and such failure
continues for 30 days after the notice specified below;
(5) the Company or any Guarantor fails to comply with any of its
agreements in the Notes or this Indenture (other than those referred to in
clause (1), (2), (3) or (4) above) and such failure continues for 60 days
after the notice specified below;
(6) Indebtedness of the Company, any Guarantor or any Significant
Subsidiary is not paid within any applicable grace period after final
maturity or is accelerated by the holders thereof because of a default and
the total amount of such Indebtedness unpaid or accelerated exceeds $10.0
million, or its foreign currency equivalent at the time;
(7) the Company, any Guarantor or any Significant Subsidiary
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 any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company, any Guarantor or
any Significant Subsidiary in an involuntary case;
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(B) appoints a Custodian of the Company, any Guarantor or
any Significant Subsidiary or for any substantial part of its
property; or
(C) orders the winding up or liquidation of the Company,
any Guarantor or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days; or
(9) any judgment or decree for the payment of money in excess of
$10.0 million (or its foreign currency equivalent at the time) is entered
against the Company, a Guarantor or any Significant Subsidiary, remains
outstanding for a period of 60 consecutive days following the entry of such
judgment or decree and is not discharged, waived or the execution thereof
stayed; or
(10) a Guaranty ceases to be in full force and effect (other than in
accordance with the terms of such Guaranty) or any Guarantor denies or
disaffirms its obligations under its Guaranty.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "BANKRUPTCY LAW" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ CODE, or any
similar Federal or state law for the relief of debtors. The term "CUSTODIAN"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clauses (4) or (5) of this Section 6.01 is not an
Event of Default until the Trustee or the Holders of at least 25% in principal
amount at maturity of the outstanding Notes notify the Company of the default
and the Company does not cure such default within the time specified after
receipt of such notice.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (6) or (10) of this Section 6.01 and any event
which with the
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giving of notice or the lapse of time would become an Event of Default under
clause (4), (5) or (9) of this Section 6.01, its status and what action the
Company is taking or proposes to take with respect thereto.
SECTION 6.02. ACCELERATION. If an Event of Default (other than an
Event of Default specified in Section 6.01(7) or (8)) occurs and is continuing,
the Trustee by notice to the Company, or the Holders of at least 25% in
principal amount at maturity of the outstanding Notes by notice to the Company
and the Trustee, may declare the Accreted Value of and accrued but unpaid
interest, if any, on all the Notes to be due and payable. Upon such a
declaration, such Accreted Value and interest shall be due and payable
immediately. If an Event of Default specified in Section 6.01(7) or (8) with
respect to the Company or a Guarantor occurs and is continuing, the Accreted
Value of and interest, if any, on all the Notes shall IPSO FACTO become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Noteholders. The Holders of a majority in principal amount at
maturity of the Notes by notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of Accreted Value or interest that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
In the event of a declaration of acceleration of the Notes because an
Event of Default described in clause (5) of this Section 6.01 has occurred and
is continuing, the declaration of acceleration of the Notes shall be
automatically annulled if (A) the event of default or payment default triggering
such Event of Default pursuant to clause (5) of this Section 6.01 shall be
remedied or cured by the Company or a Restricted Subsidiary or waived by the
holders of the relevant Indebtedness within 20 days after the declaration of
acceleration with respect thereto, (B) the annulment of the acceleration of the
Notes would not conflict with any judgment or decree of a court of competent
jurisdiction and (C) all existing Events of Default, except nonpayment of
principal, premium or interest on the Notes that became due solely because of
the acceleration of the Notes, have been cured or waived.
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 Accreted Value of or interest
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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 Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a majority
in principal amount at maturity of the Notes by notice to the Trustee may waive
an existing Default and its consequences except (i) a Default in the payment of
the principal or interest on a Note, (ii) a Default arising from the failure to
redeem or purchase any Note when required pursuant to this Indenture or (iii) a
Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Noteholder affected. When a Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other Default
or impair any consequent right.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in
principal amount at maturity of the outstanding Notes are given the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture or, subject to Section 7.01, that the Trustee
determines is unduly prejudicial to the rights of other Noteholders or would
involve the Trustee in personal liability; PROVIDED, HOWEVER, that the Trustee
may take any other action deemed proper by the Trustee that is not inconsistent
with such direction. Prior to taking any action hereunder, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such action.
SECTION 6.06. LIMITATION ON SUITS. Except to enforce the right to
receive payment of Accreted Value, premium (if any) or interest when due, no
Noteholder may pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
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(2) the Holders of at least 25% in principal amount at maturity of
the Notes make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount at maturity of the
Notes do not give the Trustee a direction inconsistent with the request
during such 60-day period.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of Accreted Value and interest on the Notes held by such
Holder, on or after the respective due dates expressed in the Notes, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any Guarantor for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Noteholders allowed
in any judicial proceedings relative to the Company, its creditors or its
property and, unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in the
event that the Trustee shall consent to the making
74
of such payments directly to the Holders, to pay to the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel, and any other amounts due the Trustee under
Section 7.07.
SECTION 6.10. PRIORITIES. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness of the Company and, if such
money or property has been collected from a Guarantor, to holders of Senior
Indebtedness of such Guarantor, in each case to the extent required by
Articles 10 and 12;
THIRD: to Noteholders for amounts due and unpaid on the Notes for
Accreted Value and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for Accreted
Value and interest, respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10. At least 15 days before such record
date, the Company shall mail to each Noteholder and the Trustee a notice that
states the record date, the payment date and amount to be paid.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit
by Holders of more than 10% in principal amount at maturity of the Notes.
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SECTION 6.12. WAIVER OF STAY OR EXTENSION LAWS. The Company and
any Guarantor (to the extent it may lawfully do so) covenants that it shall not
at any time insist upon, or 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, which may affect the covenants or the
performance of this Indenture; and the Company and any Guarantor (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person's
own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture 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.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
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(1) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(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.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to Sections 7.01 and 7.02.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.01 and to the provisions of the TIA.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it
77
takes or omits to take in good faith in reliance on the Officers' Certificate or
Opinion of Counsel.
(c) The Trustee may act through 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 which it believes to be authorized or within its rights or
powers; PROVIDED, HOWEVER, that the Trustee's conduct does not constitute
willful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Notes shall be full and complete authorization and protection from liability in
respect to any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar or
co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Trustee's
certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Noteholder notice of the Default within 90 days after it occurs. Except in the
case of a Default in payment of Accreted Value or interest on any Note
(including payments pursuant to the mandatory redemption provisions of such
Note, if any), the Trustee may withhold the notice if and so long as a committee
of its Trust Officers in good faith determines that withholding the notice is
not opposed to the interests of Noteholders.
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SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Noteholder a brief report dated as of May 15 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 mailed). The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Noteholders shall
be filed with the SEC and each stock exchange (if any) on which the Notes are
listed. The Company agrees to notify promptly the Trustee whenever the Notes
become listed on any stock exchange and of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall pay to
the Trustee such compensation as shall be agreed upon in writing for its
services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred or made
by it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company shall indemnify the Trustee against any and all loss,
liability or expense (including reasonable attorneys' fees) incurred by it in
connection with the administration of this trust and the performance of its
duties hereunder, except as set forth in the last sentence of this paragraph.
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 unless and to the extent the Company is
prejudiced by such negligent failure. The Company shall defend the claim and the
Trustee may have 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, liability
or expense incurred by the Trustee through the Trustee's own willful misconduct,
negligence or bad faith.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee other
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than money or property held in trust to pay Accreted Value and interest on
particular Notes.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(7) or (8) with respect to
the Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. The Trustee may resign at any
time by so notifying the Company in writing at least 30 days prior to the date
of the proposed resignation. The Holders of a majority in principal amount at
maturity of the Notes may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company and the Company
does not reasonably promptly appoint a successor Trustee or if the Trustee is
removed by the Holders of a majority in principal amount at maturity of the
Notes and such Holders do not reasonably promptly appoint a successor Trustee,
or if a vacancy exists in the office of Trustee for any other reason (the
Trustee in such event being referred to herein as the retiring Trustee), the
Company shall promptly appoint 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 Noteholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
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If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount at maturity of the Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at
all times satisfy the requirements of TIA Section 310(a). The Trustee shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b); PROVIDED, HOWEVER, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
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SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. DISCHARGE OF LIABILITY ON NOTES; DEFEASANCE.
(a) When (1) the Company delivers to the Trustee all outstanding
Notes (other than Notes replaced pursuant to Section 2.07) for cancellation, or
(2) all outstanding Notes have become due and payable, whether at maturity or on
a redemption date as a result of the mailing of a notice of redemption pursuant
to Article 3 hereof, or (3) all outstanding Notes will become due and payable
within one year or are to be called for redemption within one year under
arrangements reasonably satisfactory to the Trustee and, in the case of clauses
(a)(2) and (a)(3) of this Section 8.01, the Company irrevocably deposits with
the Trustee funds sufficient to pay at maturity or upon redemption all
outstanding Notes, including interest thereon to maturity or such redemption
date (other than Notes replaced pursuant to Section 2.07), and if in any case
the Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 8.01(c), be satisfied and discharged and
cease to be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the
Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time
may terminate (1) all its and any Guarantors' Obligations under the Notes and
this Indenture ("LEGAL DEFEASANCE OPTION") or (2) its and any Guarantors'
Obligations under Sections 4.02, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11,
4.12 and 4.13 and the operation of Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8),
6.01(9) and 6.01(10) (but, in the case of Sections 6.01(7) and (8), with respect
only to Significant Subsidiaries) and the limitations contained in Sections
5.01(a)(3) and (a)(4) ("COVENANT DEFEASANCE OPTION"). The Company may exercise
its legal defeasance option not withstanding its prior exercise of its covenant
defeasance option.
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If the Company exercises its legal defeasance option, payment of the
Notes may not be accelerated because of an Event of Default with respect
thereto. If the Company exercises its covenant defeasance option, payment of the
Notes may not be accelerated because of an Event of Default specified in
Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8), 6.01(9) and 6.01(10) (but, in the
case of Sections 6.01(7) and (8), with respect only to Significant Subsidiaries)
or because of the failure of the Company to comply with Sections 5.01(a)(3) and
(a)(4). If the Company exercises its legal defeasance option or its covenant
defeasance option, any Guarantor shall be released from all of its obligations
with respect to its Guaranty.
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
Obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) of this Section 8.01, the
Company's Obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and
7.08 and in this Article 8 shall survive until the Notes have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
SECTION 8.02. CONDITIONS TO DEFEASANCE. The Company may exercise
its legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal and interest on the
Notes to maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when due
on all the Notes to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Sections 6.01(7) or (8) with respect to the
Company or any Guarantor occurs which is continuing at the end of the
period;
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(4) the deposit does not constitute a default under any other
agreement binding on the Company and is not prohibited by Article 10;
(5) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(6) in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (B) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Noteholders will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred;
(7) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Noteholders 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; and
(8) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Notes as contemplated by this Article 8
have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article 3.
SECTION 8.03. APPLICATION OF TRUST MONEY. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this
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Indenture to the payment of principal of and interest on the Notes. Money and
securities so held in trust are not subject to Article 10.
SECTION 8.04. REPAYMENT TO COMPANY. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years, and,
thereafter, Noteholders entitled to the money must look to the Company for
payment as general creditors.
SECTION 8.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
SECTION 8.06. REINSTATEMENT. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to this Article 8 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with this Article 8; PROVIDED, HOWEVER, that, if the Company has made
any payment of interest on or principal of any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company, the
Guarantors and the Trustee may amend this Indenture or the Notes without notice
to or consent of any Noteholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
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(2) to provide for the assumption by a Successor Company of the
Obligations of the Company or any Guarantor under this Indenture pursuant
to Article 5;
(3) to provide for uncertificated Notes in addition to or in place
of certificated Notes; PROVIDED, HOWEVER, 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;
(4) to add guarantees with respect to the Notes, including any
Guaranties, or to secure the Notes;
(5) to add to the covenants of the Company or any Guarantor for the
benefit of the Holders or to surrender any right or power herein conferred
upon the Company or any Guarantor;
(6) to make any change that does not adversely affect the rights of
any Noteholder;
(7) to comply with any requirements of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under the
TIA;
(8) to evidence the release of a Guarantor pursuant to and in
accordance with the terms of this Indenture; or
(9) to evidence the issuance of Additional Notes pursuant to and in
compliance with Section 2.13.
However, an amendment under this Section 9.01 may not make any change
that adversely affects the rights under Article 10 or Article 12 of any holder
of Senior Indebtedness of the Company or of a Guarantor then outstanding unless
such holder of such Senior Indebtedness (or its Representative) consents to such
change.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail to Noteholders a notice briefly describing such amendment.
The failure to give such notice to all Noteholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 9.01.
