Exhibit 4.13
EXECUTION COPY
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AURORA FOODS INC.
8 3/4% Senior Subordinated Notes due 2008
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INDENTURE
Dated as of July 1, 1998
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WILMINGTON TRUST COMPANY
Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.8; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.6
(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.6
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.6
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.6
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.2
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.11; 12.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.5
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.10
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.5; 12.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.11
316(a)(last sentence). . . . . . . . . . . . . . . . . . . . . . . . 12.6
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.4
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.7
317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.8
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.4
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.1
N.A. means Not Applicable.
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Note:This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Incorporation by Reference. . . . . . . . 1
SECTION 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Other Definitions. . . . . . . . . . . . . . . . . . . . 17
SECTION 1.3. Incorporation by Reference of Trust Indenture Act. . . . 18
SECTION 1.4. Rules of Construction. . . . . . . . . . . . . . . . . . 18
ARTICLE II
The Securities. . . . . . . . . . . . . . . 20
SECTION 2.1. Form, Dating and Terms . . . . . . . . . . . . . . . . . 20
SECTION 2.2. Execution and Authentication . . . . . . . . . . . . . . 25
SECTION 2.3. Registrar and Paying Agent . . . . . . . . . . . . . . . 26
SECTION 2.4. Paying Agent To Hold Money in Trust. . . . . . . . . . . 27
SECTION 2.5. Securityholder Lists . . . . . . . . . . . . . . . . . . 27
SECTION 2.6. Transfer and Exchange. . . . . . . . . . . . . . . . . . 27
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen Securities. . . . . 30
SECTION 2.8. Outstanding Securities . . . . . . . . . . . . . . . . . 31
SECTION 2.9. Temporary Securities . . . . . . . . . . . . . . . . . . 31
SECTION 2.10. Cancellation . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.11. Payment of Interest; Defaulted Interest. . . . . . . . . 32
SECTION 2.12. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.13. Form of Certificate to be Delivered in Connection
with Transfers to Institutional Accredited Investors . . 32
SECTION 2.14. Form of Certificate to be Delivered in Connection
with Transfers Pursuant to Regulation S. . . . . . . . . 35
SECTION 2.15. Computation of Interest. . . . . . . . . . . . . . . . . 36
ARTICLE III
Redemption. . . . . . . . . . . . . . . . 36
SECTION 3.1. Notices to Trustee . . . . . . . . . . . . . . . . . . . 36
SECTION 3.2. Selection of Securities To Be Redeemed . . . . . . . . . 36
SECTION 3.3. Notice of Redemption . . . . . . . . . . . . . . . . . . 37
SECTION 3.4. Effect of Notice of Redemption 37
SECTION 3.5. Deposit of Redemption Price. . . . . . . . . . . . . . . 37
SECTION 3.6. Securities Redeemed in Part. . . . . . . . . . . . . . . 38
i
ARTICLE IV
Covenants. . . . . . . . . . . . . . . . 38
SECTION 4.1. Payment of Securities. . . . . . . . . . . . . . . . . . 38
SECTION 4.2. SEC Reports. . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.3. Limitation on Indebtedness . . . . . . . . . . . . . . . 38
SECTION 4.4. Limitation on Restricted Payments. . . . . . . . . . . . 39
SECTION 4.5. Limitation on Restrictions on Distributions from
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.6. Limitation on Sales of Assets. . . . . . . . . . . . . . 42
SECTION 4.7. Limitation on Affiliate Transactions . . . . . . . . . . 45
SECTION 4.8. Change of Control. . . . . . . . . . . . . . . . . . . . 45
SECTION 4.9. Limitation on Sale of Subsidiary Capital Stock . . . . . 46
SECTION 4.10. Future Security Guarantors . . . . . . . . . . . . . . . 46
SECTION 4.11. Limitation on Lines of Business. . . . . . . . . . . . . 47
SECTION 4.12. Maintenance of Office or Agency for Registration
of Transfer, Exchange and Payment of Securities. . . . . 47
SECTION 4.13. Appointment to Fill a Vacancy in the Office of
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 4.14. Provision as to Paying Agent . . . . . . . . . . . . . . 47
SECTION 4.15. Maintenance of Corporate Existence . . . . . . . . . . . 48
SECTION 4.16. Compliance Certificate . . . . . . . . . . . . . . . . . 49
SECTION 4.17. Further Instruments and Acts . . . . . . . . . . . . . . 49
ARTICLE V
Successor Company. . . . . . . . . . . . . . 49
SECTION 5.1. When Company May Merge or Transfer Assets. . . . . . . . 49
ARTICLE VI
Defaults and Remedies. . . . . . . . . . . . . 50
SECTION 6.1. Events of Default. . . . . . . . . . . . . . . . . . . . 50
SECTION 6.2. Acceleration . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.3. Other Remedies . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.4. Waiver of Past Defaults. . . . . . . . . . . . . . . . . 53
SECTION 6.5. Control by Majority. . . . . . . . . . . . . . . . . . . 53
SECTION 6.6. Limitation on Suits. . . . . . . . . . . . . . . . . . . 53
SECTION 6.7. Rights of Holders to Receive Payment . . . . . . . . . . 54
SECTION 6.8. Collection Suit by Trustee . . . . . . . . . . . . . . . 54
SECTION 6.9. Trustee May File Proofs of Claim . . . . . . . . . . . . 54
SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 6.11. Undertaking for Costs. . . . . . . . . . . . . . . . . . 55
ARTICLE VII
Trustee . . . . . . . . . . . . . . . . 55
ii
SECTION 7.1. Duties of Trustee. . . . . . . . . . . . . . . . . . . . 55
SECTION 7.2. Rights of Trustee. . . . . . . . . . . . . . . . . . . . 56
SECTION 7.3. Individual Rights of Trustee . . . . . . . . . . . . . . 57
SECTION 7.4. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . 57
SECTION 7.5. Notice of Defaults . . . . . . . . . . . . . . . . . . . 58
SECTION 7.6. Reports by Trustee to Holders. . . . . . . . . . . . . . 58
SECTION 7.7. Compensation and Indemnity . . . . . . . . . . . . . . . 58
SECTION 7.8. Replacement of Trustee . . . . . . . . . . . . . . . . . 59
SECTION 7.9. Successor Trustee by Merger. . . . . . . . . . . . . . . 59
SECTION 7.10. Eligibility; Disqualification. . . . . . . . . . . . . . 60
SECTION 7.11. Preferential Collection of Claims Against Company. . . . 60
ARTICLE VIII
Discharge of Indenture; Defeasance. . . . . . . . . . 60
SECTION 8.1. Discharge of Liability on Securities; Defeasance . . . . 60
SECTION 8.2. Conditions to Defeasance . . . . . . . . . . . . . . . . 61
SECTION 8.3. Application of Trust Money . . . . . . . . . . . . . . . 63
SECTION 8.4. Repayment to Company . . . . . . . . . . . . . . . . . . 63
SECTION 8.5. Indemnity for U.S. Government Obligations. . . . . . . . 63
SECTION 8.6. Reinstatement. . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE IX
Amendments. . . . . . . . . . . . . . . . 63
SECTION 9.1. Without Consent of Holders . . . . . . . . . . . . . . . 63
SECTION 9.2. With Consent of Holders. . . . . . . . . . . . . . . . . 64
SECTION 9.3. Compliance with Trust Indenture Act. . . . . . . . . . . 65
SECTION 9.4. Revocation and Effect of Consents and Waivers. . . . . . 65
SECTION 9.5. Notation on or Exchange of Securities. . . . . . . . . . 66
SECTION 9.6. Trustee To Sign Amendments . . . . . . . . . . . . . . . 66
ARTICLE X
Subordination. . . . . . . . . . . . . . . 66
SECTION 10.1. Agreement To Subordinate . . . . . . . . . . . . . . . . 66
SECTION 10.2. Liquidation, Dissolution, Bankruptcy . . . . . . . . . . 67
SECTION 10.3. Default on Senior Indebtedness or Guarantor Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 10.4. Acceleration of Payment of Securities. . . . . . . . . . 68
SECTION 10.5. When Distribution Must Be Paid Over. . . . . . . . . . . 69
SECTION 10.6. Subrogation. . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.7. Relative Rights. . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.8. Subordination May Not Be Impaired by Company or
the Subsidiary Guarantors. . . . . . . . . . . . . . . . 69
SECTION 10.9. Rights of Trustee and Paying Agent . . . . . . . . . . . 70
iii
SECTION 10.10. Distribution or Notice to Representative . . . . . . . . 70
SECTION 10.11. Article X Not To Prevent Events of Default or
Limit Right To Accelerate. . . . . . . . . . . . . . . . 70
SECTION 10.12. Trust Moneys Not Subordinated. . . . . . . . . . . . . . 71
SECTION 10.13. Trustee Entitled To Rely . . . . . . . . . . . . . . . . 71
SECTION 10.14. Trustee To Effectuate Subordination. . . . . . . . . . . 71
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness or Guarantor Senior Indebtedness. . . . . . 72
SECTION 10.16. Changes in Senior Indebtedness . . . . . . . . . . . . . 72
SECTION 10.17. Reliance by Holders of Senior Indebtedness and Guarantor
Senior Indebtedness on Subordination Provisions. . . . . 72
SECTION 10.18. Legend . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE XI
Subsidiary Guarantee . . . . . . . . . . . . . 73
SECTION 11.1. Subsidiary Guarantee . . . . . . . . . . . . . . . . . . 73
SECTION 11.2. Limitation on Liability. . . . . . . . . . . . . . . . . 74
SECTION 11.3. Successors and Assigns . . . . . . . . . . . . . . . . . 75
SECTION 11.4. No Waiver. . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.5. Right of Contribution. . . . . . . . . . . . . . . . . . 75
SECTION 11.6. No Subrogation . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.7. Modification . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE XII
Miscellaneous. . . . . . . . . . . . . . . 76
SECTION 12.1. Trust Indenture Act Controls . . . . . . . . . . . . . . 76
SECTION 12.2. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 12.3. Communication by Holders with other Holders. . . . . . . 77
SECTION 12.4. Certificate and Opinion as to Conditions Precedent . . . 77
SECTION 12.5. Statements Required in Certificate or Opinion. . . . . . 77
SECTION 12.6. When Securities Disregarded. . . . . . . . . . . . . . . 78
SECTION 12.7. Rules by Trustee, Paying Agent and Registrar . . . . . . 78
SECTION 12.8. Legal Holidays . . . . . . . . . . . . . . . . . . . . . 78
SECTION 12.9. Governing Law. . . . . . . . . . . . . . . . . . . . . . 78
SECTION 12.10. No Recourse Against Others . . . . . . . . . . . . . . . 78
SECTION 12.11. Successors . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 12.12. Multiple Originals . . . . . . . . . . . . . . . . . . . 78
SECTION 12.13. Variable Provisions. . . . . . . . . . . . . . . . . . . 78
SECTION 12.14. Qualification of Indenture . . . . . . . . . . . . . . . 78
SECTION 12.15. Table of Contents; Headings. . . . . . . . . . . . . . . 79
iv
EXHIBIT A Form of Initial Note
EXHIBIT B Form of Exchange Note
v
INDENTURE dated as of July 1, 1998, between AURORA FOODS INC., a
Delaware corporation (the "Company") and WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's 83/4% Senior
Subordinated Notes due 2008 (the "Initial Notes") and, if and when issued in
exchange for Initial Notes as provided in the Registration Rights Agreement
(as hereinafter defined), the Company's 83/4% Series B Senior Subordinated
Notes due 2008 (the "Exchange Notes" and, together with the Initial Notes,
the "Securities"):
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions.
"Additional Assets" means (i) any property or assets (other than
Indebtedness and Capital Stock) to be used by the Company or a Subsidiary in
a Related Business; (ii) the Capital Stock of a Person that becomes a
Subsidiary as a result of the acquisition of such Capital Stock by the
Company or another Subsidiary; or (iii) Capital Stock constituting a minority
interest in any Person that at such time is a Subsidiary of the Company;
provided, however, that, in the case of clauses (ii) and (iii) of this
definition, such Subsidiary is primarily engaged in a Related Business.
