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EXHIBIT 4.3
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EXECUTION COPY
PREMIUM STANDARD FARMS, INC.
Issuer
PSF HOLDINGS, L.L.C.
Guarantor
FLEET NATIONAL BANK
Trustee
---------------------------
Indenture
Dated as of September 17, 1996
---------------------------
$117,500,000
11% SENIOR SECURED NOTES
DUE 2003
(Partial Pay-in-Kind)
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2
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section
---------------
Section 310 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not
Applicable
(a) (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not
Applicable
(a) (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not
Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not
Applicable
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not
Applicable
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
7.2 (a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 (b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 (c)
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 (a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 (a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 (a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 (b)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4;
10.17; 10.22
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.2
(c) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not
Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.3
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1, 6.3
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1; 6.3
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1
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Trust Indenture Indenture
Act Section
---------------
last sentence
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not
Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 (c)
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.7
________________
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
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TABLE OF CONTENTS
ARTICLE I - Definitions and Other Provisions
of General Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.2. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 1.3. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 1.4. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 1.5. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 1.6. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 1.7. Application of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 1.8. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 1.9. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 1.10. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 1.11. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 1.12. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 1.13. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE II - Security Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.1. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.2. Forms of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.3. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.4. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.5. Form of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.6. Form of Legend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE III - The Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.1. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.2. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.3. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.4. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.5. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.7. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.8. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.9. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.10. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE IV - Satisfaction and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.1. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.2. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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ARTICLE V - Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.3. Collection of Debt and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.4. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.5. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . . . . . 43
SECTION 5.6. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.7. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest. . . . . . . . . . . . 45
SECTION 5.9. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.11. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.12. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.15. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE VI - The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.1. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.2. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.3. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities. . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.5. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.6. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.7. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.8. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.9. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.10. Resignation and Removal; Appointment of Successor. . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.11. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . 53
SECTION 6.13. Preferential Collection of Claims Against Company. . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE VII - Holders' Lists and Reports by Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.2. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.3. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.4. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE VIII - Merger, Consolidation, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.1. Company or the Guarantor May Merge, Consolidate, etc....
Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.2. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE IX - Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 9.1. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 9.2. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 9.3. Execution of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
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SECTION 9.4. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 9.5. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 9.6. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 9.7. Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE X - Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.1. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.2. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.3. Money for Security Payments to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.4. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.5. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 10.6. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 10.7. Maintenance of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 10.8. Limitation on Consolidated Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 10.9. Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 10.10. Limitations Concerning Disposal of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 10.11. Permitted Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.12. Limitation on Issuance of Capital Stock of Subsidiaries . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.13. Dividends and Distributions; Liens Affecting Subsidiaries . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.14. Limitations on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.15. Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 10.16. Limitation on Related Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 10.17. Provision of Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 10.18. Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.19. Environmental and Safety Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 10.20. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 10.21. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 10.22. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 10.23. Compliance with Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE XI - Redemption of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.1. Right of Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.2. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.3. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.4. Selection by Trustee of Securities to be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 11.5. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 11.6. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 11.7. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 11.8. Securities Redeemed in Part 77
ARTICLE XII - Defeasance and Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 12.1. Company's Option to Effect Defeasance or Covenant Defeasances . . . . . . . . . . . . . . . . . . 78
SECTION 12.2. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 12.3. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 12.4. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 12.5. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 12.6. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
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ARTICLE XIII - Meeting of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 13.1. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 13.2. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 13.3. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 13.4. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 13.5. Determination of Voting Rights; Conduct and Adjournment of Meetings. . . . . . . . . . . . . . . 83
SECTION 13.6. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . 84
ARTICLE XIV - Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 14.1. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 14.2. Execution and Delivery of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 14.3. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 14.4. No waiver, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 14.5. Modification, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
ARTICLE XV - Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 15.1. Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 15.2. Recording, Opinion of Counsel, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 15.3. Trust Indenture Act Requirements; Release of Collateral . . . . . . . . . . . . . . . . . . . . . 90
SECTION 15.4. Release of Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 15.5. Impairment of Security Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 15.6. Authorization of Receipt of Funds by the Trustee Under the Security Documents . . . . . . . . . . 91
ARTICLE XVI - Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 16.1. Usury Savings Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
EXHIBIT A - Form of Subsidiary Guaranty Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B - Form of Security and Collateral Agency Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C - Form of Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
EXHIBIT D - Form of Indemnity, Subrogation and Contribution Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . ▇-▇
▇▇▇▇▇▇▇ ▇ - ▇▇▇▇ ▇▇ ▇▇▇▇▇ Deed of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-1
EXHIBIT F - Form of Missouri Deed of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-1
EXHIBIT G - Form of Intercreditor Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G-1
EXHIBIT H - Form of Assignment of Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . H-1
EXHIBIT I - Form of Consent and Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1
-iv-
8
INDENTURE, dated as of September 17, 1996 between Premium Standard
Farms, Inc., a Delaware corporation (herein called the "Company"), having its
principal office at ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, PSF Holdings,
L.L.C., a Delaware limited liability company (herein called the "Guarantor"),
having its principal office at ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
Fleet National Bank, a national banking association having its principal office
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the creation of an issue of
up to $117,500,000 aggregate original principal amount of its 11% Senior
Secured Notes due 2003 (the "Securities") of substantially the tenor
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
WHEREAS, all things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company and the Guarantor in accordance with their and
its terms, have been done.
WHEREAS, pursuant to the Amended Joint Plan of Reorganization, dated
July 29, 1996 of PSF Finance L.P., a Delaware limited partnership, and certain
of its affiliates (the "Plan") confirmed on September 17, 1996 by an order of
the bankruptcy court pursuant to Section 1129 of the United States Bankruptcy
Code, $117,500,000 aggregate original principal amount of the Securities are to
be issued to the holders of, and in exchange for the claims of, the 12% Senior
Secured Exchange Notes due 2000, 12% Senior Secured Exchange Discount Notes due
2003, 12 1/4% Senior Secured Exchange Notes due 2004, 12 1/4% Senior Secured
Notes due 1997 and 12 1/2% Exchangeable Preference Units of PSF Finance L.P.
and to an affiliate of PSF Finance L.P. in exchange for a specified amount of
cash and cancellation of certain capital contribution notes held by ▇▇▇▇▇▇▇▇
Farm, Inc., a Missouri corporation.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises, and the exchange of certain
claims and the purchase of the Securities by certain Holders pursuant to the
Plan, the Company and the Guarantor, jointly and severally, covenant and agree,
for the equal and proportionate benefit of all Holders of the Securities, with
the Trustee as follows:
9
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles;
(4) unless otherwise specifically set forth herein, all
calculations or determinations of a person shall be performed or made
on a consolidated basis in accordance with generally accepted
accounting principles;
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision; and
(6) whenever the Trustee or Collateral Agent requires
information as to the rights and obligations of the parties to the
Note Agreement (including without limitation the identities of the
Purchasers and holders of Second Priority Notes and the amounts of
Second Priority Obligations for principal, interest and other claims
owed to them each) it may request the Company to provide such
information by an Officers' Certificate, upon which the Trustee and
Collateral Agent may conclusively rely and which the Company covenants
promptly to provide.
Certain terms, used principally in Article VI (The Trustee), are
defined in that Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4 hereof.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such 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
2
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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.
"Asset Disposition" shall mean, with respect to any Person, any sale,
lease, transfer, condemnation, loss in an insured event or other disposition
(including by way of merger, consolidation or sale and leaseback transaction,
but excluding any sales of assets or property that (i) are substantially
concurrently replaced with the proceeds of such sale and (ii) are no longer
used or useful in the business of such Person) in one transaction or a series
of related transactions by such Person or any of its subsidiaries to any Person
other than the Guarantor, the Company or any of its Wholly Owned Subsidiaries
of (a) any of the Capital Stock of any subsidiary of such Person, (b) all or
substantially all of the Real Property, Leaseholds or Personal Property of such
Person or any of its subsidiaries or (c) any other Real Property, Leaseholds or
Personal Property of such Person or any of its subsidiaries, except, in the
case of clause (c), for (i) sales of inventory, livestock, processed pork
inventories, breeding stock, grain, feedstock or Hedge Agreements in the
ordinary course of business and (ii) any sale, lease, transfer or other
disposition in one transaction or a series of related transactions of Real
Property, Leaseholds or Personal Property with a value not in excess of
$250,000.
"Assignment of Contracts" shall mean the Assignment of Contracts
between the Company and the Collateral Agent, substantially in the form of
Exhibit H.
"Average Life" means, as of the date of determination with respect to
any Debt, the quotient obtained by dividing (a) the sum of the products of (i)
the number of years from such date to the date or dates of each successive
scheduled principal payment of such Debt multiplied by (ii) the amount of each
such principal payment by (b) the sum of all such principal payments.
"Benefit Plan" shall mean any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 307 of ERISA, and in respect of which the
Company or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to close.
3
11
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of real or personal property of
such Person which is required to be classified and accounted for as a capital
lease or a liability on the face of a balance sheet of such Person in
accordance with generally accepted accounting principles. The stated maturity
of such obligation 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,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Change of Control" has the meaning specified in Section 10.18.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all of the property and possessions, and the
proceeds thereof, pledged and mortgaged under the Security Documents and all
the "Trust Premises" as defined in each Mortgage.
"Collateral Agent" means the Trustee, in its capacity as Collateral
Agent under the Security Documents.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution
of assets upon any voluntary or involuntary liquidation, dissolution or winding
up of such Person, to shares of Capital Stock of any other class of such
Person.
"Company" means Premium Standard Farms, Inc., a Delaware corporation,
until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture and thereafter shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman or Vice- Chairman of the
Board, its President, a Vice President, its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consent and Agreement" shall mean the Consent and Agreement of Pig
Improvement Company, Inc., substantially in the form of Exhibit I.
4
12
"Consolidated" means, when used in reference to any term, that term as
applied to the accounts of the Company, the Guarantor and all of their
Subsidiaries, or such of their Subsidiaries as may be specified, consolidated
(or combined) in accordance with generally accepted accounting principles and
with appropriate deductions for minority interests in such Subsidiaries.
"Consolidated EBITDA" means, with respect to any Person for any
period, (a) the sum of the amounts for such period of Consolidated Net Income,
plus, to the extent deducted in determining such Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) federal, state and local income taxes,
(iii) depreciation expense, (iv) amortization expense and (v) any non-cash
charges or non-cash losses, minus (b) to the extent included in determining
such Consolidated Net Income, the sum of the amounts for such period of (i)
interest income, (ii) any non-cash gains and (iii) any extraordinary gains and
gains received by such Person from sales of assets (other than sales of
inventory, breeding stock, grain, feedstock or Hedge Agreements in the ordinary
course of business).
"Consolidated Interest Expense" for any Person means for any period
the Consolidated interest expense included in a Consolidated income statement
(without deduction of interest income) of such Person and its Subsidiaries for
such period included in the Consolidated financial statements in accordance
with generally accepted accounting principles.
"Consolidated Net Income" of any Person means for any period the
Consolidated net income (or loss) of such Person for such period determined on
a Consolidated basis in accordance with generally accepted accounting
principles; provided that there shall be excluded therefrom (a) the net income
(or net loss) of any Person acquired by such Person or a Subsidiary of such
Person in a pooling-of-interests transaction for any period prior to the date
of such transaction, (b) the net income (or net loss) of any Subsidiary of such
Person which is subject to restrictions which prevent the payment of dividends
or the making of distributions to such Person to the extent of such
restrictions, (c) the net income (or net loss) of any Person that is not a
Subsidiary of such Person except to the extent of the amount of dividends or
other distributions actually paid to such Person by such other Person during
such period, (d) gains or losses on Asset Dispositions by such Person, (e) all
extraordinary gains and extraordinary losses and (f) amortization of any
discount arising out of the sale of the Securities.
"Consolidated Net Worth" of any Person as of any date of determination
means the stockholders' equity of such Person and its Subsidiaries at such date
determined in accordance with generally accepted accounting principles on a
Consolidated basis.
"Corporate Trust Office" means the principal office of the Trustee in
Boston, Massachusetts, New York, New York, or such other jurisdiction within
the United States as the Company may approve, at which at any particular time
its corporate trust business shall be administered.
5
13
"Corporation" means a corporation, association, company, joint-stock
company, partnership or business trust.
"Credit Agreement" means the Credit Agreement, dated as of September
17, 1996, among the Company, the lending banks identified therein and The Chase
Manhattan Bank, a New York banking corporation, as administrative agent for
such lending banks, providing initially for a revolving credit loan of up to
$60,000,000 (the "Credit Loan") and a term loan of $30,000,000 (the "Term
Loan"), secured by a first priority lien on substantially all of the assets of
the Company pursuant to the Security Document of even date therewith, as at any
time amended, extended or otherwise modified, restated or refinanced.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
the Company or any Subsidiary against fluctuations in currency values.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person, (i) every
obligation of such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments
including obligations Incurred in connection with the acquisition of property,
assets or businesses (but excluding trade accounts payable or similar accrued
liabilities arising in the ordinary course of business), (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptance or similar facilities issued for the account of such
Person, (iv) every obligation of such Person upon which interest charges are
customarily paid, (v) every obligation of such Person issued or assumed as the
deferred and unpaid purchase price of property or services (but excluding trade
accounts payable or similar accrued liabilities arising in the ordinary course
of business), (vi) every Capital Lease Obligation of such Person, (vii) the
maximum fixed mandatory redemption or repurchase price of Redeemable Stock of
such Person at the time of determination, (viii) all Debt of others secured by
a Lien on any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person, and (ix) every obligation of the type referred to in
Clauses (i) through (viii) of another Person and all dividends of another
Person the payment of which, in either case, such Person has guaranteed or is
responsible or liable for, directly or indirectly, as obligor, guarantor or
otherwise, if and to the extent any of the foregoing debt would appear as a
liability upon a balance sheet of such person prepared on a Consolidated basis
in accordance with generally accepted accounting principles.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Effective Date" means the date of the effectiveness of the Plan.
"Environmental and Safety Laws" mean any applicable treaties, laws,
rules, regulations, codes, ordinances, decrees, judgments, injunctions, or
binding agreements issued, promulgated or entered into by any Governmental
Authority, relating in any way to the environment, preservation or reclamation
6
14
of natural resources, the management, release or threatened release of any
Hazardous Material or to employee health and safety matters, including the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act, the Federal Water Pollution Control
Act, the Clean Air Act, the Toxic Substances Control Act, the Occupational
Safety and Health Act, the Emergency Planning and Community Right-to-Know Act,
the Hazardous Materials Transportation Act and any similar or implementing
state or local law, and all amendments or regulations promulgated thereunder.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"Event of Default" has the meaning specified in Section 5.1.
