1
EXHIBIT 4.1
DEL MONTE FOODS COMPANY,
as Issuer
and
MARINE MIDLAND BANK
as Trustee
____________________
INDENTURE
Dated as of December 17, 1997
____________________
$230,000,000
12 1/2% Senior Discount Notes due 2007
Series B 12 1/2% Senior Discount Notes due 2007
2
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10; 11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06; 11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.07; 4.08; 11.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.04
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
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(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
_________________
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
ii
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TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
-----------
SECTION 1.02 Incorporation by Reference of TIA . . . . . . . . . . . . . . . . . 27
---------------------------------
SECTION 1.03 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . 28
---------------------
ARTICLE II
THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.01 Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . 29
---------------
SECTION 2.02 Execution and Authentication;
------------------------------
Aggregate Principal Amount . . . . . . . . . . . . . . . . 29
--------------------------
SECTION 2.03 Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . 31
--------------------------
SECTION 2.04 Paying Agent To Hold Assets in Trust . . . . . . . . . . . . . . . . 32
------------------------------------
SECTION 2.05 Noteholder Lists. . . . . . . . . . . . . . . . . . . . . . . . . . 32
----------------
SECTION 2.06 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.07 Replacement Notes. . . . . . . . . . . . . . . . . . . . . . . . . . 33
-----------------
SECTION 2.08 Outstanding Notes. . . . . . . . . . . . . . . . . . . . . . . . . 34
-----------------
SECTION 2.09 Treasury Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
--------------
SECTION 2.10 Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . 34
---------------
SECTION 2.11 Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
------------
SECTION 2.12 Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . 35
------------------
SECTION 2.13 CUSIP Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
------------
SECTION 2.14 Deposit of Moneys . . . . . . . . . . . . . . . . . . . . . . . . . 35
-----------------
SECTION 2.15 Restrictive Legends. . . . . . . . . . . . . . . . . . . . . . . . 36
-------------------
SECTION 2.16 Book-Entry Provisions for Global Note. . . . . . . . . . . . . . . . 37
-------------------------------------
SECTION 2.17 Special Transfer Provisions. . . . . . . . . . . . . . . . . . . . . 38
---------------------------
ARTICLE III
REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 3.01 Notices to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 40
------------------
SECTION 3.02 Selection of Notes To Be Redeemed. . . . . . . . . . . . . . . . . . 41
---------------------------------
SECTION 3.03 Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . 41
--------------------
SECTION 3.04 Effect of Notice of Redemption. . . . . . . . . . . . . . . . . . . 42
------------------------------
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SECTION 3.05 Deposit of Redemption Price. . . . . . . . . . . . . . . . . . . . . 42
---------------------------
SECTION 3.06 Notes Redeemed in Part. . . . . . . . . . . . . . . . . . . . . . . 43
----------------------
ARTICLE IV
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.01 Payment of Notes. . . . . . . . . . . . . . . . . . . . . . . . . . 43
----------------
SECTION 4.02 Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . 44
-------------------------------
SECTION 4.03 Corporate Existence. . . . . . . . . . . . . . . . . . . . . . . . . 44
-------------------
SECTION 4.04 Payment of Taxes and Other Claims. . . . . . . . . . . . . . . . . . 44
---------------------------------
SECTION 4.05 Maintenance of Properties and Insurance. . . . . . . . . . . . . . . 44
---------------------------------------
SECTION 4.06 Compliance Certificate; Notice of Default. . . . . . . . . . . . . . 45
-----------------------------------------
SECTION 4.07 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . . 46
--------------------
SECTION 4.08 SEC Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
-----------
SECTION 4.09 Waiver of Stay, Extension or Usury Laws. . . . . . . . . . . . . . . 47
---------------------------------------
SECTION 4.10 Limitation on Restricted Payments. . . . . . . . . . . . . . . . . . 47
---------------------------------
SECTION 4.11 Limitation on Transactions with Affiliates. . . . . . . . . . . . . 49
------------------------------------------
SECTION 4.12 Limitation on Incurrence of Additional Indebtedness. . . . . . . . . 50
---------------------------------------------------
SECTION 4.13 Limitation on Dividends and Other Payment Restrictions
-------------------------------------------------------
Affecting Subsidiaries . . . . . . . . . . . . . . . . . . 51
----------------------
SECTION 4.14 [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 4.15 Change of Control. . . . . . . . . . . . . . . . . . . . . . . . . . 52
-----------------
SECTION 4.16 Limitation on Asset Sales. . . . . . . . . . . . . . . . . . . . . . 54
-------------------------
SECTION 4.17 Limitation on Preferred Stock of
---------------------------------
Restricted Subsidiaries . . . . . . . . . . . . . . . . . . 58
-----------------------
SECTION 4.18 Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . . . . 58
-------------------
SECTION 4.19 Limitation on Guarantees by Restricted Subsidiaries. . . . . . . . . 58
---------------------------------------------------
SECTION 4.20 Restriction of Lines of Business to Food, Food
-----------------------------------------------
Distribution and Related Businesses . . . . . . . . . . . . 59
-----------------------------------
SECTION 4.21 Limitation on Sales of Common Stock of
---------------------------------------
Restricted Subsidiaries . . . . . . . . . . . . . . . . . . 59
-----------------------
SECTION 4.22 Deposit of Proceeds with Trustee. . . . . . . . . . . . . . . . . . 60
--------------------------------
ARTICLE V
SUCCESSOR CORPORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 5.01 Merger, Consolidation and Sale of Assets
----------------------------------------
of the Company . . . . . . . . . . . . . . . . . . . . . . 60
--------------
SECTION 5.02 Successor Corporation Substituted for
--------------------------------------
the Company . . . . . . . . . . . . . . . . . . . . . . . . 62
-----------
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ARTICLE VI
DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 6.01 Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . 62
-----------------
SECTION 6.02 Acceleration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
------------
SECTION 6.03 Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . 64
--------------
SECTION 6.04 Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . 65
-----------------------
SECTION 6.05 Control by Majority. . . . . . . . . . . . . . . . . . . . . . . . . 65
-------------------
SECTION 6.06 Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . . . . 65
-------------------
SECTION 6.07 Rights of Holders To Receive Payment. . . . . . . . . . . . . . . . 66
------------------------------------
SECTION 6.08 Collection Suit by Trustee. . . . . . . . . . . . . . . . . . . . . 66
--------------------------
SECTION 6.09 Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . . . 66
--------------------------------
SECTION 6.10 Priorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
----------
SECTION 6.11 Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . . . . 67
---------------------
ARTICLE VII
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 7.01 Duties of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 68
-----------------
SECTION 7.02 Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 69
-----------------
SECTION 7.03 Individual Rights of Trustee. . . . . . . . . . . . . . . . . . . . 70
----------------------------
SECTION 7.04 Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . . . . . . 70
--------------------
SECTION 7.05 Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . . . 70
-----------------
SECTION 7.06 Reports by Trustee to Holders. . . . . . . . . . . . . . . . . . . . 71
-----------------------------
SECTION 7.07 Compensation and Indemnity. . . . . . . . . . . . . . . . . . . . . 71
--------------------------
SECTION 7.08 Replacement of Trustee. . . . . . . . . . . . . . . . . . . . . . . 72
----------------------
SECTION 7.09 Successor Trustee by Merger, Etc. . . . . . . . . . . . . . . . . . 73
--------------------------------
SECTION 7.10 Eligibility; Disqualification. . . . . . . . . . . . . . . . . . . . 73
-----------------------------
SECTION 7.11 Preferential Collection of Claims Against Company. . . . . . . . . . 73
-------------------------------------------------
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 8.01 Termination of the Company's Obligations. . . . . . . . . . . . . . 74
----------------------------------------
SECTION 8.02 Legal Defeasance and Covenant Defeasance. . . . . . . . . . . . . . 75
----------------------------------------
SECTION 8.03 Conditions to Legal Defeasance or
----------------------------------
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . 76
-------------------
SECTION 8.04 Application of Trust Money. . . . . . . . . . . . . . . . . . . . . 77
--------------------------
SECTION 8.05 Repayment to the Company. . . . . . . . . . . . . . . . . . . . . . 78
------------------------
SECTION 8.06 Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
-------------
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 9.01 Without Consent of Holders. . . . . . . . . . . . . . . . . . . . . 79
--------------------------
SECTION 9.02 With Consent of Holders. . . . . . . . . . . . . . . . . . . . . . . 80
-----------------------
SECTION 9.03 Compliance with TIA. . . . . . . . . . . . . . . . . . . . . . . . . 81
-------------------
SECTION 9.04 Revocation and Effect of Consents. . . . . . . . . . . . . . . . . . 81
---------------------------------
SECTION 9.05 Notation on or Exchange of Notes. . . . . . . . . . . . . . . . . . 82
--------------------------------
SECTION 9.06 Trustee To Sign Amendments, Etc. . . . . . . . . . . . . . . . . . . 82
-------------------------------
SECTION 9.07 Effect of Supplemental Indentures. . . . . . . . . . . . . . . . . . 82
---------------------------------
ARTICLE X
COLLATERAL ACCOUNT AND RELEASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 10.01 Collateral Account. . . . . . . . . . . . . . . . . . . . . . . . . 83
------------------
SECTION 10.02 Eligible Investments. . . . . . . . . . . . . . . . . . . . . . . 84
--------------------
SECTION 10.03 Release of Collateral. . . . . . . . . . . . . . . . . . . . . . . 84
---------------------
ARTICLE XI
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 11.01 TIA Controls. . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
------------
SECTION 11.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
-------
SECTION 11.03 Communications by Holders with Other Holders. . . . . . . . . . . . 87
--------------------------------------------
SECTION 11.04 Certificate and Opinion as to Conditions Precedent. . . . . . . . . 87
--------------------------------------------------
SECTION 11.05 Statements Required in Certificate or Opinion. . . . . . . . . . . 87
---------------------------------------------
SECTION 11.06 Rules by Trustee, Paying Agent, Registrar. . . . . . . . . . . . . 88
-----------------------------------------
SECTION 11.07 Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . . . 88
--------------
SECTION 11.08 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . 88
-------------
SECTION 11.09 No Adverse Interpretation of Other Agreements. . . . . . . . . . . 88
---------------------------------------------
SECTION 11.10 No Recourse Against Others. . . . . . . . . . . . . . . . . . . . . 89
--------------------------
SECTION 11.11 Successors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
----------
SECTION 11.12 Duplicate Originals. . . . . . . . . . . . . . . . . . . . . . . . 89
-------------------
SECTION 11.13 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
------------
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A-1
---------
EXHIBIT B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .B-1
---------
iv
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EXHIBIT C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
SCHEDULE 1 ................................................................................................ S-1
Note: This Table of Contents shall not, for any purpose, be deemed to be
part of the Indenture.
v
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INDENTURE, dated as of December 17, 1997, by and between DEL
MONTE FOODS COMPANY, a Maryland corporation ("Company"), and MARINE MIDLAND
BANK, a New York State banking corporation and trust company, as Trustee (the
"Trustee").
The Company has duly authorized the creation of an issue of
12 1/2% Senior Discount Notes due 2007 (the "Initial Notes") and Series B
12 1/2% Senior Discount Notes due 2007 (the "Exchange Notes," and together with
the Initial Notes, the "Notes") and, to provide therefor, the Company has duly
authorized the execution and delivery of this Indenture. All things necessary
to make the Notes, when duly issued and executed by the Company, and
authenticated and delivered hereunder, the valid obligations of the Company, and
to make this Indenture a valid and binding agreement of the Company, have been
done.
Each party hereto agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the Holders of the
Notes.
ARTICLE ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Acceleration Notice" has the meaning provided in Section
6.02(a).
"Accreted Value" means as of any date of determination prior
to December 15, 2002, the sum of (a) the initial offering price of each Note
and (b) the portion of the excess of the principal amount at maturity of each
Note over such initial offering price which shall have been accreted thereon
through such date, such amount to be so accreted at the rate of 12 1/2% per
annum of the initial offering price of the Notes, compounded semi-annually on
each June 15 and December 15 from the date of issuance of the Notes through the
date of determination. On and after December 15, 2002, the Accreted Value of
each Note shall be equal to the principal amount at maturity thereof.
"Acquired Indebtedness" means Indebtedness of a Person or any
of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with the
Company or any of its Restricted Subsidiaries or assumed by the Company or any
of its Restricted Subsidiaries in connection with the acquisition of assets
from such Person and in each case not incurred by such Person in connection
with, or in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the Company or such acquisition, merger or consolidation.
1
10
"Affiliate" means, with respect to any specified Person, any
other Person who, directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person. The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative of the foregoing.
"Affiliate Transaction" has the meaning provided in Section
4.11.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Agent Members" has the meaning provided in Section 2.16.
"Applicable Premium" means, with respect to a Note at any
Change of Control Redemption Date, the greater of (i) 1.0% of the Accreted
Value of such Note and (ii) the excess of (A) the present value at such time of
the redemption price of such Note at December 15, 2002 determined in accordance
with paragraph 6(a) of the Notes computed using a discount rate equal to the
Treasury Rate plus 1.0% per annum, over (B) the Accreted Value of such Note or
such Change of Control Redemption Date.
"Asset Acquisition" means (a) an Investment by the Company or
any Restricted Subsidiary of the Company in any other Person pursuant to which
such Person shall become a Restricted Subsidiary of the Company or shall be
merged with or into the Company or any Restricted Subsidiary of the Company, or
(b) the acquisition by the Company or any Restricted Subsidiary of the Company
of the assets of any Person (other than a Restricted Subsidiary of the Company)
which constitute all or substantially all of the assets of such Person or
comprises any division or line of business of such Person or other than in the
ordinary course of business any other properties or assets of such Person.
"Asset Purchase Agreement" shall have the meaning set forth in
the Offering Memorandum.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Wholly Owned Restricted
Subsidiary of the Company of (a) any Capital Stock of any Restricted Subsidiary
of the Company; or (b) any other property or assets of the Company or any
Restricted Subsidiary of the Company other than in the ordinary course of
business; provided, however, that Asset Sales shall not include (i) a
transaction or series of related transactions for which the Company or its
Restricted Subsidiaries receive aggregate consideration of less than
$1,000,000; (ii) the sale, lease, conveyance, disposition
2
11
or other transfer of all or substantially all of the assets of the Company as
permitted under Section 5.01; (iii) the grant of Liens permitted by Section
4.18; (iv) the sale or transfer of Receivables Related Assets in connection
with a Qualified Receivables Transaction; and (v) the sale or transfer of
certain assets identified in Schedule 1 to this Indenture as being held for
disposition.
"Asset Swap" means the execution of a definitive agreement,
subject only to customary closing conditions that the Company in good faith
believes will be satisfied, for a substantially concurrent purchase and sale,
or exchange, of assets (of a kind used or usable by the Company and its
Restricted Subsidiaries in their business as it exists on the date thereof, or
in businesses the same as or similar or reasonably related thereto) between the
Company or any of its Restricted Subsidiaries and another Person or group of
affiliated Persons; provided, however, that any amendment to or waiver of any
closing condition that individually or in the aggregate is material to the
Asset Swap shall be deemed to be a new Asset Swap.
"Authenticating Agent" has the meaning provided in Section
2.02.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"Business Day" means a day that is not a Legal Holiday.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person and (ii) with
respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
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"Cash Equivalents" means (i) obligations issued by, or
unconditionally guaranteed by, the U.S. Government or issued by any agency
thereof and backed by the full faith and credit of the United States, in each
case maturing within one year from the date of acquisition thereof; (ii)
obligations issued or fully guaranteed by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Rating Services ("S&P") or ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of
acquisition, having the highest rating obtainable from either S&P or Moody's;
(iv) certificates of deposit or bankers' acceptances maturing within one year
from the date of acquisition thereof issued by any bank organized under the
laws of the United States or any state thereof or the District of Columbia or
any U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $250,000,000; (v) repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clause (i) above entered into with any bank meeting
the qualifications specified in clause (iv) above; and (vi) investments in
money market funds which invest substantially all their assets in securities of
the types described in clauses (i) through (v) above.
"Cash Net Proceeds" means the aggregate amount of cash or Cash
Equivalents received by the Company in the case of a sale of Qualified Capital
Stock or an Equity Contribution plus, in the case of an issuance of Qualified
Capital Stock upon any exercise, exchange or conversion of securities
(including options, warrants, rights and convertible or exchangeable debt) of
the Company that were issued for cash on or after the Issue Date, the amount of
cash originally received by the Company upon the issuance of such securities
(including options, warrants, rights and convertible or exchangeable debt)
less, in each case, the sum of all payments, fees, commissions and expenses
(including, without limitation, the fees and expenses of legal counsel and
investment banking fees and expenses) incurred in connection with such sale of
Qualified Capital Stock.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for
purposes of Section 13(d) of the Exchange Act (a "Group"), together with any
Affiliates thereof (whether or not otherwise in compliance with the provisions
of this Indenture), other than to TPG or its Related Parties; (ii) the approval
by the holders of Capital Stock of the Company of any plan or proposal for the
liquidation or dissolution of the Company (whether or not otherwise in
compliance with the provisions of this Indenture); (iii) (A) any Person or
Group (other than TPG or its Related Parties) shall become the owner, directly
or indirectly, beneficially or of record, of shares representing more than 40%
of the aggregate ordinary voting power represented by the issued and
outstanding Capital Stock (the "Voting Stock") of the Company and (B) TPG and
its Related Parties shall beneficially own, directly or indirectly, in the
aggregate a lesser percentage of the Voting Stock of the Company than such
other Person or Group; or (iv) the replacement of a majority of the
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13
Board of Directors of the Company over a two-year period from the directors who
constituted the Board of Directors of the Company at the beginning of such
period, and such replacement shall not have been approved by a vote of at least
a majority of the Board of Directors of the Company then still in office who
either were members of such Board of Directors at the beginning of such period
or whose election as a member of such Board of Directors was previously so
approved or who were nominated by, or designees of, TPG or its Related Parties.
"Change of Control Date" has the meaning provided in Section
4.15.
"Change of Control Offer" has the meaning provided in Section
4.15.
"Change of Control Payment Date" has the meaning provided in
Section 4.15.
"Change of Control Redemption Date" has the meaning provided
in Section 4.15.
"Collateral Account" has the meaning provided in Section
10.01(a).
"Common Stock" of any Person means any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or non-voting) of such Person's common stock, whether
outstanding on the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
such successor.
"Consolidated EBITDA" means, with respect to any Person, for
any period, the sum (without duplication) of (i) Consolidated Net Income and
(ii) to the extent Consolidated Net Income has been reduced thereby, (A) all
income taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period, (B) Consolidated Interest Expense and (C)
Consolidated Non-cash Charges less any non-cash items increasing Consolidated
Net Income for such period, all as determined on a consolidated basis for such
Person and its Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to any Person, the ratio of Consolidated EBITDA of such Person during the four
full fiscal quarters (the "Four Quarter Period") ending on or prior to the date
of the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "Transaction Date") to the Consolidated Fixed
Charges of such Person for the Four Quarter Period. In addition to and without
limitation of the foregoing, for purposes of this definition, "Consolidated
EBITDA" and "Consolidated Fixed Charges" shall be calculated after giving
effect on a pro forma basis for the period of such calculation to (i) the
incurrence or repayment of any Indebtedness of such Person or any of its
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Restricted Subsidiaries (and the application of the proceeds thereof) giving
rise to the need to make such calculation and any incurrence or repayment of
other Indebtedness (and the application of the proceeds thereof), other than
the incurrence or repayment of Indebtedness in the ordinary course of business
for working capital purposes pursuant to working capital facilities, occurring
during, the Four Quarter Period or at any time subsequent to the last day of
the Four Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment, as the case may be (and the application of the
proceeds thereof), occurred on the first day of the Four Quarter Period and
(ii) any Asset Sales or Asset Acquisitions (including, without limitation, any
Asset Acquisition giving rise to the need to make such calculation as a result
of such Person or one of its Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition)
incurring, assuming or otherwise being liable for Acquired Indebtedness and
also including any Consolidated EBITDA (including any pro forma expense and
cost reductions calculated on a basis consistent with Regulation S-X under the
Securities Act) attributable to the assets which are the subject of the Asset
Acquisition or Asset Sale during the Four Quarter Period) occurring during the
Four Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date, as if such Asset Sale
or Asset Acquisition (including the incurrence, assumption or liability for any
such Acquired Indebtedness) occurred on the first day of the Four Quarter
Period. If such Person or any of its Restricted Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person, the preceding sentence
shall give effect to the incurrence of such guaranteed Indebtedness as if such
Person or Restricted Subsidiary of such Person had directly incurred or
otherwise assumed such guaranteed Indebtedness. Furthermore, in calculating
"Consolidated Fixed Charges" for purposes of determining the denominator (but
not the numerator) of the "Consolidated Fixed Charge Coverage Ratio," (1)
interest on outstanding Indebtedness determined on a fluctuating basis as of
the Transaction Date and which will continue to be so determined thereafter
shall be deemed to have accrued at a fixed rate per annum equal to the rate of
interest on such Indebtedness in effect on the Transaction Date, (2)
notwithstanding clause (1) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by agreements
relating to Interest Swap Obligations, shall be deemed to accrue at the rate
per annum resulting after giving effect to the operation of such agreements,
(3) interest on Indebtedness that may optionally be determined at an interest
rate based upon a factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rate, shall be deemed to have been based upon the rate
actually chosen, or if, none, then based upon such optional rate as such Person
may designate, and (4) interest on a Capitalized Lease Obligation shall be
deemed to accrue at an interest rate reasonably determined by the Board of
Directors of such Person (as evidenced by a Board Resolution) to be the rate of
interest implicit in such Capitalized Lease Obligation in accordance with GAAP
and as reflected in such Person's financial statements.
"Consolidated Fixed Charges" means, with respect to any Person
for any period, the sum (without duplication) of (i) Consolidated Interest
Expense (excluding amortization or write-off of deferred financing costs), plus
(ii) the product of (x) the amount of all dividend payments on any series of
Preferred Stock of such Person (other than dividends paid in Qualified Capital
Stock) paid
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or accrued during such period times (y) a fraction, the numerator of which is
one and the denominator of which is one minus the then current effective
consolidated Federal, state and local tax rate of such Person, expressed as a
decimal.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the sum (without duplication) of (i) the aggregate of
the interest expense of such Person and its Restricted Subsidiaries for such
period determined on a consolidated basis in conformity with GAAP, including,
without limitation, (a) any amortization of debt discount and amortization or
write-off of deferred financing costs, (b) the net costs under Interest Swap
Obligations, (c) all capitalized interest, (d) the interest portion of any
deferred payment obligation, (e) dividends paid in respect of Disqualified
Capital Stock and (f) net payments (whether positive or negative) pursuant to
Interest Swap Obligations; and (ii) the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by such Person
and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP. Notwithstanding the foregoing,
Consolidated Interest Expense of the Company shall include the interest expense
of a Person only to the extent that the net income of such Person is included
in the Consolidated Net Income of the Company.
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate net income (or loss) of such Person and its
Restricted Subsidiaries for such period on a consolidated basis, determined in
accordance with GAAP; provided that there shall be excluded therefrom (a)
after-tax gains and losses from Asset Sales (without regard to the $1 million
limitation set forth in the definition thereof) or abandonments or reserves
relating thereto, (b) after-tax items classified as extraordinary or
nonrecurring gains, (c) the net income of any Person acquired in a "pooling of
interests" transaction accrued prior to the date it becomes a Restricted
Subsidiary of the referent Person or is merged or consolidated with the
referent Person or any Restricted Subsidiary of the referent Person, (d) the
net income (but not loss) of any Restricted Subsidiary (other than DMC) of the
referent Person to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is restricted by
contract, operation of law or otherwise, (e) the net income of any Person,
other than a Restricted Subsidiary of the referent Person, except to the extent
of cash dividends or distributions paid to the referent Person or to a
Restricted Subsidiary of the referent Person by such Person, (f) any
restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Consolidated Net Income accrued at
any time following the Issue Date, (g) income or loss attributable to
discontinued operations (including, without limitation, operations disposed of
during such period whether or not such operations were classified as
discontinued), and (h) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's assets, any
earnings of the successor corporation prior to such consolidation, merger or
transfer of assets. Notwithstanding the foregoing, "Consolidated Net Income"
shall be calculated without giving effect to (i) the amortization of any
premiums, fees or expenses incurred in connection with the Recapitalization and
related financings and (ii) the amortization, depreciation or charge of any
amounts required or
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16
permitted by Accounting Principles Board Opinion Nos. 16 (including non-cash
write-ups and non-cash charges relating to inventory and fixed assets) and 17
(including non-cash charges relating to intangibles and goodwill).