"Affiliate" of any specified Person means (i) any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person or (ii) any Person who is a
director or officer (A) of such Person, (B) of any Subsidiary of such Person
or (C) of any Person described in clause (i) above. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing. For purposes of the covenants described in Sections 4.4, 4.6 and
4.7 only, "Affiliate" shall also mean any beneficial owner of shares
representing 5% or more of the total voting power of the Voting Stock (on a
fully diluted basis) of the Company or of rights or warrants to purchase such
Voting Stock (whether or not currently exercisable) and any Person who would
be an Affiliate of any such beneficial owner pursuant to the first sentence
hereof.
"Applicable Premium" means, with respect to a Security at any redemption
date, the greater of (i) 1.0% of the principal amount of such Security and
(ii) the excess of (A) the present value at such time of (1) the redemption
price of such Security at July 1, 2003 (such redemption price being described
in the Security) plus (2) all required interest payments due on such Security
through July 1, 2003, computed using a discount rate equal to the Treasury
Rate
plus 50 basis points based on 360-day year of twelve 30-day months, over (B)
the principal amount of such Security.
"Asset Disposition" means any sale, lease, transfer, issuance or other
disposition (or series of related sales, leases, transfers, issuances or
dispositions that are part of a common plan) of shares of Capital Stock of a
Subsidiary (other than directors' qualifying shares), property or other
assets (each referred to for the purposes of this definition as a
"disposition") by the Company or any of its Subsidiaries (including any
disposition by means of a merger, consolidation or similar transaction) other
than (i) a disposition by a Subsidiary to the Company or a Wholly-Owned
Subsidiary or by the Company or a Subsidiary to a Wholly-Owned Subsidiary,
(ii) a disposition of inventory or Temporary Cash Investments in the ordinary
course of business, (iii) a disposition of obsolete equipment or equipment
that is no longer useful in the conduct of the business of the Company and
its Subsidiaries and that is disposed of in each case in the ordinary course
of business, (iv) the sale of other assets so long as the fair market value
of the assets disposed of pursuant to this clause (iv) does not exceed $2.5
million in the aggregate in any fiscal year, (v) for the purposes of the
covenant described in Section 4.6 only, a disposition subject to the covenant
described in Section 4.4 and (vi) the disposition of all or substantially all
of the assets of the Company in the manner permitted pursuant to Section 5.1
or any disposition that constitutes a Change of Control pursuant to this
Indenture.
"Attributable Indebtedness" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale/Leaseback Transaction (including any period
for which such lease has been extended).
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (i)
the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to Preferred
Stock multiplied by the amount of such payment by (ii) the sum of all such
payments.
"Bank Indebtedness" means any and all amounts payable under or in
respect of the Senior Credit Documents and any Indebtedness that is incurred
to refund, refinance, replace, renew, repay or extend (including pursuant to
any defeasance or discharge mechanism) Indebtedness under such Senior Credit
Documents including Indebtedness that refinances such Indebtedness, as
amended from time to time, including principal, premium (if any), interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a
claim for post filing interest is allowed in such proceedings), fees,
charges, expenses, reimbursement obligations, guarantees and all other
amounts payable thereunder or in respect thereof (including, without
limitation, cash collateralization of letters of credit).
"Board of Directors" means the Board of Directors of the Company or any
committee thereof duly authorized to act on behalf of such Board of Directors.
"Business Day" means a day other than a Saturday, Sunday or other day on
which commercial banks in New York City or Wilmington, Delaware are
authorized or required by law
2
to close.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of
or interests in (however designated) equity of such Person, including any
Preferred Stock, but excluding any debt securities convertible into such
equity.
"Capitalized Lease Obligations" means an obligation that is required to
be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP, and the Stated Maturity
thereof shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date such lease may be terminated without
penalty.
"Cash Equivalents" means (i) securities issued or directly and fully
guaranteed or insured by the United States Government, or any agency or
instrumentality thereof, having maturities of not more than one year from the
date of acquisition; (ii) marketable general obligations issued by any state
of the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within one year from the
date of acquisition thereof and, at the time of acquisition thereof, having a
credit rating of "A" or better from either Standard & Poor's Ratings Group or
Xxxxx'x Investors Service, Inc.; (iii) certificates of deposit, time
deposits, eurodollar time deposits, overnight bank deposits or bankers'
acceptances having maturities of not more than one year from the date of
acquisition thereof issued by any domestic commercial bank the long-term debt
of which is rated at the time of acquisition thereof at least "A" or the
equivalent thereof by Standard & Poor's Ratings Group, or "A" or the
equivalent thereof by Xxxxx'x Investors Service, Inc., and having capital and
surplus in excess of $500.0 million; (iv) repurchase obligations with a term
of not more than seven days for underlying securities of the types described
in clauses (i), (ii) and (iii) entered into with any bank meeting the
qualifications specified in clause (iii) above; (v) commercial paper rated at
the time of acquisition thereof at least "A-2" or the equivalent thereof by
Standard & Poor's Ratings Group or "P-2" or the equivalent thereof by Xxxxx'x
Investors Service, Inc., or carrying an equivalent rating by a nationally
recognized rating agency, if both of the two named rating agencies cease
publishing ratings of investments, and in either case maturing within 270
days after the date of acquisition thereof; and (vi) interests in any
investment company which invests solely in instruments of the type specified
in clauses (i) through (v) above.
"Change of Control" means the occurrence of any of the following events:
(i) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than one or more Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a Person shall be deemed to have "beneficial ownership" of
all shares that any such Person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time), directly or
indirectly, of more than 35% of the total voting power of the Voting Stock of
the Company; provided that the Permitted Holders beneficially own (as defined
above), directly or indirectly, in the aggregate a lesser percentage of the
total voting power of the Voting Stock of the Company than such other person
and do not have the right or ability by voting power, contract or otherwise
to elect or designate for election a majority of the board of directors of
the Company (for purposes of this clause (i), such other person shall be
deemed to beneficially own any Voting Stock of a Person (the
3
"specified corporation") held by any other Person (the "parent corporation")
if such other person "beneficially owns" (as defined in this clause (i)),
directly or indirectly, more than 35% of the voting power of the Voting Stock
of such parent corporation and the Permitted Holders "beneficially own" (as
defined in this clause (i)), directly or indirectly, in the aggregate a
lesser percentage of the voting power of the Voting Stock of such parent
corporation and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the board of
directors of such parent corporation); or
(ii) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors (together
with any new directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Company was approved by a
vote of a majority of the directors of the Company then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors then in office.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Aurora Foods Inc., a Delaware corporation.
"Consolidated Cash Flow" for any period means the Consolidated Net
Income for such period, plus the following to the extent deducted in
calculating such Consolidated Net Income: (i) income tax expense, (ii)
Consolidated Interest Expense (iii) depreciation expense, (iv) amortization
expense, in each case for such period, (v) other non-cash charges reducing
Consolidated Net Income (excluding any such non-cash charge to the extent
that it represents an accrual of or reserve for cash charges in any future
period or amortization of a prepaid cash expense that was paid in a prior
period) and (vi) for the period ending on the first anniversary of the Issue
Date only, non-recurring relocation and start-up expenses not in excess of
$16.5 million, in each case for such period, and minus, to the extent not
already deducted in calculating Consolidated Net Income, (i) the aggregate
amount of "earnout" payments paid in cash during such period in connection
with acquisitions previously made by the Company and (ii) non-cash items
increasing Consolidated Net Income for such period.
"Consolidated Coverage Ratio" as of any date of determination means the
ratio of (i) the aggregate amount of Consolidated Cash Flow for the period of
the most recent four consecutive fiscal quarters ending prior to the date of
such determination to (ii) Consolidated Interest Expense for such four fiscal
quarters; provided, however, that (A) if the Company or any of its
Subsidiaries has Incurred any Indebtedness since the beginning of such period
that remains outstanding or if the transaction giving rise to the need to
calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness,
or both, Consolidated Cash Flow and Consolidated Interest Expense for such
period shall be calculated after giving effect on a pro forma basis to such
Indebtedness as if such Indebtedness had been Incurred on the first day of
such period and the discharge of any other Indebtedness repaid, repurchased,
defeased or otherwise discharged with the proceeds of such new Indebtedness
as if such discharge had occurred on the first day of such period, (B) if
since the beginning of such period the Company or any of its Subsidiaries
shall have made any Asset Disposition, Consolidated Cash Flow for such period
shall be reduced by an amount equal to the Consolidated Cash Flow (if
positive) attributable to the assets which are the subject of such Asset
Disposition for such period or increased by an amount equal to
4
the Consolidated Cash Flow (if negative) attributable thereto for such
period, and Consolidated Interest Expense for such period shall be reduced by
an amount equal to the Consolidated Interest Expense attributable to any
Indebtedness of the Company or any of its Subsidiaries repaid, repurchased,
defeased or otherwise discharged with respect to the Company and its
continuing Subsidiaries in connection with such Asset Disposition for such
period (or, if the Capital Stock of any Subsidiary of the Company is sold,
the Consolidated Interest Expense for such period directly attributable to
the Indebtedness of such Subsidiary to the extent the Company and its
continuing Subsidiaries are no longer liable for such Indebtedness after such
sale), (C) if since the beginning of such period the Company or any of its
Subsidiaries (by merger or otherwise) shall have made an Investment in any
Subsidiary of the Company (or any Person which becomes a Subsidiary of the
Company) or an acquisition of assets, including any Investment in a
Subsidiary of the Company or any acquisition of assets occurring in
connection with a transaction causing a calculation to be made hereunder,
which constitutes all or substantially all of an operating unit of a
business, Consolidated Cash Flow and Consolidated Interest Expense for such
period shall be calculated after giving pro forma effect thereto (including
the Incurrence of any Indebtedness and including the pro forma expenses and
cost reductions) as if such Investment or acquisition occurred on the first
day of such period and (D) if since the beginning of such period any Person
(that subsequently became a Subsidiary of the Company or was merged with or
into the Company or any Subsidiary of the Company since the beginning of such
period) shall have made any Asset Disposition or any Investment or
acquisition of assets that would have required an adjustment pursuant to
clause (B) or (C) above if made by the Company or a Subsidiary of the Company
during such period, Consolidated Cash Flow and Consolidated Interest Expense
for such period shall be calculated after giving pro forma effect thereto as
if such Asset Disposition, Investment or acquisition occurred on the first
day of such period. For purposes of this definition, whenever pro forma
effect is to be given to an acquisition of assets, the amount of income or
earnings relating thereto and the amount of Consolidated Interest Expense
associated with any Indebtedness Incurred in connection therewith, the pro
forma calculations shall be determined in good faith by a responsible
financial or accounting Officer of the Company. If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest
expense on such Indebtedness shall be calculated as if the rate in effect on
the date of determination had been the applicable rate for the entire period
(taking into account any Interest Rate Agreement applicable to such
Indebtedness if such Interest Rate Agreement has a remaining term in excess
of 12 months).
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its Subsidiaries, plus, to the extent not
included in such interest expense, (i) interest expense attributable to
Capitalized Lease Obligations and imputed interest with respect to
Attributable Indebtedness, (ii) amortization of debt discount and debt
issuance cost (other than those debt discounts and debt issuance costs
incurred on the Issue Date), (iii) capitalized interest, (iv) non-cash
interest expense, (v) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing, (vi)
interest actually paid by the Company or any such Subsidiary under any
Guarantee of Indebtedness or other obligation of any other Person, (vii) net
costs associated with Currency Agreements and Interest Rate Agreements
(including amortization of fees), (viii) the product of (A) all Preferred
Stock dividends in respect of all Preferred Stock of Subsidiaries of the
Company and Disqualified Stock of the Company held by Persons other than the
Company or a Wholly-Owned Subsidiary multiplied by (B) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current combined Federal, state and local statutory tax rate of the
5
Company, expressed as a decimal, in each case, determined on a consolidated
basis in accordance with GAAP and (ix) the cash contributions to any employee
stock ownership plan or similar trust to the extent such contributions are
used by such plan or trust to pay interest or fees to any Person (other than
the Company) in connection with Indebtedness Incurred by such plan or trust.