"Excess EBITDA" shall mean, for any period of four consecutive fiscal
quarters, the excess, if any, of (a) the Consolidated EBITDA of the Guarantor,
the Company and any Subsidiaries for such period over (b) the Consolidated
EBITDA required to have been achieved for such period pursuant to Section 6.12
of the Credit Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expiration Date" has the meaning specified in the definition of Offer
to Purchase.
"Governmental Actions" means authorizations, approvals, consents,
waivers, exceptions, licenses, filings, registrations, rulings, permits,
certificates, exemptions and other similar actions or requirements by, with of
from any Governmental Authority.
"Governmental Authority" means any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" means the guarantee contained in Article XIV hereof given
by the Guarantor or any guarantee contained in a Subsidiary Guarantee
Agreement, each as amended, extended or otherwise modified from time to time.
"Guarantor" means PSF Holdings, L.L.C., a Delaware limited liability
company, and its successors and assigns.
"Hazardous Materials" means all explosive or radioactive substances or
wastes, hazardous or toxic substances or wastes, pollutants, solid, liquid or
gaseous wastes, including petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, infectious or medical wastes and all
other substances or wastes of any nature regulated pursuant to any
Environmental and Safety Law.
7
15
"Hedge Agreement" of any Person means any contract for, or option,
put, Currency Agreement or similar arrangement relating to, the purchase by
such Person of (a) grain, soy meal and other feed ingredients or related
hedging activities conducted in accordance with prudent business practice and
(b) hogs and related hedging activities conducted in accordance with prudent
business practice, in each case that are created to protect such Person against
price fluctuations and not for speculative purposes.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Inactive Subsidiary" shall mean, at any time, any Subsidiary of the
Company that has no Debt at such time, less than $1,000 in assets at such time
and has not engaged in any business activities within the previous 6 months.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
guarantee or otherwise become liable in respect of such Debt or other
obligation or the recording, as required pursuant to generally accepted
accounting principles or otherwise, of any such Debt or other obligation on the
balance sheet of such Person (and "Incurrence," "Incurred," "Incurrable" and
"Incurring" shall have meanings correlative to the foregoing); provided,
however, that a change in generally accepted accounting principles that results
in an obligation of such Person that exists at such time becoming Debt shall
not be deemed an Incurrence of such Debt.
"Indemnity Agreement" shall mean the Indemnity, Subrogation and
Contribution Agreement, dated of even date herewith, substantially in the form
of Exhibit C hereto, as amended, supplemented or otherwise modified from time
to time, among the Company and the Subsidiary Guarantors identified therein.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Intercreditor Agreement" shall mean the Intercreditor Agreement, of
even date herewith, substantially in the form of Exhibit G hereto, among the
Company, the Guarantor, the Collateral Agent and the Senior Collateral Agent.
"Interest Coverage Ratio" means, with respect to the Company as of any
date, the ratio of (i) the aggregate amount of the Consolidated EBITDA of the
Guarantor, the Company and their Subsidiaries for the period since the
Effective Date but in no event more than four fiscal quarters for which
financial information in respect thereof is available immediately prior to such
date to (ii) the aggregate amount of the Consolidated Interest Expense of the
Guarantor, the Company and their Subsidiaries during such period since the
Effective Date but in no event more than four fiscal quarters.
"Interest Payment Date" has the meaning specified in Section 2.2.
8
16
"Investment" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution to (by means of transfers
of cash or other property to others or payments for property or services for
the account or use of others, or otherwise), or purchase or acquisition of
Capital Stock, bonds, notes, debentures or other securities or evidence of Debt
issued by any other Person, other than (i) loans or advances made to employees
in the ordinary course of business not in excess of $100,000 outstanding at any
time to any employee and (ii) advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of any
Person or its Subsidiaries and any securities received in settlement thereof.
"Leaseholds" of any Person shall mean all the right, title and
interest of such person as lessee or licensee in, to and under leases or
licenses of Real Property or fixtures annexed or to be annexed thereto.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including, without
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Majority Holders" means the holders of more than 50% of the sum of
(i) the aggregate outstanding principal amount of the Second Priority Notes and
(ii) the aggregate outstanding amount of the unused Purchase Commitments under
the Note Agreement and (iii) the aggregate outstanding principal amount of the
Securities at the time outstanding, as respectively determined from the records
of the Company and the Security Register, acting as a single class.
"Management Option Plan" means the 1996 Management Option Plan of the
Guarantor.
"Material Adverse Effect" means (a) a materially adverse effect on the
business, assets, operations or condition, financial or otherwise, of the
Company and its Subsidiaries (taken as a whole) or (b) a material impairment of
the rights of the Holders hereunder.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Member" means a Person admitted as an owner of a membership interest
in a limited liability company.
9
17
"Mineral Rights" shall mean rights and interests held by third parties
in the oil, gas and other minerals estate (including mineral and royalty
interests).
"Mortgages" means the mortgages, deeds of trust, leasehold mortgages,
assignments of leases and rents, amendments and modifications thereto pursuant
to Section 2.02 of the Security Agreement or Section 10.22 hereof to effect the
security interests intended by the Security Agreement, substantially in the
form of Exhibits E and F hereto, as amended, supplemented or otherwise modified
from time to time.
"▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Note Agreement" means the commitment to purchase up to
$10,000,000 in aggregate principal amount of Senior Secured Second Priority
Notes due 2002 (the "Second Priority Notes") under the Note Purchase Agreement
dated as of September 17, 1996, among the Company, the Guarantor and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Group Inc., as the same may from time to time be amended, extended or
otherwise modified, restated or refinanced.
"MSCP" shall mean ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Partners III, L.P., a
Delaware limited liability partnership.
"MS Group" shall mean ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group Inc., a Delaware
corporation.
"New Finishing Facility" shall mean a hog finishing facility acquired
or constructed by the Company after the Effective Date.
"New Finishing Facility Debt Service" shall mean, with respect to any
New Finishing Facility Debt, for any period the sum of the scheduled principal
and interest payments required to be made with respect to such New Finishing
Facility Debt during such period. For purposes of Section 10.8(vi), New
Finishing Facility Debt that bears interest at a floating rate for any period
shall be deemed to bear interest at a fixed rate for such period equal to the
interest rate thereon at the beginning of such period.
"New Finishing Facility Debt" shall mean Debt of the Company
(including Debt of others guaranteed by the Company) incurred after the
Effective Date to finance the construction or acquisition of New Finishing
Facilities, so long as the instruments governing such Debt do not contain (a)
any financial covenants or (b) any other covenants or defaults that are more
onerous to the Company than those contained in this Agreement (except for any
such covenants that relate solely to the New Finishing Facility financed
thereby).
"Non-Surviving Combination" shall have the meaning specified in
Section 8.1.
"Note Agreement" means the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Note Agreement.
"Obligations" shall have the meaning specified in Section 14.1.
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"Offer" has the meaning specified in the definition of Offer to
Purchase.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at its address
appearing in the Security Register on the date of the Offer, offering to
purchase up to the principal amount of Securities specified in such Offer at
the purchase price specified in such Offer (as determined pursuant to this
Indenture). Unless otherwise required by applicable law, the Offer shall
specify an expiration date (the "Expiration Date") of the Offer to Purchase
which shall be, subject to any contrary requirements of applicable law, not
less than 30 days or more than 65 days after the date of such Offer and a
settlement date (the "Purchase Date") for the purchase of Securities within
five Business Days after the Expiration Date. The Company shall notify the
Trustee at least 15 Business Days (or such shorter period as is acceptable to
the Trustee) prior to the mailing of the Offer of the Company's obligation to
make an Offer to Purchase, and the Offer shall be mailed by the Company or, at
the Company's request, by the Trustee in the name and at the expense of the
Company. The Offer shall contain information concerning the business of the
Company and its Subsidiaries which the Company in good faith believes will
enable such Holders to make an informed decision with respect to the Offer to
Purchase (which at a minimum will include (i) the most recent annual and
quarterly financial statements, (ii) a description of material developments in
the Company's business subsequent to the date of the latest of such financial
statements referred to in clause (i) (including a description of the events
requiring the Company to make the Offer to Purchase), (iii) if applicable,
appropriate pro forma financial information concerning the Offer to Purchase
and the events requiring the Company to make the Offer to Purchase, and (iv)
any other information required by applicable law to be included therein). The
Offer shall contain all instructions and materials necessary to enable such
Holder to tender Securities pursuant to the Offer to Purchase. The Offer shall
also state:
(1) the Section of the Indenture pursuant to which the Offer
to Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding
Securities offered to be purchased by the Company pursuant to the Offer
to Purchase (including, if less than 100%, the manner by which such has
been determined pursuant to the Section hereof requiring the Offer to
Purchase) (the "Purchase Amount");
(4) the purchase price (expressed as a percentage of
principal amount) to be paid by the Company for each Security accepted
for payment (as specified pursuant to this Indenture) (the "Purchase
Price");
(5) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that Securities
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tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Securities are to be
surrendered for tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered
but not purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the Purchase Price will become
due and payable upon each Security accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on
and after the Purchase Date;
(9) that each Holder electing to tender a Security pursuant
to the Offer to Purchase will be required to surrender such Security at
the place or places specified in the Offer prior to the close of
business on the Expiration Date, such Security being, if the Company or
the Trustee so requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing;
(10) that Holders will be entitled to withdraw all or any
portion of Securities tendered if the Company (or its Paying Agent)
receives, not later than the close of business two Business Days prior
to the Expiration Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
the Security the Holder tendered, the certificate number of the
Security the Holder tendered and a statement that such Holder is
withdrawing all or a portion of such tender;
(11) that if Securities in an aggregate principal amount less
than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Securities; and
(12) that in the case of any Holder whose Security is
purchased only in part, the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in an aggregate principal
amount equal to and in exchange for the unpurchased portion of the
Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with
applicable securities laws and regulations and the Offer for such Offer to
Purchase. An Offer to Purchase made pursuant to Section 10.10(b) hereof may
require Holders to furnish to the Trustee written notice of intention to have
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securities purchased on or before the date 35 days preceding the Purchase Date
as provided in that Section.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Treasurer, or the Secretary or Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President or any Vice President and
by the Chief Financial Officer, the Treasurer, the Secretary or the Assistant
Secretary of the Company or the Guarantor and delivered to the Trustee and
containing the statements provided for in Section 1.2.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee, and
containing the statements provided for in Section 1.2.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust for the Holders of
such Securities; provided, that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made; except that if any such Security so called for redemption shall
not be paid upon surrender thereof in accordance with said notice, such
Security shall be deemed Outstanding until such time as it is paid; and
(iii) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor of the Securities or an Affiliate of the
Company (other than a Permitted Holder) or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities so
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owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or an Affiliate of the Company
(other than a Permitted Holder) or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Holders" means any of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Co. Incorporated,
▇▇▇▇▇▇ Investment Management, GEM Capital Management Inc., The Prudential
Insurance Company of America, Loews Corporation and Hanwa Co., Limited, any of
the Affiliates of any of them and any funds or institutional accounts managed
or advised by any of them.
"Permitted Investments" shall include:
(i) certificates of deposit with final maturities of two years or
less issued by commercial banks organized under the laws of
either the United States of America having capital and surplus
in excess of $100,000,000;
(ii) commercial paper with minimum grade of A1 or P1;
(iii) a direct obligation of the United States of America or of a
United States of America agency with a maturity of two years
or less;
(iv) money market preferred stock rated "A" or above;
(v) shares of money market mutual or similar funds having assets
in excess of $100,000,000;
(vi) Hedge Agreements entered into by the Company or any Subsidiary
to the extent any such agreement is otherwise permitted
hereunder;
(vii) bank accounts maintained in any commercial bank;
(viii) endorsements of instruments for collection in the ordinary
course of business;
(ix) Investments in Wholly-Owned Subsidiaries;
(x) Guarantees by the Company of New Finishing Facility Debt of
others; and
(xi) any Investment made solely with the Proceeds of an Asset
Disposition, the payment or application of which is not
restricted by Section 10.10;
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"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company, unincorporated organization or
government or any agency or political subdivision thereof.
"Personal Property" of any Person shall mean the right, title and
interest of such person in assets, properties and items other than Real
Property and Leaseholds.
"Plan" has the meaning set forth in the Recitals hereto.
"Pledge Agreement" means the Pledge Agreement of even date herewith,
substantially in the form of Exhibit C hereto, among the Guarantor, the
Company, the Subsidiary Pledgers (as identified therein) and the Collateral
Agent, as amended, supplemented or otherwise modified from time to time.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of such Person of any class or classes (however designated)
that ranks prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Proceeds" has the meaning specified in Section 10.10.
"Purchase Amount" has the meaning specified in the definition of Offer
to Purchase.
"Purchase Commitment" means the commitment to purchase $10,000,000
aggregate principal amount of Second Priority Notes at any time outstanding
under the Note Agreement.
"Purchase Date" has the meaning specified in the definition of Offer
to Purchase.
"Purchase Price" has the meaning specified in the definition of Offer
to Purchase.
"Purchasers" shall mean the Purchasers under the Note Agreement.
"Qualified Capital Stock" of any Person means any and all Capital
Stock of such Person other than Redeemable Stock.
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"Real Property" of any Person shall mean all the fee ownership right,
title and interest of such Person in and to land, improvements therein and
thereon, fixtures annexed or to be annexed thereto and any insurance and
condemnation proceeds relating thereto other than Leaseholds.
"Redeemable Stock" of any Person means any equity security of any
Person (not including any warrants/stock issued under the Management Option
Plan) that by its terms or otherwise is required to be redeemed prior to the
Stated Maturity of the Securities or is redeemable at the option of the holder
thereof at any time prior to the Stated Maturity of the Securities.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the fifteenth day of February and August in each year (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee assigned by the Trustee to administer its corporate
trust matters and shall include any officer in its corporate trust department.
"Restricted Payments" has the meaning specified in Section 10.9.
"Second Priority Notes" has the meaning specified in the definition of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Note Agreement.
"Second Priority Obligations" means the obligations of the Company and
the Guarantor under the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Note Agreement and the Second Priority
Notes.
"Secondary Security" has the meaning specified in Section 3.7.
"Securities" means the securities designated as such in the first
Recital hereto, any Secondary Securities and any Securities issued hereunder
upon transfer of, in exchange for or in lieu of any other Security or portion
thereof theretofore issued hereunder.
"Security Agreement" means the Security and Collateral Agency
Agreement of even date herewith, substantially in the form of Exhibit B hereto,
among the Company, the Guarantor, the Subsidiary Guarantors and the Trustee, as
Collateral Agent, for the benefit of the Holders, the Purchasers and the
holders of the Second Priority Notes, as amended, supplemented or otherwise
modified from time to time.