"Consolidated Net Worth" means the total of the amounts shown
on the balance sheet of the Company and its Restricted Subsidiaries, determined
on a consolidated basis, as of the end of the most recent fiscal quarter of the
Company ending prior to the taking of any action for the purpose of which the
determination is being made, as (i) the par or stated value of all outstanding
Capital Stock of the Company, plus (ii) paid-in capital or capital surplus
relating to such Capital Stock, plus (iii) any retained earnings or earned
surplus, less (A) any accumulated deficit and (B) any amounts attributable to
Disqualified Capital Stock.
"Consolidated Non-cash Charges" means, with respect to any
Person, for any period, the aggregate depreciation, amortization, exchange or
translation losses on foreign currencies and other non-cash expenses of such
Person and its Restricted Subsidiaries reducing Consolidated Net Income of such
Person and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such non-cash charge
which requires an accrual of or a reserve for cash charges for any future
period).
"Consolidation" means, with respect to the Company, the
consolidation of the accounts of the Restricted Subsidiaries with those of the
Company, all in accordance with GAAP; provided that "consolidation" will not
include consolidation of the accounts of any Unrestricted Subsidiary with the
accounts of the Company. The term "consolidated" has a correlative meaning to
the foregoing.
"Contadina Acquisition" has the meaning set forth in the
Offering Memorandum.
"Covenant Defeasance" has the meaning provided in Section
8.02.
"Credit Agreement" means the Credit Agreement dated as of
April 18, 1997, among DMC, the lenders party thereto in their capacities as
lenders thereunder and Bank of America National Trust and Savings Association
and Bankers Trust Company, as agents, together with the related documents
thereto (including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from
time to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including, without limitation, increasing
the amount of available borrowings thereunder (provided that such increase in
borrowings is permitted by Section 4.12) or adding Restricted Subsidiaries of
the Company as additional borrowers or guarantors thereunder) all or any
portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or
group of lenders.
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17
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary of the Company against
fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any applicable Bankruptcy Law.
"Default" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be, an
Event of Default.
"Depository" means The Depository Trust Company, its nominees
and successors.
"Disqualified Capital Stock" means that portion of any Capital
Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof, in each case on or prior to the final maturity date of the Notes;
provided that Capital Stock that would be "Disqualified Capital Stock" solely
by virtue of its containing a customary requirement that the issuer offer to
repurchase such Capital Stock upon a change of control of the issuer will not
be deemed to be "Disqualified Capital Stock."
"DMC" means Del Monte Corporation, a New York corporation, or
its successors.
"DMC Notes" shall have the meaning set forth in the Offering
Memorandum.
"Equity Contribution" means a contribution of cash or Cash
Equivalents by a stockholder of the Company to the consolidated stockholders'
equity of the Company, solely in exchange for, if anything, shares of the
Company's common stock with no preferences or special rights or privileges and
with no redemption or prepayment provisions.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Notes" has the meaning provided in the preamble to
this Indenture.
"Exchange Offer" means the registration by the Company under
the Securities Act pursuant to a registration statement of the offer by the
Company to each Holder of the Initial Notes to exchange all the Initial Notes
held by such Holder for Exchange Notes in an aggregate principal
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amount at maturity equal to the aggregate principal amount at maturity of the
Initial Notes held by such Holder, all in accordance with the terms and
conditions of the Registration Rights Agreement.
"Extended Closing Option" shall have the meaning set forth in Section 4.22.
"fair market value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession of the United States, which are in effect as of the Issue
Date.
"Global Note" has the meaning provided in Section 2.01.
"Guarantee" means a Guarantee of a Restricted Subsidiary
described in Section 4.19.
"Guarantor" means each Person that executes a Guarantee
pursuant to Section 4.19, each until a successor replaces it pursuant to this
Indenture and thereafter means such successor. A Person whose Guarantee has
terminated pursuant to Section 4.19 shall cease to be a Guarantor effective as
of such termination.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered on the Registrar's books.
"incur" has the meaning provided in Section 4.12.
"Indebtedness" means with respect to any Person, without
duplication, (i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Capitalized Lease Obligations of such Person
(but excluding any operating lease obligations), (iv) all obligations of such
Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and other accrued liabilities
arising in the ordinary course of business that are not overdue by 90 days or
more or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted), (v) all obligations for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction, (vi) guarantees and other contingent obligations in
respect of Indebtedness referred to in clauses (i) through (v) above and clause
(viii) below, (vii) all
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obligations of any other Person of the type referred to in clauses (i) through
(vi) that are secured by any lien on any property or asset of such Person, the
amount of such obligation being deemed to be the lesser of the fair market
value of such property or asset or the amount of the obligation so secured,
(viii) all obligations under Currency Agreements and Interest Swap Obligations
of such Person and (ix) all Disqualified Capital Stock issued by such Person
with the amount of Indebtedness represented by such Disqualified Capital Stock
being equal to its maximum fixed repurchase price (or comparable price that the
Company may be required to pay for the acquisition or retirement of such
Disqualified Capital Stock), but excluding accrued dividends, if any. For
purposes hereof, the "maximum fixed repurchase price" of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such
price is based upon or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value shall be determined in good faith by the
Board of Directors of the issuer of such Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Independent Financial Advisor" means a firm (i) which does
not, and whose directors, officers and employees or Affiliates do not have a
direct or indirect equity beneficial ownership interest in the Company
exceeding 10% and (ii) which, in the judgment of the Board of Directors of the
Company, is otherwise independent and qualified to perform the task for which
it is to be engaged.
"Initial Notes" has the meaning provided in the preamble to
this Indenture.
"Initial Purchasers" means Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and BT Alex. ▇▇▇▇▇ Incorporated.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Interest Swap Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest
on a stated notional amount in exchange for periodic payments made by such
other Person
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calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended.
"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition by such Person of any
Capital Stock, bonds, notes, debentures or other securities or evidences of
Indebtedness issued by, any other Person. In the case of the Company,
"Investment" shall exclude extensions of trade credit (including trade
receivables) by the Company and its Restricted Subsidiaries on commercially
reasonable terms in accordance with normal trade practices of the Company or
such Restricted Subsidiary, as the case may be. For the purposes of Section
4.10, (i) "Investment" shall include and be valued at the portion of the fair
market value of the net assets of any Restricted Subsidiary represented by the
Company's proportionate equity interest in such Subsidiary at the time that
such Restricted Subsidiary is designated an Unrestricted Subsidiary and shall
exclude the fair market value of the net assets of any Unrestricted Subsidiary
at the time that such Unrestricted Subsidiary is designated a Restricted
Subsidiary and (ii) the amount of any Investment shall be the original cost of
such Investment plus the cost of all additional Investments by the Company or
any of its Restricted Subsidiaries, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to
such Investment, reduced by the payment of dividends or distributions in
connection with such Investment or any other amounts received in respect of
such Investment; provided that no such payment of dividends or distributions or
receipt of any such other amounts shall reduce the amount of any Investment if
such payment of dividends or distributions or receipt of any such amounts would
be included in Consolidated Net Income. If the Company or any Restricted
Subsidiary of the Company sells or otherwise disposes of any Common Stock of
any direct or indirect Restricted Subsidiary of the Company such that, after
giving effect to any such sale or disposition, the Company no longer owns,
directly or indirectly, 100% of the outstanding Common Stock of such Restricted
Subsidiary, the Company shall be deemed to have made an Investment on the date
of any such sale or disposition equal to the fair market value of the Common
Stock of such Restricted Subsidiary not sold or disposed of.
"Issue Date" means the date of original issuance of the
Initial Notes.
"Legal Defeasance" has the meaning provided in Section 8.02.
"Legal Holiday" has the meaning provided in Section 11.07.
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"Lien" means any lien, mortgage, deed of trust, pledge,
security interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof and
any agreement to give any security interest).
"Management Advisory Agreement" means the Management Advisory
Agreement dated as of April 18, 1997, by and between the Company and TPG, as in
effect on the Issue Date.
"Mandatory Redemption" has the meaning provided in paragraph
5(d) of the Notes.
"Maturity Date" means December 15, 2007.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of (a) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions), (b) taxes paid or payable after
taking into account any reduction in consolidated tax liability due to
available tax credits or deductions and any tax sharing arrangements, (c)
repayment of Indebtedness secured by the assets or properties that are the
subject of such Asset Sale and that is required to be repaid in connection with
such Asset Sale and (d) appropriate amounts to be provided by the Company or
any Restricted Subsidiary, as the case may be, as a reserve, in accordance with
GAAP, against any liabilities associated with such Asset Sale and retained by
the Company or any Restricted Subsidiary, as the case may be, after such Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale.
"Net Proceeds Offer" has the meaning provided in Section 4.16.
"Net Proceeds Offer Payment Date" has the meaning provided in
Section 4.16.
"Net Proceeds Offer Trigger Date" has the meaning provided in
Section 4.16.
"Non-U.S. Person" means a Person who is not a U.S. person, as
such term is defined in Regulation S.
"Notes" means the Initial Notes and the Exchange Notes treated
as a single class of securities, as amended or supplemented from time to time
in accordance with the terms hereof, that are issued pursuant to this
Indenture.
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"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Offering" shall have the meaning set forth in the Offering
Memorandum.
"Offering Memorandum" means the Offering Memorandum dated
December 9, 1997, pursuant to which the Initial Notes were offered, and any
supplement thereto.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, any Vice President, the
Chief Operating Officer, the Chief Financial Officer, the Treasurer, the
Controller, the General Counsel, or the Secretary of such Person, or any other
officer designated by the Board of Directors serving in a similar capacity.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such Person and otherwise complying with
the applicable requirements of this Indenture, as they relate to the making of
an Officers' Certificate.
"Offshore Physical Notes" has the meaning provided in Section
2.01.
"Opinion of Counsel" means a written opinion from legal
counsel, who may be internal counsel for the Company, or who is otherwise
reasonably acceptable to the Trustee and not rendered by any employee of the
Company or any of its Affiliates or Subsidiaries complying with the
requirements of Sections 11.04 and 11.05, as they relate to the giving of an
Opinion of Counsel.
"Paying Agent" has the meaning provided in Section 2.03.
"Permitted Indebtedness" means, without duplication, each of
the following:
(i) Indebtedness under the Notes and this
Indenture;
(ii) Indebtedness incurred pursuant to the Credit
Agreement in an aggregate principal amount at any time outstanding not
to exceed $730 million less (A) the sum of (y) the amount of all
scheduled mandatory principal payments in respect of term loans
thereunder (excluding any such payments to the extent refinanced at
the time of payment under a replacement Credit Agreement) actually
made by the Company or DMC on or before June 30, 2000, plus (z) the
amount of all mandatory principal payments in respect of such term
loans thereunder (other than such excluded payments) made from (or
attributable to) the proceeds received from Asset Sales; (B) in the
case of the Revolving Credit Facility, any required permanent
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repayments (which are accompanied by a corresponding permanent
commitment reduction) thereunder made on or before June 30, 2000 or
made by reason of the receipt of the proceeds of Asset Sales; and (C)
the amount of the Receivables Program Obligations then outstanding;
(iii) other Indebtedness of the Company and its
Restricted Subsidiaries outstanding on the Issue Date reduced by the
amount of any scheduled amortization payments or mandatory prepayments
when actually paid or permanent reductions thereon;
(iv) Interest Swap Obligations of the Company or
any Restricted Subsidiaries covering Indebtedness of the Company or
any of its Restricted Subsidiaries and Interest Swap Obligations of
any Restricted Subsidiary of the Company covering Indebtedness of such
Restricted Subsidiary; provided, however, that such Interest Swap
Obligations are entered into to protect the Company or its Restricted
Subsidiaries from fluctuations in interest rates on Indebtedness
incurred in accordance with this Indenture to the extent the notional
principal amount of such Interest Swap Obligation does not exceed the
principal amount of the Indebtedness to which such Interest Swap
Obligation relates;
(v) Indebtedness under Currency Agreements;
provided that in the case of Currency Agreements which relate to
Indebtedness, such Currency Agreements do not increase the
Indebtedness of the Company and its Restricted Subsidiaries
outstanding other than as a result of fluctuations in foreign currency
exchange rates or by reason of fees, indemnities and compensation
payable thereunder;
(vi) Indebtedness of a Wholly Owned Restricted
Subsidiary of the Company to the Company or to another Wholly Owned
Restricted Subsidiary of the Company, in either case for so long as
such Indebtedness is held by the Company or a Wholly Owned Restricted
Subsidiary of the Company, in each case subject to no Lien held by a
Person other than the Company or a Wholly Owned Restricted Subsidiary
of the Company; provided that if as of any date any Person other than
the Company or a Wholly Owned Restricted Subsidiary of the Company
owns or holds any such Indebtedness or holds a Lien in respect of such
Indebtedness, there shall be deemed to have occurred on such date the
incurrence of Indebtedness not constituting Permitted Indebtedness by
the issuer of such Indebtedness;
(vii) Indebtedness of the Company to a Wholly Owned
Restricted Subsidiary of the Company for so long as such Indebtedness
is held by a Wholly Owned Restricted Subsidiary of the Company, in
each case subject to no Lien; provided that (a) any Indebtedness of
the Company to any Wholly Owned Restricted
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Subsidiary of the Company is unsecured and subordinated, pursuant to a
written agreement, to the Company's obligations under this Indenture
and the Notes and (b) if as of any date any Person other than a Wholly
Owned Restricted Subsidiary of the Company owns or holds any such
Indebtedness or any Person holds a Lien in respect of such
Indebtedness, there shall be deemed to have occurred on such date the
incurrence of Indebtedness not constituting Permitted Indebtedness by
the Company;
(viii) Indebtedness arising from the honoring by a
bank or other financial institution of a check, draft or similar
instrument inadvertently (except in the case of daylight overdrafts)
drawn against insufficient funds in the ordinary course of business;
provided, however, that such Indebtedness is extinguished within five
Business Days of incurrence;
(ix) Indebtedness of the Company or any of its
Restricted Subsidiaries in respect of workers' compensation claims,
payment obligations in connection with self-insurance, performance
bonds, surety bonds or similar requirements in the ordinary course of
business;
(x) Capitalized Lease Obligations and Purchase
Money Indebtedness of the Company and its Restricted Subsidiaries
incurred in the ordinary course of business not to exceed $25 million
at any one time outstanding;
(xi) guarantees by the Company and its Wholly
Owned Restricted Subsidiaries of each other's Indebtedness and
guarantees by its Wholly Owned Restricted Subsidiaries of Indebtedness
of other Wholly Owned Restricted Subsidiaries; provided that such
Indebtedness is permitted to be incurred under this Indenture,
including, with respect to guarantees by Wholly Owned Restricted
Subsidiaries of the Company, the provisions of Section 4.19;
(xii) Indebtedness arising from agreements
providing for indemnification, adjustment of purchase price or similar
obligations, or from guarantees or letters of credit, surety bonds or
performance bonds securing any obligations of the Company or any of
its Restricted Subsidiaries pursuant to such agreements, in each case
incurred in connection with the disposition of any business, assets or
Restricted Subsidiary of the Company (other than guarantees of
Indebtedness or other obligations incurred by any Person acquiring all
or any portion of such business, assets or Restricted Subsidiary of
the Company for the purpose of financing such acquisition) in a
principal amount not to exceed the gross proceeds actually received by
the Company or any of its Restricted Subsidiaries in connection with
such disposition; provided, however, that the principal amount of any
Indebtedness incurred pursuant to this clause (xii), when taken
together with all Indebtedness
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incurred pursuant to this clause (xii) and then outstanding, shall not
exceed $20 million;
(xiii) guarantees furnished by the Company or its
Restricted Subsidiaries in the ordinary course of business, of
Indebtedness of another Person in an aggregate amount not to exceed
$10 million at any time outstanding;
(xiv) Refinancing Indebtedness;
(xv) Receivables Program Obligations; and
(xvi) additional Indebtedness of the Company and its
Restricted Subsidiaries in an aggregate principal amount not to
exceed $50 million at any one time outstanding (which amount may,
but need not, be incurred in whole or in part under the Credit
Agreement).
"Permitted Investments" means: (i) Investments by the Company
or any Restricted Subsidiary of the Company in any Person that is or will
become immediately after such Investment a Restricted Subsidiary of the Company
or that will merge or consolidate into the Company or a Restricted Subsidiary
of the Company; provided that such Person is engaged, in all material respects,
solely in the business of food, food distribution and related businesses; (ii)
Investments in the Company by any Restricted Subsidiary of the Company;
provided that any Indebtedness evidencing such Investment is unsecured and
subordinated, pursuant to a written agreement, to the Company's obligations
under the Notes and this Indenture; (iii) Investments in cash and Cash
Equivalents; (iv) loans and advances to employees and officers of the Company
and its Restricted Subsidiaries in the ordinary course of business for bona
fide business purposes not in excess of $5 million at any one time outstanding;
(v) Currency Agreements and Interest Swap Obligations entered into in the
ordinary course of the Company's or its Restricted Subsidiaries' business and
otherwise in compliance with this Indenture; (vi) additional Investments not to
exceed $25 million at any one time outstanding; (vii) Investments in securities
of trade creditors or customers received in settlement of obligations or
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers; (viii)
Investments made by the Company or its Restricted Subsidiaries as a result of
consideration received in connection with an Asset Sale made in compliance with
Section 4.16 or not constituting an Asset Sale by reason of the $1 million
threshold contained in the definition thereof; (ix) Investments specifically
permitted by and made in accordance with the provisions of Section 4.11; (x)
guarantees permitted by Section 4.19; (xi) Related Business Investments in
companies and ventures in which the Company or a Restricted Subsidiary of the
Company holds an equity ownership interest of not less than 33% in an aggregate
amount not exceeding the sum of (x) the unutilized portion of the amount of
Investments permitted by clause (vi) of this definition, (y) the proceeds of
the sale of certain assets identified in
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Schedule 1 to this Indenture as being held for disposition, plus (z)
$25 million; and (xii) Investments made in connection with a Qualified
Receivables Transaction.
"Permitted Liens" means the following types of Liens:
(i) Liens for taxes, assessments or governmental
charges or claims either (a) not delinquent or (b) contested in good
faith by appropriate proceedings and as to which the Company or any of
its Restricted Subsidiaries shall have set aside on its books such
reserves as may be required pursuant to GAAP;
(ii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, suppliers, materialmen, repairmen
and other Liens imposed by law incurred in the ordinary course of
business for sums not yet delinquent for a period of more than 60 days
or being contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made
in respect thereof;
(iii) Liens incurred or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security or similar
obligations, including any Lien securing letters of credit issued in
the ordinary course of business consistent with past practice in
connection therewith, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of
borrowed money);
(iv) judgment Liens not giving rise to an Event of
Default so long as such Lien is adequately bonded and any appropriate
legal proceedings which may have been duly initiated for the review of
such judgment shall not have been finally terminated or the period
within which such proceedings may be initiated shall not have expired;
(v) easements, rights-of-way, zoning restrictions
and other similar charges or encumbrances in respect of real property
not interfering in any respect with the ordinary conduct of the
business of the Company or any of its Restricted Subsidiaries;
(vi) any interest or title of a lessor under any
lease, whether or not characterized as capital or operating; provided
that such Liens do not extend any property or assets which is not
leased property subject to such lease;
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(vii) Liens securing Capitalized Lease Obligations
and Purchase Money Indebtedness incurred in accordance with Section
4.12; provided, however, that in the case of Purchase Money
Indebtedness (A) the Indebtedness shall not exceed the cost of such
property or assets being acquired or constructed and shall not be
secured by any property or assets of the Company or any Restricted
Subsidiary of the Company other than the property and assets being
acquired or constructed and (B) the Lien securing such Indebtedness
shall be created within 90 days of such acquisition or construction;
(viii) Liens upon specific items of inventory or
other goods and proceeds of any Person securing such Person's
obligations in respect of bankers' acceptances issued or created for
the account of such Person to facilitate the purchase, shipment or
storage of such inventory or other goods;
(ix) Liens securing reimbursement obligations with
respect to letters of credit which encumber documents and other
property relating to such letters of credit and products and proceeds
thereof;
(x) Liens encumbering deposits made to secure
obligations arising from statutory, regulatory, contractual, or
warranty requirements of the Company or any of its Restricted
Subsidiaries, including rights of offset and set-off;
(xi) Liens securing Interest Swap Obligations that
relate to Indebtedness that is otherwise permitted under this
Indenture;
(xii) Liens securing Indebtedness under Currency
Agreements;
(xiii) Liens securing Acquired Indebtedness incurred
in accordance with Section 4.12; provided that (A) such Liens secured
such Acquired Indebtedness at the time of and prior to the incurrence
of such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company and were not granted in connection with, or
in anticipation of, the incurrence of such Acquired Indebtedness by
the Company or a Restricted Subsidiary of the Company and (B) such
Liens do not extend to or cover any property or assets of the Company
or of any of its Restricted Subsidiaries other than the property or
assets that secured the Acquired Indebtedness prior to the time such
Indebtedness became Acquired Indebtedness of the Company or a
Restricted Subsidiary of the Company and are no more favorable to the
lienholders than those securing the Acquired Indebtedness prior to the
incurrence of such Acquired Indebtedness by the Company or a
Restricted Subsidiary of the Company;
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(xiv) leases or subleases granted to others not
interfering in any material respect with the business of the Company
or its Restricted Subsidiaries;
(xv) Liens arising out of consignment or similar
arrangements for the sale of goods entered into by the Company or any
of its Restricted Subsidiaries in the ordinary course of business;
(xvi) Liens on Receivables Program Assets securing
Receivables Program Obligations;
(xvii) Liens securing Indebtedness of Restricted
Subsidiaries (so long as the Company is neither co-obligor, guarantor,
or otherwise directly liable with respect to such Indebtedness), which
Indebtedness is incurred in compliance with the Indenture; and
(xviii) Liens securing the Credit Agreement.
"Person" means an individual, partnership, corporation,
limited liability company, unincorporated organization, trust or joint venture,
or a governmental agency or political subdivision thereof.
"Physical Notes" has the meaning provided in Section 2.01.
"Preferred Stock" of any Person means any Capital Stock of
such Person that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemptions or upon liquidation.
"principal" of any Indebtedness (including the Notes) means
the outstanding principal amount of such Indebtedness plus the premium, if any,
on such Indebtedness.
"Private Placement Legend" has the meaning provided in Section
2.15.
"Proceeds Purchase Date" has the meaning provided in Section
4.16.
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms of this Indenture, a calculation in
accordance with Article 11 of Regulation S-X under the Securities Act (except
as specifically set forth herein), as determined by the Board of Directors of
the Company.
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29
"Public Equity Offering" means an underwritten public
offering of Qualified Capital Stock of the Company pursuant to a registration
statement filed with the SEC in accordance with the Securities Act.
"Purchase Money Indebtedness" means Indebtedness of the
Company or any of its Restricted Subsidiaries incurred in the normal course of
business for the purpose of financing all or any part of the purchase price, or
the cost of installation, construction or improvement, of property or assets.