"Consolidated Net Income" means, for any period, the net income (loss)
of the Company and its consolidated Subsidiaries; provided, however, that
there shall not be included in such Consolidated Net Income: (i) any net
income (loss) of any Person if such Person is not a Subsidiary, except that
(A) subject to the limitations contained in clause (iv) below, the Company's
equity in the net income of any such Person for such period shall be included
in such Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company or a Subsidiary
as a dividend or other distribution (subject, in the case of a dividend or
other distribution to a Subsidiary, to the limitations contained in clause
(iii) below) and (B) the Company's equity in a net loss of any such Person
for such period shall be included in determining such Consolidated Net
Income; (ii) any net income (loss) of any person acquired by the Company or a
Subsidiary in a pooling of interests transaction for any period prior to the
date of such acquisition; (iii) any net income (loss) of any Subsidiary if
such Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Subsidiary,
directly or indirectly, to the Company, except that (A) subject to the
limitations contained in (iv) below, the Company's equity in the net income
of any such Subsidiary for such period shall be included in such Consolidated
Net Income up to the aggregate amount of cash that could have been
distributed by such Subsidiary during such period to the Company or another
Subsidiary as a dividend (subject, in the case of a dividend that could have
been made to another Subsidiary, to the limitation contained in this clause)
and (B) the Company's equity in a net loss of any such Subsidiary for such
period shall be included in determining such Consolidated Net Income; (iv)
any gain (but not loss) realized upon the sale or other disposition of any
assets of the Company or its consolidated Subsidiaries (including pursuant to
any Sale/Leaseback Transaction) which are not sold or otherwise disposed of
in the ordinary course of business and any gain or loss realized upon the
sale or other disposition of any Capital Stock of any Person; (v) any
extraordinary gain or loss; and (vi) the cumulative effect of a change in
accounting principles.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Company and its consolidated Subsidiaries, determined on
a consolidated basis in accordance with GAAP, 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 Stock.
"Currency Agreement" means in respect of a Person any foreign exchange
contract, currency swap agreement or other similar agreement as to which such
Person is a party or a beneficiary.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
6
"Depositary" means The Depository Trust Company, its nominees and their
respective successors.
"Designated Senior Indebtedness" means (i) the Bank Indebtedness and
(ii) any other Senior Indebtedness which, at the date of determination, has
an aggregate principal amount outstanding of, or under which, at the date of
determination, the holders thereof are committed to lend up to, at least $5.0
million and is specifically designated by the Company in the instrument
evidencing or governing such Senior Indebtedness as "Designated Senior
Indebtedness" for purposes of this Indenture.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person 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 (i) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, (ii) is convertible or exchangeable for
Indebtedness or Disqualified Stock or (iii) is redeemable at the option of
the holder thereof, in whole or in part, in each case on or prior to 123 days
after the Stated Maturity of the Securities.
"Equity Investors" means Fenway Partners Capital Fund, L.P., XxXxxx De
Leeuw & Co. III, L.P., XxXxxx De Leeuw & Co. III (Europe), L.P., XxXxxx De
Leeuw & Co. III (Asia), L.P., Gamma Fund LLC, XxXxxx De Leeuw & Co. IV, L.P.,
XxXxxx De Leeuw & Co. IV Associates, L.P., Delta Fund LLC, California Public
Employees Retirement System, Dartford Partnership L.L.C., Tiger Oats Limited
and UBS Capital LLC..
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Securities" means, if and when issued in exchange for the
Initial Notes as provided in the Registration Rights Agreement, the Company's
83/4% Series B Senior Subordinated Notes due 2008.
"Existing Indentures" means the Indenture dated as of September 15,
1995 between the Company and Xxxxxx Trust and Savings Bank, as trustee, the
Indenture dated as of February 10, 1997 between the Company and Wilmington
Trust Company, as trustee, and the Indenture dated as of July 1, 1997 between
the Company and Wilmington Trust Company, as trustee, in each case as the
same may have been and may from time to time be amended, modified or
supplemented.
"Existing Notes" means the Company's 12% Senior Subordinated Notes due
2005, 9 7/8% Series B Senior Subordinated Notes due 2007 and 9 7/8% Series D
Senior Subordinated Notes due 2007.
"GAAP" means generally accepted principles in the United States of
America as in effect from time to time, including those set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as are approved by a significant segment of
the accounting profession. All ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity with GAAP as in
effect on the Issue Date.
7
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person and
any obligation, direct or indirect, contingent or otherwise, of such Person
(i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation of any other Person
(whether arising by virtue of partnership arrangements, or by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered
into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided, however, that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantor Senior Indebtedness" means, with respect to a Subsidiary
Guarantor, whether outstanding on the Issue Date or thereafter issued, any
Guarantee of the Bank Indebtedness by such Subsidiary Guarantor, all other
Guarantees by such Subsidiary Guarantor of Senior Indebtedness of the Company
and all Indebtedness of such Subsidiary Guarantor, including interest and
fees thereon, unless, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that the
obligations of such Subsidiary Guarantor in respect of such Indebtedness are
not superior in right of payment to the obligations of such Subsidiary
Guarantor under the Subsidiary Guarantee; provided, however, that Guarantor
Senior Indebtedness shall not include (i) any obligations of such Subsidiary
Guarantor to the Company or any other Subsidiary of the Company, (ii) any
liability for Federal, state, local or other taxes owed or owing by such
Subsidiary Guarantor, (iii) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including Guarantees
thereof or instruments evidencing such liabilities), (iv) any Indebtedness,
Guarantee or obligation of such Subsidiary Guarantor that is expressly
subordinate or junior in right of payment to any other Indebtedness,
Guarantee or obligation of such Subsidiary Guarantor, including any Guarantor
Senior Subordinated Indebtedness and Guarantor Subordinated Obligations of
such Subsidiary Guarantor or (v) any Capital Stock.
"Guarantor Senior Subordinated Indebtedness" means, with respect to a
Subsidiary Guarantor, the obligations of such Subsidiary Guarantor under the
Subsidiary Guarantee and any other Indebtedness of such Subsidiary Guarantor
that specifically provides that such Indebtedness is to rank pari passu in
right of payment with the obligations of such Subsidiary Guarantor under the
Subsidiary Guarantee and is not subordinated by its terms in right of payment
to any Indebtedness or other obligation of such Subsidiary Guarantor which is
not Guarantor Senior Indebtedness of such Subsidiary Guarantor.
"Guarantor Subordinated Obligation" means, with respect to a Subsidiary
Guarantor, any Indebtedness of such Subsidiary Guarantor (whether outstanding
on the Issue Date or thereafter Incurred) which is subordinate or junior in
right of payment to the obligations of such Subsidiary Guarantor under the
Subsidiary Guarantee pursuant to a written agreement.
"Holder" or "Securityholder" means the Person in whose name a Security
is
8
registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become liable
for; provided, however, that any Indebtedness or Capital Stock of a Person
existing at the time such person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by
such Subsidiary at the time it becomes a Subsidiary.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication), (i) the principal of and premium (if
any) in respect of indebtedness of such Person for borrowed money, (ii) the
principal of and premium (if any) in respect of obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (iii) all
obligations of such Person in respect of letters of credit or other similar
instruments (including reimbursement obligations with respect thereto) (other
than obligations with respect to letters of credit securing obligations
(other than obligations described in clauses (i), (ii) and (v)) entered into
in the ordinary course of business of such Person to the extent that such
letters of credit are not drawn upon or, if and to the extent drawn upon,
such drawing is reimbursed no later than the third business day following
receipt by such Person of a demand for reimbursement following payment on the
letter of credit), (iv) all obligations of such Person to pay the deferred
and unpaid purchase price of property or services (other than contingent or
"earn-out" payment obligations and Trade Payables and accrued expenses
incurred in the ordinary course of business), which purchase price is due
more than six months after the date of placing such property in service or
taking delivery and title thereto or the completion of such services, (v) all
Capitalized Lease Obligations and all Attributable Indebtedness of such
Person, (vi) all Indebtedness of other Persons secured by a Lien on any asset
of such Person, whether or not such Indebtedness is assumed by such Person,
provided, however, that the amount of Indebtedness of such Person shall be
the lesser of (A) the fair market value of such asset at such date of
determination and (B) the amount of such Indebtedness of such other Persons,
(vii) all Indebtedness of other Persons to the extent Guaranteed by such
Person, (viii) the amount of all obligations of such Person with respect to
the redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Subsidiary of the Company, any Preferred Stock (but
excluding, in each case, any accrued dividends) and (ix) to the extent not
otherwise included in this definition, obligations of such Person under
Currency Agreements and Interest Rate Agreements. The amount of Indebtedness
of any Person at any date shall be the outstanding balance at such date of
all unconditional obligations as described above as such amount would be
reflected on a balance sheet in accordance with GAAP and the maximum
liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Initial Notes" means the Company's 83/4% Senior Subordinated Notes due
2008 issued under this Indenture.
"Interest Rate Agreement" means with respect to any Person any interest
rate protection agreement, interest rate future agreement, interest rate
option agreement, interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedge agreement or other
similar agreement or arrangement as to which such Person is party or a
beneficiary.
9
"Investment" in any Person means any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of such Person) or other
extension of credit (including by way of Guarantee or similar arrangement,
but excluding any debt or extension of credit represented by a bank deposit
other than a time deposit) or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition of
Capital Stock, Indebtedness or other similar instruments issued by such
Person.
"Issue Date" means the date on which the Initial Notes are originally
issued.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only
as and when received, but excluding any other consideration received in the
form of assumption by the acquiring Person of Indebtedness or other
obligations relating to the properties or assets that are the subject of such
Asset Disposition or received in any other noncash form) therefrom, in each
case net of (i) all legal, title and recording tax expenses, commissions and
other fees and expenses incurred, and all Federal, state, foreign and local
taxes required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition, (ii) all payments made on any
Indebtedness which is secured by any assets subject to such Asset
Disposition, in accordance with the terms of any Lien upon such assets, or
which must by its terms, or in order to obtain a necessary consent to such
Asset Disposition, or by applicable law, be repaid out of the proceeds from
such Asset Disposition, (iii) all distributions and other payments required
to be made to any Person owning a beneficial interest in assets subject to
sale or minority interest holders in Subsidiaries or joint ventures as a
result of such Asset Disposition, (iv) the deduction of appropriate amounts
to be provided by the seller as a reserve, in accordance with GAAP, against
any liabilities associated with the assets disposed of in such Asset
Disposition and retained by the Company or any Subsidiary of the Company
after such Asset Disposition and (v) any portion of the purchase price from
an Asset Disposition placed in escrow (whether as a reserve for adjustment of
the purchase price, for satisfaction of indemnities in respect of such Asset
Disposition or otherwise in connection with such Asset Disposition) provided,
however, that upon the termination of such escrow, Net Available Cash shall
be increased by any portion of funds therein released to the Company or any
Subsidiary.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
Stock or Indebtedness, means the cash proceeds of such issuance or sale net
of attorneys' fees, accountants' fees, underwriters' or placement agents'
fees, discounts or commissions and brokerage, consultant and other fees
actually incurred in connection with such issuance or sale and net of taxes
paid or payable as a result of such issuance or sale.
"Officer" means the Chairman of the Board, Chief Executive Officer, the
President, the Vice Chairman, any Vice President, the Treasurer, the Chief
Financial Officer or
10
the Secretary of the Company.
"Officers' Certificate" means a certificate signed by an Officer (in the
case of the annual Officers' Certificate delivered pursuant to Section 4.16,
the principal executive officer, principal financial officer or principal
accounting officer of the Company) and that complies with Sections 12.4 and
12.5 of this Indenture and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee and that complies with Sections 12.4 and 12.5 of
this Indenture and delivered to the Trustee. The counsel may be an employee
of or counsel to the Company or the Trustee.
"Permitted Holders" means the Equity Investors and their respective
Affiliates.