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"Security Documents" means the Security Agreement, the Pledge
Agreement, the Assignment of Contracts, the Mortgages, and each of the
ancillary agreements required by any of the foregoing and any agreements and
other instruments and documents executed and delivered pursuant to Section
10.22, each as amended, supplemented or otherwise modified from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Collateral Agent" means The Chase Manhattan Bank, as
administrative agent under the Credit Agreement and collateral agent under the
security documents relating to the Credit Agreement, and its successors.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereof means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" of any Person means (i) a corporation more than 50% of
the outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person, or by such Person
and one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof but shall not include any Inactive Subsidiary.
"Subsidiary Guarantee Agreement" shall mean any guarantee agreement,
substantially in the form of Exhibit A hereto, executed by a Subsidiary
pursuant to Section 10.22, pursuant to which such Subsidiary guaranties payment
of the Securities on substantially the same terms and conditions set forth in
Article XIV.
"Subsidiary Guarantor" means each Subsidiary which executes a
Subsidiary Guarantee Agreement.
"Successor Company" shall have the meaning specified in Section
8.1(b)(2).
"Surviving Entity" has the meaning specified in Section 8.1(a).
"Term Loan" has the meaning specified in the definition of "Credit
Agreement".
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"Term Loan Payout Date" means the date on which the Term Loan is paid
in full, whether upon maturity or by earlier prepayment.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by such amendment, the
Trust Indenture Act of 1939 as so amended
"United States Bankruptcy Code" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, as
amended, or any similar United States Federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization
or relief of debtors or any amendment to, succession to or change in any such
law.
"U.S. Government Obligations" has the meaning specified in Section
12.4.
"Vice President" means any vice president, whether or not designated
by a number or a word or words added before or after the title "Vice
President".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Voting Stock of which (other than director's
qualifying shares) shall at the time be owned by such Person or by one or more
Wholly Owned Subsidiaries of such Person.
SECTION I.2. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act and under this Indenture. Each such certificate or opinion shall
be given in the form of an Officers' Certificate, if to be given by Officers of
the Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall be in form
satisfactory to the Trustee and shall include
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(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION I.3. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons may certify or give an opinion as to such matters in
one or several documents.
Any certificate or opinion of an Officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of
counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representation with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
Officer or Officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION I.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders must, except as otherwise provided in Article XIII, be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the actions embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining
the Holders entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders. If not set by the
Company prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 7.1) prior to such first solicitation or vote, as the case
may be, with regard to any record date, only the Holders on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
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(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION I.5. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust
Office, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Department; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class certified
postage prepaid, return receipt requested, to the Company addressed
to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION I.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
equivalent of such notice. Waivers 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 or by
reason of any other cause 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.
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SECTION I.7. Application of Trust Indenture Act.
The Trust Indenture Act shall apply as a matter of law (or to the
extent not so required, as a matter of contract) to this Indenture for purposes
of interpretation, construction and definition of the rights and obligations
hereunder. If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
SECTION I.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION I.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Guarantor shall bind their respective successors and assigns, whether so
expressed or not.
SECTION I.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION I.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, expressed or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and (subject to Article XIII hereof) the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION I.12. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
EACH OF THE COMPANY AND THE GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE CITY OF NEW YORK OR ANY
FEDERAL COURT SITTING IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. NOTHING HEREIN
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SHALL AFFECT THE RIGHT OF ANY HOLDER TO SERVE PROCESS IN ANY MANNER PERMITTED
BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
COMPANY OR THE GUARANTOR IN ANY OTHER JURISDICTION.
SECTION I.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date, Purchase
Date or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity, as the case may be.
ARTICLE ARTICLE II
Security Forms
SECTION II.1. Forms Generally.
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or
may be produced in any other manner all as determined by the officers executing
such Securities, as evidenced by their execution of such Securities.
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SECTION II.2 Forms of Face of Security.
The form of the face of the Securities shall be substantially as
follows:
PREMIUM STANDARD FARMS, INC.
11% SENIOR SECURED NOTES DUE 2003
No.__________ $______________
Premium Standard Farms, Inc., a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ______________________, or
registered assigns, the principal amount of ___________________ Dollars on
September 17, 2003, and to pay interest on the unpaid principal amount from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of the original issuance hereof, at the rate of 11% per
annum in cash in United States dollars until the principal hereof is paid or
made available for payment and at the rate of 11% per annum on any overdue
principal and premium and on any overdue installment of interest (but not to
exceed the maximum rate permitted by applicable law) until paid as specified on
the reverse hereof; provided, that on each Interest Payment Date prior to the
Term Loan Payout Date, the Company may, as hereafter provided, pay such
interest in whole or in part through the issuance of additional Securities
("Secondary Securities") in an aggregate principal amount equal to the amount
of interest (rounded to the nearest whole dollar) that would be payable with
respect to this Security if such interest were paid in cash; provided, further,
that interest payable on or after the Term Loan Payout Date or on or after the
Maturity of this Security shall be payable only in cash.
The Company shall pay interest semi-annually on March 15 and September
15 of each year, commencing March 15, 1997 or if any such day is not a Business
Day, on the next succeeding Business Day (each an "Interest Payment Date").
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the February 15 or August 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided (including by issuing
Secondary Securities as herein provided) for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not
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inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
On each such Interest Payment Date prior to the Term Loan Payout Date
as provided in the proviso to the first paragraph hereof, the Company may pay
interest by the issuance of Secondary Securities and, the Trustee shall, upon
the Company's Order, authenticate and deliver Secondary Securities for original
issuance to the Holder of this Security on the relevant record date, as shown
by the records of the Security Registrar, in the aggregate principal amount
required to pay such interest (rounded up to the next whole dollar). Each
issuance of Secondary Securities shall be made as nearly as possible pro rata,
and any rounding may be made, with respect to the aggregate principal amount of
Outstanding Securities held by each Holder.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Trustee, Security
Registrar or Paying Agent maintained for that purpose in New York, New York, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided, however,
that at the option of the Company payment of any interest may be made by
mailing a check (or Secondary Securities, if applicable) therefor to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
This Security is one of the Securities issued and to be issued from
time to time and in accordance with the Indenture (as hereinafter defined), all
equally secured by a Security and Collateral Agency Agreement, dated as of even
date with the Indenture (hereinafter as amended and supplemented the "Security
Agreement") among the Guarantor (as hereinafter defined), the Company and the
Trustee, as Collateral Agent, and related Mortgages (collectively, the
"Security Documents"), to which Security Documents reference is made for a
description of the property mortgaged and pledged (the "security"), the nature
and extent of this security, the other indebtedness of the Company secured
thereby, and the other provisions thereof; provided, however, that the liens of
said Security Documents are subject to the terms and provisions of an
Intercreditor Agreement, dated of even date therewith, among the Guarantor, the
Company, the Senior Collateral Agent, and the Trustee, as Collateral Agent, to
which reference is made for a description of the terms and provisions thereof;
and provided, further, that the rights and interests of the holders of the
Securities in the proceeds of the security under the Indenture and the Security
Documents are junior in priority to those of the holders of the Second Priority
Notes (as hereafter defined) of the Company.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
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Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: _________________________
PREMIUM STANDARD FARMS, INC.
By _________________________________
SECTION II. 3. Form of Reverse of Security.
The form of the reverse of the Securities shall be substantially as
follows:
This Security is one of a duly authorized issue of Securities of the
Company designated as its 11% Senior Secured Notes due 2003 (the "Securities")
issued under an Indenture, dated as of September 17, 1996 (herein called the
"Indenture"), between the Company, PSF Holdings, L.L.C., a Delaware limited
liability company (the "Guarantor"), and Fleet National Bank, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture). The Securities are limited in aggregate principal amount to
$117,500,000 plus the aggregate principal amount of Secondary Securities issued
pursuant to the Indenture. Reference is hereby made to the Indenture and all
indentures supplemental thereto for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Securities are subject to redemption, in whole or in part, upon
not less than 20 nor more than 60 days' notice by mail, at the election of the
Company at any time at the following Redemption Prices (expressed as
percentages of principal amount), if redeemed during the 12-month period
beginning September 1, of each of the years indicated below:
Redemption
Year Price
---- ----------
1996 111%
1997 108%
1998 105%
1999 103%
2000 101%
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2001 100%
The Redemption Prices as defined above, together in the case of any such
redemption with accrued interest to the Redemption Date, shall be paid in cash
upon surrender of such Securities in accordance with such notice, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, in cash or Secondary Securities, if applicable,
all as provided in the Indenture.
This Security does not have the benefit of any sinking fund.
The Indenture provides that, subject to certain conditions, if a
Change of Control or Asset Disposition occurs, the Company shall be required to
make an Offer to Purchase for the Securities at a purchase price equal to 101%
of the principal amount thereof or par, as the case may be, together in either
case with all accrued and unpaid interest through the Purchase Date.
Interest on the Debt evidenced by this Security is expressly limited
so that in no contingency or event whatsoever, whether by acceleration of the
maturity of the Debt evidenced by this Security or otherwise, shall the
interest contracted for, charged or received by the Holder exceed the maximum
amount permissible under applicable law. If under any circumstances whatsoever
the fulfillment of any provisions of this Security, the Indenture or any other
document evidencing, securing, guaranteeing or otherwise pertaining to the Debt
evidenced by this Security, at the time performance of such provision shall be
due, shall involve transcending the limit of validity prescribed by law, then
ipso facto, the obligation to be fulfilled shall be reduced to the limit of
such validity, and if from any such circumstances any Holder shall ever receive
anything of value as interest or deemed interest by applicable law under this
Security, the Indenture or any other document evidencing, securing,
guaranteeing or otherwise pertaining to the Debt evidenced by this Security or
otherwise an amount that would exceed the highest lawful rate, such amount that
would be excessive interest shall be applied to the reduction of the principal
amount owing on the Debt of this Security held by the Holder, and not to the
payment of interest, or if such excessive interest exceeds the unpaid balance
of principal of the Debt of this Security held by the Holder, such excess shall
be refunded to the Company. In determining whether or not the interest paid or
payable with respect to any Debt of the Company to the Holder, under any
specific contingency, exceeds the highest lawful rate, the Company and the
Holder shall, to the maximum extent permitted by applicable law, (a)
characterize any non-principal payment as an expense, fee or premium rather
than as interest, (b) exclude voluntary prepayments and the effects thereof,
(c) amortize, prorate, allocate and spread the total amount of interest
throughout the term of such Debt so that the actual rate of interest on account
of such Debt does not exceed the maximum amount permitted by applicable law,
and/or (d) allocate interest between portions of such Debt, to the end that no
such portion shall bear interest at a rate greater than that permitted by law.
The terms and
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provisions of this paragraph shall control and supersede every other
conflicting provision of this Security and the Indenture.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Security in part only, a new Security or Securities of like
tenor for the unredeemed or unpurchased portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of (i)
the entire Debt of this Security and (ii) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth further therein.
The Indenture and the Security Documents provide that the security
described therein is pledged and mortgaged to the Collateral Agent for the
benefit of the holders of up to $10,000,000 aggregate principal amount of the
Company's Senior Secured Second Priority Notes due 2002 (the "Second Priority
Notes") and the Holders of the Securities, provided that the proceeds of such
security, if any, shall be applied first to the payment in full of the Second
Priority Notes and thereafter to the payment of the Securities.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages of the aggregate principal amount of the Securities at
the time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay (subject to Section 16.1 of said
Indenture) the principal of (and premium, if any) and interest on this Security
at the times, place and rate, and in the coin or currency or through issuance
of Secondary Securities, as herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
Corporate Trust Office or the office or agency of the Company in New York, New
York, or at any other office designated by the Company under the Indenture,
duly endorsed by, or accompanied by a written instrument of transfer in form
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satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and like tenor and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1.00 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like tenor and aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, provided, however, that the Company may require payment of (i) a
service charge with respect to any transfer or exchange as a result of which
the number of Securities not in a denomination of $1,000 or any integral
multiple thereof would be increased, and (ii) of a sum sufficient to cover any
tax or other governmental charge payable in connection with such transfer or
exchange.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
--------------------
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Sections 10.10 or 10.18 of the Indenture, check the box: / /
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If you want to elect to have only a part of this Security purchased by
the Company pursuant to Section 10.10 or 10.18 of the Indenture, state the
amount: $__________
Dated:________________ Your Signature:_______________________________
(Sign exactly as name appears on the
other side of this Security)
Signature Guaranteed by:
_________________________________
Participant in a Recognized
Signature Guarantee Medallion
Program
SECTION II. 4. Form of Trustee's Certificate of Authentication.
The form of certificate of authentication shall be substantially as
follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
FLEET NATIONAL BANK,
as Trustee
Dated:_____________________ By______________________________________
Authorized Signatory
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SECTION II.5. Form of Guarantee.
The form of guarantee shall be substantially as follows:
For value received, PSF Holdings, L.L.C., a Delaware limited liability
company, hereby unconditionally guarantees to the Holder of the Security upon
which this Guarantee is endorsed the due and punctual payment, as set forth in
the Indenture pursuant to which such Security and this Guarantee are issued, of
the principal of, premium (if any) and interest on, such Security when and as
the same shall become due and payable for any reason according to the terms of
such Security and Article XIV of the Indenture. The Guarantee of the Security
upon which the Guarantee is endorsed will not become effective until the
Trustee signs the certificate of authentication on such Security.
PSF HOLDINGS, L.L.C.
By __________________________
SECTION II.6. Form of Legend.
The form of legend on each Security as required by the Intercreditor
Agreement shall be substantially as follows:
THE LIENS ON THE COLLATERAL WHICH SECURE THE SECURITIES REFERRED TO IN
THE WITHIN-MENTIONED INDENTURE, OF WHICH THIS SECURITY IS ONE, ARE
SUBJECT TO THE TERMS AND PROVISIONS OF THE WITHIN-MENTIONED
INTERCREDITOR AGREEMENT AND SECURITY AGREEMENT.
ARTICLE III
The Securities
SECTION III.1. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $117,500,000
plus the aggregate principal amount of Secondary Securities issued hereunder,
except for Securities authenticated and delivered upon registration or transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Sections
3.4, 3.5, 3.6, 9.6, 10.10, 10.18 and 11.8.
The Securities shall be known and designated as the "11% Senior
Secured Notes due 2003" of the Company. The Stated Maturity of the Securities
shall be September 17, 2003. The Securities shall bear interest on the unpaid
principal amount of such Securities at the rate of 11% per annum, payable
semi-annually on March 15 and September 15, commencing March 15, 1997, until
the principal thereof is paid or made available for payment, in the manner set
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forth in the form of Security and in Section 3.7. Interest on any overdue
principal, interest (to the extent lawful) or premium, if any, shall be payable
on demand.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Trustee, Security Registrar or
Paying Agent maintained in New York, New York for such purpose and at any other
office or agency maintained for such purpose; provided, however, that, at the
option of the Company, payment of any interest may be made by mailing a check
(or Secondary Securities, if applicable) therefor to the address of the Person
entitled thereto as such address shall appear in the Security Register.