"Purchase Money Note" means a promissory note evidencing the
obligation of a Receivables Subsidiary to pay the purchase price for
Receivables or other indebtedness to the Company or to any other Seller in
connection with a Qualified Receivables Transaction, which note shall be repaid
from cash available to the maker of such note, other than cash required to be
held as reserves pursuant to Receivables Documents, amounts paid in respect of
interest, principal and other amounts owing under Receivables Documents and
amounts paid in connection with the purchase of newly generated Receivables.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A under the Securities Act.
"Qualified Receivables Transaction" means any transaction or
series of transactions that may be entered into by the Company or any
Subsidiary of the Company pursuant to which the Company or any such Subsidiary
may sell, convey or otherwise transfer to a Receivables Subsidiary (in the case
of a transfer by the Company or any other Seller) and any other Person (in the
case of a transfer by a Receivables Subsidiary), or may grant a security
interest in, any Receivables Program Assets (whether now existing or arising in
the future); provided that:
(a) no portion of the indebtedness or any other
obligations (contingent or otherwise) of a Receivables Subsidiary or Special
Purpose Vehicle (i) is guaranteed by the Company or any other Seller (excluding
guarantees of obligations pursuant to Standard Securitization Undertakings),
(ii) is recourse to or obligates the Company or any other Seller in any way
other than pursuant to Standard Securitization Undertakings or (iii) subjects
any property or asset of the Company or any other Seller, directly or
indirectly, contingently or otherwise, to the satisfaction of obligations
incurred in such transactions, other than pursuant to Standard Securitization
Undertakings;
(b) neither the Company or any other Seller has
any material contract, agreement, arrangement or understanding with a
Receivables Subsidiary or a Special Purpose Vehicle (except
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30
in connection with a Purchase Money Note or Qualified Receivables Transaction)
other than on terms no less favorable to the Company or such Seller than those
that might be obtained at the time from persons that are not affiliates of the
Company, other than fees payable in the ordinary course of business in
connection with servicing accounts receivable; and
(c) the Company and the other Sellers do not have
any obligation to maintain or preserve the financial condition of a Receivables
Subsidiary or a Special Purpose Vehicle or cause such entity to achieve certain
levels of operating results.
"Recapitalization" means the recapitalization of the Company
as set forth in the Offering Memorandum.
"Receivables" means all rights of the Company or any other
Seller to payments (whether constituting accounts, chattel paper, instruments,
general intangibles or otherwise, and including the right to payment of any
interest or finance charges), which rights are identified in the accounting
records of the Company or such Seller as accounts receivable.
"Receivables Documents" means (x) a receivables purchase
agreement, pooling and servicing agreement, credit agreement, agreements to
acquire undivided interests or other agreements to transfer, or create a
security interest in, Receivables Program Assets, in each case as amended,
modified, supplemented or restated and in effect from time to time and entered
into by the Company, another Seller and/or a Receivables Subsidiary, and (y)
each other instrument, agreement and other document entered into by the
Company, any other Seller or a Receivables Subsidiary relating to the
transactions contemplated by the agreements referred to in clause (x) above, in
each case as amended, modified, supplemented or restated and in effect from
time to time.
"Receivables Program Assets" means (a) all Receivables which
are described as being transferred by the Company, another Seller or a
Receivables Subsidiary pursuant to the Receivables Documents, (b) all
Receivables Related Assets, and (c) all collections (including recoveries) and
other proceeds of the assets described in the foregoing clauses.
"Receivables Program Obligations" means (a) notes, trust
certificates, undivided interests, partnership interests or other interests
representing the right to be paid a specified principal amount for the
Receivables Program Assets, and (b) related obligations of the Company, a
Subsidiary of the Company or a Special Purpose Vehicle (including, without
limitation, rights in respect of interest or yield, breach of warranty claims
and expense reimbursement and indemnity provisions).
"Receivables Related Assets" means (i) any rights arising
under the documentation governing or relating to Receivables (including rights
in respect of liens securing such Receivables and other credit support in
respect of such Receivables), (ii) any proceeds of such Receivables and
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any lockboxes or accounts in which such proceeds are deposited, (iii) spread
accounts and other similar accounts (and any amounts on deposit therein)
established in connection with a Qualified Receivables Transaction, (iv) any
warranty, indemnity, dilution and other intercompany claim arising out of
Receivables Documents and (v) other assets which are customarily transferred or
in respect of which security interests are customarily granted in connection
with asset securitization transactions involving accounts receivable.
"Receivables Subsidiary" means a special purpose wholly owned
Subsidiary of the Company created in connection with the transactions
contemplated by a Qualified Receivables Transaction, which Subsidiary engages
in no activities other than those incidental to such Qualified Receivables
Transaction and which is designated as a Receivables Subsidiary by the
Company's Board of Directors. Any such designation by the Board of Directors
shall be evidenced by filing with the Trustee a Board Resolution of the Company
giving effect to such designation and an Officers' Certificate certifying, to
the best of such officers' knowledge and belief after consulting with counsel,
such designation, and the transactions in which the Receivables Subsidiary will
engage, comply with the requirements of the definition of Qualified Receivables
Transaction.
"Record Date" means each of the dates designated as such in
the Notes, whether or not a Legal Holiday.
"Redemption Date," when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Notes.
"Redemption Price," when used with respect to any Note to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Notes.
"Reference Date" has the meaning provided in Section 4.10.
"Refinance" means, in respect of any security or Indebtedness,
to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire,
or to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness, in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the
Company or any Restricted Subsidiary of the Company of Indebtedness incurred in
accordance with Section 4.12 (other than pursuant to clauses (ii), (iv), (v),
(vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii) or (xvi) of the definition
of Permitted Indebtedness), in each case that does not (1) result in an
increase in the aggregate amount of Indebtedness of such Person as of the date
of such proposed Refinancing (plus the amount of any premium required to be
paid under the terms of the instrument governing such Indebtedness and plus the
amount of reasonable expenses incurred by the Company or its Restricted
Subsidiaries in connection with such Refinancing) or (2) create Indebtedness
with (A) a Weighted
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Average Life to Maturity that is less than the Weighted Average Life to
Maturity of the Indebtedness being Refinanced or (B) a final maturity earlier
than the final maturity of the Indebtedness being Refinanced; provided that (x)
if such Indebtedness being Refinanced is solely Indebtedness of the Company,
then such Refinancing Indebtedness shall be Indebtedness solely of the Company
and (y) if such Indebtedness being Refinanced is subordinate or junior to the
Notes, then such Refinancing Indebtedness shall be subordinate to the Notes at
least to the same extent and in the same manner as the Indebtedness being
Refinanced.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights
Agreement dated December 17, 1997 among the Company and the Initial Purchasers
for the benefit of themselves and the Holders, as the same may be amended or
modified from time to time in accordance with the terms thereof.
"Regulation S" means Regulation S under the Securities Act.
"Related Business Investment" means (i) any Investment by a
Person in any other Person a majority of whose revenues are derived from the
food, food distribution or related businesses; and (ii) any Investment by such
Person in any cooperative or other supplier, including, without limitation, any
joint venture which is intended to supply any product or service useful to the
business of the Company and its Restricted Subsidiaries.
"Related Party" means any Affiliate of TPG.
"Replacement Assets" has the meaning provided in Section 4.16.
"Restricted Payment" has the meaning provided in Section 4.10.
"Restricted Security" has the meaning assigned to such term in
Rule 144(a)(3) under the Securities Act; provided that the Trustee shall be
entitled to request and conclusively rely on an Opinion of Counsel with respect
to whether any Note constitutes a Restricted Security.
"Restricted Subsidiary" of any Person means any Subsidiary of
such Person which at the time of determination is not an Unrestricted
Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of the Company of any
property, whether owned by the Company or any
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33
Restricted Subsidiary at the Issue Date or later acquired, which has been or is
to be sold or transferred by the Company or such Restricted Subsidiary to such
Person or to any other Person from whom funds have been or are to be advanced
by such Person on the security of such Property.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor statute or statutes thereto.
"Securities Intermediary" shall have the meaning set forth in
Section 10.01.
"Seller" means the Company or any Subsidiary or other
Affiliate of the Company (other than a Receivables Subsidiary) which is a party
to a Receivables Document.
"Significant Subsidiary" shall have the meaning set forth in
Rule 1.02(w) of Regulation S-X under the Securities Act.
"Special Purpose Vehicle" means a trust, partnership or other
special purpose Person established by the Company and/or any of its
Subsidiaries to implement a Qualified Receivables Transaction.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company which are reasonably customary in accounts receivable
transactions.
"Subsidiary", with respect to any Person, means (i) any
corporation of which the outstanding Capital Stock having at least a majority
of the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such
Person or (ii) any other Person of which at least a majority of the voting
interest under ordinary circumstances is at the time owned, directly or
indirectly, by such Person.
"Surviving Entity" has the meaning provided in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended, as in effect on the date of this Indenture, except as
otherwise provided in Section 9.04.
"TPG" means TPG Partners, L.P., a Delaware limited
partnership, or its successors.
"TPG Equity Contribution" has the meaning set forth in the
Offering Memorandum.
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"Transaction Advisory Agreement" means the Transaction
Advisory Agreement, dated as of April 18, 1997, by and between the Company and
TPG, as in effect on the Issue Date.
"Treasury Rate" means the yield to maturity at the time of
computation of U.S. Treasury securities with a constant maturity (as compiled
and published in the most recent Federal Reserve Release H.15 (519) which has
become publicly available at least two Business Days prior to the Change of
Control Redemption Date (or, if such Release is no longer published, any
publicly available source or similar market data)) closest to the period from
the Change of Control Redemption Date to December 15, 2002; provided, however,
that if the period from the Change of Control Redemption Date to December 15,
2002, is not equal to the constant maturity of a U.S. Treasury security for
which a weekly average yield is given, the Treasury Rate shall be obtained by
linear interpolation (calculated to the nearest one-twelfth of one year) from
the weekly average yields of U.S. Treasury securities for which such yields are
given, except that if the period from the Change of Control Redemption Date to
December 15, 2002, is less than one year, the weekly average yield on actually
traded U.S. Treasury securities adjusted to a constant maturity of one year
shall be used.
"Triggering Event" means the earlier to occur of (i) February
3, 1998 (or May 12, 1998, if the Company has exercised the Extended Closing
Option) if by such date the consummation of the Contadina Acquisition on or
prior to such date has not occurred on terms (including with respect to the
making of the TPG Equity Contribution in a minimum amount of $40.0 million and
in consideration solely of common stock of the Company) substantially as set
forth in the Asset Purchase Agreement as in effect on the Issue Date, or (ii)
the determination in good faith by the Company, and concurrently therewith the
delivery by the Company to the Trustee of an Officers' Certificate, that by
such date the Contadina Acquisition will not so occur.
"Trust Officer" means any officer of the Trustee assigned by
the Trustee to administer this Indenture, or in the case of a successor
trustee, an officer assigned to the department, division or group performing
the corporation trust work of such successor and assigned to administer this
Indenture.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Unrestricted Subsidiary" of any Person means (i) any
Subsidiary of such Person that at the time of determination shall be or
continue to be designated an Unrestricted Subsidiary by the Board of Directors
of such Person in the manner provided below and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors of the Company may designate
any Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any
Capital Stock of, or owns or holds any Lien on any property of, the Company or
any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary
to be so designated; provided that (x) the Company certifies to the Trustee
that such
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designation complies with Section 4.10 and (y) each Subsidiary to be so
designated and each of its Subsidiaries has not at the time of designation, and
does not thereafter, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable with respect to any Indebtedness pursuant
to which the lender thereof has recourse to any of the assets of the Company or
any of its Restricted Subsidiaries. The Board of Directors of the Company may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if (x)
immediately after giving effect to such designation, the Company is able to
incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.12 and (y) immediately before and
immediately after giving effect to such designation, no Default or Event of
Default shall have occurred and be continuing. Any such designation by the
Board of Directors of the Company shall be evidenced to the Trustee by promptly
filing with the Trustee a copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations of, and
obligations guaranteed by, the United States for the payment of which the full
faith and credit of the United States is pledged.
"U.S. Legal Tender" means such coin or currency of the United
States as at the time of payment shall be legal tender for the payment of
public and private debts.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means any
Restricted Subsidiary of such Person of which all the outstanding voting
securities (other than, in the case of a foreign Restricted Subsidiary,
directors' qualifying shares or an immaterial amount of shares otherwise
required to be owned by other Persons pursuant to applicable law) are owned by
such Person or any Wholly Owned Restricted Subsidiary of such Person.
SECTION 1.02 Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
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"indenture securities" means the Notes.
"indenture security holder" means a Holder or a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has
the meaning assigned to it in accordance with GAAP as in effect on the
date hereof;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and
words in the plural include the singular; and
(5) "herein," "hereof" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
ARTICLE ARTICLE II
THE NOTES
SECTION 2.01 Form and Dating.
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The Initial Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Exchange Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit B hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or depository rule
or usage. The Company and the Trustee shall approve the form of the Notes and
any notation, legend or endorsement on them. Each Note shall be dated the date
of its issuance and shall show the date of its authentication.
The terms and provisions contained in the forms of the Notes
annexed hereto as Exhibits A and B, shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the parties
hereto, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Notes (i) offered and sold in reliance on Rule 144A and (ii)
offered and sold in offshore transactions in reliance on Regulation S shall
each, in the case of (i) and (ii) be issued initially in the form of one or
more permanent global Notes in registered form, substantially in the form set
forth in Exhibit A (the "Global Note"), deposited with the Registrar as
custodian for the Depository, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of the
Global Note may from time to time be increased or decreased by adjustments made
on the records of the Registrar, as custodian for the Depository, as
hereinafter provided.
Notes offered and sold in reliance on any other applicable
exemption from registration under the Securities Act other than as described in
the preceding paragraph may be issued in the form of permanent certificated
Notes in registered form, in substantially the form set forth in Exhibit A (the
"Physical Notes"). Physical Notes initially shall be registered in the name of
the Depository or the nominee of such Depository and be delivered to the
Registrar as custodian for such Depository. Beneficial owners of Physical
Notes, however, may request registration of such Physical Notes in their names
or the names of their nominees.
SECTION 2.02 Execution and Authentication; Aggregate
Principal Amount.
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer shall sign and one Officer or an Assistant Secretary (each
of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Notes for the Company by manual or
facsimile signature.
If an Officer or Assistant Secretary whose signature is on a
Note was an Officer or Assistant Secretary at the time of such execution but no
longer holds that office or position at the time the Trustee authenticates the
Note, the Note shall nevertheless be valid.
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A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original
issue in the aggregate principal amount at maturity not to exceed $230,000,000
and (ii) Exchange Notes from time to time for issue only in exchange for a like
principal amount at maturity of Initial Notes, in each case upon written orders
of the Company in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of Notes to be authenticated, the date on
which the Notes are to be authenticated and the aggregate principal amount at
maturity of Notes outstanding on the date of authentication, whether the Notes
are to be Initial Notes or Exchange Notes, and shall further specify the amount
of such Notes to be issued as Global Notes or Physical Notes. The aggregate
principal amount at maturity of Notes outstanding at any time may not exceed
$230,000,000 except as provided in Section 2.07.
The Trustee shall not be required to authenticate Notes if the
issuance of such Notes pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Notes and this Indenture in a manner
which is not reasonably acceptable to the Trustee.
The Trustee may appoint an authenticating agent (the
"Authenticating Agent") reasonably acceptable to the Company to authenticate
Notes. Unless otherwise provided in the appointment, an Authenticating Agent
may authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
Authenticating Agent. An Authenticating Agent has the same rights as an Agent
to deal with the Company and Affiliates of the Company. The Trustee hereby
appoints Bankers Trust Company as its initial Authentication Agent, and by its
acknowledgment and acceptance on the signature page hereto, Bankers Trust
Company hereby agrees to so act.
Any Person into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent shall
be a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Company. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of resignation or upon such a
termination, the Trustee may appoint a successor Authenticating Agent, shall
give written notice of such appointment to the Company and shall mail notice of
such appointment (at the Company's expense) to all Holders. Any successor
Authenticating Agent upon acceptance of its
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appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. Any such Authenticating Agent shall
be entitled to reasonable compensation for its services and reimbursement for
its reasonable expenses and, if paid by the Trustee, it shall be a reimbursable
expense pursuant to Section 7.07.
The Company shall indemnify any such Authentication Agent and
their respective agents, employees, stockholders and directors and officers
for, and hold them harmless against, any loss, liability or expense incurred by
them except for such actions to the extent caused by any negligence, bad faith
or willful misconduct on their part, arising out of or in connection with the
administration of this trust including the reasonable costs and expense of
defending themselves against any claim or liability in connection with the
exercise or performance of any of their rights, powers or duties hereunder.
The Notes shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 principal amount at maturity and
any integral multiple thereof.
SECTION 2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in the City of New York, State of New York)
where (a) Notes may be presented or surrendered for registration of transfer or
for exchange (the "Registrar"), (b) Notes may be presented or surrendered for
payment (the "Paying Agent") and (c) notices and demands to or upon the Company
in respect of the Notes and this Indenture may be served. The Registrar shall
keep a register of the Notes and of their transfer and exchange. The Company,
upon prior written notice to the Trustee, may have one or more co-Registrars
and one or more additional paying agents reasonably acceptable to the Trustee.
The term "Paying Agent" includes any additional Paying Agent. Any such Paying
Agent or Registrar shall be entitled to reasonable compensation for its
services and reimbursement for its reasonable expenses and, if paid by the
Trustee, it shall be a reimbursable expense pursuant to Section 7.07.
The Company shall indemnify any such Paying Agent or Registrar
and their respective agents, employees, stockholders and directors and officers
for, and hold them harmless against, any loss, liability or expense incurred by
them except for such actions to the extent caused by any negligence, bad faith
or willful misconduct on their part, arising out of or in connection with the
administration of this trust including the reasonable costs and expenses of
defendants themselves against any claim or liability in connection with the
exercise or performance of any of their rights, powers or duties hereunder.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which agreement shall incorporate
the provisions of the TIA and implement
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the provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee, in advance, of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, or fails to give the
foregoing notice, the Trustee shall act as such.
The Company initially appoints Bankers Trust Company as
Registrar, Paying Agent and agent for service of demands and notices in
connection with the Notes, until such time as the Bankers Trust Company has
resigned or a successor has been appointed, and by its acknowledgment and
acceptance on the signature page hereto, Bankers Trust Company hereby agrees to
so act. The Paying Agent or Registrar may resign upon 30 days written notice
to the Company and the Trustee, provided that a replacement Paying Agent or
Registrar, as the case may be, has been duly appointed and has agreed to act as
such, or that the Trustee has assumed the duties of the Paying Agent or the
Registrar, as the case may be.
Upon the occurrence of an Event of Default described in
Section 6.01(6) or (7), the Trustee shall, or upon the occurrence of any other
Event of Default by notice to the Company, the Registrar and the Paying Agent,
the Trustee may, assume the duties and obligations of the Registrar and the
Paying Agent hereunder.
SECTION 2.04 Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all assets held by the Paying Agent for
the payment of principal and premium of, Accreted Value and interest on, the
Notes (whether such assets have been distributed to it by the Company or any
other obligor on the Notes), and the Company and the Paying Agent shall notify
the Trustee of any Default by the Company (or any other obligor on the Notes)
in making any such payment. The Company at any time may require a Paying Agent
to distribute all assets held by it in relation to such agreement to the
Trustee and account for any assets disbursed and the Trustee may at any time
during the continuance of any payment Default or Event of Default, upon written
request to a Paying Agent, require such Paying Agent to distribute all assets
held by it to the Trustee and to account for any assets distributed. Upon
distribution to the Trustee of all assets that shall have been delivered by the
Company to the Paying Agent, the Paying Agent shall have no further liability
for such assets.
SECTION 2.05 Noteholder Lists.
The Registrar shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Holders. If the Trustee or any Paying Agent is not the
Registrar, the Company shall furnish or cause the Registrar to furnish to the
Trustee or any such Paying Agent on or before the third Business Day preceding
each Record Date and at such other times as the Trustee or any such Paying
Agent may request in writing a list as of such date
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and in such form as the Trustee may reasonably require of the names and
addresses of the Holders, which list may be conclusively relied upon by the
Trustee or any such Paying Agent.
SECTION 2.06 Transfer and Exchange.
Subject to the provisions of Sections 2.16 and 2.17, when
Notes are presented to the Registrar or a co-Registrar with a request to
register the transfer of such Notes or to exchange such Notes for an equal
principal amount at maturity of Notes of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make the exchange as
requested if the requirements for such transaction are met; provided, however,
that the Notes presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or co-Registrar,
duly executed by the Holder thereof or his or her attorney duly authorized in
writing. To permit registrations of transfer and exchanges, the Company shall
execute and the Trustee shall authenticate Notes at the Registrar's or
co-Registrar's request. No service charge shall be made for any registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant to Sections
2.10, 3.06, 4.15, 4.16 or 9.06, in which event the Company shall be responsible
for the payment of such taxes).
In the event that the Company delivers to the Trustee a copy
of an Officers' Certificate certifying that a registration statement under the
Securities Act with respect to the Exchange Offer has been declared effective
by the SEC and that the Company has offered registered Notes to the Holders in
accordance with the Exchange Offer, the Registrar shall exchange, upon request
of any Holder, such Holder's Initial Notes of any series for registered Notes
of such series upon the terms set forth in the Exchange Offer and in accordance
with Section 2.06 hereof, provided that the Initial Notes so surrendered for
exchange are duly endorsed and accompanied by a letter of transmittal or
written instrument of transfer in form satisfactory to the Company and the
Registrar, in addition to any certifications and representations required by
the provisions of the Registration Rights Agreement, and duly executed by the
Holder thereof or such Holder's attorney who shall be duly authorized in
writing to execute such document on behalf of such Holder.
The Registrar or co-Registrar shall not be required to
register the transfer of or exchange of any Note (i) during a period beginning
at the opening of business 15 days before the mailing of a notice of redemption
of Notes and ending at the close of business on the day of such mailing and
(ii) selected for redemption in whole or in part pursuant to Article Three,
except the unredeemed portion of any Note being redeemed in part.
Any Holder of an interest in any Global Note shall, by
acceptance of such interest, agree that changes or transfers of beneficial
interests in such Global Note may be effected only
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through a book-entry system maintained by the Holder of such Global Note (or
its agent), and that ownership of a beneficial interest in the Global Note
shall be required to be reflected in a book-entry system.
SECTION 2.07 Replacement Notes.
If a mutilated Note is surrendered to the Registrar or if the
Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee or any authenticating agent of
the Trustee shall authenticate a replacement Note if the Registrar's
requirements are met. If required by the Registrar or the Company, such Holder
must provide an affidavit of lost certificate and an indemnity bond or other
indemnity, sufficient, in the judgment of both the Company and the Registrar,
to protect the Company, the Trustee and any Agent from any loss which any of
them may suffer if a Note is replaced. The Company may charge such Holder for
its reasonable, out-of-pocket expenses in replacing a Note, including
reasonable fees and expenses of counsel. Every replacement Note shall
constitute an additional obligation of the Company.
SECTION 2.08 Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee, except those cancelled by the Registrar, those
delivered to the Registrar for cancellation and those described in this Section
as not outstanding. Subject to the provisions of Section 2.09, a Note does not
cease to be outstanding because the Company or any of its Affiliates holds the
Note.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Registrar receives an Opinion of Counsel that the replaced Note is held by
a bona fide purchaser. A mutilated Note ceases to be outstanding upon
surrender of such Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent
holds U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of
the principal, premium, Accreted Value, as applicable, and interest due on the
Notes payable on that date and is not prohibited from paying such money to the
Holders thereof pursuant to the terms of this Indenture, then on and after that
date such Notes cease to be outstanding and interest on them ceases to accrue.
SECTION 2.09 Treasury Notes.