"Permitted Investment" means (i) any Investment in a Subsidiary of the
Company or a Person which will, upon making such Investment, become a
Subsidiary; provided, however, that the primary business of such Subsidiary
is a Related Business; (ii) any Investment in another Person if as a result
of such Investment such other Person is merged or consolidated with or into,
or transfers or conveys all or substantially all its assets to, the Company
or a Subsidiary of the Company; provided, however, that such Person's primary
business is a Related Business; (iii) any Investment in Temporary Cash
Investments; (iv) receivables owing to the Company or any of its
Subsidiaries, if created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms; (v)
payroll, travel and similar advances to cover matters that are expected at
the time of such advances ultimately to be treated as expenses for accounting
purposes and that are made in the ordinary course of business; (vi) loans or
advances to employees made in the ordinary course of business of the Company
or such Subsidiary; (vii) stock, obligations or securities received in
settlement of debts created in the ordinary course of business and owing to
the Company or any of its Subsidiaries or in satisfaction of judgments or
claims; (viii) Investments the payment for which consists exclusively of
equity securities (exclusive of Disqualified Stock) of the Company; (ix)
loans or advances to employees and directors to purchase equity securities of
the Company; provided that the aggregate amount of such loans and advances
shall not exceed $5.0 million at any time outstanding; (x) any Investment in
another Person to the extent such Investment is received by the Company or
any Subsidiary as consideration for Asset Disposition effected in compliance
with Section 4.6; (xi) prepayment and other credits to suppliers made in the
ordinary course of business consistent with the past practices of the Company
and its Subsidiaries; (xii) Investments in connection with pledges, deposits,
payments or performance bonds made or given in the ordinary course of
business in connection with or to secure statutory, regulatory or similar
obligations, including obligations under health, safety or environmental
obligations; and (xiii) any Investment in another Person not to exceed in the
aggregate $5.0 million at any one time outstanding (measured as of the date
made and without giving effect to subsequent changes in value).
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or
any other entity.
"Preferred Stock", as applied to the Capital Stock of any corporation,
means
11
Capital Stock of any class or classes (however designated) which is preferred
as to the payment of dividends, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such corporation, over
shares of Capital Stock of any other class of such corporation.
"principal" of a Security means the principal of the Security plus the
premium, if any, payable on the security which is due or overdue or is to
become due at the relevant time.
"Private Exchange Securities" shall have the meaning set forth in the
Registration Rights Agreement.
"QIB" means any "qualified institutional buyer" (as defined under the
Securities Act).
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) (collectively, "refinances," and
"refinanced" shall have a correlative meaning) any Indebtedness existing on
the date of the Indenture or Incurred in compliance with the Indenture
(including Indebtedness of the Company that refinances Indebtedness of any
Subsidiary and Indebtedness of any Subsidiary that refinances Indebtedness of
another Subsidiary) including Indebtedness that refinances Refinancing
Indebtedness, provided, however, that (i) the Refinancing Indebtedness has a
Stated Maturity no earlier than the Stated Maturity of the Indebtedness being
refinanced, (ii) the Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is Incurred that is equal to or greater than
the Average Life of the Indebtedness being refinanced and (iii) such
Refinancing Indebtedness is Incurred in an aggregate principal amount (or if
issued with original issue discount, an aggregate issue price) that is equal
to or less than the sum of the aggregate principal amount (or if issued with
original issue discount, the aggregate accreted value) then outstanding of
the Indebtedness being refinanced (plus the amount of any premium required to
be paid in connection therewith and plus reasonable fees and expenses in
connection therewith); provided further that Refinancing Indebtedness shall
not include Indebtedness of a Subsidiary which refinances Indebtedness of the
Company.
"Registered Exchange Offer" shall have the meaning set forth in the
Registration Rights Agreement.
"Registration Rights Agreement" means the Exchange and Registration
Rights Agreement, dated as of July 1, 1998, between the Company and Chase
Securities Inc.
"Related Business" means the food business and such other business
activities which are incidental or related thereto.
"Representative" means any trustee, agent or representative (if any) of
an issue of Senior Indebtedness.
"Restricted Period" means the 40 consecutive days beginning on and
including the later of (A) the day on which the Initial Notes are offered to
persons other than distributors (as defined in Regulation S under the
Securities Act) and (B) the Issue Date.
12
"Restricted Securities Legend" means the Private Placement Legend set
forth in clause (A) of Section 2.1(c) or the Regulation S Legend set forth in
clause (B) of Section 2.1(c), as applicable.
"Sale/Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired whereby the Company or a Subsidiary transfers
such property to a Person and the Company or a Subsidiary leases it from such
Person.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company secured by
a Lien.
"Securities" means the Securities issued under this Indenture.
"Security Guarantee" means any guarantee pursuant to a supplemental
Indenture which may from time to time be executed and delivered by a
Subsidiary of the company pursuant to Section 4.10.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to the Global
Security (as appointed by the Depositary), or any successor Person thereto
and shall initially be the Trustee.
"Senior Credit Agreement" means the Credit Agreement dated as of July 1,
1998, among the Company, the lenders parties thereto, The Chase Manhattan
Bank, as administrative agent, Chase Securities Inc., as arranging agent,
National Westminster Bank PLC, as syndication agent, and Swiss Bank
Corporation, as documentation agent.
"Senior Credit Documents" means the collective reference to the Senior
Credit Agreement, the notes issued pursuant thereto and the Subsidiary
Guaranty, the Security Agreement, the Pledge Agreement, the Collateral
Account Agreement and the Patent and Trademark Security Agreement (each as
defined in the Senior Credit Agreement) and each of the mortgages and other
security agreements, guarantees and other instruments and documents executed
and delivered pursuant to any of the foregoing or the Senior Credit
Agreement, in each case as amended, modified, renewed, refunded, replaced or
refinanced from time to time, including any agreement extending the maturity
of, refinancing, replacing or otherwise restructuring (including increasing
the amounts of available borrowing thereunder provided that such increase in
borrowing is permitted by Section 4.3 or adding 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
whether by the same or any other agent, lender or group of lenders.
"Senior Indebtedness" means the principal of, premium (if any), and
interest (including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization of the Company regardless of whether
post-filing interest is allowed in such proceeding) on, and fees and other
amounts owing in respect of, the Bank Indebtedness and all
13
other Indebtedness of the Company, whether outstanding on the Issue Date or
thereafter issued, unless, in the instrument creating or evidencing the same
or pursuant to which the same is outstanding, it is provided that the
obligations in respect of such Indebtedness are not superior in right of
payment to the Securities; provided, however, that Senior Indebtedness will
not include (i) any obligation of the Company to any Subsidiary, (ii) any
liability for Federal, state, foreign, local or other taxes owed or owing by
the Company, (iii) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including Guarantees thereof or
instruments evidencing such liabilities), (iv) any Indebtedness, Guarantee or
obligation of the Company that is expressly subordinate or junior in right of
payment to any other Indebtedness, Guarantee or obligation of the Company,
including any Senior Subordinated Indebtedness and any Subordinated
Obligations or (v) any Capital Stock.
"Senior Subordinated Indebtedness" means the Securities, the Existing
Notes and any other Indebtedness of the Company that ranks pari passu with
the Securities in right of payment and is not subordinated by its terms in
right of payment to any Indebtedness or other obligation of the Company which
is not Senior Indebtedness.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Securities Act, as such Regulation is in
effect on June 12, 1998.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision.
"Subordinated Obligation" means any Indebtedness of the Company (whether
outstanding on the Issue Date or thereafter Incurred) which is subordinate or
junior in right of payment to the Securities pursuant to a written agreement.
"Subsequent Equity Offering" means any public or private sales of equity
securities (excluding Disqualified Stock) of the Company after the Issue
Date.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total
voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i)
such Person, (ii) such Person and one or more Subsidiaries of such Person or
(iii) one or more Subsidiaries of such Person. Unless otherwise specified
herein, each reference to a Subsidiary shall refer to a Subsidiary of the
Company.
"Subsidiary Guarantor" means any Subsidiary which is required to
guarantee the Securities pursuant to Section 4.10.
"Temporary Cash Investments" means any of the following: (i) any
Investment in direct obligations of the United States of America or any
agency thereof or obligations Guaranteed by the United States of America or
any agency thereof, (ii) Investments in time deposit accounts, certificates
of deposit and money market deposits maturing within 180 days of
14
the date of acquisition thereof issued by a bank or trust company which is
organized under the laws of the United States of America, any state thereof
or any foreign country recognized by the United States of America having
capital, surplus and undivided profits aggregating in excess of $250.0
million (or the foreign currency equivalent thereof) and whose long-term
debt, or whose parent holding company's long-term debt, is rated "A" (or such
similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities
Act), (iii) 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 a bank meeting the qualifications described in clause (ii) above,
(iv) Investments in commercial paper, maturing not more than 180 days after
the date of acquisition, issued by a corporation (other than an Affiliate of
the Company) organized and in existence under the laws of the United States
of America or any foreign country recognized by the United States of America
with a rating at the time as of which any investment therein is made of "P-1"
(or higher) according to Xxxxx'x Investors Service, Inc. or "A-1" (or higher)
according to Standard and Poor's Ratings Group.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of this Indenture.
"Trade Payables" means, with respect to any Person, any accounts payable
or any indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of
business in connection with the acquisition of goods or services.
"Treasury Rate" means, at the time of computation, the yield to maturity
of United States Treasury securities with a constant maturity (as compiled
and published in the most recent Federal Reserve Statistical Release H.15
(519) which has become publicly available at least two business days prior to
the redemption date (or, if such Statistical Release is no longer published,
any publicly available source or similar market data)) most nearly equal to
the period from the redemption date to July 1, 2003; provided, however, that
if the period from the redemption date to July 1, 2003 is less than one year,
the weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year shall be used.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code as
in effect from time to time.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States
of America (including any agency or instrumentality thereof) for the payment
of which the full faith and credit of the United States of America is pledged
and which are not callable or redeemable at the issuer's option.
15
"Voting Stock" of a Person means all classes of Capital Stock of
such Person then outstanding and normally entitled to vote in the election
of directors or managers.
"Wholly-Owned Subsidiary" means a Subsidiary of the Company, all
of the Capital Stock of which (other than directors' qualifying shares) is
owned by the Company or another Wholly-Owned Subsidiary.
SECTION 1.2. Other Definitions.
Defined in
Term Section
---- --------
"Affiliate Transaction".................................. 4.7
"Agent Member"........................................... 2.1(d)
"Authenticating Agent"................................... 2.2
"Bankruptcy Law"......................................... 6.1
"Blockage Notice"........................................ 10.3
"covenant defeasance option"............................. 8.1(b)
"Custodian".............................................. 6.1
"Defaulted Interest"..................................... 2.11
"Definitive Securities".................................. 2.1
"Event of Default"....................................... 6.1
"Exchange Global Note"................................... 2.1
"Global Securities"...................................... 2.1
"Institutional Accredited Investor Global Note".......... 2.1
"Institutional Accredited Investor Note"................. 2.1
"legal defeasance option"................................ 8.1(b)
"Legal Holiday".......................................... 12.8
"Note Amount"............................................ 4.6
"Obligations"............................................ 11.1
"Offer".................................................. 4.6(b)
"Offer Amount"........................................... 4.6(c)(ii)
"Offer Period"........................................... 4.6(c)(ii)
"pay the Securities"..................................... 10.3
"Paying Agent"........................................... 2.3
"Payment Blockage Period"................................ 10.3
"Pari Passu Notes"....................................... 4.6
"Pari Passu Offer"....................................... 4.6
"Private Placement Legend"............................... 2.1
"Purchase Date".......................................... 4.6(c)(i)
"Registrar".............................................. 2.3
"Regulation S"........................................... 2.1
"Regulation S Global Note"............................... 2.1
"Regulation S Note"...................................... 2.1
"Regulation S Legend".................................... 2.1
"Release Date"........................................... 2.1
"Resale Restriction Termination Date".................... 2.3
16
Defined in
Term Section
---- --------
"Restricted Payment"..................................... 4.4(a)
"Rule 144A".............................................. 2.1
"Rule 144A Global Note".................................. 2.1
"Rule 144A Note"......................................... 2.1
"Subsequent Series Securities"........................... 2.2
"Successor Company"...................................... 5.1
SECTION I.3. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The
following TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by the TIA by reference to another statute or defined by
an SEC rule have the meanings assigned to them by such definitions.