The Securities shall be subject to repurchase by the Company pursuant
to an Offer to Purchase as provided in Sections 10.10 and 10.18 of the
Indenture.
The Securities shall be redeemable as provided in Article XI.
The Securities shall be subject to defeasance at the option of the
Company as provided in Article XII.
SECTION III.2. Denominations.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1.00 and any integral multiple thereof.
SECTION III.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, the Chief Executive Officer, its President or one of its
Vice Presidents. The signature of any of these officers on the Securities may
be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall authenticate Securities for original issue in an
aggregate principal amount of $117,500,000 upon receipt of the following:
(a) a Company Order for authentication, specifying the name,
address, FID number and principal amount for each Holder as
provided in the Plan;
(b) an executed copy of the Intercreditor Agreement;
(c) executed copies of the Security Documents;
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(d) an Officers' Certificate and Opinion of Counsel, each stating,
inter alia, that such Securities have been duly and validly
issued in accordance with the Plan and this Indenture and are
entitled to the rights and benefits set forth herein; and
(e) an Officer's Certificate stating that the Effective Date has
occurred.
Subject to Section 6.1, the Trustee shall be fully protected in
relying upon the foregoing documents.
At any time and from time to time after the Effective Date and upon
notice to the Trustee on or before the relevant Record Date, the Company may
deliver Secondary Securities executed by the Company and the Guarantor to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided. In authenticating such Securities, and accepting the
additional responsibilities under the Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon an Officers' Certificate and Opinion of
Counsel, each dated the date of authentication and stating, inter alia, that
such Securities have been duly and validly issued in accordance with the terms
of this Indenture and are entitled to the rights and benefits set forth herein.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
SECTION III.4. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced
by their execution of such temporary Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the
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Corporate Trust Office or any office or agency of the Company designated
pursuant to Section 10.2, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until
so exchanged the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
SECTION III.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 10.2 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as the Security Registrar may prescribe, the Company
shall provide for the registration of Securities and transfers of Securities.
The Trustee is hereby appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
By accepting delivery of their Securities, the Holders accept and
agree to be bound by the terms and provisions of this Indenture and the
Security Documents.
Upon surrender for registration of transfer of any Security at the
Corporate Trust Office or an office or agency of the Company designated
pursuant to Section 10.2 for such purpose, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized
denominations and of a like tenor and aggregate principal amount as the
Security transferred or tendered.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like tenor and aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company and the Guarantor shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
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No service charge shall be made for any registration of transfer or
exchange of Securities, provided, however, that the Company may require payment
of (i) a service charge with respect to any transfer or exchange as a result of
which the number of Securities not in a denomination of $1,000 or any integral
multiple thereof would be increased, and (ii) of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.4, 9.6, 10.10, 10.18 or 11.8.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 11.4 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
SECTION III.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company and the Guarantor shall execute and upon a
Company Order (which requirement may be waived by the Trustee) the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefit of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION III.7. Payment of Interest; Interest Rights Preserved.
On each Interest Payment Date prior to the Term Loan Payout Date, the
Company may pay interest on each Security through the issuance of additional
Securities ("Secondary Securities") in an aggregate principal amount equal to
the amount of interest (rounded up to the next whole dollar) that would be
payable with respect to such Security if such interest were paid in cash;
provided that interest payable on any date on or after the Term Loan Payout
Date or on or after the Maturity of any Security shall be payable solely in
cash.
On each such Interest Payment Date, the Trustee shall, upon Company
Order, authenticate and deliver Secondary Securities for original issuance to
each holder of Securities on the relevant record date, as shown by the records
of the Security Register, in the aggregate principal amount required to pay
such interest (rounded up to the next whole dollar). Any Secondary Securities
so issued shall be dated the applicable Interest Payment Date, shall bear
interest from and after such date, shall mature on September 17, 2003, and
shall be governed by, and subject to the terms, provisions and conditions of,
this Indenture and shall have the same rights and benefits as Securities
previously issued.
The Company shall have the right to aggregate amounts of interest
payable in the form of Secondary Securities to a Holder of Outstanding
Securities and issue to such Holder a single Secondary Security in payment
thereof.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for (including by the issuance of Secondary Securities as
herein provided), on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest
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proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount (in the form of money or, if the Term Loan Payout
Date has not occurred, at the Company's option, Secondary Securities)
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payments,
such money or Secondary Securities when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each
Holder at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to
the following Clause (2).
(2) The Company may establish a procedure to make payment
of any Defaulted Interest consistent with any lawful procedure and
with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
is approved by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
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SECTION III.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of, (and premium, if
any) and (subject to Section 3.7) interest on, such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION III.9. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or pursuant to any Offer to Purchase pursuant to Sections
10.10 and 10.18 shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
SECTION III.10. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE VI
Satisfaction and Discharge
SECTION IV.1. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving obligations of the Company specified below), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture (including, but not
limited to, Article XII hereof), when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6 and (ii) Securities for whose
payment money has
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theretofore been deposited in trust and thereafter repaid to
the Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense,
of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose money in an amount sufficient to pay and
discharge the entire Debt on such Securities not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if any)
and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article IV, the Company's obligations with respect to the Securities under
Sections 3.4, 3.5, 3.6, 10.2 and 10.3, obligations of the Company to the
Trustee under Section 6.7 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of Clause (1) of this Section, the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the
obligations of the Trustee under Section 4.2 and the last paragraph of Section
10.3 shall survive.
SECTION IV.2. Application of Trust Money.
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Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be segregated
and held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee.
ARTICLE V
Remedies
SECTION V.1. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) default in the payment of any interest upon any
Security when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security at its Maturity; or
(3) default in the payment of principal (or premium, if
any) or interest pursuant to an Offer to Purchase pursuant to Sections
10.10 and 10.18; or
(4) default in the performance, or breach, of Section
8.1; or
(5) default under the Second Priority Obligations or any
other Debt or other evidence of Debt of the Company or the Guarantor
or any Subsidiary in a principal amount of $10,000,000 or more, or
under any mortgage, indenture or security agreement with respect
thereto, which default shall constitute a failure to pay principal of
such Debt when due at final maturity thereof or shall have resulted in
such Debt becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable; or
(6) default in the performance, or breach, of any
covenant, representation or warranty of the Company or the Guarantor
in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach
for a period of 30 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding
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Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(7) a final judgment or final judgments for the payment of
money are entered against the Company or the Guarantor or any
Subsidiary in an aggregate amount in excess of $10,000,000 by a court
or courts of competent jurisdiction, which judgments remain
undischarged, unstayed or unbonded for a period (during which
execution shall not be effectively stayed) of 60 days; or
(8) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
or the Guarantor or any Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company or the Guarantor or any Subsidiary a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or
in respect of the Company or the Guarantor or any Subsidiary or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 90 consecutive days; or
(9) the commencement by the Company or the Guarantor or
any Subsidiary of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree
or order for relief in respect of the Company or the Guarantor or any
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or the Guarantor or any
Subsidiary or of any substantial part of its property, or the making
by it of an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as they
become due, or the taking of action by the Company or the Guarantor or
any Subsidiary in furtherance of any such action; or
(10) any Security Document shall, at any time, cease to be
in full force and effect or shall be declared null and void, or the
validity or enforceability thereof shall be contested by the Company
or the Guarantor or the Collateral Agent shall not have or shall cease
to have a valid, perfected and subsisting Lien on the Collateral
(other
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than Collateral released as provided in the Security Documents and the
Intercreditor Agreement); or any Lien shall have a priority equal to
or greater than the Liens on the Collateral, except as permitted by
Section 10.14; or
(11) this Indenture or the Securities for any reason other
than satisfaction in full of the obligations thereunder shall cease to
be, or shall be asserted by the Company or the Guarantor not to be, in
full force and effect and enforceable in accordance with its terms or
is declared null and void.
SECTION V.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(8) or (9)) occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 50% in principal amount of
Outstanding Securities may declare the principal amount of all the Securities
to be due and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), and upon any such declaration such
principal amount and any accrued interest shall, subject to Section 16.1
hereof, become immediately due and payable. If an Event of Default specified
in Section 5.1(8) or (9) occurs, the principal amount of and any accrued
interest on the Securities then Outstanding shall, subject to Section 16.1
hereof, become immediately due and payable without any declaration or other Act
on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a
sum of money (or, if applicable, Secondary Securities) sufficient to
pay
(A) all amounts due the Trustee under Section 6.7
and reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel,
(B) all overdue interest on all Securities,
(C) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by such
declaration of acceleration (including any Securities required
to have been purchased on the Purchase Date pursuant to an
Offer to Purchase made by the Company) and, interest thereon
at the rate provided by the Securities (but not to exceed the
maximum rate permitted by applicable law), and
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(D) interest upon overdue interest at the rate
provided by the Securities but not to exceed the maximum rate
permitted by applicable law; and
(2) all Events of Default, other than the non-payment of
the principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION V.3. Collection of Debt and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof or, with
respect to any Security required to have been purchased pursuant to an
Offer to Purchase made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities, pay to the Trustee, for
the benefit of the Holders of such Securities, the whole amount (in money
and/or Secondary Securities, if applicable) then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the
rate provided by the Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, other than costs and expenses incurred through
negligence or bad faith.
If the Company fails to pay such amounts (in money and/or Secondary
Securities, if applicable) forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, or subject to Section 5.7 hereof, the
Holders of not less than 25% in principal amount of the Outstanding Securities
may institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem
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most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION V.4. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION V.5. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION V.6. Application of Money Collected.
Any money or Secondary Securities collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
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FIRST, to the payment out of any money collected of all
amounts due the Trustee under Section 6.7;
SECOND, out of any money collected, to the payment in full of
the Second Priority Obligations (the amounts so applied to be
distributed among the Purchasers and the holders of the Second
Priority Notes pro rata first in accordance with the amounts of
accrued and unpaid interest on the Second Priority Notes, second in
accordance with the amounts of principal due with respect to the
Second Priority Notes and third in accordance with the other Second
Priority Obligations owed to them on the date of any such
distribution);
THIRD, to the payment in full of the Securities Obligations
(the Secondary Securities so applied to be distributed among the
Holders pro rata in accordance with the amounts of interest owed to
them and all moneys so applied to be distributed among the Holders pro
rata in accordance with the amounts of Securities Obligations owed to
them on the date of any such distribution after giving effect to any
contemporaneous distribution of Secondary Securities); and
FOURTH, to the Grantors, their respective successors or
assigns, or as a court of competent jurisdiction may otherwise direct.
SECTION V.7. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding (including an involuntary proceeding under the United States
Bankruptcy Code), judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities;
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it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION V.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 16.1) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date or, in the case of an Offer to Purchase made by the Company and accepted
as to such Security, on the Purchase Date) and to institute suit against the
Company and/or the Guarantor for the enforcement of any such payment (including
the commencement of an involuntary proceeding under the United States
Bankruptcy Code), and such rights may not be impaired without the consent of
such Holder.
SECTION V.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Guarantor, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION V.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6 or to unclaimed moneys paid over to the Company under
the last paragraph of Section 10.3, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION V.11. Delay or Omission Not Waiver.
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No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or
Article XIV or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION V.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
SECTION V.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest on any Security (including any Security which is
required to have been purchased pursuant to an Offer to Purchase which
has been made by the Company), or
(2) in respect of a covenant or provision hereof which
under Article IX cannot be modified or amended without the consent of
the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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SECTION V.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Trustee.
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SECTION V.15. Waiver of Stay or Extension Laws.
The Company and the Guarantor each covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension 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
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VI
The Trustee
SECTION VI.1. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
this Indenture and the Trust Indenture Act. Without limiting the generality of
the foregoing, if an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the same circumstances in the conduct
of his own affairs. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it. The
Trustee shall not be deemed to have notice of any Event of Default or event
which with the passage of time might become an Event of Default unless (i) the
Trustee has received written notice thereof, addressed to a Responsible Officer
or (ii) in the case of an Event of Default under Section 5.1(1) or 5.1(2), the
Trustee to the knowledge of a Responsible Officer is the sole Paying Agent.
Whether or not therein expressly so provided, 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.
The Trustee is expressly authorized and directed to enter into (i) the
Intercreditor Agreement, substantially in the form of Exhibit G hereto, for the
purpose of confirming that the lien of the Security Documents on the assets of
the Company or the Guarantor is junior to the lien of the security documents
relating to the Credit Agreement, (ii) the Security Agreement, substantially in
the form of Exhibit B hereto, (iii) any other Security Documents provided for
in the Security Agreement and (iv) any related
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financing statements or other required filings, all as specified in any
Officers' Certificates and Opinions of Counsel submitted to the Trustee.
SECTION VI.2. Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder as
and to the extent provided by the Trust Indenture Act; provided, however, that
in the case of any default of the character specified in Section 5.1(6), no
such notice to Holders need be given until at least 30 days after the delivery
of a Notice of Default as provided herein or such longer period of time as the
Trustee shall determine that the withholding of such notice is in the interests
of the Holders. For the purpose of this Section, the term "default" means any
event which is, or after notice or lapse of time or both would become, an Event
of Default.
SECTION VI.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of Debt or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
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(f) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(g) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of Debt or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney; and
(h) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION VI.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be responsible for the
statements relating to the Securities set forth in any Offer, registration
statement or private placement memorandum applicable thereto.
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SECTION VI.5. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION VI.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law or this Agreement. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
SECTION VI.7. Compensation and Reimbursement.
The Company agrees
(A) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(C) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability, damage, cost or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
The obligations of the Company under this Section 6.7 to compensate or
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such
or otherwise distributable to Holders of Securities, except funds in trust for
the benefit of the holders of particular Securities.
When the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in Section 5.1(8) or (9), the
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expenses and the compensation for the services are intended to constitute
expenses of administration in proceedings under any law therein referred to.
To the extent that such payment of reasonable compensation, expenses,
liabilities and counsel fees out of the estate in any such proceedings shall be
denied for any reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends, moneys, securities
and other property which the Holders of the Securities may be entitled to
receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
"Trustee" for purposes of this Section 6.7 shall include any
predecessor Trustee, but the negligence or bad faith of any Trustee shall not
affect the rights of any other Trustee under this Section 6.7.
SECTION VI.8. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION VI.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and its Corporate
Trust Office in the continental United States. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of a Federal, state, territorial or District of Columbia supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION VI.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
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(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(A) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(B) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(C) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The successor Trustee shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 1.6. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
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SECTION VI.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION VI.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to, or successor to the
corporate trust business of, such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
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SECTION VI.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION VII.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished pursuant to clause (a) or (b) of this
Section 7.1.