In determining whether the Holders of the required principal
amount at maturity of Notes have concurred in any direction, waiver, consent or
notice, Notes owned by the Company or any of its Affiliates shall be considered
as though they are not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction,
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waiver or consent, only Notes which a Trust Officer of the Trustee actually
knows are so owned shall be so considered. The Company shall notify the
Trustee, in writing, when it or any of its Affiliates repurchases or otherwise
acquires Notes, of the aggregate principal amount at maturity of such Notes so
repurchased or otherwise acquired.
SECTION 2.10 Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon receipt of a
written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Notes to be
authenticated and the date on which the temporary Notes are to be
authenticated. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company considers appropriate
for temporary Notes. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate upon receipt of a written order of the Company
pursuant to Section 2.02 definitive Notes in exchange for temporary Notes.
SECTION 2.11 Cancellation.
The Company at any time may deliver Notes to the Registrar for
cancellation. The Paying Agent shall forward to the Registrar any Notes
surrendered to it for registration of transfer, exchange, purchase or payment.
The Registrar shall cancel and, at the written direction of the Company, shall
dispose of all Notes surrendered for registration of transfer, exchange,
purchase, payment or cancellation. Subject to Section 2.07, the Company may
not issue new Notes to replace Notes that it has paid or delivered to the
Registrar for cancellation. If the Company shall acquire any of the Notes,
such acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and until the same are
surrendered to the Registrar for cancellation pursuant to this Section 2.11.
SECTION 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest to the Persons who are Holders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest
or the next succeeding Business Day if such date is not a Business Day. At
least 15 days before the subsequent special record date, the Company shall mail
to each Person who was a Holder as of a recent date selected by the Company,
with a copy to the Trustee and the Paying Agent, a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest, and interest payable on such defaulted interest, if any, to be paid.
SECTION 2.13 CUSIP Number.
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The Company in issuing the Notes may use "CUSIP" numbers, and
if so, the Trustee shall use the CUSIP numbers in notices of redemption or
exchange as a convenience to Holders; provided that no representation is hereby
deemed to be made by the Trustee as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Notes, and that reliance may be placed
only on the other identification numbers printed on the Notes. The Company
shall promptly notify the Trustee and the Registrar of any change in a CUSIP
number.
SECTION 2.14 Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each Interest
Payment Date and on the Maturity Date, the Company shall have deposited with
the Paying Agent in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date or Maturity Date, as the
case may be, in a timely manner which permits the Paying Agent to remit payment
to the Holders on such Interest Payment Date or Maturity Date, as the case may
be.
SECTION 2.15 Restrictive Legends.
Each Global Note that constitutes a Restricted Security shall
bear the following legend (the "Private Placement Legend") on the face thereof
until December 17, 1999 (or such earlier date as shall be specified in an
Officer's Certificate to the effect that the Notes are no longer Restricted
Securities delivered to the Trustee and the Registrar) unless otherwise agreed
by the Company and the Holder thereof:
THE SECURITY (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED
HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A THEREUNDER. BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS NOT ACQUIRING THIS
SECURITY FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT). THE HOLDER OF
THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
SUCH SECURITY
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MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(a) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT (C) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR
(d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS
SET FORTH IN (A) ABOVE.
Each Global Note shall also bear the following legend on the
face thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK LIMITED PURPOSE
TRUST COMPANY ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.17 OF THE INDENTURE.
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SECTION 2.16 Book-Entry Provisions for Global Note.
(a) Global Notes initially shall (i) be
registered in the name of the Depository or the nominee of such Depository,
(ii) be delivered to the Registrar as custodian for such Depository and (iii)
bear legends as set forth in Section 2.15.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Note held on their behalf by the Depository, or the Registrar as its custodian,
or under such Global Note, and the Depository may be treated by the Company,
the Trustee, each Agent and any agent of the Company, the Trustee or any Agent
as the absolute owner of the Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee, each Agent or any agent of the Company, the Trustee or any Agent from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to
transfers in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in Global Notes may be
transferred or exchanged for Physical Notes in accordance with the rules and
procedures of the Depository and the provisions of Section 2.17. In addition,
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in a Global Note only if (i) the Depository notifies
the Company that it is unwilling or unable to continue as Depository for the
Global Note and a successor depositary is not appointed by the Company within
90 days of such notice or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a written request from the Depository
to issue Physical Notes.
(c) In connection with any transfer or exchange
of a portion of the beneficial interest in a Global Note to beneficial owners
pursuant to paragraph (b), the Registrar shall (if one or more Physical Notes
are to be issued) reflect on its books and records the date and a decrease in
the principal amount at maturity of such Global Note in an amount equal to the
principal amount at maturity of the beneficial interest in the Global Note to
be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Notes of like tenor and amount.
(d) In connection with the transfer of an entire
Global Note to beneficial owners pursuant to paragraph (b), the Global Note
shall be deemed to be surrendered to the Registrar for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in such Global Note, an equal aggregate principal amount at maturity
of Physical Notes of authorized denominations.
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(e) Any Physical Note constituting a Restricted
Security delivered in exchange for an interest in a Global Note pursuant to
paragraph (b) or (c) shall, except as otherwise provided by paragraphs
(a)(i)(x) and (c) of Section 2.17, bear the Private Placement Legend.
(f) The Holder of a Global Note may grant proxies
and otherwise authorize any Person, including Agent Members and Persons that
may hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
SECTION 2.17 Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited
Investors and Non-U.S. Persons. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note constituting a
Restricted Security to any Institutional Accredited Investor which is not a QIB
or to any Non-U.S. Person:
(i) the Registrar shall register the transfer of
any Note constituting a Restricted Security, whether or not such Note
bears the Private Placement Legend, if (x) the requested transfer is
after December 17, 1999 (or such earlier date as shall be specified in
an Officers' Certificate to the effect that the Notes are no longer
Restricted Securities delivered to the Trustee and the Registrar) or
(y) (1) in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons), such
transfer is made with respect to Notes in a minimum Accreted Value of
not less than $250,000 and the proposed transferee has delivered to
the Registrar a certificate substantially in the form of Exhibit C
hereto or (2) in the case of a transfer to a Non-U.S. Person, the
proposed transferor has delivered to the Registrar such information
that the Registrar may reasonably request in order to confirm that
such transaction is being made pursuant to an exemption from or in a
transaction not subject to the registration requirements of the
Securities Act; and
(ii) if the proposed transferor is an Agent Member
holding a beneficial interest in a Global Note, upon receipt by the
Registrar of (x) the certificate, if any, required by paragraph (i)
above and (y) instructions given in accordance with the Depository's
and the Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount at maturity of such Global Note in an amount
equal to the principal amount at maturity of the beneficial interest in such
Global Note to be transferred, and (b) the Company shall execute and the
Trustee or its authentication agent shall authenticate and deliver one or more
Physical Notes of like tenor and amount.
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(b) Transfers to QIBs. The following provisions
shall apply with respect to the registration of any proposed transfer of a Note
constituting a Restricted Security to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if
such transfer is being made by a proposed transferor who has checked
the box provided for on the form of Note stating, or has otherwise
advised the Company and the Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of
Note stating, or has otherwise advised the Company and the Registrar in
writing, that it is purchasing the Note for its own account or an
account with respect to which it exercises sole investment discretion
and that it and any such account is a QIB within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Rule 144A; and
(ii) if the Notes to be transferred consist of
Physical Notes which after transfer are to be evidenced by an interest
in a Global Note, upon receipt by the Registrar of instructions given
in accordance with the Depository's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an
increase in the principal amount at maturity of such Global Note in an
amount equal to the principal amount at maturity of the Physical Notes
to be transferred, and the Registrar shall cancel the Physical Notes so
transferred.
(c) Private Placement Legend. Upon the
registration of transfer, exchange or replacement of Notes not bearing the
Private Placement Legend, the Registrar shall deliver Notes that do not bear the
Private Placement Legend. Upon the registration of transfer, exchange or
replacement of Notes bearing the Private Placement Legend, the Registrar shall
deliver only Notes that bear the Private Placement Legend, unless (i) the
circumstance contemplated by paragraph (a)(i)(x) of this Section 2.17 exists or
(ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Registrar to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(d) General. By its acceptance of any Note bearing
the Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.
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The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.16 or this Section
2.17. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Registrar.
ARTICLE III
REDEMPTION
SECTION 3.01 Notices to Trustee.
If the Company elects, or is required, to redeem Notes
pursuant to Paragraph 5 of the Notes, it shall notify the Trustee and the
Paying Agent in writing of the Redemption Date and the principal amount at
maturity of the Notes to be redeemed.
The Company shall give each notice provided for in this
Section 3.01 at least 30 days (20 days in the case of a Mandatory Redemption)
before the Redemption Date (unless a shorter notice period shall be
satisfactory to the Trustee and the Paying Agent, as evidenced in a writing
signed on behalf of the Trustee and the Paying Agent), together with an
Officers' Certificate stating that such redemption shall comply with the
conditions contained herein and in the Notes.
SECTION 3.02 Selection of Notes To Be Redeemed.
If fewer than all of the Notes are to be redeemed, selection
of the Notes to be redeemed will be made by the Registrar in compliance with
the requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the Notes are not then listed on a national
securities exchange, on a pro rata basis, by lot or in such other fair and
appropriate manner chosen at the discretion of the Registrar; provided,
however, that if a partial redemption is made with the proceeds of a Public
Equity Offering, selection of the Notes or portions thereof for redemption
shall be made by the Registrar only on a pro rata basis, to the extent
practical (subject to applicable DTC procedures), unless such method is
otherwise prohibited. The Company shall promptly notify the Trustee and the
Registrar in writing of the date of listing and the name of the securities
exchange if and when the Notes are listed on a principal national securities
exchange. The Registrar shall make the selection from the Notes outstanding
and not previously called for redemption and shall promptly notify the Company
and the Paying Agent in writing of the Notes selected for redemption and, in
the case of any Note selected for partial redemption, the principal amount at
maturity thereof to be redeemed. Notes in denominations of $1,000 principal
amount at maturity may be redeemed only in whole. The Registrar may select for
redemption portions (equal to $1,000 principal amount at maturity or any
integral multiple thereof) of the principal of Notes that
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have denominations larger than $1,000 principal amount at maturity. Provisions
of this Indenture that apply to Notes called for redemption also apply to
portions of Notes called for redemption.
SECTION 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date (exactly 20 days, in the case of a Mandatory Redemption), the Company
shall mail or cause to be mailed a notice of redemption by first class mail,
postage prepaid, to each Holder whose Notes are to be redeemed, with a copy to
the Trustee and any Paying Agent. At the Company's written request, the Paying
Agent shall give the notice of redemption in the Company's name and at the
Company's expense.
Each notice for redemption shall identify the Notes to be
redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued
interest, if any, to be paid;
(3) the name and address of the Paying Agent;
(4) the subparagraph of the Notes pursuant to
which such redemption is being made;
(5) that Notes called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price, plus
accrued interest, if any, and that interest on the Notes to be
redeemed will cease to accrue, and Accreted Value will cease to
increase, on and after the applicable Redemption Date, whether or not
such Notes are presented for payment.
(6) that, unless the Company defaults in making
the redemption payment, interest on Notes called for redemption ceases
to accrue, and Accreted Value will cease to increase, on and after the
Redemption Date, and the only remaining right of the Holders of such
Notes is to receive payment of the Redemption Price, plus accrued
interest, if any, upon surrender to the Paying Agent of the Notes
redeemed;
(7) if any Note is being redeemed in part, the
portion of the principal amount at maturity of such Note to be
redeemed and that, after the Redemption Date, and upon surrender of
such Note, a new Note or Notes in the aggregate principal amount at
maturity equal to the unredeemed portion thereof will be issued; and
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(8) if fewer than all the Notes are to be
redeemed, the identification of the particular Notes (or portion
thereof) to be redeemed, as well as the aggregate principal amount at
maturity of Notes to be redeemed and the aggregate principal amount at
maturity of Notes to be outstanding after such partial redemption.
SECTION 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03, Notes called for redemption become due and payable on the Redemption Date
and at the Redemption Price, plus accrued interest, if any. Upon surrender to
the Paying Agent, such Notes called for redemption shall be paid at the
Redemption Price (which shall include accrued interest thereon to the
Redemption Date, if any) upon receipt by the Paying Agent of the necessary
funds from the Company, but installments of interest, the maturity of which is
on or prior to the Redemption Date, shall be payable to Holders of record at
the close of business on the relevant record dates referred to in the Notes.
SECTION 3.05 Deposit of Redemption Price.
On or before 11:00 a.m. New York City time on the Redemption
Date, the Company shall deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the Redemption Price, plus accrued interest, if any, of all
Notes to be redeemed on that date. The Paying Agent shall promptly return to
the Company any U.S. Legal Tender so deposited which is not required for that
purpose, except with respect to monies owed as obligations to the Trustee
pursuant to Article VII.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price, plus
accrued interest, if any, interest on the Notes, if applicable, to be redeemed
will cease to accrue, and Accreted Value will cease to increase, on and after
the applicable Redemption Date, whether or not such Notes are presented for
payment.
SECTION 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the
Company shall execute and the Trustee shall authenticate for the Holder a new
Note or Notes equal in principal amount at maturity to the unredeemed portion
of the Note surrendered.
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ARTICLE IV
COVENANTS
SECTION 4.01 Payment of Notes.
The Company shall pay the principal of, Accreted Value and
interest on the Notes on the dates and in the manner provided in the Notes and
in this Indenture. An installment of principal of, Accreted Value or interest
on the Notes shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than the Company or an Affiliate of the Company) holds on
that date U.S. Legal Tender designated for and sufficient to pay the
installment in full and is not prohibited from paying such money to the Holders
pursuant to the terms of this Indenture.
The Company shall pay, to the extent such payments are lawful,
interest on overdue principal, Accreted Value and on overdue installments of
interest (without regard to any applicable grace periods) from time to time on
demand at the rate borne by the Notes plus 2% per annum. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law,
deduct or withhold income or other similar taxes imposed by the Federal laws of
the United States from principal, Accreted Value or interest payments
hereunder.
SECTION 4.02 Maintenance of Office or Agency.
The Company shall maintain the office or agency required under
Section 2.03. The Company shall give prior written notice to the Trustee and
the Paying Agent of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee and the Paying
Agent with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in
Section 11.02.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
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SECTION 4.03 Corporate Existence.
Except as otherwise permitted by Article Five and Section
4.16, the Company shall do or cause to be done, at its own cost and expense,
all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate existence of each of its Restricted
Subsidiaries in accordance with the respective organizational documents of each
such Restricted Subsidiary and the material rights (charter and statutory) and
franchises of the Company and each such Restricted Subsidiary.
SECTION 4.04 Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon it or any of
its Subsidiaries or properties of it or any of its Subsidiaries and (ii) all
lawful claims for labor, materials and supplies that, if unpaid, might by law
become a Lien upon the property of it or any of its Subsidiaries; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings properly instituted and diligently conducted for which adequate
reserves, to the extent required under GAAP, have been taken.
SECTION 4.05 Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of
its Restricted Subsidiaries to, maintain its material properties in good
working order and condition (subject to ordinary wear and tear) and make all
necessary repairs, renewals, replacements, additions, betterments and
improvements thereto and actively conduct and carry on its business; provided,
however, that nothing in this Section 4.05 shall prevent the Company or any of
its Restricted Subsidiaries from discontinuing the operation and maintenance of
any of its properties, if such discontinuance is, in the good faith judgment of
the Board of Directors of the Company or the Restricted Subsidiary, as the case
may be, desirable in the conduct of their respective businesses and is not
disadvantageous in any material respect to the Holders.
(b) The Company shall provide or cause to be
provided, for itself and each of its Restricted Subsidiaries, insurance
(including appropriate self-insurance) against loss or damage of the kinds
that, in the good faith judgment of the Board of Directors of the Company, are
adequate and appropriate for the conduct of the business of the Company and
such Restricted Subsidiaries in a prudent manner, with reputable insurers or
with the government of the United States or an agency or instrumentality
thereof, in such amounts, with such deductibles, and by such methods as shall
be
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customary, in the good faith judgment of the Board of Directors of the Company,
for companies similarly situated in the industry.
SECTION 4.06 Compliance Certificate; Notice of Default.
(a) The Company and each Guarantor shall deliver
to the Trustee, within 90 days after the end of the Company's fiscal year, an
Officers' Certificate stating that a review of its activities and the
activities of its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining
whether the Company or such Guarantor, as the case may be, has kept, observed,
performed and fulfilled its obligations under this Indenture and further
stating, as to each such Officer signing such certificate, that to the best of
such Officer's knowledge the Company or such Guarantor, as the case may be,
during such preceding fiscal year has kept, observed, performed and fulfilled
each and every such covenant and no Default or Event of Default occurred during
such year and at the date of such certificate there is no Default or Event of
Default that has occurred and is continuing or, if such signers do know of such
Default or Event of Default, the certificate shall describe the Default or
Event of Default and its status with particularity. The Officers' Certificate
of the Company shall also notify the Trustee should the Company elect to change
the manner in which it fixes its fiscal year end.
(b) The annual financial statements delivered
pursuant to Section 4.08 shall be accompanied by a written report of the
Company's independent accountants (who shall be a firm of established national
reputation) that in conducting their audit of such financial statements nothing
has come to their attention that would lead them to believe that the Company
has violated any provisions of Article IV, V or VI of this Indenture insofar as
they relate to accounting matters or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being understood that
such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) (i) If any Default or Event of Default has
occurred and is continuing or (ii) if any Holder seeks to exercise any remedy
hereunder with respect to a claimed Default under this Indenture or the Notes,
the Company shall deliver to the Trustee, at its address set forth in Section
11.02 hereof, by registered or certified mail or by telegram or facsimile
transmission followed by hard copy by registered or certified mail an Officers'
Certificate specifying such event, notice or other action within five Business
Days of its becoming aware of such occurrence. The Trustee shall not be deemed
to have notice of any Default or Event of Default unless one of its Trust
Officers receives written notice thereof from the Company, any Agent or any of
the Holders.
SECTION 4.07 Compliance with Laws.
The Company shall comply, and shall cause each of its
Restricted Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the United States,
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all states and municipalities thereof, and of any governmental department,
commission, board, regulatory authority, bureau, agency and instrumentality of
the foregoing, in respect of the conduct of their respective businesses and the
ownership of their respective properties, except for such noncompliances as are
not in the aggregate reasonably likely to have a material adverse effect on the
financial condition or results of operations of the Company and its Restricted
Subsidiaries, taken as a whole.
SECTION 4.08 SEC Reports.
(a) So long as any Note is outstanding, the
Company and each Guarantor (at its own expense) shall file with the SEC and
shall file with the Trustee within 15 days after it files them with the SEC
copies of the quarterly and annual reports and of the information, documents,
and other reports (or copies of such portions of any of the foregoing as the
SEC may by rules and regulations prescribe) to be filed pursuant to Section 13
or 15(d) of the Exchange Act (without regard to whether the Company or such
Guarantor is subject to the requirements of such Section 13 or 15(d) of the
Exchange Act); provided that prior to the consummation of the Exchange Offer
and the issuance of the Exchange Notes, the Company and each Guarantor (at
their own expense) will mail to the Trustee and Holders in accordance with
paragraph (b) of this Section 4.08 substantially the same information that
would have been required by the foregoing documents within 15 days of when any
such document would otherwise have been required to be filed with the SEC.
Upon qualification of this Indenture under the TIA, the Company shall also
comply with the provisions of TIA Section 314(a).
(b) At the Company's expense, the Company shall
cause an annual report if furnished by it to stockholders generally and each
quarterly or other financial report if furnished by it to stockholders
generally to be filed with the Trustee and mailed to the Holders at their
addresses appearing in the register of Notes maintained by the Registrar at the
time of such mailing or furnishing to stockholders.
(c) The Company shall provide to any Holder and
to prospective purchasers of such Holder's Notes reasonably identified to the
Company any information reasonably requested by such Holder concerning the
Company (including financial statements) and in order to permit such Holder to
sell or transfer Notes in compliance with Rule 144A under the Securities Act.
SECTION 4.09 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive the Company from
paying all or any portion of the principal of, Accreted Value, premium or
interest on the Notes as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect
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the covenants or the performance of this Indenture; and (to the extent that it
may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 4.10 Limitation on Restricted Payments.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any distribution (other than dividends or distributions
payable in Qualified Capital Stock of the Company or in options, warrants or
other rights to purchase such Qualified Capital Stock) on or in respect of
shares of the Company's Capital Stock to holders of such Capital Stock, (b)
purchase, redeem or otherwise acquire or retire for value any Capital Stock of
the Company or any warrants, rights or options to purchase or acquire shares of
any class of such Capital Stock (in each case other than in exchange for
Qualified Capital Stock of the Company or options, warrants or other rights to
purchase such Qualified Capital Stock), (c) make any principal payment on,
purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for
value, prior to any scheduled final maturity, scheduled repayment or scheduled
sinking fund payment, as applicable, any Indebtedness of the Company that is
subordinate or junior in right of payment to the Notes or (d) make any
Investment (other than Permitted Investments) (each of the foregoing actions
set forth in clauses (a), (b), (c) and (d) being referred to as a "Restricted
Payment"), if at the time of such Restricted Payment or immediately after
giving effect thereto, (i) a Default or an Event of Default shall have occurred
and be continuing or (ii) the Company is not able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12 or (iii) the aggregate amount of Restricted Payments (including
such proposed Restricted Payment) made subsequent to the Issue Date (the amount
expended for such purposes, if other than in cash, being the fair market value
of such property as determined reasonably and in good faith by the Board of
Directors of the Company) shall exceed the sum of: (v) $10,000,000; plus (w)
50% of the cumulative Consolidated Net Income (or if cumulative Consolidated
Net Income shall be a loss, minus 100% of such loss) of the Company earned
subsequent to the Issue Date and on or prior to the date on which the
Restricted Payment occurs or is to occur (the "Reference Date") (treating such
period as a single accounting period); plus (x) 100% of the aggregate Cash Net
Proceeds received by the Company from any Person (other than a Subsidiary of
the Company and other than with respect to the TPG Equity Contribution) from
the issuance and sale subsequent to the Issue Date and on or prior to the
Reference Date of Qualified Capital Stock of the Company (including by
conversion of Indebtedness (excluding Disqualified Capital Stock) into
Qualified Capital Stock) and, subject to the limitation set forth in clause (5)
of the immediately succeeding paragraph, 100% of the fair market value of
non-cash consideration received in any such issuance and sale; plus (y) without
duplication of any amounts included in clause (iii)(x) above, 100% of the
aggregate Cash Net Proceeds of any Equity Contribution (other than the TPG
Equity Contribution) received by the Company subsequent to the Issue Date and
on or prior to such Reference Date from a holder of the Company's Capital Stock
and, subject to the limitation set forth in clause (5) of the
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immediately succeeding paragraph, 100% of the fair market value of non-cash
consideration of any Equity Contribution received by the Company from a holder
of the Company's Capital Stock; plus (z) without duplication, the sum of (1)
the aggregate amount returned to the Company or a Restricted Subsidiary in cash
on or with respect to Investments (other than Permitted Investments) made
subsequent to the Issue Date whether through interest payments, principal
payments, dividends or other distributions or payments, (2) the Cash Net
Proceeds received by the Company or any Restricted Subsidiary from the
disposition of all or any portion of such Investments (other than to a
Subsidiary of the Company) and, subject to the limitations set forth in clause
(5) of the immediately succeeding paragraph, 100% of the fair market value of
non-cash consideration received in any such disposition and (3) upon
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary
subsequent to the Issue Date and on or prior to such Reference Date, the fair
market value of the net assets of such Subsidiary; provided, however, that with
respect to all Investments made in any Unrestricted Subsidiary or joint
venture, the sum of clauses (1), (2) and (3) above with respect to such
Investment shall not exceed the aggregate amount of all such Investments made
subsequent to the Issue Date and on or prior to such Reference Date in such
Unrestricted Subsidiary or joint venture.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit: (1) the payment of any
dividend within 60 days after the date of declaration of such dividend if the
dividend would have been permitted on the date of declaration; (2) the
acquisition of any shares of Capital Stock of the Company, either (i) solely in
exchange for shares of Qualified Capital Stock of the Company or (ii) through
the application of net proceeds of a substantially concurrent sale for cash
(other than to a Subsidiary of the Company) of shares of Qualified Capital
Stock of the Company; (3) if no Default or Event of Default shall have occurred
and be continuing, the acquisition of any Indebtedness of the Company that is
subordinate or junior in right of payment to the Notes either (i) solely in
exchange for shares of Qualified Capital Stock of the Company or Indebtedness
of the Company that is subordinate or junior in right of payment to the Notes
at least to the extent of the subordination provisions contained in the
instrument governing the terms of such Indebtedness and having no maturity,
sinking fund payment or scheduled mandatory redemption prior to maturity of the
Notes, or (ii) through the application of net proceeds of a substantially
concurrent sale for cash (other than to a Subsidiary of the Company) of (A)
shares of Qualified Capital Stock of the Company or (B) Refinancing
Indebtedness; (4) so long as no Default or Event of Default shall have occurred
and be continuing, payments for the purpose of and in an amount equal to the
amount required to permit the Company to redeem or repurchase Common Stock of
the Company or options in respect thereof from employees or officers of the
Company or any of its Subsidiaries or their estates or authorized
representatives upon the death, disability or termination of the employment of
such employees or officers in an aggregate amount not to exceed $10 million;
and (5) in the event that the Company has not realized cash from the proceeds
of the payment, sale or disposition of any non-cash consideration referred to
in clause (iii)(x), (iii)(y) and (iii)(z)(2) of the immediately preceding
paragraph, Restricted Payments permitted by reason of such non-cash
consideration; provided that such Restricted Payments may be made only
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in kind of the non-cash consideration so received. In determining the
aggregate amount of Restricted Payments made subsequent to the Issue Date in
accordance with clause (iii) of the immediately preceding paragraph, amounts
expended pursuant to clauses (1), (2), (3), (4) and (5) shall be included in
such calculation.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment complies with this Indenture and setting forth in
reasonable detail the basis upon which the required calculations were computed,
which calculations may be based upon the Company's latest available internal
quarterly financial statements. The Trustee shall have no duty or obligation
to recalculate or otherwise verify the accuracy of the calculations set forth
in any such Officers' Certificate.