SECTION I.4. Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the
plural include the singular;
(vi) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(vii) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP; and
17
(viii) the principal amount of any Preferred Stock shall be (A)
the maximum liquidation value of such Preferred Stock or (B) the
maximum mandatory redemption or mandatory repurchase price with
respect to such Preferred Stock, whichever is greater.
18
ARTICLE II
The Securities
--------------
SECTION 2.1. Form, Dating and Terms. (a) The Initial Notes are
being offered and sold by the Company pursuant to a Purchase Agreement,
dated June 25, 1998, among the Company, Chase Securities Inc., Xxxxxxx,
Xxxxx & Co. and NatWest Capital Markets Limited.
Initial Notes offered and sold to the qualified institutional
buyers (as defined in Rule 144A under the Securities Act ("Rule 144A")) in
the United States of America (the "Rule 144A Note") will be issued on the
Issue Date in the form of a permanent global Security substantially in the
form of Exhibit A, which is hereby incorporated by reference and made a
part of this Indenture, together with appropriate legends as set forth in
Section 2.1(c) (the "Rule 144A Global Note"), deposited with the Trustee,
as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The Rule 144A Global
Note may be represented by more than one certificate, if so required by the
Depositary's rules regarding the maximum principal amount to be represented
by a single certificate. The aggregate principal amount of the Rule 144A
Global Note may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depositary or its
nominee, as hereinafter provided.
Initial Notes offered and sold outside the United States of
America ("Regulation S Note") in reliance on Regulation S will be issued on
the Issue Date in the form of a permanent global Security, without interest
coupons, substantially in the form set forth in Exhibit A, which is hereby
incorporated by reference and made a part of this Indenture, together with
appropriate legends as set forth in Section 2.1(c) (the "Regulation S
Global Note") deposited with the Trustee, as custodian for the Depositary,
duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The Regulation S Global Note may be represented by
more than one certificate, if so required by the Depositary's rules
regarding the maximum principal amount to be represented by a single
certificate. The aggregate principal amount of the Regulation S Global Note
may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary or its nominee, as
hereinafter provided.
Initial Notes resold to institutional "accredited investors" (as
defined in Rules 501(a)(1), (2), (3) and (7) under the Securities Act) in
the United States of America (the "Institutional Accredited Investor Note")
will be issued in the form of a permanent global Security substantially in
the form of Exhibit A, which is hereby incorporated by reference and made a
part of this Indenture, together with appropriate legends as set forth in
Section 2.1(c) (the "Institutional Accredited Investor Global Note")
deposited with the Trustee, as custodian for the Depositary, duly executed
by the Company and authenticated by the Trustee as hereinafter provided.
The Institutional Accredited Investor Global Note may be represented by
more than one certificate, if so required by the Depositary's rules
regarding the maximum principal amount to be represented by a single
certificate. The aggregate principal amount of the Institutional
Accredited Investor Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian
for the Depositary or its nominee, as hereinafter provided.
19
Exchange Securities exchanged for interests in the Rule 144A
Note, the Regulation S Note and the Institutional Accredited Investor Note
will be issued in the form of a permanent global Security substantially in
the form of Exhibit B, which is hereby incorporated by reference and made a
part of this Indenture, deposited with the Trustee as hereinafter provided,
with the appropriate legend set forth in Section 2.1(c) (the "Exchange
Global Note"). The Exchange Global Note may be represented by more than
one certificate, if so required by the Depositary's rules regarding the
maximum principal amount to be represented by a single certificate.
The Rule 144A Global Note, the Regulation S Global Note, the
Exchange Global Note and the Institutional Accredited Investor Global Note
are sometimes collectively herein referred to as the "Global Securities."
The principal of (and premium, if any) and interest on the
Securities shall be payable at the office or agency of the Company
maintained for such purpose in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose
pursuant to Section 2.3; provided, however, that, at the option of the
Company, each installment of interest may be paid by (i) check mailed to
addresses of the Persons entitled thereto as such addresses shall appear on
the Note Register or (ii) wire transfer to an account located in the United
States maintained by the payee.
The Private Exchange Securities shall be in the form of Exhibit
A. The Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage, in addition to those set forth on
Exhibits A and B and in Section 2.1(c). The Company and the Trustee shall
approve the forms of the Securities and any notation, endorsement or legend
on them. Each Security shall be dated the date of its authentication. The
terms of the Securities set forth in Exhibit A and Exhibit B are part of
the terms of this Indenture and, to the extent applicable, the Company and
the Trustee, by their execution and delivery of this Indenture, expressly
agree to be bound by such terms.
(b) Denominations. The Securities shall be issuable only in
fully registered form, without coupons, and only in denominations of $1,000
and any integral multiple thereof.
(c) Restrictive Legends. Unless and until (i) an Initial
Security is sold under an effective registration statement or (ii) an
Initial Security is exchanged for an Exchange Security in connection with
an effective registration statement, in each case pursuant to the
Registration Rights Agreement, (A) such Rule 144A Global Note and the
Institutional Accredited Investor Global Note shall bear the following
legend (the "Private Placement Legend") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
20
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO
A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH
CASE IN A MINIMUM PRINCIPAL AMOUNT OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D), (E) AND (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE."; and
(B) the Regulation S Global Note shall bear the following legend
(the "Regulation S Legend") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT
OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT ("REGULATION
S"), (2) BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER
21
SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH
SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
THAT IS AN INSTITUTIONAL INVESTOR ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES
OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM AND IN THE CASE OF THE FOREGOING CLAUSE
(E), A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE
OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
COMPANY AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED AFTER 40
CONSECUTIVE DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY
ON WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS
(AS DEFINED IN REGULATION S) AND (B) THE DATE OF THE CLOSING OF THE
ORIGINAL OFFERING. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION",
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT."
The Global Securities, whether or not an Initial Security, shall
bear the following legend on the face thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW
YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND
22
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF."
(d) Book-Entry Provisions. (i) This Section 2.1(d) shall apply
only to Global Securities deposited with the Trustee, as custodian for the
Depositary.
(ii) Each Global Security initially shall (x) be registered in
the name of the Depositary for such Global Security or the nominee of the
Depositary, (y) be delivered to the Trustee as custodian for the Depositary
and (z) bear legends as set forth in Section 2.1(c).
(iii) Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depositary or by the Trustee as
the custodian of the Depositary or under such Global Security, and the
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Security for
all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices of
the Depositary governing the exercise of the rights of a holder of a
beneficial interest in any Global Security.
(iv) In connection with any transfer of a portion of the
beneficial interest in a Global Security pursuant to subsection (e) of this
Section to beneficial owners who are required to hold Definitive
Securities, the Trustee shall reflect on its books and records the date and
a decrease in the principal amount of such Global Security in an amount
equal to the principal amount of the beneficial interest in the Global
Security to be transferred, and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Definitive Securities of like
tenor and amount.
(v) In connection with the transfer of an entire Global Security
to beneficial owners pursuant to subsection (e) of this Section, such
Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in such Global Security,
an equal aggregate principal amount of Definitive Securities of authorized
denominations.
23
(e) Definitive Securities. Except as provided below, owners of
beneficial interests in Global Securities will not be entitled to receive
certificated Securities ("Definitive Securities"). If required to do so
pursuant to any applicable law or regulation, beneficial owners may obtain
Definitive Securities in exchange for their beneficial interests in a
Global Security upon written request in accordance with the Depositary's
and the Registrar's procedures. In addition, Definitive Securities shall
be transferred to all beneficial owners in exchange for their beneficial
interests in a Global Security if (i) the Depositary notifies the Company
in writing that it is unwilling or unable to continue as depositary for
such Global Security or the Depositary ceases to be a clearing agency
registered under the Exchange Act, at a time when the Depositary is
required to be so registered in order to act as depositary, and in each
case a successor depositary is not appointed by the Company within 90 days
of such notice or, (ii) the Company executes and delivers to the Trustee
and Registrar an Officers' Certificate stating that such Global Security
shall be so exchangeable or (iii) an Event of Default has occurred and is
continuing and the Registrar has received a request from the Depositary.
(f) Any Definitive Security delivered in exchange for an
interest in a Global Security pursuant to Section 2.1(d)(iv) or (v) shall,
except as otherwise provided by Section 2.6(c), bear the applicable legend
regarding transfer restrictions applicable to the Definitive Security set
forth in Section 2.1(c).
(g) The registered holder of a Global Security 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 Securities.
SECTION II.2. Execution and Authentication. One Officer shall
sign the Securities for the Company by manual or facsimile signature. If
the Officer whose signature is on a Security no longer holds that office at
the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually authenticates the Security. The signature of the
Trustee on a Security shall be conclusive evidence that such Security has
been duly and validly authenticated and issued under this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Trustee shall authenticate and make
available for delivery: (1) Initial Notes for original issue on the Issue
Date in an aggregate principal amount of $200.0 million and (2) Exchange
Securities for issue only in a Registered Exchange Offer pursuant to the
Registration Rights Agreement, and only in exchange for Initial Notes of an
equal principal amount, and (3) additional series of notes which may be
offered subsequent to the Issue Date (the "Subsequent Series Securities")
in an aggregate principal amount not to exceed $200,000,000, in each case
upon a written order of the Company signed by an Officer of the Company.
Such order shall specify the amount of the Securities to be authenticated
and the date on which the original issue of Securities is to be
authenticated and whether the Securities are to be Initial Notes, Exchange
Securities or Subsequent Series Securities. The aggregate principal amount
of notes which may be authenticated and delivered under this Indenture is
limited to $400.0 million outstanding
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except as provided in Section 2.7. No Subsequent Series Securities may be
authenticated and delivered in an aggregate principal amount of less than
$25,000,000. All Securities issued on the Issue Date and all Subsequent
Series Securities shall be identical in all respects other than issue
dates, the date from which interest accrues and any changes relating
thereto. Notwithstanding anything to the contrary contained in this
Indenture, all notes issued under this Indenture shall vote and consent
together on all matters as one class and no series of notes will have the
right to vote or consent as a separate class on any matter.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Company to authenticate the Securities.
Unless limited by the terms of such appointment, any such Authenticating
Agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by the Authenticating Agent.
SECTION II.3. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the "Registrar") and an office or
agency where Securities may be presented for payment (the "Paying Agent").
The Registrar shall keep a register of the Securities and of their transfer
and exchange. The Company may have one or more co-registrars and one or
more additional paying agents. The term "Paying Agent" includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with
any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall
implement the provisions of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of each such
agent. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.7. The Company or any of its domestically
incorporated Wholly-Owned Subsidiaries may act as Paying Agent, Registrar,
co-registrar or transfer agent. The Paying Agent or the Registrar may
resign as such upon 30 days' prior written notice to the Company and the
Trustee; upon resignation of any Paying Agent or Registrar, the Company
shall appoint a successor Paying Agent or Registrar, as the case may be, no
later than 30 days thereafter and shall provide notice to the Trustee of
such successor Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and
Paying Agent for the Securities.
SECTION II.4. Paying Agent To Hold Money in Trust. By at least
10:00 a.m. (New York City time) on the date on which any principal of or
interest on any Security is due and payable, the Company shall deposit with
the Paying Agent a sum sufficient to pay such principal or interest when
due. The Company shall require each Paying Agent (other than the Trustee)
to agree in writing that such Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by such Paying Agent for
the payment of principal of or interest on the Securities and shall notify
the Trustee of any default by the Company in making any such payment. If
the Company or a Subsidiary acts as Paying Agent, it shall segregate the
money held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent (other than the Trustee) to
pay all money held by it to the Trustee and to account for any funds
disbursed by such Paying Agent. Upon complying with this Section 2.4, the
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Paying Agent (if other than the Company or a Subsidiary) shall have no
further liability for the money delivered to the Trustee. Upon any
bankruptcy, reorganization or similar proceeding with respect to the
Company, the Trustee shall serve as Paying Agent for the Securities.
SECTION II.5. Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Holders. If the Trustee is
not the Registrar, the Company shall furnish to the Trustee, in writing at
least seven Business Days before each interest payment date and at such
other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and
addresses of Holders.
SECTION II.6. Transfer and Exchange.