SECTION VII.2. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION VII.3. Reports by Trustee.
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(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times (May 1, in the case of annual reports) and in
the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
SECTION VII.4. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE VIII
Merger, Consolidation, Etc.
SECTION VIII.1. Company or the Guarantor May Merge, Consolidate, etc.... Only
on Certain Terms.
(a) The Guarantor shall not consolidate with or merge into any
other Person or sell, assign, convey, transfer, lease or otherwise dispose of
all or substantially all its properties and assets as an entirety, unless
either (i) the Guarantor shall be the continuing Person, or (ii) the Person (if
other than the Guarantor) formed by such consolidation or into which the
Guarantor is merged or the Person which acquires by conveyance, transfer, lease
or disposition the properties and assets of the Guarantor (the "Surviving
Entity") shall be a corporation duly organized and validly existing under the
laws of the United States of America or any state thereof and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the Guarantee and the performance
and observance of any covenant of this Indenture and the Security Documents on
the part of the Guarantor to be performed and observed; and
(i) immediately after giving effect to such transaction,
and treating any Debt Incurrred by the Guarantor as a
result of such transaction as having been Incurred at
the time of such transaction, (A) the Guarantor or
the Surviving Entity would not be liable with respect
to any Debt which is not permitted under Section 10.8
hereof and (B) the Consolidated Net Worth of the
Guarantor, the Company or the Surviving
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Entity and their Subsidiaries would be no less than
the Consolidated Net Worth of the Guarantor, the
Company and their Subsidiaries immediately prior to
such transactions.
(ii) no Event of Default under Section 5.1 has occurred or
is continuing at the time of such transaction; and
(iii) the Guarantor has delivered to the Trustee an
Officers' Certificate stating that the consolidation,
merger, conveyance, transfer, lease or other
disposition and, if a supplemental indenture is
required in connection with such transaction, such
supplemental indenture complies with this Article and
all conditions precedent herein provided for relating
to such transaction have been complied with.
(b) The Company shall not consolidate with or merge into any other
Person or permit any other Person to consolidate with or merge into the Company
or transfer, convey, sell, lease or otherwise dispose of all or substantially
all of its properties or assets as an entirety, unless:
(1) the Company is the surviving Person; or
(2) in case the Company shall consolidate with or merge with
or into another Person or transfer, convey, sell, lease or otherwise
dispose of all or substantially all of its properties or assets as an
entirety, and the Company is not the surviving Person (a "Non-Surviving
Combination"), the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by transfer,
conveyance, sale, lease or otherwise the assets of the Company
substantially as an entirety (for purposes of this Article VIII, a
"Successor Company") shall be a corporation organized and validly
existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Securities
and the performance of every covenant of this Indenture on the part of
the Company to be performed or observed; and
(i) immediately after giving effect to such transaction,
and treating any Debt Incurred by the Company as a result of
such transaction as having been Incurred at the time of such
transaction, (A) the Company or the Successor Company would
not be liable with respect to any Debt which is not permitted
under Section 10.8 hereof and (B) the Consolidated Net
Worth of the Guarantor, the Company or the Successor Company
and their Subsidiaries would be no less than the Consolidated
Net Worth of the Guarantor, the Company and their Subsidiaries
immediately prior to such transaction;
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(ii) no Event of Default under Section 5.1 has occurred or
is continuing at the time of such transaction; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate stating that such consolidation, merger,
conveyance, transfer, lease or acquisition and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture, complies with this
Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION VIII.2. Successor Substituted.
Upon any consolidation or merger, or any conveyance, transfer or lease
of the properties and assets of the Company or the Guarantor substantially as
an entirety in accordance with Section 8.1, the successor Person shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company or the Guarantor, as the case may be, under this Indenture with the
same effect as if such successor Person had been named as the Company or the
Guarantor, as the case may be, herein, and thereafter the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE IX
Supplemental Indentures
SECTION IX.I. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company or the Guarantor and the assumption by any such successor of
the covenants of the Company or the Guarantor, as the case may be,
herein and in the Securities; or
(2) to add to the covenants of the Company or the
Guarantor for the benefit of the Holders, or to surrender any right or
power herein conferred upon the Company or the Guarantor; or
(3) to secure the Securities pursuant to the requirements
of Section 10.22 or otherwise; or
(4) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
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with the provisions of this Indenture, provided that such action
pursuant to this Clause (4) shall not adversely affect the interests
of the Holders in any material respect; or
(5) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture under
the Trust Indenture Act.
The Company shall provide notice of any supplemental indenture to the
Holders of Outstanding Securities promptly after the execution of such
supplemental indenture pursuant to this Section 9.1, such notice to state the
substance of the contents of such supplemental indenture.
SECTION IX.2. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or modifying
in any manner the rights of the Holders under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby;
(1) change the Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or change the place of payment where, or
the coin or currency (including Secondary Securities, if applicable)
in which, any Security or any premium or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such
payment on or after the Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or in the case of an Offer
to Purchase which has been made, on or after the applicable Purchase
Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section
5.13 or Section 10.21, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or
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(4) following the making of an Offer with respect to an
Offer to Purchase pursuant to Section 10.10 or 10.18, modify the
provisions of this Indenture with respect to such Offer to Purchase in
a manner adverse to such Holder.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION IX.3. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive and (subject to Section 6.1) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise,
except for any supplemental indenture required in order to comply with the
requirements of the Trust Indenture Act.
SECTION IX.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION IX.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION IX.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article, may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
SECTION IX.7. Revocation and Effect of Consents.
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Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives
written notice of revocation before the date the amendment or waiver becomes
effective. An amendment or waiver becomes effective in accordance with its
terms and thereafter binds every Holder.
ARTICLE X
Covenants
SECTION X.1. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
SECTION X.2. Maintenance of Office or Agency.
The Company will maintain in New York, New York an office or agency of
the Trustee, Security Registrar or Paying Agent where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside New York, New York) where the Securities may
be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency of the Trustee, Security Registrar or Paying Agent
in New York, New York for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
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SECTION X.3. Money for Security Payments to be Held in Trust.
Whenever the Company shall have one or more Paying Agents, it shall,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities) in the making of any
payment of principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
Any money deposited with the Trustee or any Paying Agent in trust for
the payment of the principal of (and premium, if any) or interest on any
Security and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company upon delivery of a Company Request; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in New York, New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
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SECTION X.4. Existence.
Subject to Article VIII, the Company and the Guarantor will, and will
cause each of their Subsidiaries to, do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided, however, that the Company or
the Guarantor shall not be required to preserve any such right or franchise if
its Board of Directors or Members, as the case may be, in good faith shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company or the Guarantor, as the case may be, and that
the loss thereof is not disadvantageous in any material respect to the Holders;
and, provided, further, that the Guarantor may convert to a Delaware
corporation if its Members determine that such a conversion to corporate form
is in its best interests.
SECTION X.5. Maintenance of Properties.
The Company and the Guarantor will, and will cause each of their
Subsidiaries to, cause all properties used or useful in the conduct of its
business or the business of each Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company or
the Guarantor may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times, and to
comply in all material respects with all applicable laws, rules, regulations
(including zoning, building, Environmental and Safety Law, ordinance, code or
approval or agreements that affects its properties) and decrees and orders of
any Governmental Authority, whether now or hereafter enacted; provided,
however, that nothing in this Section shall prevent the Company or the
Guarantor from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, as determined by its Board of Directors
or Members, as the case may be, or by an Officer (or other agent employed by
the Company or the Guarantor) of the Company or the Guarantor having managerial
responsibility for any such property, in good faith, desirable in the conduct
of its business or the business of any Subsidiary and not disadvantageous in
any material respect to the Holders.
SECTION X.6. Payment of Taxes and Other Claims.
The Company and the Guarantor will, and will cause each of their
Subsidiaries to, pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (1) all taxes, assessments and governmental
charges levied upon the income, profits or property of the Company, the
Guarantor or such Subsidiaries, and (2) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Company, the Guarantor or any Subsidiaries; provided, however, that neither
the Company, the Guarantor nor any Subsidiary shall be required to pay or
discharge or cause to be paid or discharged any such tax, assessment,
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charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION X.7. Maintenance of Insurance.
The Company and the Guarantor shall, and shall cause each of their
Subsidiaries to, keep at all times all of their properties and possessions
which are of an insurable nature insured with insurers believed by the Company
to be responsible and reputable insurance companies or associations against
loss or damage, in such amounts and against such risks as is customary in the
hog production and pork processing businesses, and, in any event, at a minimum
to the same extent that property of similar character is usually so insured by
corporations similarly situated and owning like properties in accordance with
good business practice.
SECTION X.8. Limitation on Consolidated Debt.
Neither the Guarantor nor the Company will, nor will they cause or
permit any of their respective Subsidiaries to, Incur any Debt except:
(i) Debt of the Company and the Guarantor under (A) the Credit
Agreement, (B) the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Note Agreement and the
Second Priority Notes and (C) the Securities and this
Indenture;
(ii) Debt of the Company arising from reimbursement and other
obligations in respect of performance bonds, bankers'
acceptances and surety or appeal bonds provided in the
ordinary course of business in an aggregate amount not to
exceed $2,500,000 at any time outstanding;
(iii) Debt of the Company (other than Debt permitted by clause (vi)
of this Section) to finance the purchase or lease of
equipment, buildings and real estate in an aggregate principal
amount not to exceed $15,000,000 at any time outstanding;
(iv) Debt of the Company Incurred in the ordinary course of
business arising from Hedge Agreements;
(v) Debt arising from intercompany loans between the Guarantor and
the Company;
(vi) New Finishing Facility Debt in an aggregate
principal amount not to exceed $15,000,000 at any time
outstanding; provided, however, that the Company shall be
permitted to incur New Finishing Facility Debt only to the
extent that (a) the New Finishing Facility Debt Service with
respect thereto (and with respect to all other New Finishing
Facility Debt incurred in the same quarter) for the period of
four consecutive fiscal quarters following the Incurrence
thereof would not exceed one-third of the Excess EBITDA for
the period of four consecutive fiscal quarters
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most recently ended (and until delivery by the Company of the
financial statements required by Section 10.17(a) with respect
to the fiscal quarter ended September 30, 1996, the aggregate
principal amount of New Finishing Facilities Debt that may be
Incurred pursuant to this clause (a) shall be deemed to be an
amount not in excess of $2,000,000) and (b) the lender or, in
the case of any Capital Lease Obligation, the lessor with
respect to any New Finishing Facility shall have entered into
an agreement, whereby it shall (A) waive any statutory or
common law lien it may have on the part of the Collateral
located at such New Finishing Facility and (B) grant the
Trustee access thereto, whether before or after the occurrence
of an Event of Default;
(vii) Debt assumed in connection with any mergers or consolidations
of another Person with the Company or a Subsidiary or in
connection with any acquisitions by the Company or a
Subsidiary of all or part of the assets of another Person to
the extent that the cumulative aggregate consideration
(including all such assumed Debt) paid by the Company or a
Subsidiary in connection therewith does not exceed
$10,000,000, provided, that additional such Debt beyond such
$10,000,000 may be incurred only if the aggregate principal
amount of such additional Debt shall not exceed 50% of the
fair market value of the assets of the other Person being
acquired in such merger, consolidation or acquisition;
(viii) Intercompany loans (A) made by the Company to any Subsidiary
that is a Wholly Owned Subsidiary, or (B) made by any
Subsidiary to the Company or any other Subsidiary that is a
Wholly Owned Subsidiary;
(ix) in addition to the Debt permitted by clauses (i) through
(viii) of this Section 10.8, the Company may become and remain
liable with respect to unsecured Debt, if at the date of and
after giving effect to the Incurrence of such Debt on a pro
forma basis, the Interest Coverage Ratio is equal to or
greater than 2.25 to 1.0; and
(x) Debt issued in exchange for or the net proceeds of which are
used to exchange, refinance or refund outstanding Debt of the
Company; in each case that is otherwise permitted by this
Section 10.8, so long as (A) the principal amount of any Debt
issued pursuant to this clause (x) does not exceed the
principal amount of, premium, if any, and accrued interest on,
and fees and expenses with respect to, the respective Debt
exchanged, refinanced or refunded, plus any transaction costs,
fees and expenses incurred in connection with or related to
such exchange, refinancing or refunding, (B) the Debt issued
pursuant to this clause (x) does not mature prior to the
stated maturity of, and does not have an Average Life shorter
than the remaining Average Life of, the respective Debt
exchanged, refinanced or refunded, and (C) where
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the Debt exchanged, refinanced or refunded is subordinated to
the obligations of the Company or such Subsidiary under this
Indenture, the respective Debt issued pursuant to this clause
(x) is, to the same extent, also subordinated to such
obligations.
SECTION X.9. Limitation on Restricted Payments.
(a) Neither the Guarantor nor the Company will, nor will they cause
or permit any of their respective Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any distribution, of any
kind or character (whether in cash, property or securities),
in respect of the Capital Stock of the Guarantor, the Company
or any Subsidiary, excluding any dividends or distributions
payable solely in shares of such Capital Stock (other than
Redeemable Stock) or in options, warrants or other rights to
acquire such Capital Stock (other than Redeemable Stock);
(ii) purchase, redeem or otherwise acquire or retire for value any
such Capital Stock of the Guarantor, the Company or any
Subsidiary;
(iii) make any Investment in, or payment on a guarantee of any
obligation of, any Person other than the Guarantor, the
Company or a Subsidiary; and
(iv) redeem, defease (including, but not limited to, legal or
covenant defeasance), repurchase, retire or otherwise acquire
or retire for value prior to any scheduled maturity, repayment
or sinking fund payment, Debt (other than the Securities)
which is subordinate in right of payment to the Securities;
(the transactions described in Clauses (i) through (iv) being referred to
herein as "Restricted Payments"), if at the time of and after giving effect to
any proposed Restricted Payment:
(A) an Event of Default, or an event that with the lapse of time or
the giving of notice, or both, would constitute an Event of Default, shall have
occurred and be continuing; or
(B) the aggregate of all Restricted Payments from the date of this
Indenture exceeds the sum of
(I) 50% of cumulative Consolidated Net Income of the
Guarantor, the Company and their Subsidiaries (or, in the case
Consolidated Net Income of the Guarantor, the Company and
their Subsidiaries shall be negative, less 100% of such
deficit) from the date of this Indenture through the last day
of the last full fiscal quarter immediately preceding such
Restricted Payment; plus
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(II) the net proceeds received by the Company or the
Guarantor from the issuance or sale of Debt that is convertible
into Capital Stock after the date of this Indenture, to the
extent that such Debt has been actually converted into Capital
Stock (other than Redeemable Stock) through the last day of the
last full fiscal quarter immediately preceding such Restricted
Payment.