SECTION 4.11 Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, enter into or permit
to exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates
(each an "Affiliate Transaction"), other than (x) Affiliate Transactions
permitted under paragraph (b) below, and (y) Affiliate Transactions on terms
that are no less favorable to the Company or the relevant Restricted Subsidiary
than those that might reasonably have been obtained in a comparable transaction
at such time on an arm's-length basis from a Person that is not an Affiliate of
the Company or such Restricted Subsidiary. All Affiliate Transactions (and
each series of related Affiliate Transactions which are part of a common plan)
involving aggregate payments or other property with a fair market value in
excess of $1 million shall be approved by a majority of the disinterested
members of the Board of Directors of the Company or such Restricted Subsidiary,
as the case may be, such approval to be evidenced by a Board Resolution stating
that such Board of Directors has determined that such transaction complies with
the foregoing provisions. If the Company or any Restricted Subsidiary of the
Company enters into an Affiliate Transaction (or a series of related Affiliate
Transactions related to a common plan) that involves an aggregate fair market
value or payments to an Affiliate, as the case may be, of more than $10
million, the Company or such Restricted Subsidiary, as the case may be, shall,
prior to the consummation thereof, obtain a favorable opinion as to the
fairness of such transaction or series of related transactions to the Company
or the relevant Restricted Subsidiary, as the case may be, from a financial
point of view, from an Independent Financial Advisor and file the same with the
Trustee.
(b) The foregoing restrictions shall not apply to
(i) reasonable fees and compensation paid to (including issuances and grant of
securities and stock options), employment agreements and stock option and
ownership plans for the benefit of, and indemnity provided on behalf of,
officers, directors, employees or consultants of the Company or any Restricted
Subsidiary of the Company as determined in good faith by the Company's Board of
Directors or senior
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management; (ii) transactions between or among the Company and any of its
Restricted Subsidiaries or exclusively between or among such Restricted
Subsidiaries, provided that such transactions are not otherwise prohibited by
this Indenture; (iii) any agreement as in effect as of the Issue Date or any
amendment thereto or any transaction contemplated thereby (including pursuant
to any amendment thereto or any replacement agreement thereto so long as any
such amendment or replacement agreement is not more disadvantageous to the
Holders in any material respect than the original agreement as in effect on the
Issue Date); (iv) payments and investments permitted by this Indenture; (v) the
issuance of Qualified Capital Stock of the Company; (vi) any obligations of the
Company pursuant to the Management Advisory Agreement and the Transaction
Advisory Agreement; (vii) transactions permitted by, and complying with,
Article V; (viii) payments made in connection with the Recapitalization,
including transaction fees to stockholders of DMFC not exceeding an aggregate
of $10,000,000 from the original issue date of the DMC Notes; (ix) transactions
with suppliers or other purchasers or sales of goods or services, in each case
in the ordinary course of business (including, without limitation, pursuant to
joint venture agreements) and otherwise in compliance with the terms of this
Indenture which are fair to the Company in the good faith determination of a
majority of the disinterested Board of Directors of the Company or the senior
management thereof and on terms at least as favorable as might reasonably have
been obtained at such time from an unaffiliated party; and (x) Qualified
Receivables Transactions.
SECTION 4.12 Limitation on Incurrence of Additional Indebtedness.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume,
guarantee, acquire, become liable, contingently or otherwise, with respect to,
or otherwise become responsible for payment of (collectively, "incur") any
Indebtedness (other than Permitted Indebtedness) including Acquired
Indebtedness; provided, however, that if no Default or Event of Default shall
have occurred and be continuing at the time or as a consequence of the
incurrence of any such Indebtedness, the Company and its Restricted
Subsidiaries may incur Indebtedness (including, without limitation, Acquired
Indebtedness) on the date of the incurrence of such Indebtedness, if after
giving effect to the incurrence of such Indebtedness, the Consolidated Fixed
Charge Coverage Ratio of the Company is greater than 1.75 to 1.0.
SECTION 4.13 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause
or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary of the Company to (a)
pay dividends or make any other distributions on or in respect of its Capital
Stock; (b) make loans or advances or to pay any Indebtedness or other
obligation owed to the Company or any other Restricted Subsidiary of the
Company; or (c) transfer any of its property or assets to the Company
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or any other Restricted Subsidiary of the Company, except for such encumbrances
or restrictions existing under or by reason of: (1) applicable law; (2) this
Indenture and other pari passu Indebtedness of the Company that does not
contain any encumbrances or restrictions more restrictive than those contained
in the Indenture; (3) customary non-assignment provisions of any contract or
lease governing a leasehold or ownership interest of any Restricted Subsidiary
of the Company; (4) any instrument governing Acquired Indebtedness, which
encumbrance or restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person or the properties or assets of
the Person so acquired; (5) agreements existing on the Issue Date (including,
without limitation, the Credit Agreement and the DMC Notes) to the extent and
in the manner such agreements are in effect on the Issue Date; (6) secured
Indebtedness otherwise permitted to be incurred pursuant to the provisions of
Sections 4.12 and 4.18 that limit the right of the debtor to dispose of the
assets securing such Indebtedness; (7) customary net worth provisions contained
in leases and other agreements entered into by a Restricted Subsidiary in the
ordinary course of business; (8) customary restrictions with respect to a
Restricted Subsidiary pursuant to an agreement that has been entered into for
the sale or disposition of all or substantially all of the Capital Stock of
such Restricted Subsidiary; (9) customary provisions in joint venture
agreements and other similar agreements relating solely to the securities,
assets and revenues of such joint venture or other business venture; (10) an
agreement governing Indebtedness incurred to Refinance the Indebtedness issued,
assumed or incurred pursuant to an agreement referred to in clause (2), (4),
(5) or (6) above; provided, however, that the provisions relating to such
encumbrance or restriction contained in any such Indebtedness are not, in the
aggregate, materially less favorable to the Company as determined by the Board
of Directors of the Company in its reasonable and good faith judgment than the
provisions relating to such encumbrance or restriction contained in agreements
referred to in such clause (2), (4), (5) or (6); and (11) Standard
Securitization Undertakings relating to a Receivables Subsidiary or Special
Purpose Vehicle.
SECTION 4.14 [Intentionally Omitted].
SECTION 4.15 Change of Control.
(a) At any time on or prior to December 15, 2002,
the Company may, at its option, redeem the Notes, in whole, upon the occurrence
of a Change of Control, upon not less than 30 nor more than 60 days prior
notice (but in no event more than 90 days after the occurrence of such Change
of Control) at a Redemption Price equal to 100% of the Accreted Value thereof
plus the Applicable Premium as of the date fixed for such redemption (the
"Change of Control Redemption Date").
(b) Upon the occurrence of a Change of Control,
if the Company does not redeem the Notes as provided in Section 4.15(a) of this
Indenture, Company shall make the "Change of Control Offer", and each Holder
will have the right to require that the Company purchase all or a
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portion of such Holder's Notes pursuant to such Change of Control Offer, at a
purchase price equal to 101% of the Accreted Value thereof plus accrued
interest, if any, to the date of purchase.
(c) Within 30 days following the date upon which
the Change of Control occurred (the "Change of Control Date"), unless the
Company has mailed a notice with respect to a redemption pursuant to Section
4.15(a) of this Indenture, the Company shall send, by first class mail, a
notice to each Holder, with a copy to the Trustee and each Paying Agent, which
notice shall govern the terms of the Change of Control Offer. The notice to
the Holders shall contain all instructions and materials necessary to enable
such Holders to tender Notes pursuant to the Change of Control Offer. Such
notice shall state:
(1) that the Change of Control Offer is being
made pursuant to this Section 4.15 and that all Notes tendered and not
withdrawn will be accepted for payment;
(2) the purchase price (including the amount of
accrued interest) and the purchase date (which shall be no earlier
than 30 days nor later than 45 days from the date such notice is
mailed, other than as may be required by law) (the "Change of Control
Payment Date");
(3) that any Note not tendered will continue to
accrue interest, if applicable;
(4) that, unless the Company defaults in making
payment therefor, any Note accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest, if applicable, and
Accreted Value will cease to increase, after the Change of Control
Payment Date;
(5) that Holders electing to have a Note
purchased pursuant to a Change of Control Offer will be required to
surrender the Note, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to the Paying Agent at
the address specified in the notice prior to the close of business on
the third Business Day prior to the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw
their election if the Paying Agent receives, not later than five
Business Days prior to the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Notes the Holder delivered for
purchase and a statement that such Holder is withdrawing his election
to have such Notes purchased;
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(7) that Holders whose Notes are purchased only
in part will be issued new Notes in a principal amount at maturity
equal to the unpurchased portion of the Notes surrendered; provided
that each Note purchased and each new Note issued shall be in an
original principal amount at maturity of $1,000 or integral multiples
thereof; and
(8) the circumstances and relevant facts regarding
such Change of Control.
On or before the Change of Control Payment Date, the Company
shall (i) accept for payment Notes or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price plus accrued interest, if any, of all
Notes so tendered and (iii) deliver to the Registrar Notes so accepted together
with an Officers' Certificate stating the Notes or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail to the Holders
of Notes so accepted payment in an amount equal to the purchase price plus
accrued interest, if any, and the Trustee shall promptly authenticate and mail
to such Holders new Notes equal in principal amount at maturity to any
unpurchased portion of the Notes surrendered. Any Notes not so accepted shall
be promptly mailed by the Company to the Holder thereof.
Any amounts remaining after the purchase of Notes pursuant to
a Change of Control Offer shall be returned by the Paying Agent to the Company.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent the
provisions of any securities laws or regulations conflict with this Section
4.15, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.15 by virtue thereof.
SECTION 4.16 Limitation on Asset Sales.
(a) The Company will not, and will not permit any
of its Restricted Subsidiaries to, consummate an Asset Sale, unless (i) the
Company or the applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets sold or otherwise disposed of (in each case as determined in
good faith by the Company's Board of Directors); (ii) at least 75% of the
consideration received by the Company or the Restricted Subsidiary, as the case
may be, from such Asset Sale shall be in the form of cash or Cash Equivalents
(provided that (A) the amount of any liabilities (as shown on the Company's or
such Restricted Subsidiary's most recent balance sheet) of the Company or any
such Restricted Subsidiary (other than liabilities that are by their terms
subordinated to the Notes) that are assumed
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by the transferee of any such assets and (B) the fair market value of any
marketable securities received by the Company or a Restricted Subsidiary in
exchange for any such assets that are promptly converted into cash shall be
deemed to be cash for the purposes of this provision) and is received at the
time of such disposition; provided that the Company and its Restricted
Subsidiaries may make Asset Sales not exceeding $2 million in the aggregate in
each year for non-cash consideration; and (iii) upon the consummation of an
Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to
apply, the Net Cash Proceeds relating to such Asset Sale prior to the date
occurring 360 days following the receipt thereof either (A) to prepay any
Indebtedness of a Wholly Owned Restricted Subsidiary (provided that any
proceeds of an Asset Sale used to repay amounts outstanding under any revolving
credit facility shall result in a permanent reduction in the availability under
such revolving credit facility), (B) to make an Investment in properties and
assets that replace the properties and assets that were the subject of such
Asset Sale or in properties and assets that will be used in the business of the
Company and its Restricted Subsidiaries as it exists on the date of such Asset
Sale or in businesses the same, similar or reasonably related thereto
("Replacement Assets"), or (C) a combination of prepayment and investment
permitted by the foregoing clauses (iii)(A) and (iii)(B). Subject to the last
sentence of this paragraph, on the 361st day after an Asset Sale or such
earlier date, if any, as the Board of Directors of the Company or of such
Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to
such Asset Sale as set forth in clause (iii)(A), (iii)(B) or (iii)(C) of the
next preceding sentence (each, a "Net Proceeds Offer Trigger Date"), such
aggregate amount of Net Cash Proceeds which have not been applied on or before
such Net Proceeds Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B)
and (iii)(C) of the next preceding sentence (each a "Net Proceeds Offer
Amount") shall be applied by the Company or such Restricted Subsidiary to make
an offer to purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds
Offer Payment Date") not less than 30 nor more than 45 days following the
applicable Net Proceeds Offer Trigger Date, from all Holders on a pro rata
basis, that amount of Notes (and other Indebtedness of the Company ranking on a
parity with the Notes from time to time outstanding with similar provisions
requiring the Company to make an offer to purchase or to redeem such
Indebtedness with the proceeds from asset sales, pro rata in proportion to the
respective principal amounts, or accreted values in the case of Indebtedness
issued with an Original Issue Discount) equal to the Net Proceeds Offer Amount
at a price equal to 100% of the Accreted Value (as of the date of purchase
thereof) of the Notes to be purchased, plus accrued and unpaid interest thereon
to the date of purchase; provided, however, that if at any time any non-cash
consideration received by the Company or any Restricted Subsidiary of the
Company, as the case may be, in connection with any Asset Sale is converted
into or sold or otherwise disposed of for cash (other than interest received
with respect to any such non-cash consideration), then such conversion or
disposition shall be deemed to constitute an Asset Sale hereunder and the Net
Cash Proceeds thereof shall be applied in accordance with this Section 4.16.
The Company may defer the Net Proceeds Offer until there is an aggregate
unutilized Net Proceeds Offer Amount equal to or in excess of $10 million
resulting from one or more Asset Sales (at which time, the entire Net Proceeds
Offer Amount not utilized in accordance with this covenant, and not just the
amount in excess of $10 million, shall be applied as required pursuant to this
paragraph).
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In the event of the transfer of substantially all (but not
all) of the property and assets of the Company and its Restricted Subsidiaries
as an entirety to a Person in a transaction governed by and permitted under
Section 5.01, the successor corporation shall be deemed to have sold the
properties and assets of the Company and its Restricted Subsidiaries not so
transferred for purposes of this covenant, and shall comply with the provisions
of this covenant with respect to such deemed sale as if it were an Asset Sale.
In addition, the fair market value of such properties and assets of the Company
or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash
Proceeds for purposes of this Section 4.16.
Each Net Proceeds Offer will be mailed to the record Holders
as shown on the register of Holders within 25 days following the Net Proceeds
Offer Trigger Date, with a copy to the Trustee, and shall comply with the
procedures set forth in this Indenture. Upon receiving notice of the Net
Proceeds Offer, Holders may elect to tender their Notes in whole or in part in
integral multiples of $1,000 principal amount at maturity in exchange for cash.
To the extent Holders properly tender Notes (if applicable, along with such
other pari passu Indebtedness referred to above) in an amount exceeding the Net
Proceeds Offer Amount, Notes of tendering Holders (if applicable, along with
such other pari passu Indebtedness referred to above) will be purchased on a
pro rata basis (based on amounts tendered). To the extent that the aggregate
amount of Notes tendered pursuant to a Net Proceeds Offer is less than the Net
Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer
Amount for general corporate purposes or for any other purpose not prohibited
by this Indenture. Upon completion of any such Net Proceeds Offer, the Net
Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall
remain open for a period of 20 Business Days or such longer period as may be
required by law.
The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.16, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.16 by virtue thereof.
Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries will be permitted to consummate an Asset Swap if (i) at the time
of entering into such Asset Swap or immediately after giving effect to such
Asset Swap, no Default or Event of Default shall have occurred or be continuing
or would occur as a consequence thereof, (ii) in the event that such Asset Swap
involves an aggregate amount in excess of $10 million, the terms of such Asset
Swap have been approved by a majority of the members of the Board of Directors
of the Company, and (iii) in the event such Asset Swap involves an aggregate
amount in excess of $50 million, the Company has received a written opinion
from an Independent Financial Advisor that such Asset Swap is fair to the
Company or such Restricted Subsidiary, as the case may be, from a financial
point of view.
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(b) Subject to the deferral of the Net Proceeds
Offer Trigger Date contained in the second paragraph of subsection (a) above,
each notice of a Net Proceeds Offer pursuant to this Section 4.16 shall be
mailed or caused to be mailed, by first class mail, by the Company not more than
25 days after the Net Proceeds Offer Trigger Date to all Holders at their last
registered addresses as of a date within 15 days of the mailing of such notice,
with a copy to the Trustee and each Paying Agent. The notice shall contain all
instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made
pursuant to Section 4.16 and that all Notes tendered will be accepted
for payment; provided, however, that if the aggregate principal amount
at maturity of Notes tendered in a Net Proceeds Offer exceeds the
aggregate amount at maturity of the Net Proceeds Offer, the Company
shall select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of $1,000 principal amount at maturity or
multiples thereof shall be purchased);
(2) the purchase price (including the amount of
accrued interest, if any) and the purchase date (which shall be 20
Business Days from the date of mailing of notice of such Net Proceeds
Offer, or such longer period as required by law) (the "Proceeds
Purchase Date");
(3) that any Note not tendered will continue to
accrue interest (or increase in Accreted Value, as applicable);
(4) that, unless the Company defaults in making
payment therefor, any Note accepted for payment pursuant to the Net
Proceeds Offer shall cease to accrue interest after the Proceeds
Purchase Date;
(5) that Holders electing to have a Note purchased
pursuant to a Net Proceeds Offer will be required to surrender the
Note, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Note completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third
Business Day prior to the Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw
their election if the Paying Agent receives, not later than five
Business Days prior to the Proceeds Purchase Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Notes the Holder delivered for purchase and
a statement that such Holder is withdrawing his election to have such
Note purchased; and
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(7) that Holders whose Notes are purchased only in
part will be issued new Notes in a principal amount at maturity equal
to the unpurchased portion of the Notes surrendered; provided that each
Note purchased and each new Note issued shall be in an original
principal amount at maturity of $1,000 or integral multiples thereof;
On or before the Proceeds Purchase Date, the Company shall (i)
accept for payment Notes or portions thereof tendered pursuant to the Net
Proceeds Offer which are to be purchased in accordance with item (b)(1) above,
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price plus accrued interest, if any, of all Notes to be purchased and
(iii) deliver to the Paying Agent Notes so accepted together with an Officers'
Certificate stating the Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Notes so
accepted payment in an amount equal to the purchase price, plus accrued
interest, if any.
Any amounts remaining after the purchase of Notes pursuant to
a Net Proceeds Offer shall be returned by the Paying Agent to the Company.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.16, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.16 by virtue thereof.
SECTION 4.17 Limitation on Preferred Stock of Restricted Subsidiaries.
The Company will not permit any of its Restricted Subsidiaries
(other than a Receivables Subsidiary or a Special Purpose Vehicle) to issue any
Preferred Stock (other than to the Company or to a Wholly Owned Restricted
Subsidiary of the Company) or permit any Person (other than the Company or a
Wholly Owned Restricted Subsidiary of the Company) to own any Preferred Stock
of any Restricted Subsidiary of the Company (other than a Receivables
Subsidiary or a Special Purpose Vehicle).
SECTION 4.18 Limitation on Liens.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
suffer to exist any Liens of any kind against or upon any property or assets of
the Company or any of its Restricted Subsidiaries whether owned on the Issue
Date or acquired after the Issue Date, or any proceeds therefrom, or assign or
otherwise convey any right to receive income or profits therefrom for purposes
of security, unless (i) in the case
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of Liens securing Indebtedness that is expressly subordinate or junior in right
of payment to the Notes, the Notes are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Liens and (ii) in all
other cases, the Notes are equally and ratably secured, except for (A) Liens
existing as of the Issue Date to the extent and in the manner such Liens are in
effect as of the Issue Date; (B) Liens securing the Notes; (C) Liens of the
Company or a Wholly Owned Restricted Subsidiary of the Company on assets of any
Restricted Subsidiary of the Company; (D) Liens securing Refinancing
Indebtedness which is incurred to Refinance any Indebtedness which has been
secured by a Lien permitted under this Indenture and which has been incurred in
accordance with the provisions of this Indenture; provided, however, that such
Liens (1) are not materially less favorable to the Holders and are not
materially more favorable to the lienholders with respect to such Liens than the
Liens in respect of the Indebtedness being Refinanced and (2) do not extend to
or cover any property or assets of the Company or any of its Restricted
Subsidiaries not securing the Indebtedness so Refinanced; and (E) Permitted
Liens; provided, further, that such Liens do not encumber any capital stock of
DMC held by the Company, except to the extent that such Liens secure
Indebtedness to a commercial lending institution as provided for in the Credit
Agreement.
SECTION 4.19 Limitation on Guarantees by Restricted Subsidiaries.
The Company will not permit any of its domestic Restricted
Subsidiaries, directly or indirectly, by way of the pledge of any intercompany
note or otherwise, to assume, guarantee or in any other manner become liable
with respect to any Indebtedness of the Company or any other Restricted
Subsidiary (other than Permitted Indebtedness of a Restricted Subsidiary),
unless, in any such case (a) such Restricted Subsidiary executes and delivers a
supplemental indenture to this Indenture, providing an unconditional and full
(subject to the following two paragraphs) guarantee of payment of the Notes by
such Restricted Subsidiary (a "Guarantee"), and (b) if such assumption,
guarantee or other liability of such Restricted Subsidiary is provided in
respect of Indebtedness that is expressly subordinated to the Notes, the
guarantee or other instrument provided by such Restricted Subsidiary in respect
of such subordinated Indebtedness shall be subordinated to such Guarantee
pursuant to subordination provisions no less favorable to the Holders of the
Notes than those contained in such Indebtedness.