(a) The following provisions shall apply with respect to any
proposed transfer of a Rule 144A Note or an Institutional Accredited
Investor Note prior to the date which is two years after the later of the
date of original issue and the last date on which the Company or any
affiliate of the Company was the owner of such Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date"):
(i) a transfer of a Rule 144A Note or an Institutional
Accredited Investor Note or a beneficial interest therein to a QIB
shall be made upon the representation of the transferee that it is
purchasing the Security 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, 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
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A;
(ii) a transfer of a Rule 144A Note or an Institutional
Accredited Investor Note or a beneficial interest therein to an
institutional accredited investor shall be made upon receipt by the
Trustee or its agent of a certificate substantially in the form set
forth in Section 2.13 from the proposed transferee and, if requested
by the Company or the Trustee, the delivery of an opinion of counsel,
certification and/or other information satisfactory to each of them;
and
(iii) a transfer of a Rule 144A Note or an Institutional
Accredited Investor Note or a beneficial interest therein to a
Non-U.S. Person shall be made upon receipt by the Trustee or its agent
of a certificate substantially in the form set forth in Section 2.14
from the proposed transferee and, if requested by the Company or the
Trustee, the delivery of an opinion of counsel, certification and/or
other information satisfactory to each of them.
(b) The following provisions shall apply with respect to any
proposed transfer of a Regulation S Note prior to the expiration of the
Restricted Period:
(i) a transfer of a Regulation S Note or a beneficial
interest therein to
26
a QIB shall be made upon the representation of the transferee, in the
form of assignment on the reverse of the certificate, that it is
purchasing the Security 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, 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
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A;
(ii) a transfer of a Regulation S Note or a beneficial
interest therein to an institutional accredited investor shall be made
upon receipt by the Trustee or its agent of a certificate
substantially in the form set forth in Section 2.13 from the proposed
transferee and, if requested by the Company or the Trustee, the
delivery of an opinion of counsel, certification and/or other
information satisfactory to each of them; and
(iii) a transfer of a Regulation S Note or a beneficial
interest therein to a Non-U.S. Person shall be made upon receipt by
the Trustee or its agent of a certificate substantially in the form
set forth in Section 2.14 from the proposed transferee and, if
requested by the Company or the Trustee, receipt by the Trustee or its
agent of an opinion of counsel, certification and/or other information
satisfactory to each of them.
After the expiration of the Restricted Period, interests in the
Regulation S Note may be transferred without requiring certification set
forth in Section 2.14 or any additional certification.
(c) Restricted Securities Legend. Upon the transfer, exchange
or replacement of Securities not bearing a Restricted Securities Legend,
the Registrar shall deliver Securities that do not bear a Restricted
Securities Legend. Upon the transfer, exchange or replacement of
Securities bearing a Restricted Securities Legend, the Registrar shall
deliver only Securities that bear a Restricted Securities Legend unless
there is delivered to the Registrar an Opinion of Counsel 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) The Company shall deliver to the Trustee an Officer's
Certificate setting forth the Resale Restriction Termination Date and the
Restricted Period.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.1 or this
Section 2.6. 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.
(e) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges, the
Company shall, subject to the other terms and conditions of this
Article II, execute and the Trustee shall authenticate Definitive
Securities and Global Securities at the Registrar's or co-registrar's
request.
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(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax, assessments, or
similar governmental charge payable in connection therewith (other
than any such transfer taxes, assessments or similar governmental
charges payable upon exchange or transfer pursuant to Sections 4.6,
4.8 or 9.5 or pursuant to paragraph 5 of the Securities).
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of (A) any Definitive Security
selected for redemption in whole or in part pursuant to Article III,
except the unredeemed portion of any Definitive Security being
redeemed in part or (B) any Security for a period beginning (1) 15
Business Days before the mailing of a notice of an offer to repurchase
or redeem Securities and ending at the close of business on the day of
such mailing or (2) 15 Business Days before an interest payment date
and ending on such interest payment date.
(iv) Prior to the due presentation for registration of transfer
of any Security, the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat the person in whose
name a Security is registered as the absolute owner of such Security
for the purpose of receiving payment of principal of and interest on
such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and none of the Company, the Trustee, the
Paying Agent, the Registrar or any co-registrar shall be affected by
notice to the contrary.
(v) Any Definitive Security delivered in exchange for an
interest in a Global Security pursuant to Section 2.1(d) shall, except
as otherwise provided by Section 2.6(c), bear the applicable legend
regarding transfer restrictions applicable to the Definitive Security
set forth in Section 2.1(c).
(vi) All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall
be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(f) No Obligation of the Trustee.(i) The Trustee shall have no
responsibility or obligation to any beneficial owner of a Global Security,
a member of, or a participant in, the Depositary or other Person with
respect to the accuracy of the records of the Depositary or its nominee or
of any participant or member thereof, with respect to any ownership
interest in the Securities or with respect to the delivery to any
participant, member, beneficial owner or other Person (other than the
Depositary) of any notice (including any notice of redemption) or the
payment of any amount or delivery of any Securities (or other security or
property) under or with respect to such Securities. All notices and
communications to be given to the Holders and all payments to be made to
Holders in respect of the Securities shall be given or made only to or upon
the order of the registered Holders (which shall be the Depositary or its
nominee in the case of a Global Security). The rights of beneficial owners
in any Global Security shall be exercised only through the Depositary
subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon information
furnished by the Depositary with respect to its members, participants and
any beneficial owners.
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(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between
or among the Depositary participants, members or beneficial owners in any
Global Security); provided that the Trustee shall have the right to require
such certifications, Opinions of Counsel or other documentation in respect
of exchanges of beneficial ownership interests in Global Securities for
Definitive Securities as it may reasonably request.
SECTION II.7. Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Security if the
Company provides the Trustee with an Officer's Certificate stating that the
requirements of Section 8-405 of the Uniform Commercial Code are met and
the Holder satisfies any other reasonable requirements of the Trustee. If
required by the Trustee or the Company, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Company and the Trustee to
protect the Company, the Trustee, the Paying Agent, the Registrar and any
co-registrar from any loss which any of them may suffer if a Security is
replaced. The Company and the Trustee may charge the Holder for their
expenses in replacing a Security. Every replacement Security is an
additional obligation of the Company.
SECTION II.8. Outstanding Securities. Securities outstanding at
any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described
in this Section 2.8 as not outstanding. A Security does not cease to be
outstanding because the Company or an Affiliate of the Company holds the
Security.
If a Security is replaced pursuant to Section 2.7, it ceases to
be outstanding unless the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date money sufficient
to pay all principal and interest payable on that date with respect to the
Securities (or portions thereof) to be redeemed or maturing, as the case
may be, and the Paying Agent is not prohibited from paying such money to
the Securityholders on that date pursuant to the terms of this Indenture,
then on and after that date such Securities (or portions thereof) cease to
be outstanding and interest on them ceases to accrue.
SECTION II.9. Temporary Securities. Until Definitive Securities
are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations
that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate Definitive Securities. After the preparation of Definitive
Securities, the temporary Securities shall be exchangeable for Definitive
Securities upon surrender of the temporary Securities at any office or
agency maintained by the Company for that purpose and such exchange shall
be without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities, the Company shall execute, and the
Trustee shall authenticate and deliver in exchange therefor, one
29
or more Definitive Securities representing an equal principal amount of
Securities. Until so exchanged, the Holder of temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as a
holder of Definitive Securities.
SECTION II.10. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else
shall cancel and destroy (subject to the record retention requirements of
the Exchange Act) all Securities surrendered for registration of transfer,
exchange, payment or cancellation and deliver a certificate of such
destruction to the Company unless the Company directs the Trustee to
deliver canceled Securities to the Company. The Company may not issue new
Securities to replace Securities it has redeemed, paid or delivered to the
Trustee for cancellation.
SECTION II.11. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay defaulted
interest (plus interest on such defaulted interest to the extent lawful) in
any lawful manner. The Company may pay the defaulted interest to the
persons who are Securityholders on a subsequent special record date. The
Company shall fix or cause to be fixed (or upon the Company's failure to do
so the Trustee shall fix pursuant to a written instruction of Holders of at
least a majority in principal amount of the Securities) any such special
record date and payment date to the reasonable satisfaction of the Trustee
which specified record date shall not be less than 10 days prior to the
payment date for such defaulted interest and shall promptly mail or cause
to be mailed to each Securityholder a notice that states the special record
date, the payment date and the amount of defaulted interest to be paid.
The Company shall notify the Trustee in writing of the amount of defaulted
interest proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect of such defaulted interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money when so deposited to be held in trust for the benefit of the
Person entitled to such defaulted interest as provided in this Section
2.11.
SECTION II.12. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so,
the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state
that no representation is made as to the correctness of such numbers either
as printed on the Securities or as contained in any notice of a redemption
and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such CUSIP numbers.
In the event that the Company shall issue and the Trustee shall
authenticate any Subsequent Series Securities pursuant to Section 2.2, the
Company shall use its best efforts to obtain the same CUSIP number for such
Subsequent Series Securities as is printed on the Securities outstanding at
such time; provided, however, that if any series of Subsequent Series
Securities is determined, pursuant to an Opinion of Counsel, to be a
different class of security than the Securities outstanding at such time
for federal income tax purposes, the Company may obtain a CUSIP number for
such series of Subsequent Series Securities that is different from the
CUSIP number printed on the Securities then outstanding.
30
SECTION 2.13. Form of Certificate to be Delivered in Connection
with Transfers to Institutional Accredited Investors.
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Dear Sirs:
This certificate is delivered to request a transfer of $
principal amount of the 8 3/4% Senior Subordinated Notes due 2008 (the
"Securities") of Aurora Foods Inc. (the "Company").
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "Securities Act")) purchasing for our own account or for the
account of such an institutional "accredited investor" at least $250,000
principal amount of the Securities, and we are acquiring the Securities not
with a view to, or for offer or sale in connection with, any distribution
in violation of the Securities Act. We have such knowledge and experience
in financial and business matters as to be capable of evaluating the merits
and risk of our investment in the Securities and we invest in or purchase
securities similar to the Securities in the normal course of our business.
We and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
2. We understand that the Securities have not been registered
under the Securities Act and, unless so registered, may not be sold except
as permitted in the following sentence. We agree on our own behalf and on
behalf of any investor account for which we are purchasing Securities to
offer, sell or otherwise transfer such Securities prior to the date which
is two years after the later of the date of original issue and the last
date on which the Company or any affiliate of the Company was the owner of
such Securities (or any predecessor thereto) (the "Resale Restriction
Termination Date") only (a) to the Company, (b) pursuant to a registration
statement which has been declared effective under the Securities Act, (c)
in a transaction complying with the requirements of Rule 144A under the
Securities Act, to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that purchases for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation
S under the Securities Act, (e) to an institutional "accredited investor"
(within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) that is purchasing for its own account or for the account of such an
institutional "accredited investor," in each case in a minimum principal
amount of Securities of $250,000 or (f) pursuant to any other available
exemption from the registration requirements of the Securities Act, subject
in each of the foregoing cases to any requirement of law that the
disposition of our property or
31
the property of such investor account or accounts be at all times within
our or their control and in compliance with any applicable state securities
laws. The foregoing restrictions on resale will not apply subsequent to
the Resale Restriction Termination Date. If any resale or other transfer
of the Securities is proposed to be made pursuant to clause (e) above prior
to the Resale Restriction Termination Date, the transferor shall deliver a
letter from the transferee substantially in the form of this letter to the
Company and the Trustee, which shall provide, among other things, that the
transferee is an institutional "accredited investor" (within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and that it is
acquiring such Securities for investment purposes and not for distribution
in violation of the Securities Act. Each purchaser acknowledges that the
Company and the Trustee reserve the right prior to any offer, sale or other
transfer prior to the Resale Termination Date of the Securities pursuant to
clauses (d), (e) or (f) above to require the delivery of an opinion of
counsel, certifications and/or other information satisfactory to the
Company and the Trustee.