(b) Notwithstanding anything to the contrary contained in this
Section 10.9, the following Restricted Payments will be permitted on the
respective terms and conditions specified below:
(i) any Restricted Payment declared or made between Guarantor and
the Company;
(ii) the purchase, redemption, acquisition, cancellation or other
retirement for value of shares of Capital Stock of the
Guarantor (including options on such shares or related Capital
Stock appreciation rights or similar securities) held by
officers or employees, or former officers or employees (or
their estates or beneficiaries thereunder), or by any Benefit
Plan, upon death, disability, retirement or termination of
employment or pursuant to the terms of such Benefit Plan or
any other related agreement, provided that the aggregate cash
consideration paid for such purchase, redemption, acquisition,
cancellation or other retirement after the Closing Date shall
not exceed $1,000,000 in any one year;
(iii) the purchase of shares of Capital Stock of the Guarantor for
the purpose of contributing such Capital Stock to any Benefit
Plan or permitting any Benefit Plan to make payments to the
participants therein in cash rather than in such shares of
Capital Stock;
(iv) a Wholly Owned Subsidiary of the Company may (x) declare and
pay dividends or make distributions to the Company or any
other Wholly Owned Subsidiary of the Company and (y) transfer
any of its properties or assets to the Company or any other
Wholly Owned Subsidiary of the Company;
(v) Permitted Investments; and
(vi) dividends or other distribution in respect of the Company's
Capital Stock up to 50% of cumulative Consolidated Net Income
of the Guarantor, the Company and their Subsidiaries from the
date of this Indenture through the last day of the last full
final quarter immediately preceding such Restricted Payment.
provided that, in the case of any Restricted Payment made pursuant to paragraph
(ii) or (iii) above, no Default or Event of Default shall have occurred and be
continuing, or shall occur as a consequence thereof.
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SECTION X.10 Limitations Concerning Disposal of Assets.
(a) Neither the Guarantor nor the Company will, nor will they cause
or permit any Subsidiary to, make any Asset Disposition unless:
(i) (A) 75% of the consideration received from any such
Asset Disposition is received in cash, net of all legal,
title and recording tax expenses, commissions and other
reasonable fees and expenses incurred, and any taxes
actually payable as a consequence of such
disposition (the "Proceeds") and (B) such consideration
is at least equal to the fair market value (as determined
in good faith by the Board of Directors or the President
or the Chief Financial Officer or acting Chief Financial
Officer of the Company or the Guarantor) of the assets
being sold; and
(ii) (A) the Proceeds are applied to purchase, or such
Person enters into a definitive agreement to purchase,
within 180 days after receipt of such Proceeds, assets
or businesses used or engaged in the line of business
referred to in Section 10.16 hereof; and (B) to the
extent Proceeds are not applied as provided in clause
(A), either to repay within 180 days after the date of
such receipt with respect to the Term Loan or ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Note Agreement in the amount of such Proceeds or
to make an Offer to Purchase in accordance with Section
10.10(b) hereof Securities at 100% of their principal
amount plus accrued interest, or both.
(b) If all or a portion of the Proceeds of any Asset Disposition are
to be applied to make an Offer to Purchase pursuant to Section 10.10(a)(ii)(B)
hereof, the Company shall, within 180 days after receipt of such Proceeds,
deliver to the Trustee an Officers' Certificate stating its intention to offer
to purchase Securities pursuant to that Section. Within 15 days thereafter,
the Trustee shall in accordance with Section 11.4 hereof select the Securities
which are to be the subject of such offer. Within 15 days thereafter, the
Company shall mail or cause the Trustee to mail an Offer to Purchase to each
Holder whose Securities have been selected to be the subject of such an Offer
to Purchase. The Offer to Purchase shall offer to purchase Securities, the
aggregate principal amount of which (including any Secondary Securities issued
with respect thereto between the date of the offer to Purchase and the Purchase
Date), together with accrued interest thereon to the Purchase Date, shall equal
to the amount of Proceeds required to be so applied.
A Holder receiving an Offer to Purchase pursuant to this Section may
elect to have purchased the Securities to which the Offer to Purchase relates
by furnishing to the Trustee on or before 35 days preceding the Purchase Date,
written notice of its election to have all such Securities so purchased. In
the event that less than all of the Holders receiving an Offer to Purchase
elect to have the Securities subject thereto purchased, the Company or the
Trustee (in the name of the Company and at its expense) shall, no later than
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25 days preceding the Purchase Date, mail an additional Offer to Purchase to
the Holders of the Securities, if any, who have provided written notice of
election to have Securities purchased and all of whose Securities would not
otherwise have been purchased.
The Company shall perform its obligations specified in the Offer to
Purchase. Prior to the Purchase Date, the Company shall (i) accept for
purchase Securities or portions thereof tendered pursuant to the Offer to
Purchase, (ii) deposit with the Trustee money sufficient to pay the Purchase
Price of all Securities or portions thereof so accepted, and (iii) deliver to
the Trustee all the Securities so accepted together with an Officers'
Certificate stating Securities or portions thereof accepted for payment by the
Company. The Trustee shall promptly mail or deliver to Holders of Securities
so accepted payment in an amount equal to the Purchase Price, and the Trustee
shall promptly authenticate and mail or deliver to such Holders a new Security
or Securities equal in principal amount to any unpurchased portion of the
Security surrendered as requested by the Holder. Any Security not accepted for
payment shall be promptly mailed or delivered by the Company to the Holder
thereof.
SECTION X.11. Permitted Investments.
The Company shall not, nor will any Subsidiary be permitted to, make
any Investment other than a Permitted Investment.
SECTION X.12. Limitation on Issuance of Capital Stock of Subsidiaries.
The Company and the Guarantor shall not permit, directly or
indirectly, any Subsidiary that owns (or has a Subsidiary that owns) any
Collateral or that guarantees (or has a Subsidiary that guarantees) any
obligation under this Indenture to issue or sell any shares of its Capital
Stock, except to the Company or a Wholly Owned Subsidiary of the Company.
SECTION X.13. Dividends and Distributions; Liens Affecting Subsidiaries.
The Company and the Guarantor will not, and will not permit any
Subsidiary of the Company to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Subsidiary of the Company to (a) pay dividends or make any other
distributions permitted by applicable law on any Capital Stock of such
Subsidiary owned by the Company, the Guarantor or any other Subsidiary, (b) pay
any Debt owed to the Company, the Guarantor or any Subsidiary, (c) make loans
or advances to the Company, the Guarantor or any Subsidiary or (d) transfer any
of its property or assets to the Company, the Guarantor or any Subsidiary;
provided, however, that this Section 10.13 shall not restrict or prohibit any
such encumbrances or restrictions existing:
(i) in this Indenture or any agreement in effect on the
Effective Date or in any amendments, restatements, refinancings or
other modifications of this Indenture or any such other agreement,
provided
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that the encumbrance or restrictions contained therein are
comparable to, or no less restrictive than, those originally set forth
therein;
(ii) under or by reason of applicable law, rule or
regulation (including applicable currency control laws and applicable
state corporate statutes restricting the payment of dividends in
certain circumstances);
(iii) with respect to any Person or the property or assets
of such Person acquired by the Company or any Subsidiary at the time of
such acquisition, which encumbrances or restrictions are not applicable
to any Person or the property or assets of any Person other than such
Person; or
(iv) in the case of clause (d) of this Section 10.13,
that restrict in a customary manner the subletting, assignment or
transfer of any property or asset that is a lease, license, conveyance
or contract or similar property or asset.
SECTION X.14. Limitations on Liens.
The Guarantor and the Company shall not, and shall not permit any of
their Subsidiaries to, Incur any Lien on property or assets now owned or
hereinafter acquired; except for:
(a) Liens Incurred to secure the Credit Agreement, the ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Note Agreement and the Securities and this Indenture;
(b) Liens on equipment to secure Debt permitted pursuant to
Section 10.8(iii);
(c) Liens securing Debt permitted pursuant to Section 10.8(x) to
the extent issued in exchange for, or the net proceeds of which are used to
exchange, refinance or refund, directly or indirectly, Debt referred to in
Sections 10.8(i)(A) and (B), 10.8(iii), 10.8(vi) or 10.8(vii);
(d) Liens for taxes not yet delinquent or which are being
contested in good faith by appropriate proceedings, provided, that adequate
reserves with respect thereto are maintained on the books of the Company or its
Subsidiaries, as the case may be, in conformity with generally accepted
accounting principles;
(e) Landlords', carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary course
of business and with respect to amounts which are not yet delinquent or are
being contested in good faith by appropriate proceedings;
(f) Pledges or deposits made in the ordinary course of business in
connection with (A) leases, performance bonds and similar obligations, (B)
workers' compensation, unemployment insurance and other social security
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legislation, (C) Liens imposed under the Packers and Stockyards Act of 1921, as
amended from time to time, and (D) to secure the performance of surety bonds
and appeal bonds required (1) in the ordinary course of business or in
connection with the enforcement of rights or claims of the Company or a
Subsidiary or (2) in connection with judgments that do not exceed $250,000 in
the aggregate;
(g) Liens, easements, rights-of-way, zoning restrictions, Mineral
Rights and other similar restrictions, charges or encumbrances which do not
interfere with the ordinary conduct of the business of the Company and which do
not materially detract from the value of the property to which they attach or
materially impair the use thereof by the Company, the Guarantor or any
Subsidiary;
(h) Any attachment or judgment Lien, unless the judgment it
secured shall not, within 30 calendar days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall not have been
discharged within 30 calendar days after the expiration of any such stay;
(i) Liens securing Debt permitted by Section 10.8(vii), provided
that such Liens attach solely to the assets of the acquired entity and do not
extend to or cover any other assets of the Company or any of its Subsidiaries;
(j) Liens in favor of the Trustee for its own benefit and for the
benefit of the Holders;
(k) Any interest or title of a lessor pursuant to a lease
constituting a Capital Lease Obligation;
(l) Any renewal of or substitution for any Lien permitted by any
of the preceding clauses, provided that the Debt secured is not increased nor
the Lien extended to any additional assets (other than proceeds and
accessions);
(m) Liens upon New Finishing Facilities to secure New Finishing
Facility Debt permitted hereunder;
(n) Liens on any Hedge Agreements resulting solely from the
purchase of such Hedge Agreements on margin; and
(o) Liens (including Liens consisting of Mineral Rights) in
existence on the Effective Date. and identified on Schedule 10.14(o).
Notwithstanding the foregoing, the Company shall not grant, or permit
to exist, any lien on or security interest in any Collateral in contravention
of Section 4.03 of the Security Agreement.
SECTION X.15. Limitation on Transactions with Affiliates.
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The Company and the Guarantor shall not, and shall not permit any
Subsidiary to, directly or indirectly, enter into any transaction not in the
ordinary course of its business (excluding (i) transactions between the Company
and Subsidiaries or between or among Subsidiaries, and (ii) transactions
permitted under Section 10.9), with any Affiliate other than Permitted Holders,
unless a majority of its Board of Directors or its Members, as the case may be,
shall determine in its good faith judgment and evidenced by a Board Resolution
that:
(1) the terms of such transaction are in the best interests
of the Company, the Guarantor or such Subsidiary; and
(2) such transaction is on terms no less favorable to the
Company, the Guarantor or such Subsidiary than those that could be
obtained in a comparable arm's-length transaction with an entity that
is not an Affiliate.
Notwithstanding anything to the contrary contained herein, so long as
no Event of Default shall have occurred and be continuing, the foregoing
provisions shall not limit or apply to (i) any transaction or series of
transactions (A) which the Board of Directors of the Company or the Members of
the Guarantor, as the case may be, shall determine, in good faith, is in the
best interest of the Company and (B) as to which the Company shall have
delivered to the Trustee a written opinion of an independent nationally
recognized investment banking firm stating that this transaction is fair to the
Company or the Guarantor, as the case may be, from a financial point of view;
(ii) any Restricted Payment not prohibited by Section 10.9; (iii) payments
pursuant to any tax sharing agreement or arrangement among the Guarantor, the
Company and any Subsidiaries; and (iv) any transactions between the Guarantor,
the Company or any of its Subsidiaries and MS Group or any of its Affiliates
involving the provision of financial, investment banking, management consulting
or underwriting services by MS Group or any of its Affiliates, provided that
the fees payable to MS Group or any of its Affiliates do not exceed the usual
and customary fees of MS Group or any such Affiliate charged to persons that
are not Affiliates of MS Group or any of its Affiliates (through direct equity
ownership, warrants, contract rights or otherwise).
SECTION X.16. Limitation on Related Business.
The Company and the Guarantor will not, and will not permit any
Subsidiary to, engage in any business other than the businesses in which they
are engaged on the date of this Indenture and business activities reasonably
complementary or incidental thereto.
SECTION X.17. Provision of Financial Information.
The Company shall file with the Trustee:
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(a) within 45 days after the close of each quarterly accounting
period in each fiscal year of the Company, the Consolidated balance sheets of
the Guarantor, the Company and their Subsidiaries as at the end of such
quarterly accounting period and the related Consolidated statements of income
and cash flow for such quarterly accounting period, together with a
management's discussion and analysis relating thereto, all of which shall be
certified by an Officer of the Company and the Guarantor as fairly presenting
the Consolidated financial condition and results of operations of the Company
and the Guarantor in accordance with generally accepted accounting principles
consistently applied, subject to normal year-end audit adjustments;
(b) within 90 days after the end of each fiscal year of the Company,
the Consolidated balance sheets of the Guarantor, the Company and their
Subsidiaries as at the end of such fiscal year and the related Consolidated
statements of income and cash flow for such fiscal year, certified by
independent certified public accountants of recognized national standing,
together with (i) a management's discussion and analysis relating thereto and
(ii) a statement of such accounting firm that its audit of such financial
statements was conducted in accordance with generally accepted auditing
standards; and
(c) together with the delivery of financial statements under
paragraph (a) or (b) above, a certificate of an Officer of the Company
certifying that, as of the date of such certificate and as to his or her
knowledge, the Company is in compliance with all conditions and covenants under
this Indenture and, since the date of the last such certificate delivered by
the Company, no Event of Default has occurred or, if such Event of Default has
occurred, specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto.
(d) The Company shall, upon receipt of notice from any Holder that is
proposes to sell any Securities pursuant to the exemption provided by the
Commission's Rule 144A (or any successor thereto), provide at its expense the
information required by such Rule, including without limitation a brief
statement of the nature of the Company's business and its products and services
and the financial information required by such Rule.
SECTION X.18. Change of Control.