Each Guarantee of a Restricted Subsidiary will be limited in
amount to an amount not to exceed the maximum amount that can be guaranteed by
a Restricted Subsidiary without rendering such Guarantee, as it relates to such
Restricted Subsidiary, void or voidable under applicable laws relating to
fraudulent conveyance or fraudulent transfer or other similar laws affecting
the rights of creditors generally. In addition, such Guarantee shall contain
appropriate provisions relating to contribution among all Restricted
Subsidiaries executing Guarantees.
Notwithstanding the foregoing, any such Guarantee of the Notes
by a Restricted Subsidiary of the Company shall provide by its terms that it
shall be automatically and
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unconditionally released and discharged, without any further action required on
the part of the Trustee or any Holder, upon: (i) the unconditional and
complete release of such Restricted Subsidiary from its liability in respect of
the Indebtedness in connection with which such Guarantee was executed and
delivered pursuant to the preceding paragraph; or (ii) any sale or other
disposition (by merger or otherwise) to any Person which is not a Restricted
Subsidiary of the Company of all of the Company's Capital Stock in, or all or
substantially all of the assets of, such Restricted Subsidiary; provided that
(a) such sale or disposition of such Capital Stock or assets is otherwise in
compliance with the terms of this Indenture and (b) such assumption, guarantee
or other liability of such Restricted Subsidiary has been released by the
holders of the other Indebtedness so guaranteed.
SECTION 4.20 Restriction of Lines of Business to Food, Food
Distribution and Related Businesses.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, engage in any material business activity except the
food, food distribution and related businesses.
SECTION 4.21 Limitation on Sales of Common Stock of
Restricted Subsidiaries.
The Company will not, and will not permit any of its
Restricted Subsidiaries, to issue, sell, offer to sell, or otherwise transfer
any shares of the common stock of any Restricted Subsidiary to any Person other
than the Company or a Restricted Subsidiary of the Company; provided that this
restriction will not apply to sales, offers to sell or transfers of all shares
of the common stock of any Restricted Subsidiary (other than DMC) in a single
transaction for the purpose of selling the common equity interest in the
business of such Restricted Subsidiary substantially as an entirety; provided,
further, that any such sale of such business as an entirety otherwise complies
with the provisions of the Indenture.
SECTION 4.22 Deposit of Proceeds with Trustee.
On the Issue Date, if the Contadina Acquisition has not closed
on the terms set forth in the Asset Purchase Agreement (as then in effect
without waiver of material condition by the Company) upon the closing of the
Offering, the Company shall pay to the Trustee for deposit in the Collateral
Account the net proceeds from the issuance of the Notes (the "Net Offering
Proceeds") and such additional amount as, when added to the Net Offering
Proceeds, equals $129,630,236, as set forth in Article 10. In the event that
the Company determines that the Contadina Acquisition will not be consummated
prior to February 23, 1998, solely by virtue of the expiration of any necessary
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ waiting period not having occurred as of such date, the
Company shall have the option to deliver to the Trustee an Officers'
Certificate to that effect provided the Company thereupon deposits into the
Collateral Account an additional $5,676,605 (the "Extended Closing Option").
If the Contadina Acquisition closes on the Issue Date, the Company will deliver
an Officers' Certificate to that effect.
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ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.01 Merger, Consolidation and Sale of Assets of
the Company.
(a) The Company shall not, in a single
transaction or a series of related transactions, consolidate with or merge with
or into any Person, or sell, assign, transfer, lease, convey or otherwise
dispose of (or cause or permit any Restricted Subsidiary of the Company to
sell, assign, transfer, lease, convey or otherwise dispose of) all or
substantially all of the Company's assets (determined on a consolidated basis
for the Company and its Restricted Subsidiaries), whether as an entirety or
substantially as an entirety, to any Person unless:
(1) either (A) the Company shall be the surviving
or continuing corporation or (B) the Person (if other than the
Company) formed by such consolidation or into which the Company is
merged or the Person which acquires by sale, assignment, transfer,
lease, conveyance or other disposition the properties and assets of
the Company and its Restricted Subsidiaries substantially as an
entirety (the "Surviving Entity") (x) shall be a corporation organized
and validly existing under the laws of the United States or any state
thereof or the District of Columbia and (y) shall expressly assume, by
supplemental indenture (in form and substance reasonably satisfactory
to the Trustee), executed and delivered to the Trustee, the due and
punctual payment of the principal of and premium, if any, and
interest on all of the Notes and the performance of every covenant of
the Notes, this Indenture and, if applicable, the Registration Rights
Agreement on the part of the Company to be performed or observed;
(2) immediately after giving effect to such
transaction and the assumption contemplated by clause (1)(B)(y) above
(including giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred in connection with or in
respect of such transaction), the Company or such Surviving Entity, as
the case may be, shall be able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12;
(3) immediately after giving effect to such
transaction, the Company or the Surviving Entity, as the case may be,
will have Consolidated Net Worth in an amount that is not less than
the Consolidated Net Worth of the Company immediately prior to such
transaction;
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(4) immediately before and immediately after
giving effect to such transaction and the assumption contemplated by
clause (1)(B)(y) above (including, without limitation, giving effect
to any Indebtedness and Acquired Indebtedness incurred or anticipated
to be incurred and any Lien granted in connection with or in respect
of such transaction), no Default or Event of Default shall have
occurred and be continuing; and
(5) the Company or the Surviving Entity, as the
case may be, shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, transfer, lease, conveyance
or other disposition and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture complies
with the applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such transaction
have been satisfied.
(b) For purposes of the foregoing, the transfer
(by lease, assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties and assets of one
or more Restricted Subsidiaries of the Company, the Capital Stock of which
constitutes all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
(c) Notwithstanding the foregoing, the merger of
the Company with an Affiliate incorporated solely for the purpose of
reincorporating the Company in another jurisdiction shall be permitted without
regard to Section 5.01(a)(2) and (3) hereof.
SECTION 5.02 Successor Corporation Substituted for the
Company.
Upon any consolidation, combination or merger or any transfer
of all or substantially all of the assets of the Company in accordance with the
foregoing, in which the Company is not the continuing corporation, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, lease or transfer is made shall succeed to,
and (except in the case of a Sale and Leaseback Transaction) be substituted
for, and may exercise every right and power of, the Company under this
Indenture and the Notes with the same effect as if such surviving entity had
been named as such; provided, however that solely for purposes of computing
amounts described in subclause (iii) of the first paragraph of Section 4.10,
any such surviving entity shall only be deemed to have succeeded to and be
substituted for the Company with respect to periods subsequent to the effective
time of such merger, consolidation or transfer of assets.
ARTICLE VI
DEFAULT AND REMEDIES
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SECTION 6.01 Events of Default.
An "Event of Default" occurs if:
(1) the Company fails to pay interest on any
Notes when the same becomes due and payable and the Default continues
for a period of 30 days; or
(2) the Company fails to pay the principal,
premium or Accreted Value on any Notes when such becomes due and
payable, at maturity, upon redemption or otherwise (including the
failure to make a payment to purchase Notes tendered pursuant to a
Change of Control Offer, Mandatory Redemption, upon the occurrence of
a Triggering Event, or a Net Proceeds Offer); or
(3) the Company defaults in the observance or
performance of any other covenant or agreement contained in this
Indenture and which default continues for a period of 30 days after
written notice specifying the default (and demanding that such default
be remedied) is received by the Company from the Trustee or by the
Company and the Trustee from the Holders of at least 25% of the
outstanding principal amount of the Notes; or
(4) the Company fails to pay at final stated
maturity (giving effect to any applicable grace periods and any
extensions thereof) the principal, premium or interest of any
Indebtedness for borrowed money of the Company or any Restricted
Subsidiary of the Company, or the acceleration of the final stated
maturity of any such Indebtedness, in either case, if the aggregate
principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay
principal at final stated maturity or which has been accelerated,
aggregates $20 million or more at any time; or
(5) one or more judgments for the payment of
money in an aggregate amount in excess of $20 million (to the extent
not covered by insurance) shall have been rendered against the Company
or any of its Restricted Subsidiaries and such judgments remain
undischarged, unpaid or unstayed for a period of 60 days after such
judgment or judgments become final and non-appealable; or
(6) the Company or any Significant Subsidiary of
the Company (A) commences a voluntary case or proceeding under any
Bankruptcy Law with respect to itself, (B) consents to the entry of a
judgment, decree or order for relief against it in an involuntary case
or proceeding under any Bankruptcy Law, (C) consents to the
appointment of a Custodian of it or for substantially all of its
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property, (D) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it, (E) makes a general
assignment for the benefit of its creditors, or (F) takes any
corporate action to authorize or effect any of the foregoing; or
(7) a court of competent jurisdiction enters a
judgment, decree or order for relief in respect of the Company or any
Significant Subsidiary of the Company in an involuntary case or
proceeding under any Bankruptcy Law, which shall (A) approve as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition in respect of the Company or any such
Significant Subsidiary, (B) appoint a Custodian of the Company or any
such Significant Subsidiary or for substantially all of its property
or (C) order the winding-up or liquidation of its affairs; and such
judgment, decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(8) the failure of a Guarantee to be in full
force and effect (except as contemplated by the terms thereof) or the
denial or disaffirmation of such obligations by a Guarantor.
SECTION 6.2 Acceleration.
(a) If an Event of Default (other than an Event
of Default specified in Section 6.01(6) or (7) with respect to the Company)
occurs and is continuing and has not been waived pursuant to Section 6.04, then
the Trustee or the Holders of at least 25% in aggregate principal amount at
maturity of outstanding Notes may declare the principal of and accrued interest
on all the Notes to be due and payable by notice in writing to the Company and
the Trustee specifying the respective Event of Default and that it is a "notice
of acceleration" (the "Acceleration Notice"), and the same shall become
immediately due and payable.
(b) If an Event of Default specified in Section
6.01(6) or (7) occurs and is continuing with respect to the Company, all unpaid
principal or Accreted Value of and premium, if any, and accrued and unpaid
interest on all of the outstanding Notes shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
(c) At any time after the delivery of an
Acceleration Notice with respect to the Notes in accordance with Section
6.02(a), the Holders of a majority in principal amount at maturity of the Notes
may, on behalf of the Holders of all of the Notes, rescind and cancel such
declaration and its consequences (i) if the rescission would not conflict with
any judgment or decree, (ii) if all existing Events of Default have been cured
or waived except nonpayment of principal premium, Accreted Value, if
applicable, or interest that has become due solely because of the acceleration,
(iii) to the extent the payment of such interest is lawful, interest on overdue
installments of interest
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and overdue principal, or Accreted Value, if applicable, which has become due
otherwise than by such declaration of acceleration, has been paid, (iv) if the
Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and any other amounts due the Trustee
under Section 7.07 and advances and (v) in the event of the cure or waiver of
an Event of Default of the type described in Section 6.01(6) or (7), the
Trustee shall have received an Officers' Certificate and an Opinion of Counsel
that such Event of Default has been cured or waived. No such rescission shall
affect any subsequent Default or impair any right consequent thereto. The
Holders of a majority in aggregate principal amount of the Notes may waive any
existing Default or Event of Default under this Indenture and its consequences,
except a default in the payment of the principal, premium, Accreted Value or
interest on any Notes.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect
the payment of principal of premium, Accreted Value or interest on the Notes or
to enforce the performance of any provision of the Notes or this Indenture; and
the Trustee shall have all the rights of a secured party under the UCC and all
rights now or hereafter existing under all other applicable laws with respect
to the Collateral Account established pursuant to Article 10 hereof and any
other collateral securing the payment of the Notes. The Company shall
reimburse the Trustee for all expenses of the Trustee in connection with the
exercise of the Trustee's rights hereunder, including, without limitation, all
attorneys' fees and legal expenses incurred by the Trustee.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04 Waiver of Past Defaults.
Subject to Sections 2.09, 6.07 and 9.02, the Holders of a
majority in principal amount at maturity of the outstanding Notes by notice to
the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of principal of or interest on
any Note as specified in clauses (1) and (2) of Section 6.01. When a Default
or Event of Default is waived, it is cured and ceases.
SECTION 6.05 Control by Majority.
Subject to Section 2.09, the Holders of a majority in
principal amount at maturity of the outstanding Notes may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it, including, without
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limitation, any remedies provided for in Section 6.03. Subject to Section
7.01, however, the Trustee may refuse to follow any direction unless such
Holders have offered to the Trustee reasonable indemnity; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction; and provided further that this provision
shall not affect the rights of the Trustee set forth in Section 7.01(d).
SECTION 6.06 Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives to the Trustee written
notice of a continuing Event of Default;
(2) Holders of at least 25% in principal amount
at maturity of the outstanding Notes make a written request to the
Trustee to pursue the remedy;
(3) such Holders offer to the Trustee indemnity
in its sole discretion satisfactory to the Trustee against any loss,
liability or expense to be incurred in compliance with such request;
(4) the Trustee does not comply with the request
within 45 days after receipt of the request and the offer of
satisfactory indemnity; and
(5) during such 45-day period the Holders of a
majority in principal amount at maturity of the outstanding Notes do
not give the Trustee a direction which, in the opinion of the Trustee,
is inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and interest on a Note,
on or after the respective due dates expressed in such Note, or to bring suit
for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default in payment of principal or interest
specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as
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trustee of an express trust against the Company or any other obligor on the
Notes for the whole amount of principal, premium, Accreted Value and accrued
interest remaining unpaid, together with interest on overdue principal and, to
the extent that payment of such interest is lawful, interest on overdue
installments of interest at the rate set forth in Section 4.01 and such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and its counsel, and any other amounts due the Trustee
under Section 7.07.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable expenses and disbursements of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07) and the Holders allowed in any judicial proceedings
relating to the Company or any other obligor upon the Notes, any of their
respective creditors or any of their respective property and shall be entitled
and empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any Custodian in
any such judicial proceedings is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable expenses and disbursements of the Trustee,
its agents and its counsel, and any other amounts due the Trustee under Section
7.07. The Company's payment obligations under this Section 6.09 shall be
secured in accordance with the provisions of Section 7.07 hereunder. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money or property pursuant to this
Article Six, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders are forced to proceed against the
Company directly without the Trustee, to Holders for their collection
costs;
Third: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for
principal and interest, respectively; and
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Fourth: to the Company or any other obligor on the
Notes, as their interests may appear, or as a court of
competent jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this
Section 6.10.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more
than 10% in principal amount at maturity of the outstanding Notes.
ARTICLE VII
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) 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 its exercise
thereof as a prudent person would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of an Event of
Default:
(1) The Trustee need perform only those duties as
are specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture against the Trustee.
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(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall examine
the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary
herein contained, the Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01.
(2) The Trustee shall not be liable for any error
of judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts.
(3) The Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.02, 6.04 or
6.05.
(d) No provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(e) Whether or not herein expressly provided,
every provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest
on any money or assets received by it except as the Trustee may agree in
writing with the Company. Assets held in trust by the Trustee need not be
segregated from other assets except to the extent required by law.
SECTION 7.02 Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, note or other paper or document believed by it to be genuine and
to
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have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may consult with counsel and may require an Officers' Certificate, an Opinion
of Counsel or both, which shall conform to Sections 11.04 and 11.05. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or indirectly or by
or through agents or attorneys and the Trustee shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action that
it takes or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
(e) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, notice, request, direction, consent, order,
bond, debenture, or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled, upon reasonable notice
to the Company and to the extent reasonably related to such facts or matters to
examine the books, records, and premises of the Company, personally or by agent
or attorney and to consult with the officers and representatives of the
Company, including the Company's accountants and attorneys.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee in its sole discretion against the costs,
expenses and liabilities which may be incurred by it in compliance with such
request, order or direction.
(g) The Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties hereunder.
SECTION 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company, any
Subsidiary of the Company or their respective Affiliates with the same rights
it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer.
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The recitals contained herein and in the Notes shall be taken
as statements of the Company and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Notes, and it shall not be accountable for
the Company's use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Company in this Indenture or the Notes
other than the Trustee's certificate of authentication.
SECTION 7.05 Notice of Default.
If a Default or an Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to each Holder notice
of the uncured Default or Event of Default within 90 days after such Default or
Event of Default occurs. Except in the case of a Default or an Event of
Default in payment of principal of, or interest on, any Note, including an
accelerated payment and the failure to make payment on the Change of Control
Payment Date pursuant to a Change of Control Offer or on the Proceeds Purchase
Date pursuant to a Net Proceeds Offer and, except in the case of a failure to
comply with Article V hereof, the Trustee may withhold such notice if and so
long as its Board of Directors, the executive committee of its Board of
Directors or a committee of its directors and/or Trust Officers in good faith
determines that withholding the notice is in the interest of the Holders.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each May 15, the Trustee shall, to the
extent that any of the events described in TIA Section 313(a) occurred within
the previous twelve months, but not otherwise, mail to each Holder a brief
report dated as of such date that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Sections 313(b), (c) and (d).
A copy of each report at the time of its mailing to Holders
shall be mailed to the Company and filed with the SEC and each stock exchange,
if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes
become listed on any stock exchange and the Trustee shall comply with TIA
Section 313(d).
SECTION 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee and each Agent from time
to time reasonable compensation for their respective services. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon
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request for all reasonable fees and expenses, including reasonable and
documented out-of-pocket expenses incurred or made by it in connection with the
performance of its duties under this Indenture. Such expenses shall include
the reasonable fees and expenses of the Trustee's and such Agent's agents,
consultants and counsel.
The Company shall indemnify the Trustee and each Agent and
their respective agents, employees, stockholders and directors and officers
for, and hold them harmless against, any loss, liability or expense incurred by
them except for such actions to the extent caused by any negligence, bad faith
or willful misconduct on their part, arising out of or in connection with the
administration of this trust including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with the
exercise or performance of any of their rights, powers or duties hereunder.
The Trustee and each Agent shall notify the Company promptly of any claim
asserted against the Trustee or such Agent for which it may seek indemnity. At
the Trustee's or such Agent's, as the case may be, sole discretion, the Company
shall defend the claim and the Trustee or such Agent, as the case may be, shall
cooperate and may participate in the defense; provided that any settlement of a
claim shall be approved in writing by the Trustee or such Agent, as the case
may be. Alternatively, the Trustee or such Agent, as the case may be, may at
its option have separate counsel of its own choosing and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its written consent. The Company need not
reimburse any expense or indemnify against any loss or liability to the extent
incurred by the Trustee through its negligence, bad faith or willful
misconduct.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Notes on all assets or money
held or collected by the Trustee, in its capacity as Trustee, except assets or
money held in trust to pay principal of or interest on particular Notes. The
Trustee's right to receive payment of any amounts due under this Section 7.07
shall not be subordinate to any other liability or indebtedness of the Company
(even though the Notes may be subordinate to such other liability or
indebtedness).
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) or (7) shall have occurred, such
expenses and the compensation for such services are intended to constitute
expenses of administration under any Bankruptcy Law; provided, however, that
this shall not affect the Trustee's rights as set forth in the preceding
paragraph or Section 6.10.
The Company's obligations under this Section 7.07 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company's obligations pursuant to Article Eight or other
termination of this Indenture and any rejection or termination of this
Indenture under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee.
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The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee by so notifying the Company and the Trustee and may appoint a
successor Trustee reasonably acceptable to the Company. The Company may remove
the Trustee if:
(1) the Trustee fails to comply with
Section 7.10;
(2) the Trustee is adjudged bankrupt or
insolvent;
(3) a receiver or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each Holder of
such event and shall promptly appoint a successor Trustee. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the Notes may appoint a successor Trustee reasonably
acceptable to the Company to replace the successor Trustee appointed by the
Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately
thereafter, the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided in Section 7.07,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to another
corporation, the resulting, surviving or
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transferee corporation without any further act shall, if such resulting,
surviving or transferee corporation is otherwise eligible hereunder, be the
successor Trustee; provided that such corporation shall be otherwise qualified
and eligible under this Article Seven.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1), (2) and (5). The Trustee (or, in the
case of a corporation included in a bank holding company system, the related
bank holding company) shall have a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition.
In addition, if the Trustee is a corporation included in a bank holding company
system, the Trustee, independently of such bank holding company, shall meet the
capital requirements of TIA Section 310(a)(2). The Trustee shall comply with
TIA Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which
other securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met. The provisions of TIA
Section 310 shall apply to the Company, as obligor of the Notes.
SECTION 7.11 Preferential Collection of Claims Against
Company.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein. The provisions of TIA Section 311 shall apply to the
Company, as obligor on the Notes.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01 Termination of the Company's Obligations.
The Company may terminate its obligations under the Notes and
this Indenture, except those obligations referred to in the penultimate
paragraph of this Section 8.01, if all Notes previously authenticated and
delivered (other than destroyed, lost or stolen Notes which have been replaced
or paid or Notes for whose payment U.S. Legal Tender has theretofore been
deposited with the Trustee or the Paying Agent in trust or segregated and held
in trust by the Company and thereafter repaid to the Company, as provided in
Section 8.05) have been delivered to the Registrar for cancellation and the
Company has paid all sums payable by it hereunder, or if:
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(a) either (i) pursuant to Article Three, the
Company shall have given notice to the Trustee and each Paying Agent and mailed
a notice of redemption to each Holder of the redemption of all of the Notes
under arrangements satisfactory to the Trustee for the giving of such notice or
(ii) all Notes have otherwise become due and payable hereunder;
(b) the Company shall have irrevocably deposited
or caused to be deposited with the Trustee or a trustee satisfactory to the
Trustee, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, as trust funds in trust solely for the
benefit of the Holders for that purpose, U.S. Legal Tender in such amount as
is sufficient without consideration of reinvestment of such interest, to pay
principal of Accreted Value, premium, if any, and interest on the outstanding
Notes to maturity or redemption; provided that the Trustee shall have been
irrevocably instructed to apply such U.S. Legal Tender to the payment of said
principal, Accreted Value, premium, if any, and interest with respect to the
Notes;
(c) no Default or Event of Default with respect
to this Indenture or the Notes shall have occurred and be continuing on the
date of such deposit or shall occur as a result of such deposit and such
deposit will not result in a breach or violation of, or constitute a default
under, any other instrument to which the Company is a party or by which it is
bound;
(d) the Company shall have paid all other sums
payable by it hereunder; and
(e) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent providing for or relating to the termination of the
Company's obligations under the Notes and this Indenture have been complied
with. Such Opinion of Counsel shall also state that such satisfaction and
discharge does not result in a default under the Credit Agreement (if then in
effect) or any other agreement or instrument then known to such counsel that
binds or affects the Company.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 7.07, 8.05 and 8.06
shall survive until the Notes are no longer outstanding pursuant to the last
paragraph of Section 2.08. After the Notes are no longer outstanding, the
Company's obligations in Sections 7.07, 8.05 and 8.06 shall survive.
After such delivery or irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the
Company's obligations under the Notes and this Indenture
except for those surviving obligations specified above.
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SECTION 8.02 Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board
Resolution, at any time, elect to have either paragraph (b) or (c) below be
applied to all outstanding Notes upon compliance with the conditions set forth
in Section 8.03.
(b) Upon the Company's exercise under paragraph
(a) hereof of the option applicable to this paragraph (b), the Company shall,
subject to the satisfaction of the conditions set forth in Section 8.03, be
deemed to have been discharged from its obligations with respect to all
outstanding Notes on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.04 hereof and the
other Sections of this Indenture referred to in (i) and (ii) below, and to have
satisfied all its other obligations under such Notes and this Indenture (and
the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following
provisions, which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of outstanding Notes to receive solely
from the trust fund described in Section 8.04 hereof, and as more fully set
forth in such Section, payments in respect of the principal of and interest on
such Notes when such payments are due, (ii) the Company's obligations with
respect to such Notes under Article II and Section 4.02 hereof, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company's obligations in connection therewith and (iv) this Article VIII.