3. We agree on our own behalf and on behalf of any investor
account for which we are purchasing the Securities that (i) if it is an
insurance company, the funds to be used to purchase the Securities by it
constitute (A) assets of an insurance company general account maintained by
it and the acquisition and holding of each such Security by such account is
exempt under United States Department of Labor Prohibited Transaction Class
Exemption ("PTCE") 95-60 or (B) assets of an insurance company pooled
separate account and the acquisition and holding of each such Note by such
account is exempt under PTCE 90-1, and (ii) if it is not an insurance
company, no part of the funds to be used to purchase the Securities to be
purchased by it constitute assets of any plan or employee benefit plan such
that the use of such assets constitutes a non-exempt prohibited transaction
under ERISA or the Code. The representation is made in reliance upon the
list furnished to the purchaser by the Company, if requested by the
purchaser, of the plans and employee benefit plans with respect to which
the Company is a party in interest or a disqualified person and is based
upon the purchaser's determination that a statutory or administrative
exemption is applicable or that the Company and its Affiliates are not
parties in interest or disqualified persons with respect to the purchaser
or holder plan or employee benefit plan. As used in this paragraph, the
terms "employee benefit plan" and "party in interest" shall have the
meanings assigned to such terms in Section 3 of ERISA, the term "Affiliate"
shall have the meaning assigned to such term in Section 407(d)(7) of ERISA
and the terms "disqualified person" and "plan" shall have the meanings
assigned to such terms in Section 4975 of the Code.
TRANSFEREE:
---------------------
BY
------------------------------
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SECTION 2.14. Form of Certificate to be Delivered in Connection
with Transfers Pursuant to Regulation S.
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Re: Aurora Foods Inc.
8 3/4% Senior Subordinated Notes due 2008 (the "Securities")
-----------------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate
principal amount of the Securities, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, we represent that:
1. the offer of the Securities was not made to a person in the
United States;
2. either (i) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting
on our behalf reasonably believed that the transferee was outside the
United States or (ii) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
3. no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable; and
4. the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and
the provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance
with the applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the
case may be.
33
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_____________________________________
----------------------------------------
Authorized Signature Medallion Guaranteed
SECTION II.15. Computation of Interest. Interest on the Securities
shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE III
Redemption
SECTION III.1. Notices to Trustee. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date and the principal amount of
Securities to be redeemed.
The Company shall give each notice to the Trustee provided for in this
Section 3.1 at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an
Officers' Certificate and, if the Trustee so requests, an Opinion of Counsel
to the effect that such redemption will comply with the conditions herein.
If fewer than all the Securities are to be redeemed, the record date relating
to such redemption shall be selected by the Company and set forth in the
related notice given to the Trustee, which record date shall be not less than
15 days after the date of such notice.
SECTION III.2. Selection of Securities To Be Redeemed. If fewer than all
the Securities are to be redeemed, the Trustee shall select the Securities to
be redeemed pro rata or by lot or by a method that complies with applicable
legal and securities exchange requirements, if any, and that the Trustee
considers fair and appropriate and in accordance with methods generally used
at the time of selection by fiduciaries in similar circumstances. The
Trustee shall make the selection from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than $1,000.
Securities and portions of them the Trustee selects shall be in amounts of
$1,000 or a whole multiple of $1,000. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of
Securities called for redemption. The Trustee shall notify the Company
promptly of the Securities or portions of Securities to be redeemed.
SECTION III.3. Notice of Redemption. At least 30 days but not more than
60
34
days before a date for redemption of Securities, the Company shall mail a
notice of redemption by first-class mail to each Holder of Securities to be
redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(i) the redemption date;
(ii) the redemption price;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(v) if fewer than all the outstanding Securities are to be
redeemed, the identification and principal amounts of the
particular Securities to be redeemed;
(vi) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making
such payment pursuant to the terms of this Indenture, interest on
Securities (or portion thereof) called for redemption ceases to
accrue on and after the redemption date;
(vii) the CUSIP number, if any, printed on the Securities being
redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or
printed on the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such
event, the Company shall provide the Trustee with the information required by
this Section 3.3.
SECTION III.4. Effect of Notice of Redemption. Once notice of redemption
is mailed, Securities called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the
redemption price stated in the notice, plus accrued interest to the
redemption date; provided that if the redemption date is after a regular
record date and on or prior to the interest payment date, the accrued
interest shall be payable to the Securityholder of the redeemed Securities
registered on the relevant record date. Failure to give notice or any defect
in the notice to any Holder shall not affect the validity of the notice to
any other Holder.
SECTION III.5. Deposit of Redemption Price. By at least 10:00 a.m. (New
York City time) on the date on which any principal of or interest on any
Security is due and payable, the Company shall deposit with the Paying Agent
(or, if the Company or a Subsidiary is the Paying Agent, shall segregate and
hold in trust) money sufficient to pay the redemption price of and accrued
interest on all Securities to be redeemed on that date other than Securities
or portions of Securities called for redemption which are owned by the
Company or a Subsidiary and have been delivered by the Company or such
Subsidiary to the Trustee for cancellation.
35
SECTION III.6. Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate for the Holder (at the Company's expense) a new Security equal
in a principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
Covenants
SECTION IV.1. Payment of Securities. The Company shall promptly pay the
principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest
shall be considered paid on the date due if on such date the Trustee or the
Paying Agent holds in accordance with this Indenture money sufficient to pay
all principal and interest then due and the Trustee or the Paying Agent, as
the case may be, is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
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 United States of
America from principal or interest payments hereunder.
SECTION IV.2. SEC Reports. Notwithstanding that the Company may not be
required to remain subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, the Company shall file with the Commission, and
within 15 days after such reports are filed, provide the Trustee and the
Holders (at their addresses as set forth in the register of Securities) with
the annual reports and the information, documents and other reports which are
otherwise required pursuant to Section 13 and 15(d) of the Exchange Act, for
so long as the Notes are outstanding the Company shall furnish to the Trustee
and the holders, promptly upon their becoming available, copies of the
Company's annual report to stockholders and any other information provided by
the Company to its public stockholders generally.
SECTION IV.3. Limitation on Indebtedness. (a) The Company shall not,
and shall not permit any of its Subsidiaries to, Incur any Indebtedness;
provided, however, that the Company and any of its Subsidiaries may Incur
Indebtedness if on the date thereof the Consolidated Coverage Ratio would be
greater than 2.00:1.00.
(b) Notwithstanding Section 4.3(a), the Company and its Subsidiaries
may Incur the following Indebtedness: (i) Bank Indebtedness provided that the
aggregate principal amount of Indebtedness Incurred pursuant to this clause
(i) does not exceed an amount outstanding at any time equal to $400 million
less the aggregate amount of permanent reductions of commitments to extend
credit thereunder and repayments of principal thereof (without duplication of
repayments required as a result of such reductions of commitments);
36
(ii) Indebtedness (A) of the Company to any Wholly-Owned Subsidiary and (B)
of any Subsidiary to the Company or any Wholly-Owned Subsidiary; (iii)
Indebtedness represented by the Securities, any Indebtedness (other than the
Indebtedness described in clauses (i)-(ii) above) outstanding on the date
hereof (including, without limitation, the Existing Notes) and any
Refinancing Indebtedness Incurred in respect of any Indebtedness described in
this clause (iii) or this paragraph (b); (iv) Indebtedness represented by the
Security Guarantees and Guarantees of Indebtedness Incurred pursuant to
clause (i) above; (v) Indebtedness under Currency Agreements and Interest
Rate Agreements which are entered into for bona fide hedging purposes of the
Company or its Subsidiaries (as determined in good faith by the Board of
Directors or senior management of the Company) and correspond in terms of
notional amount, duration, currencies and interest rates, as applicable, to
Indebtedness of the Company or its Subsidiaries Incurred without violation of
the Indenture or to business transactions of the Company or its Subsidiaries
on customary terms entered into in the ordinary course of business; (vi)
Indebtedness of the Company attributable to Capitalized Lease Obligations, or
Incurred to finance the acquisition, construction or improvement of fixed or
capital assets, or constituting Attributable Indebtedness in respect of
Sale/Leaseback Transactions, in an aggregate principal amount at any one time
outstanding not in excess of $10.0 million; and (vii) Indebtedness of the
Company or any of its Subsidiaries (which may comprise Bank Indebtedness) in
an aggregate principal amount at any time outstanding not in excess of $15.0
million.
(c) Notwithstanding any other provision of this Section 4.3, the
Company shall not Incur any Indebtedness (i) pursuant to Section 4.3(b) if
the proceeds thereof are used, directly or indirectly, to repay, prepay,
redeem, defease, retire, refund or refinance any Subordinated Obligations
unless such Indebtedness shall be subordinated to the Securities to at least
the same extent as such Subordinated Obligations or (ii) pursuant to Section
4.3(a) or 4.3(b) if such Indebtedness is subordinate or junior in ranking in
any respect to any Senior Indebtedness unless such Indebtedness is Senior
Subordinated Indebtedness or is expressly subordinated in right of payment to
Senior Subordinated Indebtedness.
(d) The Company shall not Incur any Secured Indebtedness which is not
Senior Indebtedness unless contemporaneously therewith effective provision is
made to secure the Securities equally and ratably with such Secured
Indebtedness for so long as such Secured Indebtedness is secured by a Lien.
SECTION IV.4. Limitation on Restricted Payments. (a) The Company shall
not, and shall not permit any Subsidiary, directly or indirectly, to (i)
declare or pay any dividend or make any distribution on or in respect of its
Capital Stock (including any payment in connection with any merger or
consolidation involving the Company) except (A) dividends or distributions
payable in its Capital Stock (other than Disqualified Stock) and (B)
dividends or distributions payable to the Company or another Subsidiary (and,
if such Subsidiary is not a Wholly-Owned Subsidiary, to its other
stockholders on a pro rata basis), (ii) purchase, redeem, retire or otherwise
acquire for value any Capital Stock of the Company or any Subsidiary held by
Persons other than the Company or another Subsidiary, (iii) purchase,
repurchase, redeem, defease or otherwise acquire or retire for value, prior
to scheduled maturity, scheduled repayment or scheduled sinking fund payment,
any Subordinated Obligations (other than the purchase, repurchase or other
acquisition of Subordinated Obligations purchased in anticipation of
satisfying a sinking fund obligation, principal installment or final
maturity, in each case due within one year of the date of acquisition) or
(iv) make any Investment (other than a Permitted Investment) in any Person
(any
37
such dividend, distribution, purchase, redemption, repurchase, defeasance,
other acquisition, retirement or Investment being herein referred to as a
"Restricted Payment"), if at the time the Company or such Subsidiary makes
such Restricted Payment: (1) a Default shall have occurred and be continuing
(or would result therefrom); or (2) the Company could not Incur at least an
additional $1.00 of Indebtedness pursuant to Section 4.3(a); or (3) the
aggregate amount of such Restricted Payment and all other Restricted Payments
declared (the amount so expended, if other than in cash, to be determined in
good faith by the Board of Directors, whose determination shall be conclusive
and evidenced by a resolution of the Board of Directors) or made subsequent
to the Issue Date would exceed the sum of: (A) 50% of the Consolidated Net
Income accrued during the period (treated as one accounting period) from the
Issue Date to the end of the most recent fiscal quarter ending prior to the
date of such Restricted Payment as to which financial results are available
(but in no event more than 135 days prior to the date of such Restricted
Payment) (or, in case such Consolidated Net Income shall be a deficit, minus
100% of such deficit); (B) the aggregate Net Cash Proceeds received by the
Company from the issue or sale of its Capital Stock (other than Disqualified
Stock) or other cash contributions to its capital on or subsequent to the
Issue Date (other than an issuance or sale to a Subsidiary of the Company or
an employee stock ownership plan or other trust established by the Company or
any of its Subsidiaries); (C) aggregate Net Cash Proceeds from issue or sale
of its Capital Stock to an employee stock ownership plan or similar trust,
provided, however, that if such plan or trust Incurs any Indebtedness to or
Guaranteed by the Company to finance the acquisition of such Capital Stock,
such aggregate amount shall be limited to any increase in the Consolidated
Net Worth of the Company resulting from principal repayments made by such
plan or trust with respect to Indebtedness Incurred by it to finance the
purchase of such Capital Stock; and (D) the amount by which Indebtedness of
the Company or its Subsidiaries is reduced on the Company's balance sheet
upon the conversion or exchange (other than by a Subsidiary) subsequent to
the Issue Date of any Indebtedness of the Company or its Subsidiaries
convertible or exchangeable for Capital Stock (other than Disqualified Stock)
of the Company (less the amount of any cash, or other property, distributed
by the Company or any Subsidiary upon such conversion or exchange).