(a) Upon the occurrence of a Change of Control (as defined below),
each Holder of a Security shall have the right to have such Security
repurchased by the Company. The Company shall, within 30 days following the
date of the consummation of a transaction resulting in a Change of Control,
mail an Offer with respect to an Offer to Purchase all Securities Outstanding
on the Purchase Date at a Purchase Price equal to 101% of their principal
amount together with all accrued and unpaid interest to the Purchase Date;
provided, however, that installments of interest whose Stated Maturity is on or
prior to the Purchase Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of
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Section 3.7. Each Holder shall be entitled to tender all or any portion of the
Securities owned by such Holder or payable to such Holder on any intervening
Interest Payment Date.
(b) The Company shall perform its obligations specified in the Offer
for the Offer to Purchase. Prior to the Purchase Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to the
Offer, (ii) deposit with the Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 10.3)
money sufficient to pay the Purchase Price of all Securities or portions
thereof so accepted and (iii) deliver or cause to be delivered to the Trustee
all Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof accepted for payment by the Company. The Paying
Agent shall promptly mail or deliver to Holders of Securities so accepted
payment in an amount equal to the Purchase Price, and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new Security or
Securities equal in principal amount to any unpurchased portion of the Security
surrendered as requested by the Holder. Any Security not accepted for payment
shall be promptly mailed or delivered by the Company to the Holder thereof.
(c) "Change of Control" shall be deemed to have occurred if (a) any
person or group (within the meaning of Rule 13d-5 of the Securities Exchange
Act of 1934 as in effect on the date hereof) other than one or more Permitted
Holders shall own directly or indirectly, beneficially or of record, shares
representing more than 35% of the aggregate ordinary voting power represented
by the issued and outstanding membership interests of the Guarantor; (b) a
majority of the seats (other than vacant seats) on the Board of Directors of
the Company shall at any time be occupied by persons who were neither (i)
nominated by the Board of Directors of the Company nor (ii) appointed by
directors so nominated; (c) any change in control (or similar event, however
denominated) with respect to the Company or the Guarantor shall occur under and
as defined in any indenture or agreement in respect of Debt to which the
Company or the Guarantor is a party; or (d) the Company ceases for any reason
to be a Wholly Owned Subsidiary of the Guarantor (other than as a result of the
merger of the Company into the Guarantor).
SECTION X.19. Environmental and Safety Compliance.
The Company shall, and shall cause its Subsidiaries to, comply with
all Environmental and Safety Laws, except where failure so to comply could not
reasonably be expected to result in a Material Adverse Effect, and provide
prompt written notice to the Trustee following the receipt of any written
notice of any material violation of any Environmental and Safety Laws from any
Governmental Authority.
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SECTION X.20. Statement by Officers as to Default.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year ending after the date hereof, an Officers'
Certificate, stating whether or not to the knowledge of the signers thereof the
Company and the Guarantor are in compliance with all conditions and covenants
under this Indenture, including without limitation Section 8.1 and Sections
10.4 to 10.20, inclusive, and if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge. Said Officers' Certificate shall be accompanied by or combined with
a certificate signed by an Officer and containing the statements required by
Section 314(a)(4) of the Trust Indenture Act.
(b) The Company shall deliver to the Trustee, as soon as possible and
in any event within 10 days after the Company becomes aware of the occurrence
of an Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default, and the action which the
Company proposes to take with respect thereto.
(c) The Company shall deliver to the Trustee, promptly after becoming
aware thereof, notice of the commencement of, any action, suit or proceeding
that, if adversely determined, could reasonably be expected to result in a
Material Adverse Effect.
SECTION X.21. Waiver of Certain Covenants.
The Company and the Guarantor may omit in any particular instance to
comply with any covenant or condition set forth in Section 8.1 and Sections
10.4 to 10.20, inclusive, if the Holders of at least a majority in principal
amount of the Outstanding Securities shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect; provided, however, with respect to an Offer to Purchase as to
which an Offer has been mailed, no such waiver may be made or shall be
effective against any Holder tendering Securities pursuant to such Offer, and
the Company may not omit to comply with the terms of such Offer as to such
Holder.
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SECTION X.22. Further Assurances.
The Company and the Guarantor shall, upon request of the Trustee,
execute and deliver such further instruments and do such further acts as may
reasonably be necessary or proper to carry out more effectively the provisions
of this Indenture, including without limitation any instruments necessary to
preserve, protect or perfect the validity of security interests created or
intended to be created in the Collateral under the Security Documents.
The Guarantor and the Company will cause each of their existing and
subsequently acquired or organized Subsidiaries (other than an Inactive
Subsidiary) and each of their Subsidiaries that ceases to be an Inactive
Subsidiary (a) to execute and deliver to the Trustee a Subsidiary Guarantee
Agreement pursuant to which such Subsidiary will guarantee payment of the
Securities on substantially the same terms and conditions as those set forth in
Article XIV, and (b), at such time as there shall be two or more Subsidiary
Guarantors to execute and deliver to the Trustee the Indemnity, Subrogation and
Contribution Agreement (or a supplement thereto) and (c) each other applicable
Security Document in favor of the Trustee as may be deemed necessary by the
Company or the Trustee to create a valid, perfected and enforceable security
interest in the Collateral of such Subsidiary.
In addition, from time to time, each of the Company and the Guarantor
shall, and shall cause each of their existing and subsequently acquired or
organized Subsidiaries (other than an Inactive Subsidiary) and each of their
Subsidiaries that ceases to be an Inactive Subsidiary (a) whenever it files any
further instruments and documents or takes any other action to better assure,
preserve, protect and perfect the security granted to the holders of the First
Priority Debt, it will forthwith notify the Collateral Agent thereof and (b)
will promptly, at its own expense, execute, acknowledge, deliver and cause to
be duly filed comparable instruments and documents and take such comparable
actions to better assure, preserve, protect and perfect the Security Interest
and the rights and remedies created hereby to the same extent as may be granted
to the First Priority Debt.
SECTION X.23. Compliance with Security Documents.
Each of the Company and the Guarantor shall, and shall cause each of
their Subsidiaries to, comply with all of their respective covenants,
commitments and undertakings under each of the Security Documents to which it
is a party.
ARTICLE XI
Redemption of Securities
SECTION XI.1. Right of Optional Redemption.
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The Securities may be redeemed at the election of the Company, as a
whole or from time to time in part, at any time and at the Redemption Prices
specified in the form of Security hereinbefore set forth, together with accrued
interest to the Redemption Date.
SECTION XI.2. Applicability of Article.
Redemption of Securities at the election of the Company, as permitted
or required by any provision of this Indenture, shall be made in accordance
with such provision and this Article.
SECTION XI.3. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 11.1 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the Securities, the
Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities
to be redeemed.
SECTION XI.4. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 45 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $1,000 or any integral multiple thereof) of the principal amount of
Securities of a denomination larger than $1,000 and which need not, unless the
Company otherwise directs, provide for the selection of amounts which are less
than $1,000.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION XI.5. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) if an Interest Payment date will occur on or before the
Redemption date, that the interest then payable will be paid to the
Holder as of the appropriate Record Date,
(5) that on the Redemption Date the Redemption Price,
together with all accrued and unpaid interest to the Redemption Date,
will become due and payable upon each such Security to be redeemed and
that interest thereon will cease to accrue on and after said date, and
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued and unpaid
interest.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION XI.6. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION XI.7. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
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Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate provided by the
Security.
SECTION XI.8. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 10.2 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge
(except as otherwise provided in Section 3.5), a new Security or Securities of
like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE XII
Defeasance and Covenant Defeasance
SECTION XII.1. Company's Option to Effect Defeasance or Covenant Defeasances.
The Company may at its option by Board Resolution, at any time, elect
to have either Section 12.2 or Section 12.3 applied to the Outstanding
Securities upon compliance with the conditions set forth below in this Article
XII.
SECTION XII.2. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 12.1
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid
and discharged the entire Debt represented by the Outstanding Securities and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 12.4 and as more fully
set forth in such Section, payments in respect of the principal of (and
premium, if any) and interest on such Securities when such payments are due,
the Company's obligations with respect to such
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Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, the rights, powers,
trusts, duties and immunities of the Trustee hereunder and this Article XII.
Subject to compliance with this Article XII, the Company may exercise its
option under this Section 12.2 notwithstanding the prior exercise of its option
under Section 12.3.
SECTION XII.3. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 12.1
applicable to this Section (i) the Company shall be released from its
obligations under Section 10.5 through 10.19, inclusive, and clauses (i) and
(iii) of Section 8.1(b) and (ii) (except with respect to surviving obligations
of the Company under Section 12.2) the occurrence of an event specified in
Section 5.1(6) shall not be deemed to be an Event of Default, on and after the
date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section, Clause or Article,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section, Clause or Article or by reason of any reference in any such
Section, Clause or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION XII.4. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
12.2 or Section 12.3 to the then Outstanding Securities:
(1) The Company shall (a) irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 6.9 who shall agree to comply with the
provisions of this Article XII applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, no later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the
principal of, premium, if any, and each installment of interest on the
Securities at Maturity in accordance with the terms of this Indenture
and of such Securities, and (b) if such payment of any Securities at
Maturity results from a redemption of Securities, the Company shall
have given, or made arrangements satisfactory to the Trustee for
giving due notice thereof. For this purpose, "U.S. Government
Obligations" means securities that
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are (x) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (y)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligation or a
specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the
U.S. Government Obligation evidenced by such depository receipt.
(2) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default shall have occurred
and be continuing on the date of such deposit or, insofar as
subsections 5.1(8) and (9) are concerned, at any time during the
period ending on the 121st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not cause
the Trustee to have a conflicting interest as defined in Section 6.8
and for purposes of the Trust Indenture Act with respect to any
securities of the Company.
(4) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is
a party or by which it is bound.
(5) The Company shall have delivered to the Trustee an
Officers' Certificate and Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 12.2 or the covenant defeasance under Section 12.3 (as
the case may be) have been complied with.
(6) In the case of an election under Section 12.2, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) 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 shall confirm that, the Holders of the
Outstanding Securities will not
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recognize gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge 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 deposit, defeasance and
discharge had not occurred.
(7) In the case of an election under Section 12.3, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Outstanding Securities will not
recognize gain or loss for Federal income tax purposes as a result of
such deposit and 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 deposit and covenant
defeasance had not occurred.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities, if then
listed on any securities exchange, will not be delisted as a result of
such deposit.
(9) Such defeasance or covenant defeasance shall not result
in the trust arising from such deposit constituting an investment
company as defined in the Investment Company Act of 1940, as amended,
or such trust shall be qualified under such act or exempt from
regulation thereunder.
SECTION XII.5. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.3, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee -- collectively, for
purposes of this Section 12.5, the "Trustee") pursuant to Section 12.4 in
respect of the Securities shall be held in trust for the benefit of the Holders
of the Securities and applied by the Trustee in accordance with the provisions
of such Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities, of all sums
due and to become due thereon in respect of principal (and premium, if any) and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 13.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities.
Anything in this Article XII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 12.4 which, in the opinion of a nationally recognized firm of
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independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
SECTION XII.6. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 12.2 or 12.3 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article XII until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 12.2 or 12.3;
provided, however, that if the Company makes any payment of principal of (and
premium, if any) or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
ARTICLE XIII
Meeting of Holders of Securities
SECTION XIII.1. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities may be called at any time and from
time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities.
SECTION XIII.2. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities for any purpose specified in Section 13.1, to be held at such time
and at such place in New York, New York as the Trustee shall determine. Notice
of every meeting of Holders of Securities, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 1.6, not less than
20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company pursuant to a Board Resolution,
or the Holders of at least 25% in principal amount of the Outstanding
Securities shall have requested the Trustee to call a meeting of the Holders of
Securities for any purpose specified in Section 13.1, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed a notice of meeting as provided
above or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities in the amount
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above specified, as the case may be, may determine the time and the place in
New York, New York for such a meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this
Section.
SECTION XIII.3. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities, a
Person shall be (1) a Holder of one or more Outstanding Securities, or (2) a
Person appointed by an instrument in writing as proxy of a Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities shall be the Persons entitled to vote at such meeting
and their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION XIII.4. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities shall constitute a quorum for a meeting of Holders of
Securities. In the absence of a quorum within 30 minutes of the time appointed
for any such meeting, the meeting shall, if convened at the request of Holders
of Securities, be dissolved, or may, if convened in any other manner, be
adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such adjourned meeting. Notice of
the reconvening of any such adjourned meeting shall be given as provided in
Section 13.2(a), except that such notice need be given not less than ten days
prior to the date on which the meeting is scheduled to be reconvened. Notice
of the reconvening of any such adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities; provided,
however, that, except as limited by the proviso to Section 9.2, any resolution
with respect to any consent or waiver which this Indenture expressly provides
may be given by the Holders of not less than a majority in principal amount of
the Outstanding Securities may be adopted at a meeting or an adjourned meeting
duly convened and at which a quorum is present as aforesaid only by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Securities; and provided, further, that, except as limited by the
proviso to Section 9.2, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities may be adopted at a meeting or any adjourned
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meeting duly reconvened and at which a quorum is present by such specified
percentage in principal amount of the Outstanding Securities.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all
the Holders of Securities, whether or not present or represented at the
meeting.
SECTION XIII.5. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities in regard to proof of the holding of
Securities and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 1.4 and the
appointment of any proxy shall be proved in the manner specified in Section 1.4
or by having the signature of the person executing the proxy guaranteed by any
member firm of a registered national securities exchange, a member of the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company having an office, branch or agency in the United States. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified
above.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 13.2(b), in
which case the Company or the Holders of Securities that called the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities represented at the meeting.
(c) At any meeting each Holder of a Security or proxy shall be
entitled to one vote for each $1.00 principal amount (or its equivalent) of the
Outstanding Securities held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.
(d) Any meeting of Holders of Securities duly called pursuant to
Section 13.2 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of the Outstanding
Securities represented at the meeting; and the meeting may be held as so
adjourned without further notice.
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SECTION XIII.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities held
or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record, at least in duplicate, of the proceedings of each meeting
of Holders of Securities shall be prepared by the Secretary of the meeting and
there shall be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided in Section 13.2 and,
if applicable, Section 13.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE XIV
Guarantee
SECTION XIV.1. Guarantee.
The Guarantor hereby, jointly and severally with any Subsidiary
Guarantors, unconditionally and irrevocably guaranties to each Holder and to
the Trustee, and their respective successors and assigns, the due and punctual
payment of principal of and, within applicable grace periods, interest on the
Securities when due, whether at Stated Maturity, by acceleration, by redemption
or Offer to Purchase or otherwise, and all other monetary obligations of the
Company under this Indenture and the Securities and the due and punctual
performance within applicable grace period of all other obligations of the
Company under this Indenture and the Securities (the foregoing being
hereinafter collectively called the "Obligations"). The Guarantor further
agrees that the Obligations may be extended or renewed, in whole or in part,
without notice or further assent from the Guarantor, and that the Guarantor
will remain bound by this Article XIV notwithstanding any extension or renewal
of any Obligation.