Subject to compliance with this Article VIII, the Company may exercise its
option under this paragraph (b) notwithstanding the prior exercise of its
option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph
(a) hereof of the option applicable to this paragraph (c), the Company shall,
subject to the satisfaction of the conditions set forth in Section 8.03 hereof,
be released from its obligations under the covenants contained in Sections 4.10
through 4.20 and Article Five hereof with respect to the outstanding Notes on
and after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Notes shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, such Covenant Defeasance means
that, with respect to the outstanding Notes, the Company may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any Reference elsewhere herein to any such covenant or by reason of
any Reference in any such covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event or Default under Section 6.01(3) hereof, but, except as specified above,
the remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under paragraph (a) hereof of the option
applicable to this paragraph (c), subject
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to the satisfaction of the conditions set forth in Section 8.03 hereof,
Sections 6.01(3), 6.01(4) and 6.01(5) shall not constitute Events of Default.
SECTION 8.03 Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
either Section 8.02(b) or 8.02(c) hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, U.S. Legal Tender or U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms, will provide, not
later than one day before the due date of any scheduled payment on the Notes,
U.S. Legal Tender, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, Accreted Value, premium, if any, and interest on the Notes on the
stated date for payment thereof or on the applicable redemption date, as the
case may be, of such principal Accreted Value or installment of principal of or
interest on the Notes; provided that the Trustee shall have received an
irrevocable written order from the Company instructing the Trustee to apply or
cause the Paying Agent to apply such U.S. Legal Tender or the proceeds of such
U.S. Government Obligations to said payments with respect to the Notes;
(b) in the case of an election under Section
8.02(b) hereof, the Company shall have delivered to the Trustee an Opinion of
Counsel in the United States reasonably acceptable to the Trustee confirming
that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this Indenture,
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal Defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of an election under Section
8.02(c) hereof, the Company shall have delivered to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee confirming that the Holders of the
Notes will not recognize income, gain or loss for federal income tax purposes
as a result of such Covenant Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit (other than a Default or
Event of Default resulting from the incurrence of Indebtedness all or a portion
of the proceeds of which will be used to defease the Notes pursuant to
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this Article Eight concurrently with such incurrence) or insofar as Sections
6.01(6) and 6.01(7) hereof are concerned, at any time in the period ending on
the 91st day after the date of such deposit;
(e) such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of or constitute a default under this
Indenture or any other material agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company shall have delivered to the
Trustee an Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other creditors of
the Company or with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Company or others;
(g) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for or relating to the Legal Defeasance or
the Covenant Defeasance have been complied with; and
(h) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that assuming no intervening
bankruptcy or insolvency of the Company between the date of deposit and the
91st day following the deposit and that no Holder is an insider of the Company,
after the 91st day following the deposit, the trust funds will not be subject
to the effect of any applicable Bankruptcy Law.
SECTION 8.04 Application of Trust Money.
The Trustee or Paying Agent shall hold in trust U.S. Legal
Tender or U.S. Government Obligations deposited with it pursuant to Article
Eight, and shall apply the deposited U.S. Legal Tender and the proceeds from
U.S. Government Obligations in accordance with this Indenture to the payment of
principal of and interest on the Notes. The Trustee shall be under no
obligation to invest said U.S. Legal Tender or U.S. Government Obligations
except as it may agree with the Company.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Legal Tender
or U.S. Government Obligations deposited pursuant to Section 8.03 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding,
the Trustee shall, or shall request the Paying Agent to, deliver or pay to the
Company from time to time upon the Company's request any U.S. Legal Tender or
U. S. Government Obligations held by it as provided in Section 8.03 hereof
which, in the opinion of a nationally recognized firm of independent public
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accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.05 Repayment to the Company.
Subject to Article VIII, the Trustee and the Paying Agent
shall promptly pay to the Company upon request any excess U.S. Legal Tender or
U.S. Government Obligations held by them at any time and thereupon shall be
relieved from all liability with respect thereto. The Trustee and the Paying
Agent shall pay to the Company upon request any money held by them for the
payment of principal or interest that remains unclaimed for two years; provided
that the Trustee or such Paying Agent, before being required to make any
payment, may at the expense of the Company cause to be published once in a
newspaper of general circulation in the City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that after
a date specified therein which shall be at least 30 days from the date of such
publication or mailing any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to
such money must look to the Company for payment as general creditors unless an
applicable law designates another Person to whom such Holders may look.
SECTION 8.06 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S.
Legal Tender or U.S. Government Obligations in accordance with Article Eight by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Article VIII until such time as the Trustee or Paying Agent is permitted to
apply all such U.S. Legal Tender or U.S. Government Obligations in accordance
with Article VIII; provided that if the Company has made any payment of
interest on or principal of any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the U.S. Legal Tender or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01 Without Consent of Holders.
The Company, when authorized by a Board Resolution, and the
Trustee, together, may amend or supplement this Indenture or the Notes without
notice to or consent of any Holder:
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(1) to cure any ambiguity herein, or to correct
or supplement any provision hereof which may be inconsistent with any
other provision hereof or to add any other provisions with respect to
matters or questions arising under this Indenture; providedthat such
actions shall not adversely affect the interests of the Holders of
Notes in any material respect;
(2) to comply with Article V;
(3) to provide for uncertificated Notes in
addition to or in place of certificated Notes;
(4) to comply with any requirements of the SEC in
order to effect or maintain the qualification of this Indenture under
the TIA;
(5) to make any change that would provide any
additional benefit or rights to the Holders;
(6) to provide for issuance of the Exchange
Notes, which will have terms substantially identical in all material
respects to the Initial Notes (except that the transfer restrictions
contained in the Initial Notes will be modified or eliminated, as
appropriate), and which will be treated together with any outstanding
Initial Notes, as a single issue of securities;
(7) to add a Guarantor pursuant to Section 4.19;
or
(8) to make any other change that does not, in
the good faith judgment of the Trustee, adversely affect in any
material respect the rights of any Holders hereunder;
provided that the Company has delivered to the Trustee an Opinion of Counsel
stating that such amendment or supplement complies with the provisions of this
Section 9.01.
In addition, without the consent of the Holders, the Company
and the Trustee may amend this Indenture to provide for the assumption by a
successor corporation, partnership, trust or limited liability company of the
obligations of the Company under this Indenture as permitted by Article Five,
to add further Guarantees with respect to the Notes, to secure the Notes, to
add to the covenants of the Company for the benefit of the Holders or to
surrender any right or power conferred upon the Company by this Indenture or
the Notes.
SECTION 9.02 With Consent of Holders.
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Subject to Section 6.07, the Company, when authorized by a
Board Resolution, and the Trustee, together, upon receipt of the written
consent of the Holder or Holders of at least a majority of the aggregate
outstanding principal amount at maturity of the Notes, may amend or supplement
this Indenture or the Notes, without notice to any other Holders. Subject to
Section 6.07, the Holder or Holders of a majority in aggregate outstanding
principal amount at maturity of the Notes may waive compliance by the Company
with any provision of this Indenture or the Notes without notice to any other
Holder. Notwithstanding the forgoing, no amendment, supplement or waiver,
including a waiver pursuant to Section 6.04, shall, without the consent of each
Holder of each Note affected thereby:
(1) reduce the amount of Notes whose Holders must
consent to an amendment;
(2) reduce the rate of or change or have the
effect of changing the time for payment of interest, including
defaulted interest, on any Notes;
(3) reduce the principal of, Accreted Value,
premium, or change or have the effect of changing the fixed maturity
of any Notes, or change the date on which any Notes may be subject to
mandatory redemption or redemption at the option of the Company, or
reduce the mandatory redemption price or redemption price in
connection with a redemption at the option of the Company therefor;
(4) make any Notes payable in a currency other
than that stated in the Notes;
(5) make any change in provisions of this
Indenture protecting the right of each Holder to receive payment of
principal of, Accreted Value, premium, and interest on such Note on or
after the due date thereof or to bring suit to enforce such payment,
or permitting Holders of a majority in principal amount of Notes to
waive Defaults or Events of Default, other than ones with respect to
the payment of principal of or interest on the Notes;
(6) amend, modify, change or waive any provision
of this Section 9.02;
(7) amend, modify or change in any material
respect the obligation of the Company to make or consummate a Change
of Control Offer in the event of a Change of Control or modify any of
the provisions or definitions with respect thereto after a Change of
Control has occurred; or
(8) modify Articles X or XIIor the definitions
used in Articles X or XII to adversely affect the Holders of the Notes
in any material respect.
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It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders affected thereby
a notice briefly describing the amendment, supplement or waiver. Any failure
of the Company to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture.
SECTION 9.03 Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the
Notes shall comply with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as the consenting Holder's Note, even if notation of the consent is not made on
any Note. Subject to the following paragraph, any such Holder or subsequent
Holder may revoke the consent as to such Holder's Note or portion of such Note
by written notice to the Trustee or the Company received before the date on
which the Trustee receives an Officers' Certificate certifying that the Holders
of the requisite principal amount of Notes have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be at least 10 days
prior to the first solicitation of such consent. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it makes a change described in any of clauses
(1) through (8) of Section 9.02, in which case the amendment, supplement or
waiver shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as the consenting Holder's Note; provided that any such waiver shall not impair
or affect the right of any Holder to receive payment of principal of and
interest on a Note on or after the
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respective due dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates without the
consent of such Holder.
SECTION 9.05 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a
Note, the Trustee may require the Holder of such Note to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Note about the
changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Note shall issue and
the Trustee shall authenticate a new Note that reflects the changed terms. Any
such notation or exchange shall be made at the sole cost and expense of the
Company.
SECTION 9.06 Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each complying with Sections 11.04 and 11.05 and stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article Nine is
authorized or permitted by this Indenture. Such Opinion of Counsel shall not
be an expense of the Trustee.
SECTION 9.07 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article Nine, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
ARTICLE X
COLLATERAL ACCOUNT AND RELEASES
SECTION 10.01 Collateral Account.
(a) Prior to the Issue Date of the Notes, the
Company shall open with Marine Midland Bank, acting in its capacity as a
securities intermediary (the "Securities Intermediary") and shall require the
Securities Intermediary to establish on its books and maintain for the Trustee
on
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behalf of the Holders of the Notes, a trust account titled "Marine Midland
Bank, Trustee for the benefit of holders of securities of Del Monte Foods
Company, under an Indenture dated December 17, 1997 Collateral Account" (the
"Collateral Account") into which the Trustee shall deposit the amounts
specified in Section 4.22, when received from the Company pursuant to Section
4.22.
(b) In order to secure the full and punctual payment of
the Notes in accordance with the terms hereof, the Company hereby grants to the
Trustee, on behalf of the Holders, a continuing security interest in and to all
of its right, title and interest in and to the Collateral Account, all cash
deposited therein, and the U.S. Government Obligations and such other interest
and shares credited thereto (including those held therein pursuant to Section
10.02 hereof), any other property (including any investment property, financial
assets, securities, instruments or securities entitlements) credited thereto
and all proceeds of any of the foregoing, whether now existing or hereafter
acquired or arising.
(c) The Collateral Account shall relate solely to the
Notes and the collateral securing the Notes, and funds in such account shall
not be commingled with any other moneys or properties, tangible or intangible.
All payments to be made from time to time by the Paying Agent to the Holders of
Notes out of funds in the Collateral Account as payment of the Redemption Price
in connection with a Mandatory Redemption shall be made by the Trustee to the
Paying Agent. All moneys deposited from time to time in the Collateral Account
pursuant to this Indenture shall be held by the Trustee in trust hereunder as
collateral as herein provided. Any payments of principal of or interest on, or
proceeds from the sale of, any collateral held in the Collateral Account shall
be credited and deposited into the Collateral Account.
(d) The Collateral Account shall be maintained with the
Trustee on the terms and conditions set forth in the Securities Account Control
Agreement, dated December 17, 1997, among the Company, the Trustee and Marine
Midland Bank, as Securities Intermediary thereunder (the "Control Agreement"),
until released by the Trustee contemporaneously with the earliest of (i) the
closing of the Contadina Acquisition and receipt by the Trustee of an Officers'
Certificate from the Company (a) requesting that the Trustee release the
Collateral to the order of the Company and (b) stating that the Contadina
Acquisition will be simultaneously so consummated on or prior to February 3,
1998 (or if the Company has exercised the Extended Payment Option, on or prior
to May 12, 1998) on the terms substantially as set forth in the Asset Purchase
Agreement as in effect on the Issue Date , (ii) the Business Day immediately
prior to the Redemption Date for the Mandatory Redemption, or (iii) the date on
which no Notes remain outstanding.
SECTION 10.02 Eligible Investments.
Upon order from the Company, the Trustee shall invest any
funds in the Collateral Account in U.S. Government Obligations or interests in,
or shares of, a money market account registered pursuant to the Investment
Company Act of 1940, as amended, substantially all of whose investments consist
of interests in U.S. Government Obligations, provided that;
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(a) any such investment and the proceeds
therefrom are held through the Collateral Account and on the terms set forth in
the Control Agreement, and
(b) concurrently with making such investment, the
Trustee ensures that such U.S. Government Obligations or interests and shares
are credited to, and held through, the Collateral Account of the Securities
Intermediary.
The Trustee shall not be liable for any loss incurred on any
funds invested in the Collateral Account pursuant to the provisions of this
Section 10.02.
SECTION 10.03 Release of Collateral.
Upon the occurrence of an event specified in (i), (ii) or
(iii) of Section 10.01(d), all properties in the Collateral Account, including
investment earnings, shall be released (to the Company in the case of
subsection 10.01(d)(i) and (iii) and to the Paying Agent in the case of
subsection 10.01(d)(ii)) and the security interests in the collateral created
under Section 10.01 shall terminate; and upon the Mandatory Redemption, the
Paying Agent shall apply all funds received from the Trustee from the
Collateral Account (i) first, to pay the Redemption Price on the Redemption
Date in respect of the Mandatory Redemption and (ii) immediately after such
Redemption Date, to return any remaining collateral from the Collateral Account
to the Company. The Trustee, when required by the provisions of the foregoing
sentence, shall execute instruments (including any instruments required under
the Control Agreement) to release the collateral from the lien of this
Indenture, or convey the Trustee's interest in the same, in a manner and under
circumstances which are not inconsistent with the provisions of this Indenture,
and shall have the power to effect any sale of the property held in the
Collateral Account or any portion thereof at such time. The Trustee shall not
be liable for any loss incurred upon the sale of The property held in the
Collateral Account prior to maturity in accordance with this Section 10.03. No
party relying upon an instrument executed by the Trustee as provided in this
Article X shall be bound to ascertain the Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
moneys.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
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SECTION 11.02 Notices.
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by commercial courier service, by telecopier or registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to the Company:
Del Monte Foods Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President and Treasurer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with, in the case of any notice given pursuant to Article VI, a copy to:
Del Monte Foods Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal Affairs
and Secretary
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and, in the case of any notice given pursuant to Article VI, a copy to:
Pillsbury, Madison & Sutro
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
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if to the Trustee:
Marine Midland Bank
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Paying Agent or Registrar:
Bankers Trust Company
4th Floor
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Market Services
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Each of the Company, the Trustee and the Paying Agent by
written notice to each other such Person may designate additional or different
addresses for notices to such Person. Any notice or communication to the
Company, the Trustee and the Paying Agent shall be deemed to have been given or
made as of the date so delivered if personally delivered; when receipt is
confirmed if delivered by commercial courier service; when receipt is
acknowledged, if faxed; and five (5) calendar days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change
of address shall not be deemed to have been given until actually received by
the addressee).
In the event any additional Guarantors are added pursuant to
Section 4.19, this Section 11.02 shall be supplemented to provide for delivery
of any notices or communications described herein to each such Guarantor.
Any notice or communication mailed to a Holder shall be mailed
to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.03 Communications by Holders with Other Holders.
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Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and any other Person shall have the
protection of TIA Section 312(c).
SECTION 11.04 Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company or Holdings to
the Trustee to take any action under this Indenture, the Company or Holdings,
as the case may be, shall furnish to the Trustee:
(1) an Officers' Certificate, in form and
substance reasonably satisfactory to the Trustee, stating that, in the
opinion of the signers, all conditions precedent to be performed by
the Company, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent to be performed
by the Company, if any, provided for in this Indenture relating to
the proposed action have been complied with.
SECTION 11.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.06, shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition and the
definitions relating thereto;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such
Person, he or she has made such examination or investigation as is
reasonably necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the
opinion of each such Person, such condition or covenant has been
complied with.
SECTION 11.06 Rules by Trustee, Paying Agent, Registrar.
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The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Holders. Each
of the Paying Agent or Registrar may make reasonable rules in accordance with
customary practices for its functions.
SECTION 11.07 Legal Holidays.
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions in New
York, New York or at such place of payment are not required to be open. If a
payment date is a Legal Holiday at such place, payment may be made at such
place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.
SECTION 11.08 Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE.
SECTION 11.09 No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.10 No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as
such, of the Company, any Guarantor or of the Trustee shall not have any
liability for any obligations of the Company or any Guarantor under the Notes,
the Guarantees or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a Note
waives and
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releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
SECTION 11.11 Successors.
All agreements of the Company and Holdings in this Indenture
and the Notes shall bind their respective successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 11.12 Duplicate Originals.
All parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together shall represent
the same agreement.
SECTION 11.13 Severability.
In case any one or more of the provisions in this Indenture or
in the Notes shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
Issuer:
DEL MONTE FOODS COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
Trustee:
MARINE MIDLAND BANK,
as Trustee
By: /s/ METIN CANER
----------------------------------
Name: Metin Caner
Title: Vice President
ACKNOWLEDGED AND AGREED:
BANKERS TRUST COMPANY,
as Registrar, Paying Agent and
Authenticating Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
100
FOR PURPOSES OF SECTIONS 1272 ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, THE ISSUE PRICE WITH RESPECT TO EACH $1,000 OF PRINCIPAL AT MATURITY
OF THIS NOTE IS $545.76, THE AMOUNT OF ORIGINAL DISCOUNT IS $454.24, THE ISSUE
DATE IS DECEMBER 17, 1997, AND THE YIELD TO MATURITY IS 12 1/2%.
EXHIBIT A
CUSIP No.:
DEL MONTE FOODS COMPANY
12 1/2% SENIOR DISCOUNT NOTE DUE 2007
No.__________ $________
DEL MONTE FOODS COMPANY, a Maryland corporation (the
"Company," which term includes any successor entity), for value received
promises to pay to ___________ or registered assigns, the principal sum of
_______ Dollars, on December 15, 2007.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto or imprinted hereon.
DEL MONTE FOODS COMPANY
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Dated: __________,_____ Title:
Certificate of Authentication
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This is one of the 12 1/2% Senior Discount Notes due 2007 referred to
in the within-mentioned Indenture.
MARINE MIDLAND BANK, or MARINE MIDLAND BANK,
as Trustee as Trustee
By:_______________________________
Authorized Signatory By: BANKERS TRUST COMPANY,
as Authenticating Agent
By: ______________________________
Authorized Signatory
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(REVERSE OF SECURITY)
12 1/2% SENIOR DISCOUNT NOTE DUE 2007
1. Interest. Until December 15, 2002, no interest
payable in cash will accrue on the Notes. Accreted Value will increase between
the Issue Date and December 15, 2002, on a semi-annual bond equivalent basis
using a 360-day year comprised of twelve 30-day months, such that the Accreted
Value shall be equal to the full principal amount at maturity of the Notes on
December 15, 2002. Beginning on December 15, 2002, interest payable in cash on
the Notes will accrue at the rate of 12 1/2% per annum and will be payable
semi-annually in arrears on June 15, and December 15, commencing on June 15,
2003, to Holders of record on the immediately preceding June 1 and
December 1, respectively. Interest payable in cash on the Notes will accrue
from the most recent date to which interest has been paid or, if no interest
has been paid, from December 15, 2002. Interest will be computed on the basis
of a 360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and on
overdue installments of interest from time to time on demand at the rate borne
by the Notes plus 2% per annum and on overdue installments of interest (without
regard to any applicable grace periods) to the extent lawful.
2. Method of Payment. The Company shall pay interest on
the Notes (except defaulted interest) to the Persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date even if the Notes are cancelled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Company
shall pay principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts ("U.S. Legal
Tender"). However, the Company may pay principal and interest by its check
payable in such U.S. Legal Tender. The Company may deliver any such interest
payment to the Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar. Initially, Bankers Trust
Company, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, will act as Paying Agent
and Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders.
4. Indenture. The Company issued the Notes under an
Indenture, dated as of December 17, 1997 (amended and supplemented from time to
time, the "Indenture"), among the Company and Marine Midland Bank, as Trustee
(the "Trustee", which term includes any successor Trustee under the Indenture).
This Note is one of a duly authorized issue of Initial Notes of the Company
designated as its 12 1/2% Senior Discount Notes due 2007 (the "Initial Notes").
The Notes are limited in aggregate principal amount at maturity to
$230,000,000. The Notes include the Initial Notes and the Exchange Notes, as
defined below, issued in exchange for the Initial Notes pursuant to the
Indenture. The Initial Notes and the Exchange Notes are treated as a single
class of securities
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under the Indenture. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by Reference to the
Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as
in effect on the date of the Indenture. Notwithstanding anything to the
contrary herein, the Notes are subject to all such terms, and Holders of Notes
are referred to the Indenture and said Act for a statement of such terms,
including the respective rights, duties and immunities thereunder of the
Company, the Guarantors, the Trustee and the Holders of the Notes and the terms
upon which the Notes are, and are to be, authenticated and delivered. The Notes
are general, unsecured, senior obligations of the Company.
5. Redemption.
(a) Optional Redemption. The Notes will be redeemable,
at the Company's option, in whole at any time or in part from time to time, on
and after December 15, 2002, upon not less than 30 nor more than 60 days'
notice, at the following redemption prices (expressed as percentages of
Accreted Value as of the Redemption Date) if redeemed during the twelve-month
period commencing on December 15 of the year set forth below, plus, in each
case, accrued and unpaid interest thereon, if any, to the date of redemption:
Year Percentage
---- ----------
2002 . . . . . . . . . . . . . . . . . . . . . . . . . 106.250%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . 104.688%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . 103.125%
2005 . . . . . . . . . . . . . . . . . . . . . . . . . 101.563%
2006 and thereafter . . . . . . . . . . . . . . . . . . 100.000%
(b) Optional Redemption Upon Public Equity Offerings. At
any time, or from time to time, on or prior to December 15, 2000, the Company
may, at its option, use the Cash Net Proceeds of one or more Public Equity
Offerings (as defined in the Indenture) to redeem up to 35% of the aggregate
principal amount at maturity of Notes originally issued at a Redemption Price
equal to 112.5% of Accreted Value as of the Redemption Date; provided that at
least 65% of the principal amount at maturity of Notes originally issued
remains outstanding immediately after any such redemption.
In order to effect the foregoing redemption with the proceeds
of any Public Equity Offering, the Company shall make such redemption not more
than 120 days after the consummation of any such Public Equity Offering.
(c) Optional Redemption Upon Change of Control. At any
time, on or prior to December 15, 2002, the Company may, at its option, redeem
the Notes, in whole, upon the occurrence of a Change of Control (as defined in
the Indenture), upon not less than 30 nor more than
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60 days prior notice (but in no event more than 90 days after the occurrence of
such Change of Control) at a Redemption Price equal to 100% of the Accreted
Value thereof plus the Applicable Premium (as defined below) as of Redemption
Date (the "Change of Control Redemption Date").
(d) Mandatory Redemption. The Notes are subject to
mandatory redemption (a "Mandatory Redemption") upon the occurrence of a
Triggering Event. If a Triggering Event occurs, the Company will be required
to redeem the Notes at a Redemption Price equal to 101% of the Accreted Value
to and including the date of redemption, or 102% of Accreted Value to and
including the date of redemption if the Company has exercised the Extended
Closing Option. The Mandatory Redemption must occur no later than the earlier
of (i) February 23, 1998 (or June 1, 1998, if the Company has exercised the
Extended Closing Option) and (ii) 20 days after such earlier date that the
Company determines in good faith that the Contadina Acquisition will not occur
as set forth in this Indenture. Notice of Mandatory Redemption will be mailed
at least 20 days before the Redemption Date to each Holder of Notes to be
redeemed at its registered address.