SECTION 9.02. WITH CONSENT OF HOLDERS. The Company, the Guarantors
and the Trustee may amend this Indenture or the
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Notes without notice to any Noteholder but with the written consent of the
Holders of at least a majority in principal amount at maturity of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for the Notes). However, without the consent of each Noteholder
affected thereby, an amendment may not:
(1) reduce the amount of Notes whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest on
any Note;
(3) reduce the principal amount at maturity or Accreted Value of or
extend the Stated Maturity of any Note, or amend or modify the calculation
of Accreted Value so as to reduce the Accreted Value of any Note;
(4) reduce the amount payable upon the redemption of any Note or
change the time at which any Note may be redeemed in accordance with
Article 3;
(5) make any Note payable in money other than that stated in the
Note;
(6) impair the right of any Noteholder to receive payment of
principal and interest on such Noteholder's Notes on or after the due dates
therefor or to institute suit for the enforcement of any payment on or with
respect to such Noteholder's Notes;
(7) impair the Company's obligation to make an offer to purchase
Notes pursuant to Section 4.04 or 4.10 except as permitted under Section
4.04(g) or 4.10(d), respectively.
(8) make any change in the last sentence of Section 4.04(g), Section
4.10(d), Section 6.04, 6.07 or the second sentence of this Section;
(9) make any change in the ranking or priority of any Note that
would adversely affect the Noteholders; or
(10) make any change in any Guaranty that would adversely affect the
Noteholders.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form
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of any proposed amendment, but it shall be sufficient if such consent approves
the substance thereof.
An amendment under this Section 9.02 may not make any change that
adversely affects the rights under Article 10 or 12 of any holder of Senior
Indebtedness of the Company or of a Guarantor then outstanding unless the
holders of such Senior Indebtedness (or any group or representative thereof
authorized to give a consent) consent to such change or as otherwise permitted
by the notes, debentures, bonds or other similar instruments evidencing such
Senior Indebtedness.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to Noteholders a notice briefly describing such amendment.
The failure to give such notice to all Noteholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 9.02.
Pursuant to Section 13.06, in certain circumstances a Note may be
disregarded and deemed not to be outstanding for purposes of this Section.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment
to this Indenture or the Notes shall comply with the TIA as
then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS. A
consent to an amendment or a waiver by a Holder of a Note shall bind the Holder
and every subsequent Holder of that Note or portion of the Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
or waiver is not made on the Note. However, any such Holder or subsequent Holder
may revoke the consent or waiver as to such Holder's Note or portion of the Note
if the Trustee receives the notice of revocation before the date the amendment
or waiver becomes effective. After an amendment or waiver becomes effective, it
shall bind every Noteholder. An amendment or waiver becomes effective upon the
execution of such amendment or waiver by the Trustee.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Noteholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Noteholders at such
record date (or their duly designated
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proxies), and only those Persons, shall be entitled to give such consent or to
revoke any consent previously given or to take any such action, whether or not
such Persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 120 days after such record date.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES. If an amendment
changes the terms of a Note, the Trustee may require the Holder of the Note to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Note regarding the changed terms and return it to the Holder. Alternatively, if
the Company or the Trustee so determines, the Company in exchange for the Note
shall issue and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or to issue a new Note
shall not affect the validity of such amendment.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS. The Trustee shall sign
any amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.07. PAYMENT FOR CONSENT. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to 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 to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE. The Company agrees, and
each Noteholder by accepting a Note agrees, that the Indebtedness evidenced by
the Notes is subordinated in right of payment, to the extent and in the manner
provided in this Article 10, to the prior payment of all Senior Indebtedness of
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the Company and that the subordination is for the benefit of and enforceable by
the holders of such Senior Indebtedness. The Notes shall in all respects rank
PARI PASSU with all other Senior Subordinated Indebtedness of the Company and
only Indebtedness of the Company which is Senior Indebtedness of the Company
shall rank senior to the Notes in accordance with the provisions set forth
herein. All provisions of this Article 10 shall be subject to Section 10.14.
SECTION 10.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(1) holders of Senior Indebtedness of the Company shall be entitled
to receive payment in full in cash of such Senior Indebtedness before
Noteholders shall be entitled to receive any payment; and
(2) until the Senior Indebtedness of the Company is paid in full in
cash, any payment or distribution to which Noteholders would be entitled
but for this Article 10 shall be made to holders of such Senior
Indebtedness as their interests may appear, except that Noteholders may
receive shares of stock and any debt securities that are subordinated to
such Senior Indebtedness to at least the same extent as the Notes.
SECTION 10.03. DEFAULT ON SENIOR INDEBTEDNESS OF THE COMPANY. The
Company shall not pay the principal of, premium, if any, or interest on the
Notes or any other payment Obligation of the Company in respect of the Notes
(including any Obligation to repurchase the Notes) or make any deposit pursuant
to Article 8, and may not purchase, redeem or otherwise retire any Notes
(collectively, "PAY THE NOTES") if either of the following occurs (a "PAYMENT
DEFAULT"): (1) any portion of any Designated Senior Indebtedness of the Company
is not paid in full in cash when due; or (2) any other default on Designated
Senior Indebtedness of the Company occurs and the maturity of such Designated
Senior Indebtedness is accelerated in accordance with its terms; UNLESS, in
either case, the Payment Default has been cured or waived and any such
acceleration has been rescinded or such Designated Senior Indebtedness has been
paid in full in cash; PROVIDED, HOWEVER, that the Company shall be entitled to
pay the Notes without regard to the foregoing if the Company and the Trustee
receive written notice approving such payment from
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the Representatives of all Designated Senior Indebtedness with respect to which
the Payment Default has occurred and is continuing.
During the continuance of any default (other than a Payment Default)
with respect to any Designated Senior Indebtedness of the Company pursuant to
which the maturity thereof may be accelerated without further notice (except
such notice as may be required to effect such acceleration) or the expiration of
any applicable grace periods, the Company shall not pay the Notes for a period
(a "PAYMENT BLOCKAGE PERIOD") commencing upon the receipt by the Trustee (with a
copy to the Company) of a written notice (a "BLOCKAGE NOTICE") of such default
from the Representative of such Designated Senior Indebtedness specifying an
election to effect a Payment Blockage Period and ending 179 days thereafter. The
Payment Blockage Period shall end earlier if such Payment Blockage Period is
terminated: (1) by written notice to the Trustee and the Company from the Person
or Persons who gave such Blockage Notice, (2) because the default giving rise to
such Blockage Notice is cured, waived or otherwise no longer continuing, or (3)
because such Designated Senior Indebtedness has been discharged or repaid in
full in cash.
Notwithstanding the provisions described in the above paragraph (but
subject to the provisions contained in the first sentence of this Section
10.03), unless the holders of such Designated Senior Indebtedness or the
Representative of such Designated Senior Indebtedness have accelerated the
maturity of such Designated Senior Indebtedness, the Company shall be entitled
to resume payments on the Notes after termination of such Payment Blockage
Period. The Notes shall not be subject to more than one Payment Blockage Period
in any consecutive 360-day period irrespective of the number of defaults with
respect to Designated Senior Indebtedness of the Company during such period;
PROVIDED, HOWEVER, that if any Blockage Notice within such 360-day period is
delivered to the Trustee by or on behalf of any holders of Designated Senior
Indebtedness of the Company (other than holders of the Bank Indebtedness), a
Representative of the holders of the Bank Indebtedness shall be entitled to give
another Blockage Notice within such period; PROVIDED FURTHER, HOWEVER, that in
no event shall the total number of days during which any Payment Blockage Period
or Periods is in effect exceed 179 days in the aggregate during any consecutive
360-day period, and there must be 181 days during any consecutive 360-day period
during which no Payment Blockage Period is in effect.
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SECTION 10.04. ACCELERATION OF PAYMENT OF NOTES. If payment of the
Notes is accelerated because of an Event of Default, the Company or the Trustee
shall promptly notify the holders of Designated Senior Indebtedness of the
Company or the Representative of such Designated Senior Indebtedness of the
acceleration.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER. If a payment or
distribution is made to Noteholders that, because of this Article 10, should not
have been made to them, the Noteholders who receive the payment or distribution
shall hold it in trust for the holders of Senior Indebtedness of the Company and
pay it over to them as their interests may appear.
SECTION 10.06. REINSTATEMENT OF SENIOR INDEBTEDNESS. To the extent
any payment of or distribution in respect of Senior Indebtedness (whether by or
on behalf of the Company as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then if such payment or distribution is
recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person, the Senior Indebtedness or part thereof
originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
SECTION 10.07. SUBROGATION. After all Senior Indebtedness of the
Company is paid in full and until the Notes are paid in full, Noteholders shall
be subrogated to the rights of holders of such Senior Indebtedness to receive
distributions applicable to such Senior Indebtedness. A distribution made under
this Article 10 to holders of such Senior Indebtedness which otherwise would
have been made to Noteholders is not, as between the Company and Noteholders, a
payment by the Company on such Senior Indebtedness.
SECTION 10.08. RELATIVE RIGHTS. This Article 10 defines the relative
rights of Noteholders and holders of Senior Indebtedness of the Company. Nothing
in this Indenture shall:
(1) impair, as between the Company and Noteholders, the obligation
of the Company, which is absolute and unconditional, to pay principal of
and interest on the Notes in accordance with their terms; or
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(2) prevent the Trustee or any Noteholder from exercising its
available remedies upon a Default, subject to the rights of holders of
Senior Indebtedness of the Company to receive distributions otherwise
payable to Noteholders.
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. No
right of any present or future holders of any Senior Indebtedness of the Company
to enforce subordination as provided in this Indenture will at any time in any
way be prejudiced or impaired by noncompliance by the Company with the terms of
this Indenture, regardless of any knowledge thereof that any such holder of
Senior Indebtedness may have or otherwise be charged with.
SECTION 10.10. RIGHTS OF TRUSTEE AND PAYING AGENT. Notwithstanding
Section 10.03, the Trustee or Paying Agent shall continue to make payments on
the Notes and shall not be charged with knowledge of the existence of facts that
under this Article 10 would prohibit the making of any such payments unless, not
less than two Business Days prior to the date of such payment, a Trust Officer
of the Trustee receives written notice satisfactory to it that such payments are
prohibited by this Article 10. The Company, the Registrar or co-registrar, the
Paying Agent, a Representative or a holder of Senior Indebtedness of the Company
shall be entitled to give the notice; PROVIDED, HOWEVER, that, if an issuer of
Senior Indebtedness of the Company has a Representative, only the Representative
shall be entitled to give the notice.
The Trustee in its individual or any other capacity shall be entitled
to hold Senior Indebtedness of the Company with the same rights it would have if
it were not the Trustee. The Registrar and co-registrar and the Paying Agent
shall be entitled to do the same with like rights. The Trustee shall be entitled
to all the rights set forth in this Article 10 with respect to any Senior
Indebtedness of the Company which may at any time be held by it, to the same
extent as any other holder of such Senior Indebtedness, and nothing in Article 7
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article 10 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.07.
SECTION 10.11. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS. The holders
of Senior Indebtedness may, at any time and from time to time, subject to the
terms of such Senior Indebtedness, without the consent of or notice to the
Trustee or the Noteholders, without incurring responsibility to the
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Noteholders and without impairing or releasing the subordination provided in
this Indenture or the obligations hereunder of the Noteholders to the holders of
Senior Indebtedness, do any one or more of the following:
(1) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding or secured;
(2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness;
(3) release any Person liable in any manner for the collection of
Senior Indebtedness; and
(4) exercise or refrain from exercising any rights against the
Company and any other Person.
SECTION 10.12. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever
any Person is to make a distribution or give a notice to holders of Senior
Indebtedness of the Company, such Person shall be entitled to make such
distribution or give such notice to their Representative (if any).
SECTION 10.13. ARTICLE 10 NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT
RIGHT TO ACCELERATE. The failure to make a payment pursuant to the Notes by
reason of any provision in this Article 10 shall not be construed as preventing
the occurrence of a Default. Nothing in this Article 10 shall have any effect on
the right of the Noteholders or the Trustee to accelerate the maturity of the
Notes.
SECTION 10.14. TRUST MONEYS NOT SUBORDINATED. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations 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 Indebtedness of the Company or subject to the
restrictions set forth in this Article 10, and none of the Noteholders shall be
obligated to pay over any such amount to the Company or any holder of Senior
Indebtedness of the Company or any other creditor of the Company.
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SECTION 10.15. TRUSTEE ENTITLED TO RELY. Upon any payment or
distribution pursuant to this Article 10, the Trustee and the Noteholders shall
be entitled to rely (1) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.02
are pending, (2) upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to the Trustee or to the Noteholders
or (3) upon the Representatives of Senior Indebtedness of the Company for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of such Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
10. 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
Indebtedness of the Company to participate in any payment or distribution
pursuant to this Article 10, the Trustee shall be entitled to request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of such Senior Indebtedness 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 10, and, if such
evidence is not furnished, the Trustee shall be entitled to 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 10.