The Guarantor waives presentation to, demand of payment from and
protest to the Company of any of the Obligations, and also waives notice of
protest for nonpayment. The Guarantor waives notice of any default under the
Securities or the Obligations. The Obligations of the Guarantor hereunder
shall not be affected by (a) the failure of any Holder or the Trustee to
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assert any claim or demand or to enforce any right or remedy against the
Company or any other person under this Indenture, the Securities or any other
agreement or otherwise; (b) any extension or renewal of any thereof; (c) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Indenture, the Securities or any other agreement; (d) the release of
any security held by any Holder or the Trustee for the 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 Obligations or (f) (except as
provided in Section 14.3 ) any change in the ownership of any Guarantor.
The Guarantor further agrees that its Guarantee herein constitutes a
guaranty of payment when due (and not a guaranty of collection) and waives any
right to require that any resort be had by any Holder or the Trustee to any
security held for payment of the Obligations.
The Obligations of the 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, and recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of
the Obligations or otherwise. Without limiting the generality of the
foregoing, the Obligations of the 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
Securities or any other agreement, by any waiver or modification of any
thereof, by any default, failure or delay, wilful or otherwise, in the
performance of the Obligations, or by any 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 the Guarantor or would otherwise act as a discharge of the
Guarantor as a matter of law or equity.
The Guarantor further agrees that its Guarantee 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 interest on any 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 the
Guarantor by virtue hereof, upon the failure of the Company to pay the
principal of or interest on any Obligation when and as the same shall become
due, whether at Stated Maturity, by acceleration, by redemption or otherwise,
or to perform its obligations specified in any Offer to Purchase, the Guarantor
hereby, jointly and severally with any Subsidiary Guarantors, promises to and
will, 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
(i) the unpaid principal amount of such Obligations, (ii) accrued and unpaid
interest on such Obligations (but not to exceed the maximum rate permitted by
applicable law) and (iii) all other monetary Obligations of the Company to the
Holders and the Trustee.
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The Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any Obligations guarantied
hereby until payment in full of all Obligations. The Guarantor further agrees
that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the Obligations guarantied
hereby may be accelerated as provided in Article V for the purposes of such
Guarantor's Guarantee herein, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guarantied hereby, and (y) in the event of any declaration of acceleration of
such Obligations as provided in Article V, such Obligations (whether or not due
and payable) shall forthwith become due and payable by the Guarantor for
purposes of this Section.
The Guarantor also agrees, jointly and severally, with any Subsidiary
Guarantors, 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.
SECTION XIV.2. Execution and Delivery of Guarantee.
To evidence its Guarantee set forth in Section 14.1, the Guarantor
agrees that a notation of such Guarantee substantially in the form set forth in
Section 2.5 hereof, shall be endorsed on each Security authenticated and
delivered by the Trustee and that such endorsement shall be executed on behalf
of the Guarantor by an Officer or a holder of a power of attorney authorized to
execute the Guarantee by manual or facsimile signature.
The Guarantor agrees that its Guarantee set forth in Section 14.1
shall remain in full force and effect and apply to all the Securities
notwithstanding any failure to endorse on each Security a notation of such
Guarantee.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security on which a Guarantee
is endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this indenture on behalf of the Guarantor.
SECTION XIV.3. Successors and Assigns.
This Article XIV shall be binding upon the Guarantor and its
successors and assigns and shall inure 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 Securities shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.
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SECTION XIV.4. No waiver, etc.
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 XIV
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 and benefits which either may have under this Article at law,
in equity, by statute or otherwise.
SECTION XIV.5. Modification, etc.
No modification, amendment or waiver of any provision of this Article
XIV, nor the consent to any departure by the Guarantor therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Trustee, subject to the prior written consent of the Holders, 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 the Guarantor or any other guarantor to any other or further
notice or demand in the same, similar or other circumstances.
ARTICLE XV
Security Documents
SECTION XV.1. Security Documents.
(a) In order to secure the due and punctual payment of the Second
Priority Notes and the Securities, the Company, the Guarantor and the Trustee,
in its capacity as Collateral Agent, have entered into or will enter into, as
the case may be, the Security Documents to create the security interests
thereunder and for related matters. The Company and the Guarantor covenant and
agree that they have full right, power and lawful authority to grant, bargain,
sell, release, convey, hypothecate, assign, mortgage, pledge, transfer, confirm
and grant a security interest in the property constituting the Collateral, in
the manner and form done in the Security Documents or intended to be done, and
that (a) each will forever warrant and defend the title to the same against the
claims of all Persons whatsoever in each case free and clear of all Liens
whatsoever, except Liens permitted by Section 10.14, (b) each will execute,
acknowledge and deliver to the Trustee, as such Collateral Agent, such further
assignments, transfers, assurances or other instruments and will do or cause to
be done all such acts and things as may be necessary or proper to assure and
confirm to the Trustee, as Collateral Agent, its interest in the Collateral, or
any part thereof, as from time to time constituted, and the right, title and
interest in and to the Security Documents so as to render the same available
for the security and benefit of this Indenture and of the Second Priority Notes
and the Securities.
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(b) Each Holder, by accepting the Securities, consents and agrees
to all of the terms and provisions of the Security Documents, including the
relative priority of the interests of the Second Priority Notes and the
Securities with respect to the Collateral, as the same may be amended from time
to time pursuant to the provisions of the Security Documents and this
Indenture, and authorizes and directs the Trustee to enter into each of
Security Documents to which it is a party and to perform its obligations and
exercise its rights thereunder in accordance therewith; provided, however, that
if any provision of the Security Documents limits, qualifies, or conflicts with
the duties imposed by the provisions of the Trust Indenture Act, the Trust
Indenture Act controls.
(c) So long as the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Note Agreement or any Second
Priority Note remains in effect, as between the holders of the Second Priority
Notes and the Holders of the Securities, the Collateral (including for this
purpose the Real Property covered by the Mortgages) as now or hereafter
constituted shall be held for the benefit of all such holders without
distinction as security for the Second Priority Obligations and the
Obligations, except that, after foreclosure any proceeds shall be applied first
to the payment in full of the Second Priority Obligations pursuant to Section
5.6. Thereafter, as amongst the Holders, the Collateral (including for this
purpose the Real Property covered by the Mortgages) as now or hereafter
constituted shall be held for the equal and ratable benefit of the Holders
without preference, priority or distinction of any thereof over any other by
reason of difference in time of issuance, sale or otherwise, as security for
the Obligations.
SECTION XV.2. Recording, Opinion of Counsel, Etc.
The Company and the Guarantor will cause, at their own expense, this
Indenture, the Security Documents, and all amendments or supplements thereto,
to be registered, recorded and filed and/or re-recorded and/or re-filed and/or
renewed in such manner and in such place or places, if any, as may be required
by law in order fully to preserve and protect the Liens of the Security
Documents and all parts of the Collateral and to effectuate and preserve the
security of the Holders and all rights of the Trustee.
The Company and the Guarantor shall furnish to the Trustee and the
Collateral Agent:
(a) promptly after the execution and delivery of this Indenture
and each of the Security Documents or other instrument of further assurance, an
Opinion of Counsel stating that, in the opinion of such Counsel, the Security
Documents and other instruments of further assurance, and any required
financing statements with respect thereto, have been properly recorded,
endorsed, registered and filed or other action has been taken, so as to make
effective the Liens intended to be created thereby, and reciting the details of
such action or stating that, in the opinion of such Counsel, no such action is
necessary to make such Liens effective; and
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(b) within 15 days after September 30 in each year beginning with
the year 1997, an Opinion of Counsel, dated as of such date, either stating
that, in the opinion of such counsel, such action has been taken with respect
to the recording, registering, filing, re-recording, re-registering and
re-filing of this Indenture and the Security Documents, financing statements,
supplemental indentures, continuation statements or other instruments of
further assurance as is necessary to maintain the Liens of the Security
Documents and reciting the details of such action, or stating that, in the
opinion of counsel, no such action prior to October 31 of the subsequent year
is necessary to maintain such Lien.
The Trustee shall hold in its possession the Security Documents,
except as it from time to time may be required for actions, suits or
proceedings relating to the Security Documents or for the purpose of enforcing
or realizing upon any right or value thereby represented. The Trustee may,
from time to time, in its sole discretion, for the purpose of convenient
location of the Security Documents, appoint one or more agents to hold physical
custody, for the account of the Trustee, of the Security Documents.
SECTION XV.3. Trust Indenture Act Requirements; Release of Collateral.
The release of any Collateral from the terms of any of the Security
Documents or the release, in whole or in part, of the Liens created by any of
the Security Documents, will not be deemed to impair the security interests
thereunder in contravention of the provisions of this Indenture if and to the
extent the Collateral or Liens are released pursuant to, and in accordance
with, the applicable Security Documents and pursuant to, and in accordance
with, the terms hereof. Subject to the provisions of Section 6.06 of the
Security Agreement, to the extent applicable, without limitation, the Company,
the Guarantor and each other obligor on the Securities shall cause Section
314(d) of the Trust Indenture Act relating to the release of property or
securities from the Liens of the Security Documents to be complied with. Any
certificate required by Section 314(d) of the Trust Indenture Act may be made
by two Officers of the Company, except in cases which Section 314(d) of the
Trust Indenture Act requires that such certificate be made by an independent
Person.
SECTION XV.4. Release of Lien.
(a) In the case of releases other than pursuant to Section 6.06 of
the Security Agreement, so long as no Event of Default has occurred and is
continuing, Collateral may be released from the Lien and security interest
created by this Indenture and the Security Documents at any time or from time
to time in accordance with the provisions of the Security Documents, the Trust
Indenture Act (to the extent applicable and except as otherwise provided in the
Security Documents) and as provided hereby.
(b) Upon the request of the Company pursuant to an Officers'
Certificate and an Opinion of Counsel certifying that all conditions precedent
hereunder and under the Security Documents have been met (and at the sole cost
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and expense of the Company) and upon the satisfaction of such conditions
precedent, the Collateral Agent may release (i) Collateral which may be
released with the consent of the Holders pursuant to Article IX hereof and the
Security Agreement, (ii) Collateral which may be released pursuant to Section
6.07 of the Security Agreement, and (iii) all Collateral upon discharge or
defeasance of this Indenture in accordance with Articles IV or XII hereof and
the Security Agreement.
(c) The release of any Collateral from the terms of this Indenture
and the Security Documents will not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Collateral is released pursuant to the terms hereof.
(d) Whenever Collateral is to be released in accordance with this
Section 15.4, the Collateral Agent shall execute any reasonable documents or
termination statements necessary to release the Lien of the Security Documents.
SECTION XV.5. Impairment of Security Interest.
The Guarantor and the Company will not, and will not permit any
Subsidiary to, take or omit to take any action which reasonably might or would
have the result of affecting or impairing the security interests with respect
to the Collateral in contravention of this Indenture, and the Company and the
Guarantor shall not (and shall cause the Subsidiaries not to) grant to, or
suffer to exist in favor of, any Person any interest whatsoever in the
Collateral except as permitted by the Security Documents or this Indenture.
Except for the Credit Agreement, the Guarantor and the Company will not, and
will not permit any Subsidiary to, enter into any agreement or instrument that
by its terms expressly requires that the proceeds received from the sale of any
Collateral, including without limitation any Real Property, be applied to
repay, redeem or otherwise retire any Debt of any Person other than as set
forth in this Article XV and the Security Documents.
SECTION XV.6. Authorization of Receipt of Funds by the Trustee Under the
Security Documents.
The Trustee is authorized to receive any funds for the benefit of
Holders of Securities distributed by the Collateral Agent under the Security
Documents, and to make further distributions of such funds to the Holders
according to the provisions of this Indenture.
ARTICLE XVI
Miscellaneous
SECTION XVI.1. Usury Savings Clause.
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Interest on the Debt evidenced by the Securities is expressly limited
so that in no contingency or event whatsoever, whether by acceleration of the
maturity of the Debt evidenced by the Securities or otherwise, shall the
interest contracted for, charged or received by the Holders exceed the maximum
amount permissible under applicable law. If from any circumstances whatsoever
fulfillment of any provisions of this Indenture, the Securities or of any other
document evidencing, securing, guaranteeing or otherwise pertaining to the Debt
evidenced by the Securities, at the time performance of such provision shall be
due, shall involve transcending the limit of validity prescribed by law, then
ipso facto, the obligation to be fulfilled shall be reduced to the limit of
such validity, and if from any such circumstances any Holder shall ever receive
anything of value as interest or deemed interest by applicable law under this
Indenture, the Securities or any other document evidencing, securing,
guaranteeing or otherwise pertaining to the Debt evidenced by the Securities or
otherwise an amount that would exceed the highest lawful rate, such amount that
would be excessive interest shall be applied to the reduction of the principal
amount owing on the Debt of the Securities held by such Holder, and not to the
payment of interest, or if such excessive interest exceeds the unpaid balance
of principal of the Debt of the Securities held by such Holder, such excess
shall be refunded to the Company. In determining whether or not the interest
paid or payable with respect to any Debt of the Company to the Holders, under
any specific contingency, exceeds the highest lawful rate, the Company and the
Holders shall, to the maximum extent permitted by applicable law, (a)
characterize any non-principal payment as an expense, fee or premium rather
than as interest, (b) exclude voluntary prepayments and the effects thereof,
(c) amortize, prorate, allocate and spread the total amount of interest
throughout the term of such Debt so that the actual rate of interest on account
of such Debt does not exceed the maximum amount permitted by applicable law,
and/or (d) allocate interest between portions of such Debt, to the end that no
such portion shall bear interest at a rate greater than that permitted by law.
The terms and provisions of this Section shall control and supersede ever other
conflicting provision of this Indenture and the Securities.
______________________________________________________
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
PREMIUM STANDARD FARMS, INC.
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
PSF HOLDINGS, L.L.C.
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
FLEET NATIONAL BANK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ) ss.:
COUNTY OF NEW YORK)
On the _____ day of September __, 1996, before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he is a _____________________ of Premium Standard Farms, Inc., one
of the corporations described in and which executed the foregoing instrument;
and that he signed his name thereto by authority of the Board of Directors of
said corporation.
______________________________
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK)
On the _____ day of September __, 1996, before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he is a _____________________ of PSF Holdings, L.L.C., the limited
liability company described in and which executed the foregoing instrument; and
that he signed his name thereto by authority of the Members of said limited
liability company.
______________________________
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK)
On the _____ day of September __, 1996, before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he is a _____________________ of Fleet National Bank, one of the
corporations described in and which executed the foregoing instrument; and that
he signed his name thereto by authority of the Board of Directors of said
corporation.
______________________________
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