In the event of a Mandatory Redemption, the Trustee will
release to the Paying Agent for the Notes an amount of Collateral in cash equal
to the aggregate Redemption Price of the Notes for payment to holders of the
Notes on the Redemption Date.
6. Notice of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days (exactly 20 days in the case
of a Mandatory Redemption) before the Redemption Date to each Holder of Notes
to be redeemed at such Holder's registered address. Notes in denominations
larger than $1,000 principal amount at maturity may be redeemed in part.
Except as set forth in the Indenture, if monies for the
redemption of the Notes called for redemption shall have been deposited with
the Paying Agent for redemption on such Redemption Date, then, unless the
Company defaults in the payment of such Redemption Price plus accrued and
unpaid interest, if any, the Notes called for redemption will cease to bear
interest from and after such Redemption Date and the only right of the Holders
of such Notes will be to receive payment of the Redemption Price plus accrued
and unpaid interest, if any.
7. Offers to Purchase. Sections 4.15 and 4.16 of the
Indenture provide that, after certain Asset Sales (as defined in the Indenture)
and upon the occurrence of a Change of Control (as defined in the Indenture),
and subject to further limitations contained therein, the Company will make an
offer to purchase certain amounts of the Notes in accordance with the
procedures set forth in the Indenture.
8. Registration Rights. Pursuant to the Registration
Rights Agreement (as defined in the Indenture), the Company will be obligated
to consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for the Company's Series B 12 1/2% Senior
Discount Notes due 2007 (the "Exchange Notes"), which have been registered
under the Securities Act, in like principal amount at maturity and having terms
identical in all
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material respects to the Initial Notes. The Holders of the Initial Notes shall
be entitled to receive certain additional interest payments in the event such
exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
9. Denominations; Transfer; Exchange. The Notes are in
registered form, without coupons, in denominations of $1,000 principal amount
at maturity and integral multiples thereof. A Holder shall register the
transfer of or exchange Notes in accordance with the Indenture. The Registrar
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as permitted by the
Indenture. The Registrar need not register the transfer of or exchange of any
Notes or portions thereof selected for redemption.
10. Persons Deemed Owners. The registered Holder of a
Note shall be treated as the owner of it for all purposes.
11. Unclaimed Money. If money for the payment of
principal or interest remains unclaimed for two years, the Trustee and the
Paying Agent will pay the money back to the Company. After that, all liability
of the Trustee and such Paying Agent with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity. If the
Company at any time deposits with the Trustee U.S. Legal Tender or U.S.
Government Obligations sufficient to pay the principal of and interest on the
Notes to redemption or maturity and complies with the other provisions of the
Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Notes (including certain covenants, but
excluding its obligation to pay the principal of and interest on the Notes).
13. Amendment; Supplement; Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount at maturity of the Notes then outstanding, and any existing Default or
Event of Default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in aggregate principal amount at
maturity of the Notes then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the Notes
to, among other things, cure any ambiguity, defect or inconsistency, provide
for uncertificated Notes in addition to or in place of certificated Notes, or
comply with Article Five of the Indenture or make any other change that does
not adversely affect in any material respect the rights of any Holder of a
Note.
14. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries to,
among other things, incur additional Indebtedness, make payments in respect of
its Capital Stock or certain Indebtedness, enter into transactions with
Affiliates, create dividend or other payment restrictions affecting
Subsidiaries,
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merge or consolidate with any other Person, sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its assets or adopt
a plan of liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
15. Successors. When a successor assumes, in accordance
with the Indenture, all the obligations of its predecessor under the Notes and
the Indenture, the predecessor will be released from those obligations.
16. Defaults and Remedies. If an Event of Default occurs
and is continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount at maturity of Notes then outstanding may declare all the
Notes to be due and payable in the manner, at the time and with the effect
provided in the Indenture. Holders of Notes may not enforce the Indenture or
the Notes except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Notes unless it has received indemnity reasonably
satisfactory to it. The Indenture permits, subject to certain limitations
therein provided, Holders of a majority in aggregate principal amount at
maturity of the Notes then outstanding to direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of Notes notice of
any continuing Default or Event of Default (except a Default in payment of
principal or interest) if it determines that withholding notice is in their
interest.
17. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
18. No Recourse Against Others. No stockholder,
director, officer, employee or incorporator, as such, of the Company shall have
any liability for any obligation of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of a Note by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
19. Authentication. This Note shall not be valid until
the Trustee or an Authenticating Agent manually signs the certificate of
authentication on this Note.
20. Governing Law. The laws of the State of New York
shall govern this Note and the Indenture, without regard to principles of
conflict of laws.
21. Abbreviations and Defined Terms. Customary
abbreviations may be used in the name of a Holder of a Note or an assignee,
such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
▇-▇
▇▇▇
▇▇. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes as a convenience to
the Holders of the Notes. No representation is made as to the accuracy of such
numbers as printed on the Notes and reliance may be placed only on the other
identification numbers printed hereon.
23. Indenture. Each Holder, by accepting a Note, agrees
to be bound by all of the terms and provisions of the Indenture, as the same
may be amended from time to time.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture, which has the text of this
Note in larger type. Requests may be made to: Vice President, Legal Affairs
and Secretary, Del Monte Foods Company, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Note to:
____________________________________
____________________________________
____________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ________________________________________, agent to
transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: ___________________ Signed:
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee: ____________________________
In connection with any transfer of this Note occurring prior
to the date which is the earlier of (i) the date of the declaration by the SEC
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) December 17, 1999 (or such earlier date as shall be
specified in an Officers' Certificate to the effect that the Notes are no
longer Restricted Securities delivered to the Trustee and the Registrar), the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and that this Note is being
transferred:
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[Check One]
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under the Securities Act;
or
(3) __ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that has furnished to the
Trustee a signed letter containing certain representations and agreements (the
form of which letter can be obtained from the Trustee); or
(4) __ outside the United states to a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act; or
(5) __ pursuant to the exemption from registration provided by Rule 144 under
the Securities Act; or
(6) __ pursuant to an effective registration statement under the Securities
Act; or
(7) __ pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Registrar will refuse to register any
of the Notes evidenced by this certificate in the name of any Person other than
the registered Holder thereof; provided that if box (3), (4), (5) or (7) is
checked, the Company or the Registrar may require, prior to registering any
such transfer of the Notes, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3) or (4))
and other information as the Registrar or the Company has reasonably requested
to confirm that such transfer is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the
Securities Act.
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If none of the foregoing boxes is checked, the Trustee or Registrar shall not
be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.17 of the Indenture shall have
been satisfied.
Dated: ____________________ Signed:
(Sign exactly as name
appears on the other side
of this Security)
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: _____________________
NOTICE: To be executed by an executive officer
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[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount you elect to have purchased:
$___________________
Dated: _________________ ____________________________________
NOTICE: The signature on this
assignment must correspond with the
name as it appears upon the face of
the within Note in every particular
without alteration or enlargement or
any change whatsoever and be
guaranteed by the endorser's bank or
broker.
Signature Guarantee: ____________________________________
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FOR PURPOSES OF SECTIONS 1272 ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, THE ISSUE PRICE WITH RESPECT TO EACH $1,000 OF PRINCIPAL AT MATURITY
OF THIS NOTE IS $545.76, THE AMOUNT OF ORIGINAL DISCOUNT IS $454.24, THE ISSUE
DATE IS DECEMBER 17, 1997, AND THE YIELD TO MATURITY IS 12 1/2%.
EXHIBIT B
CUSIP No.:
DEL MONTE FOODS COMPANY
SERIES B 12-1/2% SENIOR DISCOUNT NOTE DUE 2007
No. ________________ $_______________
DEL MONTE FOODS COMPANY, a Maryland corporation (the
"Company," which term includes any successor entity), for value received
promises to pay to_____________ or registered assigns, the principal sum of
_________ Dollars, on December 15, 2007.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto or imprinted hereon.
DEL MONTE FOODS COMPANY
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Dated: ____________, ______ Title:
Certificate of Authentication
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This is one of the Series B 12 1/2% Senior Discount Notes due 2007
referred to in the within-mentioned Indenture.
MARINE MIDLAND BANK, or MARINE MIDLAND BANK,
as Trustee as Trustee
By: ______________________________
Authorized Signatory By: BANKERS TRUST COMPANY,
as Authenticating Agent
By: _________________________________
Authorized Signatory
(REVERSE OF SECURITY)
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SERIES B 12 1/2% SENIOR DISCOUNT NOTE DUE 2007
1. Interest. Until December 15, 2002, no interest
payable in cash will accrue on the Notes. Accreted Value will increase between
the Issue Date and December 15, 2002, on a semi-annual bond equivalent basis
using a 360-day year comprised of twelve 30-day months, such that the Accreted
Value shall be equal to the full principal amount at maturity of the Notes on
December 15, 2002. Beginning on December 15, 2002, interest payable in cash on
the Notes will accrue at the rate of 12 1/2% per annum and will be payable
semi-annually in arrears on June 15, and December 15, commencing on June 15,
2003, to Holders of record on the immediately preceding June 1 and
December 1, respectively. Interest payable in cash on the Notes will accrue
from the most recent date to which interest has been paid or, if no interest
has been paid, from December 15, 2002. Interest will be computed on the basis
of a 360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and on
overdue installments of interest from time to time on demand at the rate borne
by the Notes plus 2% per annum and on overdue installments of interest (without
regard to any applicable grace periods) to the extent lawful.
2. Method of Payment. The Company shall pay interest on
the Notes (except defaulted interest) to the Persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date even if the Notes are cancelled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Company
shall pay principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts ("U.S. Legal
Tender"). However, the Company may pay principal and interest by its check
payable in such U.S. Legal Tender. The Company may deliver any such interest
payment to the Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar. Initially, Bankers Trust
Company, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, will act as Paying Agent
and Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders.
4. Indenture. The Company issued the Notes under an
Indenture, dated as of December 17, 1997 (amended and supplemented from time to
time, the "Indenture"), among the Company and Marine Midland Bank, as Trustee
(the "Trustee", which term includes any successor Trustee under the Indenture).
This Note is one of a duly authorized issue of Initial Notes of the Company
designated as its 12 1/2% Senior Discount Notes due 2007 (the "Initial Notes").
The Notes are limited in aggregate principal amount at maturity to
$230,000,000. The Notes include the Initial Notes and the Exchange Notes, as
defined below, issued in exchange for the Initial Notes pursuant to the
Indenture. The Initial Notes and the Exchange Notes are treated as a single
class of securities under the Indenture. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The terms of the
Notes include those stated in the Indenture and those made part of the
Indenture by Reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) (the
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"TIA"), as in effect on the date of the Indenture. Notwithstanding anything to
the contrary herein, the Notes are subject to all such terms, and Holders of
Notes are referred to the Indenture and said Act for a statement of such terms,
including the respective rights, duties and immunities thereunder of the
Company, the Guarantors, the Trustee and the Holders of the Notes and the terms
upon which the Notes are, and are to be, authenticated and delivered. The Notes
are general, unsecured, senior obligations of the Company.
5. Redemption.
(a) Optional Redemption. The Notes will be redeemable,
at the Company's option, in whole at any time or in part from time to time, on
and after December 15, 2002, upon not less than 30 nor more than 60 days'
notice, at the following redemption prices (expressed as percentages of
Accreted Value as of the Redemption Date) if redeemed during the twelve-month
period commencing on December 15 of the year set forth below, plus, in each
case, accrued and unpaid interest thereon, if any, to the date of redemption:
Year Percentage
---- ----------
2002 . . . . . . . . . . . . . . . . . . . . . . . 106.250%
2003 . . . . . . . . . . . . . . . . . . . . . . . 104.688%
2004 . . . . . . . . . . . . . . . . . . . . . . . 103.125%
2005 . . . . . . . . . . . . . . . . . . . . . . . 101.563%
2006 and thereafter . . . . . . . . . . . . . . . . 100.000%
(b) Optional Redemption Upon Public Equity Offerings. At
any time, or from time to time, on or prior to December 15, 2000, the Company
may, at its option, use the Cash Net Proceeds of one or more Public Equity
Offerings (as defined in the Indenture) to redeem up to 35% of the aggregate
principal amount at maturity of Notes originally issued at a Redemption Price
equal to 112.5% of Accreted Value as of the Redemption Date; provided that at
least 65% of the principal amount at maturity of Notes originally issued
remains outstanding immediately after any such redemption.
In order to effect the foregoing redemption with the proceeds
of any Public Equity Offering, the Company shall make such redemption not more
than 120 days after the consummation of any such Public Equity Offering.
(c) Optional Redemption Upon Change of Control. At any
time, on or prior to December 15, 2002, the Company may, at its option, redeem
the Notes, in whole, upon the occurrence of a Change of Control (as defined in
the Indenture), upon not less than 30 nor more than 60 days prior notice (but
in no event more than 90 days after the occurrence of such Change of Control)
at a Redemption Price equal to 100% of the Accreted Value thereof plus the
Applicable Premium (as defined below) as of Redemption Date (the "Change of
Control Redemption Date").
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(d) Mandatory Redemption. The Notes are subject to
mandatory redemption (a "Mandatory Redemption") upon the occurrence of a
Triggering Event. If a Triggering Event occurs, the Company will be required
to redeem the Notes at a Redemption Price equal to 101% of the Accreted Value
to and including the date of redemption, or 102% of Accreted Value to and
including the date of redemption if the Company has exercised the Extended
Closing Option. The Mandatory Redemption must occur no later than the earlier
of (i) February 23, 1998 (or June 1, 1998, if the Company has exercised the
Extended Closing Option) and (ii) 20 days after such earlier date that the
Company determines in good faith that the Contadina Acquisition will not occur
as set forth in this Indenture. Notice of Mandatory Redemption will be mailed
at least 20 days before the Redemption Date to each Holder of Notes to be
redeemed at its registered address.
In the event of a Mandatory Redemption, the Trustee will
release to the Paying Agent for the Notes an amount of Collateral in cash equal
to the aggregate Redemption Price of the Notes for payment to holders of the
Notes on the Redemption Date.
6. Notice of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days (exactly 20 days in the case
of a Mandatory Redemption) before the Redemption Date to each Holder of Notes
to be redeemed at such Holder's registered address. Notes in denominations
larger than $1,000 principal amount at maturity may be redeemed in part.
Except as set forth in the Indenture, if monies for the
redemption of the Notes called for redemption shall have been deposited with
the Paying Agent for redemption on such Redemption Date, then, unless the
Company defaults in the payment of such Redemption Price plus accrued and
unpaid interest, if any, the Notes called for redemption will cease to bear
interest from and after such Redemption Date and the only right of the Holders
of such Notes will be to receive payment of the Redemption Price plus accrued
and unpaid interest, if any.
7. Offers to Purchase. Sections 4.15 and 4.16 of the
Indenture provide that, after certain Asset Sales (as defined in the Indenture)
and upon the occurrence of a Change of Control (as defined in the Indenture),
and subject to further limitations contained therein, the Company will make an
offer to purchase certain amounts of the Notes in accordance with the
procedures set forth in the Indenture.
8. Denominations; Transfer; Exchange. The Notes are in
registered form, without coupons, in denominations of $1,000 principal amount
at maturity and integral multiples thereof. A Holder shall register the
transfer of or exchange Notes in accordance with the Indenture. The Registrar
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as permitted by the
Indenture. The Registrar need not register the transfer of or exchange of any
Notes or portions thereof selected for redemption.
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9. Persons Deemed Owners. The registered Holder of a
Note shall be treated as the owner of it for all purposes.
10. Unclaimed Money. If money for the payment of
principal or interest remains unclaimed for two years, the Trustee and the
Paying Agent will pay the money back to the Company. After that, all liability
of the Trustee and such Paying Agent with respect to such money shall cease.
11. Discharge Prior to Redemption or Maturity. If the
Company at any time deposits with the Trustee U.S. Legal Tender or U.S.
Government Obligations sufficient to pay the principal of and interest on the
Notes to redemption or maturity and complies with the other provisions of the
Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Notes (including certain covenants, but
excluding its obligation to pay the principal of and interest on the Notes).
12. Amendment; Supplement; Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount at maturity of the Notes then outstanding, and any existing Default or
Event of Default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in aggregate principal amount at
maturity of the Notes then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the Notes
to, among other things, cure any ambiguity, defect or inconsistency, provide
for uncertificated Notes in addition to or in place of certificated Notes, or
comply with Article Five of the Indenture or make any other change that does
not adversely affect in any material respect the rights of any Holder of a
Note.
13. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries to,
among other things, incur additional Indebtedness, make payments in respect of
its Capital Stock or certain Indebtedness, enter into transactions with
Affiliates, create dividend or other payment restrictions affecting
Subsidiaries, merge or consolidate with any other Person, sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets or adopt a plan of liquidation. Such limitations are subject to a
number of important qualifications and exceptions. The Company must annually
report to the Trustee on compliance with such limitations.
14. Successors. When a successor assumes, in accordance
with the Indenture, all the obligations of its predecessor under the Notes and
the Indenture, the predecessor will be released from those obligations.
15. Defaults and Remedies. If an Event of Default occurs
and is continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount at maturity of Notes then outstanding may declare all the
Notes to be due and payable in the manner, at the time and with the effect
provided in the Indenture. Holders of Notes may not enforce the Indenture or
the Notes except
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as provided in the Indenture. The Trustee is not obligated to enforce the
Indenture or the Notes unless it has received indemnity reasonably satisfactory
to it. The Indenture permits, subject to certain limitations therein provided,
Holders of a majority in aggregate principal amount at maturity of the Notes
then outstanding to direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders of Notes notice of any continuing Default
or Event of Default (except a Default in payment of principal or interest) if
it determines that withholding notice is in their interest.
16. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
17. No Recourse Against Others. No stockholder,
director, officer, employee or incorporator, as such, of the Company shall have
any liability for any obligation of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of a Note by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
18. Authentication. This Note shall not be valid until
the Trustee or an Authenticating Agent manually signs the certificate of
authentication on this Note.
19. Governing Law. The laws of the State of New York
shall govern this Note and the Indenture, without regard to principles of
conflict of laws.
20. Abbreviations and Defined Terms. Customary
abbreviations may be used in the name of a Holder of a Note or an assignee,
such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
21. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes as a convenience to
the Holders of the Notes. No representation is made as to the accuracy of such
numbers as printed on the Notes and reliance may be placed only on the other
identification numbers printed hereon.
22. Indenture. Each Holder, by accepting a Note, agrees
to be bound by all of the terms and provisions of the Indenture, as the same
may be amended from time to time.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture, which has the text of this
Note in larger type. Requests may be made to: Vice President, Legal Affairs
and Secretary, Del Monte Foods Company, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Note to:
__________________________________
__________________________________
__________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ______________________________________, agent to
transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Dated: Signed:
___________________________________
(Sign exactly as name
appears on the other side
of this Note)
Signature Guarantee:
___________________________________
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[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount you elect to have purchased:
$___________________
Dated: _________________ _____________________________________
NOTICE: The signature on this
assignment must correspond with the
name as it appears upon the face of
the within Note in every particular
without alteration or enlargement or
any change whatsoever and be
guaranteed by the endorser's bank or
broker.
Signature Guarantee:
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EXHIBIT C
Bankers Trust Company, as Registrar
Dear Sirs:
In connection with our proposed purchase of $_____ principal amount at
maturity of 12 1/2% Senior Discount Notes due 2007 (the "Notes") of Del Monte
Foods Company (the "Issuer"), we confirm that:
1. We acknowledge that we have been informed that the Notes were
originally issued and sold to purchasers who have received a copy of the
Offering Memorandum dated December __, 1997, relating to the Notes and
understand that the Notes have not been, and will not be, registered under the
Securities Act of 1933, as amended (the "Securities Act") and may not be sold
except as permitted in the following sentence. We agree, on our own behalf and
on behalf of any accounts for which we are acting as hereinafter stated, that
if we should sell, pledge or otherwise transfer any Notes prior to the second
anniversary of the later of the original issuance of the Notes or the sale
thereof by the Issuer or an affiliate (within the meaning of Rule 144 under the
Securities Act or any successor rule thereto, an "Affiliate") of the issuer
(computed in accordance with paragraph (d) of Rule 144 under the Securities
Act) or if we are at the proposed date of such transfer or were during the
three months preceding such proposed date of transfer an Affiliate of the
Issuer, we will do so in compliance with any applicable state securities or
"Blue Sky" laws and only (A) to Issuer, (B) in accordance with Rule 144A under
the Securities Act (as indicated by the box checked by the transferor on the
form of assignment on the reverse of the Note), (C) pursuant to any exemption
from registration in accordance with Regulation S under the Securities Act (as
indicated by the box checked by the transferor on the form of assignment on the
reverse of the Note), (D) to an institutional investor that is an "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act which delivers a certificate in the form hereof to the trustee
under the Indenture dated as of December 17, 1997 between Issuer and Marine
Midland Bank, as trustee (the "Indenture Trustee"), or (E) pursuant to any
other applicable exemption under the securities laws, and we further agree, in
the capacities stated above, to provide to any person purchasing any of the
Notes from us a notice advising such purchaser that resales of the Notes are
restricted as stated herein.
In addition, we understand that, upon any proposed resale of any Note
prior to the second anniversary of the later of the original issuance of such
Note (or any predecessor Note thereof) or the sale of such Note (or any
predecessor Note thereof) by Issuer or an Affiliate of Issuer (computed in
accordance with paragraph (d) of Rule 144 under the Securities Act) or if we
are at the proposed date of such transfer or were during the three months
preceding such proposed date of transfer an Affiliate of the Issuer, we will be
required to furnish to the Indenture Trustee, such certification and
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other information (including, without limitation, an opinion of counsel) as the
Indenture Trustee, or Issuer may reasonably require to confirm that the proposed
sale complies with the foregoing restrictions. We further understand that
certificates evidencing Notes purchased by us will bear a legend to the
foregoing effect until the second anniversary of the later of the original
issuance of the Notes (or any predecessor Notes thereof) or the sale thereof by
Issuer or an Affiliate of Issuer (computed in accordance with paragraph (d) of
Rule 144 under the Securities Act) and for so long as we are or during the
preceding three months have been an Affiliate of the Issuer.
2. We are an institutional investor and an "accredited investor"
(within the meaning of Rule 501(a)(1), (2),(3) or (7) under the Securities Act)
and have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the Notes,
and we and any account for which we are acting are each able to bear the
economic risk of our or its investment and can afford the complete loss of such
investment.
3. We are acquiring the Notes purchased by us for our own account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion and for
each of which we are acquiring not less than $250,000 aggregate Accreted Value.
4. We have received such information as we deem necessary in
order to make our investment decision.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to an interested
party in any administrative or legal proceeding or official inquiry with
respect to the matter covered hereby.
Very truly yours,
[Purchaser]
By:______________________________________
Name:
Title:
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SCHEDULE 1 TO INDENTURE
ASSETS HELD FOR SALE/REAL PROPERTY
Anticipated Estimated Net Expected
Location Size Sales Price Proceeds Book Value Close of Escrow
-------- ---- ----------- -------- ---------- ---------------
San ▇▇▇▇ 262,000 $7,446,000 $5,900,000 $4,000,000 April 1998
Plant #51 8.17 acres
San ▇▇▇▇ 457,850 $11,000,000 $9,500,000 $14,700,000 TBD
Plant #3 17.0 acres
▇▇▇▇▇▇▇ Farm 55.5 acres $195,000 $179,000 $195,000 TBD
New Jersey