SECTION 10.16. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Noteholder
by accepting a Note authorizes and directs the Trustee on its behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Noteholders and the holders of Senior Indebtedness of
the Company as provided in this Article 10 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
SECTION 10.17. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS OF THE COMPANY. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness of the Company and shall
not be liable to any such holders if it shall mistakenly pay over or distribute
to Noteholders or the Company or any other Person, money or assets to which any
holders of Senior Indebtedness of the Company shall be entitled by virtue of
this Article 10 or otherwise.
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SECTION 10.18. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS OF THE
COMPANY ON SUBORDINATION PROVISIONS. Each Noteholder by accepting a Note
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness of the Company, whether such Senior Indebtedness was created or
acquired before or after the issuance of the Notes, to acquire and continue to
hold, or to continue to hold, such Senior Indebtedness and such holder of such
Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
ARTICLE 11
GUARANTIES
SECTION 11.01. GUARANTIES. Any Guarantor shall unconditionally and
irrevocably guarantee, jointly and severally, to each Holder and to the Trustee
and its successors and assigns (a) the full and punctual payment of principal of
(or Accreted Value, if applicable) and interest on the Notes when due, whether
at maturity, by acceleration, by redemption or otherwise, and all other monetary
obligations of the Company under this Indenture and the Notes and (b) the full
and punctual performance within applicable grace periods of all other
obligations of the Company under this Indenture and the Notes (all the foregoing
being hereinafter collectively called the "GUARANTEED OBLIGATIONS"). Any
Guarantors shall further agree that the Guaranteed Obligations may be extended
or renewed, in whole or in part, without notice or further assent from such
Guarantors and that such Guarantors will remain bound under this Article 11
notwithstanding any extension or renewal of any Guaranteed Obligation.
Any Guarantor shall waive presentation to, demand of, payment from and
protest to the Company of any of the Guaranteed Obligations and shall also waive
notice of acceleration, notice of intent to accelerate and notice of protest for
nonpayment. Subject to Section 6.01, any Guarantor shall waive notice of any
default under the Notes or the Guaranteed Obligations. The obligations of any
Guarantor hereunder shall not be affected by: (a) the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any right or remedy
against the Company or any other Person under this Indenture, the Notes or any
other agreement or otherwise; (b) any extension or renewal of any thereof; (c)
any rescission, waiver, amendment or modification
96
of any of the terms or provisions of this Indenture, the Notes or any other
agreement; (d) the release of any security held by any Holder or the Trustee for
the Guaranteed Obligations or any of them; (e) the failure of any Holder or the
Trustee to exercise any right or remedy against any other guarantor of the
Guaranteed Obligations; or (f) except as set forth in Section 11.06, any change
in the ownership of any such Guarantor.
Any Guarantor shall further agree that its Guaranty herein constitutes
a guarantee of payment, performance and compliance when due (and not a guarantee
of collection) and shall waive any right to require that any resort be had by
any Holder or the Trustee to any security held for payment of the Guaranteed
Obligations.
Any Guaranty shall be, to the extent and in the manner set forth in
Article 12, subordinated and subject in right of payment to the prior payment in
full of the principal of (or Accreted Value, if applicable) and premium, if any,
and interest on all Senior Indebtedness of the Guarantor giving such Guaranty
and each Guaranty shall be made subject to such provisions of this Indenture.
Except as expressly set forth in Sections 8.01(b), 11.02 and 11.06,
the obligations of any Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of any Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any remedy under this Indenture, the
Notes or any other agreement, by any waiver or modification of any thereof, by
any default, failure or delay, willful or otherwise, in the performance of the
obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
any such Guarantor or would otherwise operate as a discharge of any such
Guarantor as a matter of law or equity.
Any Guarantor shall further agree that its Guaranty herein shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of (or Accreted Value, if applicable)
or interest on
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any Guaranteed Obligation is rescinded or must otherwise be restored by any
Holder or the Trustee upon the bankruptcy or reorganization of the Company or
otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Company to pay the principal
of (or Accreted Value, if applicable) or interest on any Guaranteed Obligation
when and as the same shall become due, whether at maturity, by acceleration, by
redemption or otherwise, or to perform or comply with any other Guaranteed
Obligation, any Guarantor shall promise to and shall, upon receipt of written
demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of
such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed
Obligations (but only to the extent not prohibited by law) and (3) all other
monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
Any Guarantor shall agree that it shall not be entitled to any right
of subrogation in respect of any Guaranteed Obligations guaranteed under this
Indenture until payment in full of all Guaranteed Obligations and all
obligations to which the Guaranteed Obligations are subordinated as provided in
Article 12. Any Guarantor shall further agree that, as between it, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity of
the Guaranteed Obligations guaranteed under this Indenture may be accelerated as
provided in Article 6 for the purposes of such Guarantor's Guaranty herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations guaranteed under this
Indenture, and (y) in the event of any declaration of acceleration of such
Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Guarantor for the purposes of this Section 11.01.
Any Guarantor shall also agree to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder in
enforcing any rights under this Section 11.01.
SECTION 11.02. LIMITATION ON LIABILITY. Any term or provision of
this Indenture to the contrary notwithstanding, the maximum aggregate amount of
the Guaranteed Obligations
98
guaranteed hereunder by any Guarantor shall not exceed the maximum amount that
can be hereby guaranteed without rendering this Indenture, as it relates to such
Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.
SECTION 11.03. SUCCESSORS AND ASSIGNS. This Article 11 shall be
binding upon each Guarantor and its successors and assigns and shall enure to
the benefit of the successors and assigns of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges conferred upon that party in this Indenture and in the
Notes shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this Indenture.
SECTION 11.04. NO WAIVER. Neither a failure nor a delay on the part
of either the Trustee or the Holders in exercising any right, power or privilege
under this Article 11 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 11 at law,
in equity, by statute or otherwise.
SECTION 11.05. MODIFICATION. No modification, amendment or waiver of
any provision of this Article 11, nor the consent to any departure by any
Guarantor therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on any Guarantor in any case shall entitle such Guarantor to
any other or further notice or demand in the same, similar or other
circumstances.
SECTION 11.06. RELEASE OF GUARANTOR. The Guaranty of a Guarantor
(other than Merisant US, Inc., if it were to become a Guarantor) will be
automatically released:
(1) upon the sale or other disposition (including by way of
consolidation or merger) of that Guarantor to a Person that is not (either
before or after giving effect to such transaction) the Company or an
Affiliate of the Company, if such sale or other disposition complies with
Section 4.10;
99
(2) upon the sale or other disposition of all or substantially all
the assets of that Guarantor to a Person that is not (either before or
after giving effect to such transaction) the Company or an Affiliate of the
Company, if such sale or other disposition complies with Section 4.10; or
(3) if the Company designates that Guarantor as an Unrestricted
Subsidiary in compliance with the applicable provisions of this Indenture.
ARTICLE 12
SUBORDINATION OF GUARANTIES
SECTION 12.01. AGREEMENT TO SUBORDINATE. Any Guarantor shall agree,
and each Noteholder by accepting a Note agrees, that the Indebtedness evidenced
by such Guarantor's Guaranty is subordinated in right of payment, to the extent
and in the manner provided in this Article 12, to the prior payment of all
Senior Indebtedness of such Guarantor and that the subordination is for the
benefit of and enforceable by the holders of such Senior Indebtedness. The
obligations of a Guarantor shall in all respects rank PARI PASSU with all other
Senior Subordinated Indebtedness of such Guarantor and only Senior Indebtedness
of such Guarantor (including such Guarantor's Guaranty of Senior Indebtedness of
the Company) shall rank senior to the obligations of such Guarantor in
accordance with the provisions set forth herein. All provisions of this Article
12 shall be subject to Section 12.14.
SECTION 12.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any
payment or distribution of the assets of any Guarantor to creditors upon a total
or partial liquidation or a total or partial dissolution of such Guarantor or in
a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to such Guarantor or its property:
(1) holders of Senior Indebtedness of such Guarantor shall be
entitled to receive payment in full in cash of such Senior Indebtedness
before Noteholders shall be entitled to receive any payment pursuant to the
Guaranty of such Guarantor; and
(2) until the Senior Indebtedness of any Guarantor is paid in full
in cash, any payment or distribution to which Noteholders would be entitled
but for this Article 12 shall be made to holders of such Senior
Indebtedness as their
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interests may appear, except that Noteholders may receive shares of stock
and any debt securities of such Guarantor that are subordinated to such
Senior Indebtedness to at least the same extent as the Guaranty.
SECTION 12.03. DEFAULT ON SENIOR INDEBTEDNESS OF GUARANTOR. No
Guarantor shall make any payment of principal, premium, if any, or interest
pursuant to its Guaranty or purchase, redeem or otherwise retire or defease any
Guaranteed Obligations (collectively, "PAY ITS GUARANTY") if either of the
following occurs (a "PAYMENT DEFAULT"): (1) any portion of any Designated Senior
Indebtedness of such Guarantor is not paid in full in cash when due; or (2) any
other default on Designated Senior Indebtedness of such Guarantor occurs and the
maturity of such Designated Senior Indebtedness is accelerated in accordance
with its terms; UNLESS, in either case, the Payment Default has been cured or
waived and any such acceleration has been rescinded or such Designated Senior
Indebtedness has been paid in full in cash; PROVIDED, HOWEVER, that any
Guarantor shall be entitled to pay its Guaranty without regard to the foregoing
if such Guarantor and the Trustee receive written notice approving such payment
from the Representatives of all Designated Senior Indebtedness with respect to
which the Payment Default has occurred and is continuing.
During the continuance of any default (other than a Payment Default)
with respect to any Designated Senior Indebtedness of such Guarantor pursuant to
which the maturity thereof may be accelerated without further notice (except
such notice as may be required to effect such acceleration) or the expiration of
any applicable grace periods, such Guarantor shall not pay its Guaranty for a
period (a "PAYMENT BLOCKAGE PERIOD") commencing upon the receipt by the Trustee
(with a copy to such Guarantor) of a written notice (a "BLOCKAGE NOTICE") of
such default from the Representative of such Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period and ending 179 days
thereafter. The Payment Blockage Period shall end earlier if such Payment
Blockage Period is terminated: (1) by written notice to the Trustee and such
Guarantor from the Person or Persons who gave such Blockage Notice, (2) because
the default giving rise to such Blockage Notice is cured, waived or otherwise no
longer continuing, or (3) because such Designated Senior Indebtedness has been
discharged or repaid in full in cash.
Notwithstanding the provisions described in the above paragraph (but
subject to the provisions contained in the first sentence of this Section
12.03), unless the holders of such
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Designated Senior Indebtedness or the Representative of such Designated Senior
Indebtedness have accelerated the maturity of such Designated Senior
Indebtedness, any Guarantor shall be entitled to resume payments pursuant to its
Guaranty after termination of such Payment Blockage Period. No Guarantor shall
be subject to more than one Payment Blockage Period in any consecutive 360-day
period irrespective of the number of defaults with respect to Designated Senior
Indebtedness of such Guarantor during such period; PROVIDED, HOWEVER, that if
any Blockage Notice within such 360-day period is delivered to the Trustee by or
on behalf of any holders of Designated Senior Indebtedness of such Guarantor
(other than holders of the Bank Indebtedness), a Representative of the holders
of the Bank Indebtedness shall be entitled to give another Blockage Notice
within such period; PROVIDED FURTHER, HOWEVER, that in no event shall the total
number of days during which any Payment Blockage Period or Periods is in effect
exceed 179 days in the aggregate during any consecutive 360-day period, and
there must be 181 days during any consecutive 360-day period during which no
Payment Blockage Period is in effect.
SECTION 12.04. DEMAND FOR PAYMENT. If a demand for payment is made
on a Guarantor pursuant to Article 11, the Trustee shall promptly notify the
holders of the Designated Senior Indebtedness of such Guarantor (or their
Representatives) of such demand.
SECTION 12.05. WHEN DISTRIBUTION MUST BE PAID OVER. If a payment or
distribution is made to Noteholders that, because of this Article 12, should not
have been made to them, the Noteholders who receive the payment or distribution
shall hold it in trust for the holders of Senior Indebtedness of the relevant
Guarantor and pay it over to them as their interests may appear.
SECTION 12.06. REINSTATEMENT OF SENIOR INDEBTEDNESS. To the extent
any payment of or distribution in respect of Senior Indebtedness of a Guarantor
(whether by or on behalf of any Guarantor as proceeds of security or enforcement
of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then
if such payment or distribution is recovered by, or paid over to, such receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person, the
Senior Indebtedness or part thereof
102
originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
SECTION 12.07. SUBROGATION. After all Senior Indebtedness of a
Guarantor is paid in full and until the Notes are paid in full, Noteholders
shall be subrogated to the rights of holders of such Senior Indebtedness to
receive distributions applicable to Senior Indebtedness of such Guarantor. A
distribution made under this Article 12 to holders of such Senior Indebtedness
which otherwise would have been made to Noteholders is not, as between the
relevant Guarantor and Noteholders, a payment by such Guarantor on such Senior
Indebtedness.
SECTION 12.08. RELATIVE RIGHTS. This Article 12 defines the relative
rights of Noteholders and holders of Senior Indebtedness of a Guarantor. Nothing
in this Indenture shall:
(1) impair, as between a Guarantor and Noteholders, the obligation
of such Guarantor, which is absolute and unconditional, to pay its Guaranty
to the extent set forth in Article 11; or
(2) prevent the Trustee or any Noteholder from exercising its
available remedies upon a default by such Guarantor under its Guaranty,
subject to the rights of holders of Senior Indebtedness of such Guarantor
to receive distributions otherwise payable to Noteholders.
SECTION 12.09. SUBORDINATION MAY NOT BE IMPAIRED BY GUARANTOR. No
right of any present or future holders of any Senior Indebtedness of any
Guarantor to enforce subordination as provided in this Indenture will at any
time in any way be prejudiced or impaired by noncompliance by such Guarantor
with the terms of this Indenture, regardless of any knowledge thereof that any
such holder of Senior Indebtedness may have or otherwise be charged with.
SECTION 12.10. RIGHTS OF TRUSTEE AND PAYING AGENT. Notwithstanding
Section 12.03, the Trustee or Paying Agent shall continue to make payments on
any Guaranty and shall not be charged with knowledge of the existence of facts
that under this Article 12 would prohibit the making of any such payments
unless, not less than two Business Days prior to the date of such payment, a
Trust Officer of the Trustee receives written notice satisfactory to it that
such payments are prohibited by this Article 12. The Company, the relevant
Guarantor, the Registrar or co-registrar, the Paying Agent, a Representative or
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a holder of Senior Indebtedness of such Guarantor shall be entitled to give the
notice; PROVIDED, HOWEVER, that, if an issuer of Senior Indebtedness of any
Guarantor has a Representative, only the Representative shall be entitled to
give the notice.
The Trustee in its individual or any other capacity shall be entitled
to hold Senior Indebtedness of any Guarantor with the same rights it would have
if it were not the Trustee. The Registrar and co-registrar and the Paying Agent
shall be entitled to 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
Indebtedness of any Guarantor which may at any time be held by it, to the same
extent as any other holder of such Senior Indebtedness, 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 12.11. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS. The holders
of Senior Indebtedness may, at any time and from time to time, subject to the
terms of such Senior Indebtedness, without the consent of or notice to the
Trustee or the Noteholders, without incurring responsibility to the Noteholders
and without impairing or releasing the subordination provided in this Indenture
or the obligations hereunder of the Noteholders to the holders of Senior
Indebtedness, do any one or more of the following:
(1) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding or secured;
(2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness;
(3) release any Person liable in any manner for the collection of
Senior Indebtedness; and
(4) exercise or refrain from exercising any rights against any
Guarantor and any other Person.
SECTION 12.12. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever
any Person is to make a distribution or give a notice to holders of Senior
Indebtedness of any
104
Guarantor, such Person shall be entitled to make such distribution or give such
notice to their Representative (if any).
SECTION 12.13. ARTICLE 12 NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT
RIGHT TO DEMAND PAYMENT. The failure to make a payment pursuant to a Guaranty by
reason of any provision in this Article 12 shall not be construed as preventing
the occurrence of a Default. Nothing in this Article 12 shall have any effect on
the right of the Noteholders or the Trustee to make a demand for payment on any
Guarantor pursuant to its Guaranty.
SECTION 12.14. TRUST MONEYS NOT SUBORDINATED. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations 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 Indebtedness of any Guarantor or subject to
the restrictions set forth in this Article 12, and none of the Noteholders shall
be obligated to pay over any such amount to any Guarantor or any holder of
Senior Indebtedness of any Guarantor or any other creditor of any Guarantor.
SECTION 12.15. TRUSTEE ENTITLED TO RELY. Upon any payment or
distribution pursuant to this Article 12, the Trustee and the Noteholders shall
be entitled to rely (1) 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, (2) upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to the Trustee or to the Noteholders
or (3) upon the Representatives for the holders of Senior Indebtedness of any
Guarantor for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of such Senior Indebtedness and other
Indebtedness of such Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 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
holder of Senior Indebtedness of any Guarantor to participate in any payment or
distribution pursuant to this Article 12, the Trustee shall be entitled to
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness of such Guarantor held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and
105
other facts pertinent to the rights of such Person under this Article 12, and,
if such evidence is not furnished, the Trustee shall be entitled to 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 12.16. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Noteholder
by accepting a Note authorizes and directs the Trustee on its behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Noteholders and the holders of Senior Indebtedness of
the Guarantors as provided in this Article 12 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
SECTION 12.17. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS OF GUARANTOR. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness of any Guarantor and shall not be
liable to any such holders if it shall mistakenly pay over or distribute to
Noteholders or the Company or any other Person, money or assets to which any
holders of such Senior Indebtedness shall be entitled by virtue of this Article
12 or otherwise.
SECTION 12.18. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS OF THE
GUARANTORS ON SUBORDINATION PROVISIONS. Each Noteholder by accepting a Note
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness of the Guarantors, whether such Senior Indebtedness was created or
acquired before or after the issuance of the Notes, to acquire and continue to
hold, or to continue to hold, such Senior Indebtedness and such holder of such
Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. 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 required provision
shall control.
106
SECTION 13.02. NOTICES. Any notice, request or communication shall
be in writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company or any Guarantor:
Tabletop Holdings, Inc.
c/o Merisant Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chairman
with a copy to:
Tabletop Holdings, Inc.
c/o Merisant Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
and:
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
Bank ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
if to the Trustee:
▇▇▇▇▇ Fargo Corporate Trust Services
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant Vice President
The Company, any Guarantor or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Noteholder shall be mailed to
the Noteholder at the Noteholder's address as it appears on the registration
books of the Registrar and shall be sufficiently given if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency
107
with respect to other Noteholders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives
it.
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. Copies of
any such communication or notice to a Holder shall also be mailed to the
Trustee, the Registrar, co-registrar, Paying Agent and transfer agent at the
same time.
Where this Indenture provides for notice in any manner, such notice
may be expressly waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waiver of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service it shall
be impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
SECTION 13.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, any Guarantor, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
108
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has or
she made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with;
PROVIDED, HOWEVER, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public officials.
SECTION 13.06. WHEN NOTES DISREGARDED. In determining whether the
Holders of the required principal amount at maturity of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which a Trust Officer of the Trustee knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Notes outstanding at the time
shall be considered in any such determination.
SECTION 13.07. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The
Trustee may make reasonable rules for action by or a meeting of Noteholders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 13.08. LEGAL HOLIDAYS. A "LEGAL HOLIDAY" is a Saturday, a
Sunday or a day on which banking institutions are
109
not required to be open in the State of
New York. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
SECTION 13.09. GOVERNING LAW. This Indenture and the Notes shall be
governed by, and construed in accordance with, the laws of the State of
New York
but without giving effect to applicable principles of conflicts of law to the
extent that the application of the laws of another jurisdiction would be
required thereby.
SECTION 13.10. NO RECOURSE AGAINST OTHERS. No director, officer,
employee, incorporator or stockholder of the Company or any Guarantor will have
any liability for any obligations of the Company or any Guarantor under the
Notes, any Guaranty or this Indenture or for any claim based on, in respect of,
or by reason of such obligations or their creation. Each Holder of the 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 13.11. SUCCESSORS. All agreements of the Company in this
Indenture and the Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successors.
SECTION 13.12. MULTIPLE 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. One signed copy is enough to prove
this Indenture.
SECTION 13.13. TABLE OF CONTENTS; HEADINGS. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
110
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
TABLETOP HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: Secretary
--------------------------
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: Assistant Vice President
-------------------------
A-1
APPENDIX A
PROVISIONS RELATING TO INITIAL NOTES,
PRIVATE EXCHANGE NOTES
AND EXCHANGE NOTES
1. DEFINITIONS.
1.1. CERTAIN DEFINITIONS.
For the purposes of this APPENDIX A the following terms shall have the
meanings indicated below:
"APPLICABLE PROCEDURES" means, with respect to any transfer or
transaction involving a Temporary Regulation S Global Note or beneficial
interest therein, the rules and procedures of the Depository, Euroclear and
Clearstream for such a Temporary Regulations S Global Note, in each case to the
extent applicable to such transaction and as in effect from time to time.
"CLEARING AGENCY" means Clearstream Banking, societe anonyme, or any
successor securities clearing agency.
"DEFINITIVE NOTE" means a certificated Initial Note or Exchange Note
or Private Exchange Note bearing, if required, the restricted securities legend
set forth in Section 2.3(e).
"DEPOSITORY" means The Depository Trust Company, its nominees and
their respective successors.
"DISTRIBUTION COMPLIANCE PERIOD", with respect to any Notes, means the
period of 40 consecutive days beginning on and including the later of (i) the
day on which such Notes are first offered to Persons other than distributors (as
defined in Regulation S under the Securities Act) in reliance on Regulation S
and (ii) the issue date with respect to such Notes.
"EUROCLEAR" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System or any successor securities clearing agency.
"EXCHANGE NOTES" means (1) the 12 1/4% Senior Subordinated Discount
Notes Due 2014 issued pursuant to the Indenture in connection with a Registered
Exchange Offer pursuant to a Registration Rights Agreement and (2) Additional
Notes, if any, issued pursuant to a registration statement filed with the SEC
under the Securities Act.
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"INITIAL PURCHASERS" means (1) with respect to the Initial Notes
issued on the Issue Date, Credit Suisse First Boston LLC and ▇▇▇▇▇▇▇▇▇ &
Company, Inc., and (2) with respect to each issuance of Additional Notes, the
Persons purchasing such Additional Notes under the related Purchase Agreement.
"INITIAL NOTES" means (1) $136,040,000 stated aggregate principal
amount at maturity of 12 1/4% Senior Subordinated Discount Notes Due 2014 issued
on the Issue Date and (2) Additional Notes, if any, issued in a transaction
exempt from the registration requirements of the Securities Act.
"NOTES CUSTODIAN" means the custodian with respect to a Global Note
(as appointed by the Depository), or any successor Person thereto and shall
initially be the Trustee.
"PRIVATE EXCHANGE" means the offer by the Company, pursuant to a
Registration Rights Agreement, to the Initial Purchasers to issue and deliver to
each Initial Purchaser, in exchange for the Initial Notes held by the Initial
Purchaser as part of its initial distribution, a like aggregate principal amount
of Private Exchange Notes.
"PRIVATE EXCHANGE NOTES" means any 12 1/4% Senior Subordinated
Discount Notes Due 2014 issued in connection with a Private Exchange.
"PURCHASE AGREEMENT" means (1) with respect to the Initial Notes
issued on the Issue Date, the Purchase Agreement dated November 6, 2003, among
the Company and the Initial Purchasers, and (2) with respect to each issuance of
Additional Notes, the purchase agreement or underwriting agreement among the
Company, the Guarantors and the Persons purchasing such Additional Notes.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"REGISTERED EXCHANGE OFFER" means the offer by the Company, pursuant
to a Registration Rights Agreement, to certain Holders of Initial Notes, to
issue and deliver to such Holders, in exchange for the Initial Notes, a like
aggregate principal amount of Exchange Notes registered under the Securities
Act.
"REGISTRATION RIGHTS AGREEMENT" means (1) with respect to the Initial
Notes issued on the Issue Date, the Registration Rights Agreement dated November
12, 2003, among the Company and the Initial Purchasers, and (2) with respect to
each issuance of
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Additional Notes issued in a transaction exempt from the registration
requirements of the Securities Act, the registration rights agreement, if any,
among the Company, the Guarantors, if any, and the Persons purchasing such
Additional Notes under the related Purchase Agreement.
"RULE 144A NOTES" means all Initial Notes offered and sold to QIBs in
reliance on Rule 144A.
"SHELF REGISTRATION STATEMENT" means the registration statement issued
by the Company in connection with the offer and sale of Initial Notes or Private
Exchange Notes pursuant to a Registration Rights Agreement.
"TRANSFER RESTRICTED SECURITIES" means Notes that bear or are required
to bear the legend set forth in Section 2.3(e) hereto.
1.2. OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
2.1(b)
"Agent Members".......................................... 2.1(a)
"Global Notes"........................................... 2.1(a)
"Permanent Regulation S Global Note"..................... 2.1(a)
"Regulation S"........................................... 2.1(a)
"Rule 144A".............................................. 2.1(a)
"Rule 144A Global Note".................................. 2.1(a)
"Temporary Regulation S Global Note"..................... 2.1(a)
2. THE NOTES.
2.1. FORM AND DATING.
(a) GENERAL. The Initial Notes will be offered and sold by the
Company, from time to time, pursuant to one or more Purchase Agreements. The
Initial Notes will be resold initially only to (i) QIBs in reliance on Rule 144A
under the Securities Act ("RULE 144A") and (ii) Persons other than U.S. Persons
(as defined in Regulation S) in reliance on Regulation S under the Securities
Act ("REGULATION S"). Initial Notes may thereafter be transferred to, among
others, QIBs and purchasers in reliance on Regulation S, subject to the
restrictions on transfer set forth herein. Initial Notes initially resold
pursuant to Rule 144A shall be issued initially in the form of one or more
permanent global notes in definitive, fully registered form
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(collectively, the "RULE 144A GLOBAL NOTE") and Initial Notes initially resold
pursuant to Regulation S shall be issued initially in the form of one or more
temporary global notes in definitive, fully registered form (collectively, the
"TEMPORARY REGULATION S GLOBAL NOTE"), in each case without interest coupons and
with the global securities legend and restricted securities legend set forth in
EXHIBIT 1 hereto, which shall be deposited on behalf of the purchasers of the
Initial Notes represented thereby with the Notes Custodian, and registered in
the name of the Depository or a nominee of the Depository, duly executed by the
Company and authenticated by the Trustee as provided in this Indenture.
Beneficial ownership interests in the Temporary Regulation S Global Note will
not be exchangeable for interests in the Rule 144A Global Note, a permanent
global security (the "PERMANENT REGULATION S GLOBAL NOTE"), or any other Note
without a legend containing restrictions on transfer of such Note prior to the
expiration of the Distribution Compliance Period and then only upon
certification in form reasonably satisfactory to the Trustee that beneficial
ownership interests in such Temporary Regulation S Global Note are owned either
by non-U.S. Persons or U.S. Persons who purchased such interests in a
transaction that did not require registration under the Securities Act. The Rule
144A Global Note, the Temporary Regulation S Global Note and the Permanent
Regulation S Global Note are collectively referred to herein as "GLOBAL NOTES."
The aggregate principal amount at maturity of the Global Notes may from time to
time be increased or decreased by adjustments made on the records of the Trustee
and the Depository or its nominee as hereinafter provided.
(b) BOOK-ENTRY PROVISIONS. This Section 2.1(b) shall apply only to a
Global Note deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(b), authenticate and deliver initially one or more Global Notes
that (a) shall be registered in the name of the Depository for such Global Note
or Global Notes or the nominee of such Depository and (b) shall be delivered by
the Trustee to such Depository or pursuant to such Depository's instructions or
held by the Trustee as custodian for the Depository.
Members of, or participants in, the Depository ("AGENT MEMBERS") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depository or by the Trustee as the custodian of the
Depository or under such Global Note, and the Company, the Trustee and any agent
of the
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Company or the Trustee shall be entitled to treat the Depository 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 Depository or impair, as between
the Depository and its Agent Members, the operation of customary practices of
such Depository governing the exercise of the rights of a holder of a beneficial
interest in any Global Note.
(c) CERTIFICATED NOTES. Except as provided in this Section 2.1,
Section 2.3 or Section 2.4, owners of beneficial interests in Global Notes shall
not be entitled to receive physical delivery of Definitive Notes.
2.2. AUTHENTICATION. The Trustee shall authenticate and deliver: (1)
on the Issue Date, a stated aggregate principal amount at maturity of
$136,040,000 12 1/4% Senior Subordinated Discount Notes Due 2014, (2) from time
to time, any Additional Notes for original issue in aggregate principal amounts
at maturity specified in written orders of the Company pursuant to Section 2.02
of the Indenture, and (3) Exchange Notes or Private Exchange Notes for issue
only in a Registered Exchange Offer or a Private Exchange, respectively,
pursuant to a Registration Rights Agreement, for a like principal amount at
maturity of Initial Notes, in each case upon a written order of the Company
signed by two Officers or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of the Company. Such order shall specify the amount of the
Notes to be authenticated and the date on which the original issue of Notes is
to be authenticated.
2.3. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES. When Definitive
Notes are presented to the Registrar or a co-registrar with a request:
(x) to register the transfer of such Definitive Notes; or
(y) to exchange such Definitive Notes for an equal principal amount
at maturity of Definitive Notes of other authorized denominations,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements
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for such transaction are met; PROVIDED, HOWEVER, that the Definitive Notes
surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar
or co-registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing; and
(ii) if such Definitive Notes are required to bear a restricted
securities legend, they are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act, pursuant to
Section 2.3(b) or pursuant to clause (A), (B) or (C) below, and are
accompanied by the following additional information and documents, as
applicable:
(A) if such Definitive Notes are being delivered to the Registrar
by a Holder for registration in the name of such Holder, without
transfer, a certification from such Holder to that effect;
(B) if such Definitive Notes are being transferred to the
Company, a certification to that effect; or
(C) if such Definitive Notes are being transferred (x) pursuant
to an exemption from registration in accordance with Rule 144A,
Regulation S or Rule 144 under the Securities Act; or (y) in reliance
upon another exemption from the requirements of the Securities Act:
(i) a certification to that effect (in the form set forth on the
reverse of the Note) and (ii) if the Company so requests, an opinion
of counsel or other evidence reasonably satisfactory to it as to the
compliance with the restrictions set forth in the legend set forth in
Section 2.3(e)(i).
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE NOTE FOR A BENEFICIAL
INTEREST IN A GLOBAL NOTE. A Definitive Note may not be exchanged for a
beneficial interest in a Rule 144A Global Note or a Permanent Regulation S
Global Note except upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Trustee,
together with:
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(i) certification, in the form set forth on the reverse of the Note,
that such Definitive Note is either (A) being transferred to a QIB in
accordance with Rule 144A or (B) is being transferred after expiration of
the Distribution Compliance Period by a Person who initially purchased such
Note in reliance on Regulation S to a buyer who elects to hold its interest
in such Note in the form of a beneficial interest in the Permanent
Regulation S Global Note; and
(ii) written instructions directing the Trustee to make, or to direct
the Notes Custodian to make, an adjustment on its books and records with
respect to such Rule 144A Global Note (in the case of a transfer pursuant
to clause (b)(i)(A)) or Permanent Regulation S Note (in the case of a
transfer pursuant to clause (b)(i)(B)) to reflect an increase in the stated
aggregate principal amount at maturity of the Notes represented by the Rule
144A Global Note or Permanent Regulation S Global Note, as applicable, such
instructions to contain information regarding the Depositary account to be
credited with such increase;
then the Trustee shall cancel such Definitive Note and cause, or direct the
Notes Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Notes Custodian, the stated
aggregate principal amount at maturity of Notes represented by the Rule 144A
Global Note or Permanent Regulation S Global Note, as applicable, to be
increased by the stated aggregate principal amount at maturity of the Definitive
Note to be exchanged and shall credit or cause to be credited to the account of
the Person specified in such instructions a beneficial interest in the Rule 144A
Global Note or Permanent Regulation S Global Note, as applicable, equal to the
stated principal amount at maturity of the Definitive Note so canceled. If no
Rule 144A Global Notes or Permanent Regulation S Global Notes, as applicable,
are then outstanding, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of an Officers'
Certificate, a new Rule 144A Global Note or Permanent Regulation S Global Note,
as applicable, in the appropriate stated principal amount at maturity.
(c) TRANSFER AND EXCHANGE OF GLOBAL NOTES.
(i) The transfer and exchange of Global Notes or beneficial
interests therein shall be effected through the Depository, in accordance
with this Indenture (including applicable restrictions on transfer set
forth herein, if
A-8
any) and the procedures of the Depository therefor. A transferor of a
beneficial interest in a Global Note shall deliver to the Registrar a
written order given in accordance with the Depository's procedures
containing information regarding the participant account of the Depository
to be credited with a beneficial interest in the Global Note. The Registrar
shall, in accordance with such instructions instruct the Depository to
credit to the account of the Person specified in such instructions a
beneficial interest in the Global Note and to debit the account of the
Person making the transfer the beneficial interest in the Global Note being
transferred.
(ii) If the proposed transfer is a transfer of a beneficial interest
in one Global Note to a beneficial interest in another Global Note, the
Registrar shall reflect on its books and records the date and an increase
in the stated principal amount at maturity of the Global Note to which such
interest is being transferred in an amount equal to the stated principal
amount at maturity of the interest to be so transferred, and the Registrar
shall reflect on its books and records the date and a corresponding
decrease in the stated principal amount at maturity of the Global Note from
which such interest is being transferred.
(iii) Notwithstanding any other provisions of this APPENDIX A (other
than the provisions set forth in Section 2.4), a Global Note may not be
transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(iv) In the event that a Global Note is exchanged for Definitive
Notes pursuant to Section 2.4 of this APPENDIX A, prior to the consummation
of a Registered Exchange Offer or the effectiveness of a Shelf Registration
Statement with respect to such Notes, such Notes may be exchanged only in
accordance with such procedures as are substantially consistent with the
provisions of this Section 2.3 (including the certification requirements
set forth on the reverse of the Initial Notes intended to ensure that such
transfers comply with Rule 144A or Regulation S, as the case may be) and
such other procedures as may from time to time be adopted by the Company.
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(d) RESTRICTIONS ON TRANSFER OF TEMPORARY REGULATION S GLOBAL NOTES.
During the Distribution Compliance Period, beneficial ownership interests in
Temporary Regulation S Global Notes may only be sold, pledged or transferred
through Euroclear and Clearstream in accordance with the Applicable Procedures
and only (i) to the Company, (ii) so long as such Note is eligible for resale
pursuant to Rule 144A, to a Person whom the selling holder reasonably believes
is a QIB that purchases for its own account or for the account of a QIB to whom
notice is given that the resale, pledge or transfer is being made in reliance on
Rule 144A, (iii) in an offshore transaction in accordance with Regulation S,
(iv) pursuant to an exemption from registration under the Securities Act
provided by Rule 144 (if applicable) under the Securities Act or (v) pursuant to
an effective registration statement under the Securities Act, in each case in
accordance with any applicable securities laws of any state of the United
States.
(e) LEGEND.
(i) Except as permitted by the following paragraphs (ii), (iii) and
(iv), each Note certificate evidencing the Global Notes and the Definitive
Notes (and all Notes issued in exchange therefor or in substitution
thereof) shall bear a legend in substantially the following form:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION
IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE
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144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I)
THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE NOTE
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
Each Definitive Note will also bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION
AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted Note
(including any Transfer Restricted Note represented by a Global Note)
pursuant to Rule 144 under the Securities Act, the Registrar shall permit
the transferee thereof to exchange such Transfer Restricted Note for a
certificated Note that does not bear the legend set forth above and rescind
any restriction on the transfer of such Transfer Restricted Note, if the
transferor thereof certifies in writing to the Registrar that such sale or
transfer was made in reliance on Rule 144 (such certification to be in the
form set forth on the reverse of the Note).
(iii) After a transfer of any Initial Notes or Private Exchange Notes
pursuant to and during the period of the effectiveness of a Shelf
Registration Statement with respect to such Initial Notes or Private
Exchange Notes, as the case may be, all requirements pertaining to legends
on such Initial Note or such Private Exchange Note will cease to apply, the
requirements requiring any such Initial Note or such Private Exchange Note
issued to certain Holders be issued in global form will cease to apply, and
a certificated Initial Note or Private Exchange Note or an Initial Note or
Private Exchange Note in global form, in each case without restrictive
transfer legends, will be available to the transferee of the Holder of such
Initial Notes or Private Exchange Notes upon exchange of such transferring
Holder's certificated Initial Note or Private Exchange Note or directions
to transfer such Holder's interest in the Global Note, as applicable.
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(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Notes, all requirements pertaining to such Initial
Notes that Initial Notes issued to certain Holders be issued in global form
will still apply with respect to Holders of such Initial Notes that do not
exchange their Initial Notes, and Exchange Notes in certificated or global
form will be available to Holders that exchange such Initial Notes in such
Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect to the
Initial Notes, all requirements pertaining to such Initial Notes that
Initial Notes issued to certain Holders be issued in global form will still
apply with respect to Holders of such Initial Notes that do not exchange
their Initial Notes, and Private Exchange Notes in global form with the
global note legend and the restricted securities legend set forth in
EXHIBIT 1 hereto will be available to Holders that exchange such Initial
Notes in such Private Exchange.
(f) CANCELLATION OR ADJUSTMENT OF GLOBAL NOTE. At such time as all
beneficial interests in a Global Note have either been exchanged for Definitive
Notes, redeemed, purchased or canceled, such Global Note shall be returned to
the Depository for cancellation or retained and canceled by the Trustee. At any
time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for certificated Notes, redeemed, purchased or canceled, the principal
amount at maturity of Notes represented by such Global Note shall be reduced and
an adjustment shall be made on the books and records of the Trustee (if it is
then the Notes Custodian for such Global Note) with respect to such Global Note,
by the Trustee or the Notes Custodian, to reflect such reduction.
(g) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF NOTES.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Definitive Notes and
Global Notes at the Registrar's or co-registrar's request.
(ii) No service charge shall be made for any registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental charge payable
in
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connection therewith (other than any such transfer taxes, assessments or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 3.06, 4.02 and 9.05 of the Indenture).
(iii) The Registrar or co-registrar shall not be required to register
the transfer of or exchange of (a) any Definitive Note selected for
redemption in whole or in part pursuant to Article 3 of this Indenture,
except the unredeemed portion of any Definitive Note being redeemed in
part, or (b) any Note for a period beginning 15 days before the mailing of
a notice of an offer to repurchase or redeem Notes or 15 days before a
Semi-Annual Accrual Date or an interest payment date, as applicable.
(iv) Prior to the due presentation for registration of transfer of
any Note, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the Person in whose name a Note is
registered as the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Note and for all other
purposes whatsoever, whether or not such Note is overdue, and none of the
Company, the Trustee, the Paying Agent, the Registrar or any co-registrar
shall be affected by notice to the contrary.
(v) All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same debt and shall be entitled
to the same benefits under this Indenture as the Notes surrendered upon
such transfer or exchange.
(h) NO OBLIGATION OF THE TRUSTEE.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Note, a member of, or a participant in the
Depository or other Person with respect to the accuracy of the records of
the Depository or its nominee or of any participant or member thereof, with
respect to any ownership interest in the Notes or with respect to the
delivery to any participant, member, beneficial owner or other Person
(other than the Depository) of any notice (including any notice of
redemption) or the payment of any amount, under or with respect to such
Notes. All notices and communications to be given to the Holders and all
payments to be made to Holders under the Notes shall be given or made only
to or upon the order of the registered Holders (which shall be
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the Depository or its nominee in the case of a Global Note). The rights of
beneficial owners in any Global Note shall be exercised only through the
Depository subject to the applicable rules and procedures of the
Depository. The Trustee may rely and shall be fully protected in relying
upon information furnished by the Depository with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or
among Depository participants, members or beneficial owners in any Global
Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
2.4. DEFINITIVE NOTES.
(a) A Global Note deposited with the Depository or with the Trustee
as Notes Custodian for the Depository pursuant to Section 2.1 shall be
transferred to the beneficial owners thereof in the form of Definitive Notes in
an aggregate stated principal amount at maturity equal to the stated principal
amount at maturity of such Global Note, in exchange for such Global Note, only
if such transfer complies with Section 2.3 and (i) the Depository notifies the
Company that it is unwilling or unable to continue as Depository for such Global
Note or if at any time such Depository ceases to be a "clearing agency"
registered under the Exchange Act and a successor Depositary is not appointed by
the Company within 90 days of such notice, or (ii) an Event of Default has
occurred and is continuing or (iii) the Company, in its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
Definitive Notes under this Indenture.
(b) Any Global Note that is transferable to the beneficial owners
thereof pursuant to this Section shall be surrendered by the Depository to the
Trustee located at its principal corporate trust office, to be so transferred,
in whole or from time to time in part, without charge, and the Trustee shall
authenticate and deliver, upon such transfer of each portion of such Global
Note, an equal aggregate stated principal amount at maturity of Definitive Notes
of authorized
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denominations. Any portion of a Global Note transferred pursuant to this Section
shall be executed, authenticated and delivered only in denominations of $1,000
stated principal amount at maturity and any integral multiple thereof and
registered in such names as the Depository shall direct. Any Definitive Note
delivered in exchange for an interest in a Transfer Restricted Note shall,
except as otherwise provided by Section 2.3(e), bear the restricted securities
legend set forth in EXHIBIT 1 hereto.
(c) Subject to the provisions of Section 2.4(b), the registered
Holder of a Global Note shall be entitled to grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
(d) In the event of the occurrence of one of the events specified in
Section 2.4(a), the Company shall promptly make available to the Trustee a
reasonable supply of Definitive Notes in definitive, fully registered form
without interest coupons.
EXHIBIT 1
to
APPENDIX A
[FORM OF FACE OF INITIAL NOTE]
[Global Note Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE
SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN
THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION
2
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
[Temporary Regulation S Global Note Legend]
BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE RULE 144A GLOBAL NOTE OR THE
PERMANENT REGULATION S GLOBAL NOTE OR ANY OTHER NOTE REPRESENTING AN INTEREST IN
THE NOTES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING
RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE "40-DAY DISTRIBUTION
COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE 903(c)(3) OF REGULATION S UNDER
THE SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM REASONABLY
SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED EITHER BY
NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A TRANSACTION
THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT. DURING SUCH 40-DAY
DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY
REGULATION S GLOBAL NOTE MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH THE
EUROCLEAR BANK S.A./N.A., AS OPERATOR OF THE EUROCLEAR SYSTEM OR CLEARSTREAM
BANKING, SOCIETE ANONYME AND ONLY (I) TO THE COMPANY, (II) IN THE UNITED STATES
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. HOLDERS OF INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE WILL
NOTIFY ANY PURCHASER OF SUCH RESALE RESTRICTIONS, IF THEN APPLICABLE.
[Definitive Notes Legend]
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY
3
REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
4
FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, THIS NOTE IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT; FOR
EACH $1,000 PRINCIPAL AMOUNT OF THIS NOTE, THE ISSUE PRICE IS $551.31, THE
ISSUE DATE IS NOVEMBER 12, 2003 AND THE YIELD TO MATURITY IS 12 1/4% PER
ANNUM.
No. - $-
CUSIP No. -
ISIN No. -
12 1/4% Senior Subordinated Discount Notes Due 2014
TABLETOP HOLDINGS, INC., a Delaware corporation, promises to pay to
CEDE & CO., or registered assigns, the principal sum of ONE HUNDRED THIRTY-SIX
MILLION FORTY THOUSAND DOLLARS, or such greater or lesser amount as may from
time to time be endorsed on the Schedule of Increases or Decreases in Global
Note attached hereto (but in no event may such amount exceed the stated
aggregate principal amount at maturity of Notes authenticated pursuant to
Section 2.2 of Appendix A to the Indenture referred to below and then
outstanding pursuant to Section 2.08 of the Indenture), on May 15, 2014.
Interest Payment Dates: May 15 and November 15, commencing May 15, 2009.
Record Dates: May 1 and November 1.
Additional provisions of this Note are set forth on the other side of
this Note.
Dated: -, 20-
TABLETOP HOLDINGS, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
By:
---------------------------
Name:
--------------------------
Title:
------------------------
5
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
▇▇▇▇▇ Fargo Bank Minnesota, National Association,
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
By:
--------------------------------
Authorized Signatory
6
[FORM OF REVERSE SIDE OF INITIAL NOTE]
12 1/4% Senior Subordinated Discount Notes Due 2014
1. INTEREST
TABLETOP HOLDINGS, INC., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "COMPANY"), promises to pay interest on the principal amount
of this Note at the rate per annum shown above; PROVIDED, HOWEVER, that if a
Registration Default (as defined in the Registration Rights Agreement) occurs,
additional interest will accrue on this Note at a rate specified in the
Registration Rights Agreement. The Accreted Value of this Note will increase
from the date of issuance until November 15, 2008 at a rate of 12 1/4% per
annum, reflecting the accrual of non-cash interest, such that the Accreted Value
(as defined in the Indenture) will equal the stated principal amount at maturity
on November 15, 2008. Cash interest will accrue on the Notes at the rate of 12
1/4% per annum from November 15, 2008, or from the most recent date to which
interest has been paid, and will be payable semiannually in arrears on May 15
and November 15 of each year, commencing May 15, 2009, to the holders of record
at the close of business on May 1 or November 1, as applicable, immediately
preceding the interest payment date. Interest on overdue principal (or Accreted
Value, if applicable) (and, to the extent lawful, on overdue installments of
interest) shall accrue at the rate that is 1% per annum in excess of the rate
specified in the preceding sentence. The Accreted Value of any Additional Notes
will equal the Accreted Value of the Notes on any Specified Date. Cash interest
will accrue on Additional Notes from November 15, 2008 if issued prior to or on
such date, or from the most recent date to which interest has been paid.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. METHOD OF PAYMENT
The Company will pay interest on the Notes (except defaulted interest)
to the Persons who are registered holders of Notes at the close of business on
the May 1 or November 1 next preceding the interest payment date even if Notes
are canceled after the record date and on or before the interest payment date.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company will pay principal (or Accreted Value, if applicable) and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Notes
represented by a Global Note (including principal (or Accreted
7
Value, if applicable), premium and interest) will be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust
Company. The Company will make all payments in respect of a certificated Note
(including principal (or Accreted Value, if applicable), premium and interest)
by mailing a check to the registered address of each Holder thereof; PROVIDED,
HOWEVER, that payments on a certificated Note will be made by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than 30 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, ▇▇▇▇▇ Fargo Bank Minnesota, National Association (the
"TRUSTEE"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-registrar without notice. The Company
or any of its domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent, Registrar or co-registrar.
4. INDENTURE
The Company issued the Notes under an Indenture dated as of November
12, 2003 (as such may be amended or supplemented from time to time,
"INDENTURE"), between the Company 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 (15 U.S.C. Sections 77aaa-77bbbb)
as in effect on the date of the Indenture (the "TIA"). Terms defined in the
Indenture and not defined herein have the meanings ascribed thereto in the
Indenture. The Notes are subject to all such terms, and Noteholders are referred
to the Indenture and the TIA for a statement of those terms.
The Notes are general unsecured obligations of the Company. The
Company shall be entitled, subject to its compliance with Sections 2.13 and 4.06
of the Indenture, to issue Additional Notes pursuant to Section 2.13 of the
Indenture. The Initial Notes issued on the Issue Date, any Additional Notes and
all Exchange Notes or Private Exchange Notes issued in exchange therefor will be
treated as a single class for all purposes under the Indenture. The Indenture
contains covenants that limit the ability of the Company and its subsidiaries to
incur additional indebtedness; layer
8
indebtedness; pay dividends or distributions on, or redeem or repurchase capital
stock; make investments; engage in transactions with affiliates; create liens on
assets; transfer or sell assets; restrict dividends or other payments from
subsidiaries; conduct operations other than as a holding company; and
consolidate, merge or transfer all or substantially all of its assets and the
assets of its subsidiaries. These covenants are subject to important exceptions
and qualifications.
5. OPTIONAL REDEMPTION
Except as set forth below, the Company shall not be entitled to redeem
the Notes at its option prior to November 15, 2008.
(a) On and after November 15, 2008, the Company shall be entitled at
its option to redeem all or a portion of the Notes upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed in percentages of
Accreted Value on the redemption date), plus accrued and unpaid interest
thereon, 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 12-month period
commencing on November 15 of the years set forth below:
Redemption
Period Price
------ ----------
2008 106.125%
2009 104.083%
2010 102.042%
2011 and thereafter 100.000%
In addition, before November 15, 2006, the Company may at its option
on one or more occasions redeem Notes (which includes Additional Notes, if any)
in an aggregate principal amount at maturity not to exceed 35% of the aggregate
principal amount at maturity of the Notes (which includes Additional Notes, if
any) issued prior to such date at a redemption price (expressed as a percentage
of Accreted Value thereof at the redemption date) of 112.25%, plus accrued and
unpaid interest to the redemption date, with the Net Cash Proceeds from one or
more Qualified Equity Offerings; PROVIDED, HOWEVER, that (1) at least 65% of
such aggregate principal amount at maturity of Notes (which excludes Additional
Notes, if any) remains outstanding immediately after the occurrence of each such
redemption (other
9
than Notes held, directly or indirectly, by the Company or its Affiliates); (2)
each such redemption occurs within 60 days after the date of the related
Qualified Equity Offering; and (3) if the Qualified Equity Offering is an
offering by Parent, a portion of the Net Cash Proceeds thereof equal to the
amount required to redeem any such Notes is contributed to the equity capital of
the Company or used to acquire from the Company Capital Stock (other than
Disqualified Stock) of the Company.
(b) At any time on or prior to the date that is three years after
the Issue Date, if a Change of Control occurs the Company may at its option
redeem all, but not less than all, of the Notes upon not less than 30 nor more
than 60 days' prior notice, at a redemption price equal to the sum of 100% of
the Accreted Value of the Notes as of the redemption date, a premium equal to
the One Year's Coupon, and accrued and unpaid interest, if any, to, the date of
redemption. If the Company elects to exercise the redemption right set forth in
this paragraph (the "THREE-YEAR CHANGE OF CONTROL REDEMPTION RIGHT"), it must do
so by mailing a notice to each Holder with a copy to the Trustee within 30 days
following the Change of Control and before mailing notice of a Change of Control
Offer, and the Company will not make a Change of Control Offer. If the Company
has made a Change of Control Offer, it may not exercise the Three-Year Change of
Control Redemption Right.
(c) At any time on or prior to the First Call Date, after the
completion of a Change of Control Offer that was accepted by Holders of Notes
having an Accreted Value of not less than 75% of the total Accreted Value of
Notes then outstanding, the Company may redeem the Notes of any Holder who has
not accepted the Change of Control Offer (the "UNTENDERED NOTES") upon not less
than 30 nor more than 60 days' prior notice but in no event more than 90 days
after the completion of such Change of Control Offer, mailed by first-class mail
to each Holder's registered address, at a redemption price equal to 100% of the
Accreted Value of the Untendered Notes at the redemption date plus the
Applicable Premium as of, and accrued and unpaid interest, if any, to, the date
of redemption (the "CHANGE OF CONTROL REDEMPTION DATE"), except that
installments of interest which are due and payable on dates falling on or prior
to the applicable redemption date will be payable to the Persons who were the
Holders of record at the close of business on the relevant record dates.
6. NOTICE OF REDEMPTION
10
Notice of redemption will be mailed by first class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Notes to be redeemed at the Holder's registered address. Notes in denominations
of $1,000 principal amount at maturity or less may be redeemed in whole and not
in part. Notes in denominations larger than $1,000 principal amount at maturity
may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued interest on all Notes (or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date Accreted Value will cease to accrete and
interest will cease to accrue on such Notes (or such portions thereof) called
for redemption unless the Company defaults in making the redemption payment.
7. PUT PROVISIONS
Upon a Change of Control, if the Company has not exercised the
Three-Year Change of Control Redemption Right (if applicable), each Holder will
have the right to require that the Company purchase such Holder's Notes at a
purchase price equal to 101% of the Accreted Value of the Notes to be purchased
plus accrued and unpaid interest, if any, to the date of purchase (subject to
the right of holders of record on the relevant record date to receive interest
due on the related interest payment date) as provided in, and subject to the
terms of, the Indenture.
In certain circumstances, the Company must use the Net Available Cash
from Asset Dispositions to make an offer to Holders to purchase Notes at a
purchase price of 100% of the principal amount (or Accreted Value, if
applicable), plus accrued and unpaid interest.
8. SUBORDINATION
The Notes are subordinated to Senior Indebtedness of the Company. To
the extent provided in the Indenture, Senior Indebtedness of the Company must be
paid before the Notes may be paid. The Company agrees, and each Noteholder by
accepting a Note agrees, to the subordination provisions contained in the
Indenture and authorizes the Trustee to give it effect and appoints the Trustee
as attorney-in-fact for such purpose.
9. GUARANTY
11
On the Issue Date, this Note was not, and the Credit Agreement
prohibited this Note from being, guaranteed by any of the Company's
Subsidiaries. The Company may elect to cause a Subsidiary to become a Guarantor
in the future if and to the extent the Credit Facilities then so permit, and, in
certain circumstances, the Company may be required to do so.
10. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in registered form without coupons in denominations of
$1,000 principal amount at maturity and whole multiples of $1,000. A Holder may
transfer or exchange Notes in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange any
Notes selected for redemption (except, in the case of a Note to be redeemed in
part, the portion of the Note not to be redeemed) or any Notes for a period of
15 days before the mailing of a notice of redemption of Notes to be redeemed or
15 days before a Semi-Annual Accrual Date or an interest payment date, as
applicable.
11. PERSONS DEEMED OWNERS
The registered Holder of this Note may be treated as the Note's owner
for all purposes.
12. UNCLAIMED MONEY
If money for the payment of principal (or Accreted Value, if
applicable) or interest remains unclaimed for two years, the Trustee or Paying
Agent shall pay the money back to the Company at its request unless an abandoned
property law designates another Person. After any such payment, Holders entitled
to the money must look only to the Company and not to the Trustee for payment.
13. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time shall be
entitled to terminate some or all of its obligations under the Notes and the
Indenture if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal (or Accreted Value, if applicable) and
interest on the Notes to redemption or maturity, as the case may be.
14. AMENDMENT, WAIVER
12
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture and the Notes may be amended with the written consent of the Holders
of at least a majority in principal amount at maturity outstanding of the Notes
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount at maturity
outstanding of the Notes. Subject to certain exceptions set forth in the
Indenture, without the consent of any Noteholder, the Company, the Guarantors,
if any, and the Trustee shall be entitled to amend the Indenture or the Notes to
cure any ambiguity, omission, defect or inconsistency, to comply with Article 5
of the Indenture, to provide for uncertificated Notes in addition to or in place
of certificated Notes, to add guarantees with respect to the Notes, including
any Guaranties, to secure the Notes, to add additional covenants or surrender
rights and powers conferred on the Company or any Guarantors, to comply with any
request of the SEC in connection with qualifying the Indenture under the TIA, to
make any change that does not adversely affect the rights of any Noteholder, or
to evidence the release of a Guarantor in accordance with the Indenture.
15. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include: (i) default in payment
of interest on the Notes, continued for 30 days; (ii) default in payment of
principal on the Notes at maturity, upon optional redemption pursuant to
paragraph 5 of the Notes, upon declaration of acceleration or otherwise, or
failure by the Company to redeem or purchase Notes when required; (iii) failure
by the Company or any Guarantor to comply with other agreements in the Indenture
or the Notes, in certain cases subject to notice and lapse of time; (iv) certain
accelerations (including failure to pay within any grace period after final
maturity) of other Indebtedness of the Company, any Guarantor or any Significant
Subsidiary if the amount accelerated (or so unpaid) exceeds $10 million; (v)
certain events of bankruptcy or insolvency with respect to the Company, any
Guarantor and the Significant Subsidiaries; (vi) certain judgments or decrees
for the payment of money in excess of $10 million; and (vii) certain defaults
with respect to Guaranties. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount at maturity of the
Notes may declare all the Notes to be due and payable by notice in writing to
the Company and the Trustee, and upon such declaration, the Notes will be due
and payable immediately. Certain events of bankruptcy or insolvency are Events
of Default
13
which will result in the Notes being due and payable immediately upon the
occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security against any loss,
liability or expense. Subject to certain limitations, Holders of a majority in
principal amount at maturity of the Notes may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Noteholders notice of any
continuing Default (except a Default in payment of principal (or Accreted Value,
if applicable) or interest) if it determines that withholding notice is in the
interest of the Holders.
16. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
17. NO RECOURSE AGAINST OTHERS
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor will have any liability for any obligations of the
Company or any Guarantor under the Notes, any Guaranty or the Indenture or for
any claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder of the 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.
18. AUTHENTICATION
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
19. ABBREVIATIONS
Customary abbreviations may be used in the name of a Noteholder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants
14
with rights of survivorship and not as tenants in common), CUST (=custodian),
and U/G/M/A (=Uniform Gift to Minors Act).
20. CUSIP NUMBERS
The Company in issuing the Notes may use "CUSIP" numbers and
corresponding "ISINs" (if then generally in use) and, if so, the Trustee shall
use "CUSIP" numbers and corresponding "ISINs" 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.
21. HOLDERS' COMPLIANCE WITH REGISTRATION RIGHTS AGREEMENT
Each Holder of a Note, by acceptance hereof, acknowledges and agrees
to the provisions of the Registration Rights Agreement, including the
obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.
22. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF
NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Noteholder upon written request and
without charge to the Noteholder a copy of the Indenture which has in it the
text of this Note in larger type. Requests may be made to:
Tabletop Holdings, Inc.
c/o Merisant Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
15
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
___________________________________________________________________________
(Print or type assignee's name, address and zip code)
___________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ____________________ agent to transfer this Note on
the books of the Company. The agent may substitute another to act for him.
Date: _______________________ Your Signature:______________________________
___________________________________________________________________________
Sign exactly as your name appears on the other side of this Note.
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in
Rule 144(k) under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), after the later of the date of the original issuance of such Notes
and the last date, if any, on which such Notes were owned by the Company or
any Affiliate of the Company, the undersigned confirms that such Notes are
being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) / / to the Company; or
(2) / / in the United States to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) that purchases for
its own account or for the account of a qualified institutional
buyer to whom notice is given that such transfer is being made in
reliance on Rule
16
144A, in each case pursuant to and in compliance with Rule 144A
under the Securities Act; or
(3) / / outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance
with Rule 904 under the Securities Act; or
(4) / / pursuant to the exemption from registration provided by Rule 144
under the Securities Act; or
(5) / / pursuant to an effective registration statement under the
Securities Act.
If such transfer is being made pursuant to an offshore transaction in
accordance with Rule 904 under the Securities Act, the undersigned further
certifies that:
(i) the offer of the Notes was not made to a person in the United
States;
(ii) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(iii) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903 or Rule 904 of Regulation
S, as applicable;
(iv) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
(v) we have advised the transferee of the transfer restrictions
applicable to the Notes; and
(vi) if the circumstances set forth in Rule 904(B) under the
Securities Act, are applicable, we have complied with the additional
conditions therein, including (if applicable) sending a confirmation or
other notice stating that the Notes may be offered and sold during the
distribution compliance period specified in Rule 903 of
17
Regulation S; pursuant to registration of the Notes under the Securities
Act; or pursuant to an available exemption from the registration
requirements under the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of any
person other than the registered holder thereof; PROVIDED, HOWEVER, that if
box (3) or (4) is checked, the Trustee shall be entitled to require, prior
to registering any such transfer of the Notes, such legal opinions,
certifications and other information as the Company has reasonably
requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act such as the exemption provided by Rule
144 under such Act.
---------------------------------------
Signature
Signature Guarantee:
-------------------------------------------------------
(Signature must be guaranteed)
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.
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities
Act and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has
18
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Dated:
----------------- -----------------------------
NOTICE: To be executed by
an executive officer
19
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been
made:
Date of Exchange Amount of Amount of Principal Signature of
decrease in increase in amount at authorized
principal principal maturity of officer of
amount at amount at this Global Trustee or
maturity of maturity of Note following Notes Custodian
this Global this Global such decrease
Note Note or increase
20
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.04 or 4.10 of the Indenture, check the box: / /
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.04 or 4.10 of the Indenture, state the amount in
principal amount at maturity: $_____________
Date: Your Signature:
------------ -----------------------------------
(Sign exactly as your name appears
on the other side of this Note.)
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed)
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.
EXHIBIT 2
to
APPENDIX A
[FORM OF FACE OF EXCHANGE NOTE
OR PRIVATE EXCHANGE NOTE] */**/
FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, THIS NOTE IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT; FOR
EACH $1,000 PRINCIPAL AMOUNT OF THIS NOTE, THE ISSUE PRICE IS $-, THE ISSUE
DATE IS -, 20- AND THE YIELD TO MATURITY IS 12 1/4% PER ANNUM.
No.- $-
CUSIP No. -
ISIN No. -
12 1/4% Senior Subordinated Discount Notes Due 2014
TABLETOP HOLDINGS, INC., a Delaware corporation, promises to pay to -,
or registered assigns, the principal sum of - DOLLARS, or such greater or lesser
amount as may from time to time be endorsed on the Schedule of Increases or
Decreases in Global Note attached hereto (but in no event may such amount exceed
the stated aggregate principal amount at maturity of Notes authenticated
pursuant to Section 2.2 of Appendix A to the Indenture referred to below and
then outstanding pursuant to Section 2.08 of the Indenture), on May 15, 2014.
Interest Payment Dates: May 15 and November 15, commencing May 15, 2009.
Record Dates: May 1 and November 1.
EXHIBIT 2
to
APPENDIX A
Additional provisions of this Note are set forth on the other side of
this Note.
Dated: -, 20-
TABLETOP HOLDINGS, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
By:
---------------------------
Name:
-------------------------
Title:
------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
[TRUSTEE],
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
By:
-----------------------------------
Authorized Signatory
----------
*/If the Note is to be issued in global form add the Global Note legend from
EXHIBIT 1 to APPENDIX A and the attachment from such EXHIBIT 1 captioned "TO BE
ATTACHED TO GLOBAL NOTES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE".
**/If the Note is a Private Exchange Note issued in a Private Exchange to an
Initial Purchaser holding an unsold portion of its initial allotment, add the
restricted securities legend from EXHIBIT 1 to APPENDIX A and replace the
Assignment Form included in this EXHIBIT 2 with the Assignment Form included in
such EXHIBIT 1.
3
[FORM OF REVERSE SIDE OF EXCHANGE NOTE
OR PRIVATE EXCHANGE NOTE]
12 1/4% Senior Subordinated Discount Notes Due 2014
1. INTEREST
TABLETOP HOLDINGS, INC., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "COMPANY"), promises to pay interest on the principal amount
of this Note at the rate per annum shown above; PROVIDED, HOWEVER, that if a
Registration Default (as defined in the Registration Rights Agreement) occurs,
additional interest will accrue on this Note at a rate specified in the
Registration Rights Agreement. The Accreted Value of this Note will increase
from the date of issuance until November 15, 2008 at a rate of 12 1/4% per
annum, reflecting the accrual of non-cash interest, such that the Accreted Value
(as defined in the Indenture) will equal the stated principal amount at maturity
on November 15, 2008. Cash interest will accrue on the Notes at the rate of 12
1/4% per annum from November 15, 2008, or from the most recent date to which
interest has been paid, and will be payable semiannually in arrears on May 15
and November 15 of each year, commencing May 15, 2009, to the holders of record
at the close of business on May 1 or November 1, as applicable, immediately
preceding the interest payment date. Interest on overdue principal (or Accreted
Value, if applicable) (and, to the extent lawful, on overdue installments of
interest) shall accrue at the rate that is 1% per annum in excess of the rate
specified in the preceding sentence. The Accreted Value of any Additional Notes
will equal the Accreted Value of the Notes on any Specified Date. Cash interest
will accrue on Additional Notes from November 15, 2008 if issued prior to or on
such date, or from the most recent date to which interest has been paid.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. METHOD OF PAYMENT
The Company will pay interest on the Notes (except defaulted interest)
to the Persons who are registered holders of Notes at the close of business on
the May 1 or November 1 next preceding the interest payment date even if Notes
are canceled after the record date and on or before the interest payment date.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company will pay principal (or Accreted Value, if applicable) and interest
in money of the United States that at the time of payment is legal tender for
payment of
4
public and private debts. Payments in respect of the Notes represented by a
Global Note (including principal (or Accreted Value, if applicable), premium and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. The Company will make all
payments in respect of a certificated Note (including principal (or Accreted
Value, if applicable), premium and interest) by mailing a check to the
registered address of each Holder thereof; PROVIDED, HOWEVER, that payments on a
certificated Note will be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 30 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, [THE TRUSTEE] (the "TRUSTEE"), will act as Paying Agent and
Registrar. The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice. The Company or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. INDENTURE
The Company issued the Notes under an Indenture dated as of November
12, 2003 (as such may be amended or supplemented from time to time,
"INDENTURE"), between the Company 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 (15 U.S.C. Sections 77aaa-77bbbb)
as in effect on the date of the Indenture (the "TIA"). Terms defined in the
Indenture and not defined herein have the meanings ascribed thereto in the
Indenture. The Notes are subject to all such terms, and Noteholders are referred
to the Indenture and the TIA for a statement of those terms.
The Notes are general unsecured obligations of the Company. The
Company shall be entitled, subject to its compliance with Sections 2.13 and 4.06
of the Indenture, to issue Additional Notes pursuant to Section 2.13 of the
Indenture. The Initial Notes issued on the Issue Date, any Additional Notes and
all Exchange Notes or Private Exchange Notes issued in exchange therefor will be
treated as a single class for all purposes under the Indenture. The Indenture
contains covenants that limit the ability of the Company and its
5
subsidiaries to incur additional indebtedness; layer indebtedness; pay dividends
or distributions on, or redeem or repurchase capital stock; make investments;
engage in transactions with affiliates; create liens on assets; transfer or sell
assets; restrict dividends or other payments from subsidiaries; conduct
operations other than as a holding company; and consolidate, merge or transfer
all or substantially all of its assets and the assets of its subsidiaries. These
covenants are subject to important exceptions and qualifications.
5. OPTIONAL REDEMPTION
Except as set forth below, the Company shall not be entitled to redeem
the Notes at its option prior to November 15, 2008.
(a) On and after November 15, 2008, the Company shall be entitled at
its option to redeem all or a portion of the Notes upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed in percentages of
Accreted Value on the redemption date), plus accrued and unpaid interest
thereon, 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 12-month period
commencing on November 15 of the years set forth below:
Redemption
Period Price
------ ----------
2008 106.125%
2009 104.083%
2010 102.042%
2011 and thereafter 100.000%
In addition, before November 15, 2006, the Company may at its option
on one or more occasions redeem Notes (which includes Additional Notes, if any)
in an aggregate principal amount at maturity not to exceed 35% of the aggregate
principal amount at maturity of the Notes (which includes Additional Notes, if
any) originally issued at a redemption price (expressed as a percentage of
Accreted Value thereof at the redemption date) of 112.25%, plus accrued and
unpaid interest to the redemption date, with the Net Cash Proceeds from one or
more Qualified Equity Offerings; PROVIDED, HOWEVER, that (1) at least 65% of
such aggregate principal amount at maturity of Notes (which excludes Additional
Notes, if any) remains outstanding
6
immediately after the occurrence of each such redemption (other than Notes held,
directly or indirectly, by the Company or its Affiliates); (2) each such
redemption occurs within 60 days after the date of the related Qualified Equity
Offering; and (3) if the Qualified Equity Offering is an offering by Parent, a
portion of the Net Cash Proceeds thereof equal to the amount required to redeem
any such Notes is contributed to the equity capital of the Company or used to
acquire from the Company Capital Stock (other than Disqualified Stock) of the
Company.
(b) At any time on or prior to the date that is three years after the
Issue Date, if a Change of Control occurs the Company may at its option redeem
all, but not less than all, of the Notes upon not less than 30 nor more than 60
days' prior notice, at a redemption price equal to the sum of 100% of the
Accreted Value of the Notes as of the redemption date, a premium equal to the
One Year's Coupon, and accrued and unpaid interest, if any, to, the date of
redemption. If the Company elects to exercise the redemption right set forth in
this paragraph (the "THREE-YEAR CHANGE OF CONTROL REDEMPTION RIGHT"), it must do
so by mailing a notice to each Holder with a copy to the Trustee within 30 days
following the Change of Control and before mailing notice of a Change of Control
Offer, and the Company will not make a Change of Control Offer. If the Company
has made a Change of Control Offer, it may not exercise the Three-Year Change of
Control Redemption Right.
(c) At any time on or prior to the First Call Date, after the
completion of a Change of Control Offer that was accepted by Holders of Notes
having an Accreted Value of not less than 75% of the total Accreted Value of
Notes then outstanding, the Company may redeem the Notes of any Holder who has
not accepted the Change of Control Offer (the "UNTENDERED NOTES") upon not less
than 30 nor more than 60 days' prior notice but in no event more than 90 days
after the completion of such Change of Control Offer, mailed by first-class mail
to each Holder's registered address, at a redemption price equal to 100% of the
Accreted Value of the Untendered Notes at the redemption date plus the
Applicable Premium as of, and accrued and unpaid interest, if any, to, the date
of redemption (the "CHANGE OF CONTROL REDEMPTION DATE"), except that
installments of interest which are due and payable on dates falling on or prior
to the applicable redemption date will be payable to the Persons who were the
Holders of record at the close of business on the relevant record dates.
6. NOTICE OF REDEMPTION
7
Notice of redemption will be mailed by first class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Notes to be redeemed at the Holder's registered address. Notes in denominations
of $1,000 principal amount at maturity or less may be redeemed in whole and not
in part. Notes in denominations larger than $1,000 principal amount at maturity
may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued interest on all Notes (or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date Accreted Value will cease to accrete and
interest will cease to accrue on such Notes (or such portions thereof) called
for redemption unless the Company defaults in making the redemption payment.
7. PUT PROVISIONS
Upon a Change of Control, if the Company has not exercised the
Three-Year Change of Control Redemption Right (if applicable), each Holder will
have the right to require that the Company purchase such Holder's Notes at a
purchase price equal to 101% of the Accreted Value of the Notes to be purchased
plus accrued and unpaid interest, if any, to the date of purchase (subject to
the right of holders of record on the relevant record date to receive interest
due on the related interest payment date) as provided in, and subject to the
terms of, the Indenture.
In certain circumstances, the Company must use the Net Available Cash
from Asset Dispositions to make an offer to Holders to purchase Notes at a
purchase price of 100% of the principal amount (or Accreted Value, if
applicable), plus accrued and unpaid interest.
8. SUBORDINATION
The Notes are subordinated to Senior Indebtedness of the Company. To
the extent provided in the Indenture, Senior Indebtedness of the Company must be
paid before the Notes may be paid. The Company agrees, and each Noteholder by
accepting a Note agrees, to the subordination provisions contained in the
Indenture and authorizes the Trustee to give it effect and appoints the Trustee
as attorney-in-fact for such purpose.
9. GUARANTY
8
On the Issue Date, this Note was not, and the Credit Agreement
prohibited this Note from being, guaranteed by any of the Company's
Subsidiaries. The Company may elect to cause a Subsidiary to become a Guarantor
in the future if and to the extent the Credit Facilities then so permit, and, in
certain circumstances, the Company may be required to do so.
10. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in registered form without coupons in denominations of
$1,000 principal amount at maturity and whole multiples of $1,000. A Holder may
transfer or exchange Notes in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange any
Notes selected for redemption (except, in the case of a Note to be redeemed in
part, the portion of the Note not to be redeemed) or any Notes for a period of
15 days before the mailing of a notice of redemption of Notes to be redeemed or
15 days before a Semi-Annual Accrual Date or an interest payment date, as
applicable.
11. PERSONS DEEMED OWNERS
The registered Holder of this Note may be treated as the Note's owner
for all purposes.
12. UNCLAIMED MONEY
If money for the payment of principal (or Accreted Value, if
applicable) or interest remains unclaimed for two years, the Trustee or Paying
Agent shall pay the money back to the Company at its request unless an abandoned
property law designates another Person. After any such payment, Holders entitled
to the money must look only to the Company and not to the Trustee for payment.
13. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time shall be
entitled to terminate some or all of its obligations under the Notes and the
Indenture if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal (or Accreted Value, if applicable) and
interest on the Notes to redemption or maturity, as the case may be.
9
14. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture and the Notes may be amended with the written consent of the Holders
of at least a majority in principal amount at maturity outstanding of the Notes
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount at maturity
outstanding of the Notes. Subject to certain exceptions set forth in the
Indenture, without the consent of any Noteholder, the Company, the Guarantors,
if any, and the Trustee shall be entitled to amend the Indenture or the Notes to
cure any ambiguity, omission, defect or inconsistency, to comply with Article 5
of the Indenture, to provide for uncertificated Notes in addition to or in place
of certificated Notes, to add guarantees with respect to the Notes, including
any Guaranties, to secure the Notes, to add additional covenants or surrender
rights and powers conferred on the Company or any Guarantors, to comply with any
request of the SEC in connection with qualifying the Indenture under the TIA, to
make any change that does not adversely affect the rights of any Noteholder, or
to evidence the release of a Guarantor in accordance with the Indenture.
15. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include: (i) default in payment
of interest on the Notes, continued for 30 days; (ii) default in payment of
principal on the Notes at maturity, upon optional redemption pursuant to
paragraph 5 of the Notes, upon declaration of acceleration or otherwise, or
failure by the Company to redeem or purchase Notes when required; (iii) failure
by the Company or any Guarantor to comply with other agreements in the Indenture
or the Notes, in certain cases subject to notice and lapse of time; (iv) certain
accelerations (including failure to pay within any grace period after final
maturity) of other Indebtedness of the Company, any Guarantor or any Significant
Subsidiary if the amount accelerated (or so unpaid) exceeds $10 million; (v)
certain events of bankruptcy or insolvency with respect to the Company, any
Guarantor and the Significant Subsidiaries; (vi) certain judgments or decrees
for the payment of money in excess of $10 million; and (vii) certain defaults
with respect to Guaranties. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount at maturity of the
Notes may declare all the Notes to be due and payable by notice in writing to
the Company and the Trustee, and upon such declaration, the Notes will be due
and payable immediately.
10
Certain events of bankruptcy or insolvency are Events of Default which will
result in the Notes being due and payable immediately upon the occurrence of
such Events of Default.
Noteholders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security against any loss,
liability or expense. Subject to certain limitations, Holders of a majority in
principal amount at maturity of the Notes may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Noteholders notice of any
continuing Default (except a Default in payment of principal (or Accreted Value,
if applicable) or interest) if it determines that withholding notice is in the
interest of the Holders.
16. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
17. NO RECOURSE AGAINST OTHERS
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor will have any liability for any obligations of the
Company or any Guarantor under the Notes, any Guaranty or the Indenture or for
any claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder of the 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.
18. AUTHENTICATION
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
19. ABBREVIATIONS
Customary abbreviations may be used in the name of a Noteholder or an
assignee, such as TEN COM (=tenants in common),
11
TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A
(=Uniform Gift to Minors Act).
20. CUSIP NUMBERS
The Company in issuing the Notes may use "CUSIP" numbers and
corresponding "ISINs" (if then generally in use) and, if so, the Trustee shall
use "CUSIP" numbers and corresponding "ISINs" 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.
21. HOLDERS' COMPLIANCE WITH REGISTRATION RIGHTS AGREEMENT
Each Holder of a Note, by acceptance hereof, acknowledges and agrees
to the provisions of the Registration Rights Agreement, including the
obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.
22. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF
NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Noteholder upon written request and
without charge to the Noteholder a copy of the Indenture which has in it the
text of this Note in larger type. Requests may be made to:
Tabletop Holdings, Inc.
c/o Merisant Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
12
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
____________________________________________________________
(Print or type assignee's name, address and zip code)
____________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ________________________ agent to transfer this
Note on the books of the Company. The agent may substitute another to act
for him.
____________________________________________________________
Date: Your Signature:
------------------- --------------------
____________________________________________________________
Sign exactly as your name appears on the other side of this Note.
13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.04 or 4.10 of the Indenture, check the box: / /
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.04 or 4.10 of the Indenture, state the amount in
principal amount at maturity: $_____________
Date: Your Signature:
------------ ----------------------------------
(Sign exactly as your name appears
on the other side of this Note.)
Signature Guarantee:
----------------------------------------------------------
(Signature must be guaranteed)
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.