(b) The provisions of Section 4.4(a) shall not prohibit: (i) any
purchase or redemption of Capital Stock or Subordinated Obligations of the
Company made by exchange for, or out of the proceeds of the substantially
concurrent sale of, Capital Stock of the Company (other than Disqualified
Stock and other than Capital Stock issued or sold to a Subsidiary or an
employee stock ownership plan or other trust established by the Company or
any of its Subsidiaries); provided, however, that (A) such purchase or
redemption shall be excluded in the calculation of the amount of Restricted
Payments and (B) the Net Cash Proceeds from such sale shall be excluded from
clause Section 4.4(a)(3)(B); (ii) any purchase or redemption of Subordinated
Obligations of the Company made by exchange for, or out of the proceeds of
the substantially concurrent sale of, Subordinated Obligations of the
Company; provided, however, that such purchase or redemption shall be
excluded in the calculation of the amount of Restricted Payments; (iii) any
purchase or redemption of Subordinated Obligations from Net Available Cash to
the extent permitted under Section 4.6; provided, however, that such purchase
or redemption shall be excluded in the calculation of the amount of
Restricted Payments; (iv) dividends paid within 60 days after the date of
declaration if at such date of declaration such dividend would have complied
with this provision; provided, however, that such dividend shall be included
in the calculation of the amount of Restricted Payments; (v) amounts expended
by the Company to repurchase Capital Stock of the Company owned by employees
(including former employees) of the Company or its Subsidiaries or their
assigns, estates and heirs;
38
provided that the aggregate amount paid, loaned or advanced pursuant to this
clause (v) shall not, in the aggregate, exceed the sum of $5.0 million plus
any amounts received by the Company as a result of resales of such
repurchased shares of Capital Stock; or (vi) any repurchase of equity
interest deemed to occur upon exercise of stock options if such equity
interests represent a portion of the exercise price of such options.
SECTION IV.5. Limitation on Restrictions on Distributions from
Subsidiaries. The Company shall not, and shall not permit any of its
Subsidiaries to, create or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any such Subsidiary to (i) pay
dividends or make any other distributions on its Capital Stock or pay any
Indebtedness or other obligation owed to the Company, (ii) make any loans or
advances to the Company or (iii) transfer any of its property or assets to
the Company; except: (A) any encumbrance or restriction pursuant to an
agreement in effect on the Issue Date, including those arising under the
Senior Credit Documents; (B) any encumbrance or restriction with respect to a
Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by
a Subsidiary prior to the date on which such Subsidiary was acquired by the
Company (other than Indebtedness Incurred as consideration in, or to provide
all or any portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Subsidiary was acquired by the Company); (C) any encumbrance or restriction
with respect to a Subsidiary pursuant to an agreement effecting a refinancing
of Indebtedness Incurred pursuant to an agreement referred to in clauses (A)
or (B) or this clause (C) or contained in any amendment, supplement or
modification (including an amendment and restatement) to an agreement
referred to in clauses (A) or (B) or this clause (C); provided, however, that
the encumbrances and restrictions contained in any such refinancing agreement
or amendment taken as a whole are no less favorable to the holders of the
Securities in any material respect than encumbrances and restrictions
contained in such agreements; (D) in the case of clause (iii), any
encumbrance or restriction (1) that restricts in a customary manner the
subletting, assignment or transfer of any property or asset that is subject
to a lease, license, or similar contract, (2) by virtue of any transfer of,
agreement to transfer, option or right with respect to, or Lien on, any
property or assets of the Company or any Subsidiary not otherwise prohibited
by this Indenture, or (3) contained in security agreements securing
Indebtedness of a Subsidiary to the extent such encumbrance or restrictions
restrict the transfer of the property subject to such security agreements;
(E) any such restriction imposed by applicable law; (F) any restriction with
respect to a Subsidiary imposed pursuant to an agreement entered into for the
sale or disposition of all or substantially all the Capital Stock or assets
of such Subsidiary pending the closing of such sale or disposition; and (G)
purchase obligations for property acquired in the ordinary course of business
that impose restrictions of the nature described in clause (iii) above on the
property so acquired.
39
SECTION IV.6. Limitation on Sales of Assets. (a) The Company shall not,
and shall not permit any Subsidiary to, make any Asset Disposition unless (i)
the Company or such Subsidiary receives consideration (including by way of
relief from, or by any other Person assuming sole responsibility for, any
liabilities, contingent or otherwise) at the time of such Asset Disposition
at least equal to the fair market value of the shares and assets subject to
such Asset Disposition, (ii) at least 85% of the consideration thereof
received by the Company or such Subsidiary is in the form of cash and (iii)
an amount equal to 100% of the Net Available Cash from such Asset Disposition
is applied by the Company (or such Subsidiary, as the case may be) (A) first,
to the extent the Company elects (or is required by the terms of any Senior
Indebtedness or Indebtedness (other than Preferred Stock) of a Wholly-Owned
Subsidiary), to prepay, repay or purchase Senior Indebtedness or such
Indebtedness (other than Preferred Stock) of a Wholly-Owned Subsidiary (in
each case other than Indebtedness owed to the Company or an Affiliate of the
Company) within one year after the later of the date of such Asset
Disposition or the receipt of such Net Available Cash; (B) second, to the
extent of the balance of Net Available Cash after application in accordance
with clause (A), to the extent the Company or such Subsidiary elects, to
reinvest in Additional Assets (including by means of an Investment in
Additional Assets by a Subsidiary with Net Available Cash received by the
Company or another Subsidiary) within one year after the later of the date of
such Asset Disposition or the receipt of such Net Available Cash; (C) third,
to the extent of the balance of such Net Available Cash after application in
accordance with clauses (A) and (B), to make an offer to purchase the
Existing Notes pursuant and subject to the conditions of the Existing
Indentures to the holders thereof at a purchase price of 100% of the
principal amount thereof plus accrued and unpaid interest to the purchase
date; (D) fourth, to the extent of the balance of such Net Available Cash
after application in accordance with clauses (A), (B) and (C), to make an
offer to purchase the Notes and other Senior Subordinated Indebtedness (other
than the Existing Notes) at the time outstanding with similar provisions
requiring the Company to make an offer to purchase such Indebtedness with the
proceeds from any Asset Disposition ("Pari Passu Notes") at 100% of the
principal amount thereof (or 100% of the accreted value of such Pari Passu
Notes if such Pari Passu Notes were issued at a discount) plus accrued and
unpaid interest, if any, to the date of purchase; and (E) fifth, to the
extent of the balance of such Net Available Cash after application in
accordance with clauses (A), (B), (C) and (D), to (x) acquire Additional
Assets (other than Indebtedness and Capital Stock) or (y) prepay, repay or
purchase Indebtedness of the Company (other than Indebtedness owed to an
Affiliate of the Company and other than Disqualified Stock of the Company) or
Indebtedness of any Subsidiary (other than Indebtedness owed to the Company
or an Affiliate of the Company), in each case described in this clause (E)
within one year from the receipt of such Net Available Cash or, if the
Company has made an Offer pursuant to clause (D), six months from the date
such Offer is consummated; provided, however, that, in connection with any
prepayment, repayment or purchase of Indebtedness pursuant to clause (A),
(C), (D) or (E) above, the Company or such Subsidiary shall retire such
Indebtedness and shall cause the related loan commitment (if any) to be
permanently reduced in an amount equal to the principal amount so prepaid,
repaid or purchased. Notwithstanding the foregoing provisions, the Company
and its Subsidiaries shall not be required to apply any Net Available Cash in
accordance herewith except to the extent that the aggregate Net Available
Cash from all Asset Dispositions which are not applied in accordance with
this Section 4.6 at any time exceed $5.0 million. The Company shall not be
required to make an offer for Securities and Pari Passu Notes pursuant to
this covenant if the Net Available Cash available therefor (after application
of the proceeds as provided in clauses (A), (B) and (C)) is less than $10.0
million for any particular Asset Disposition (which lesser amounts shall be
carried forward for purposes of determining
40
whether an offer is required with respect to the Net Available Cash from any
subsequent Asset Disposition).
For the purposes of this Section 4.6, the following will be deemed to be
cash: (x) the assumption of Indebtedness (other than Disqualified Stock) of
the Company or any Subsidiary and the release of the Company or such
Subsidiary from all liability on such Indebtedness in connection with such
Asset Disposition and (y) securities received by the Company or any
Subsidiary of the Company from the transferee that are promptly converted by
the Company or such Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of
Notes and Pari Passu Notes pursuant to Section 4.6(a)(iii)(D), the Company
will be required to apply the Net Available Cash available therefor to the
purchase of the Notes and any Pari Passu Notes as follows: (A) the Company
will make an offer to purchase (an "Offer") from all holders of the Notes in
accordance with the procedures set forth in the Indenture in the maximum
principal amount (expressed as a multiple of $1,000) of Notes that may be
purchased out of an amount (the "Note Amount") equal to the product of such
Net Available Cash multiplied by a fraction, the numerator of which is the
outstanding principal amount of the Notes and the denominator of which is the
sum of the outstanding principal amount of the Notes and the outstanding
principal amount (or accreted value, as the case may be) of the Pari Passu
Notes at a purchase price of 100% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase and (B) the
Company will make an offer to purchase any Pari Passu Notes (a "Pari Passu
Offer") in an amount equal to the excess of such Net Available Cash over the
Note Amount at a purchase price of 100% of the principal amount (or accreted
value, as the case may be) thereof plus accrued and unpaid interest, if any,
to the date of purchase in accordance with the procedures (including
prorating in the event of oversubscription) set forth in the documentation
governing such Pari Passu Notes with respect to the Pari Passu Offer. If the
aggregate purchase price of the Notes and Pari Passu Notes tendered pursuant
to the Offer and the Pari Passu Offer is less than such Net Available Cash,
the Company will apply the remaining Net Available Cash in accordance with
Section 4.6(a)(iii)(E) above.
(c) (i) Promptly, and in any event within 10 days after the Company is
required to make an Offer, the Company shall deliver to the Trustee and send,
by first-class mail to each Holder, a written notice stating that the Holder
may elect to have his or her Securities purchased by the Company either in
whole or in part (subject to prorating as hereinafter described in the event
the Offer is oversubscribed) in integral multiples of $1,000 of principal
amount, at the applicable purchase price. The notice shall specify a purchase
date not less than 30 days nor more than 60 days after the date of such
notice (the "Purchase Date").
(ii) Not later than the date upon which such written notice of an
Offer is delivered to the Trustee and the Holders, the Company shall deliver
to the Trustee an Officers' Certificate setting forth (A) the amount of the
Offer (the "Offer Amount"), (B) the allocation of the Net Available Cash from
the Asset Dispositions as a result of which such Offer is being made and (C)
the compliance of such allocation with the provisions of Section 4.6(a).
Upon the expiration of the period (the "Offer Period") for which the Offer
remains open, the Company shall deliver to the Trustee for cancellation the
Securities or portions thereof which have been properly tendered to and are
to be accepted by the Company. The Trustee shall, on the Purchase Date, mail
or deliver payment to each tendering Holder in the amount of the purchase
price of the
41
Securities tendered by such Holder to the extent such funds are available to
the Trustee.
(iii) Holders electing to have a Security purchased will be required
to surrender the Security, with an appropriate form duly completed, to the
Company at the address specified in the notice prior to the expiration of the
Offer Period. Each Holder will be entitled to withdraw its election if the
Trustee or the Company receives, not later than one Business Day prior to the
expiration of the Offer Period, a telegram, telex, facsimile transmission or
letter from such Holder setting forth the name of such Holder, the principal
amount of the Security or Securities which were delivered for purchase by
such Holder and a statement that such Holder is withdrawing its election to
have such Security or Securities purchased. If at the expiration of the
Offer Period the aggregate principal amount of Securities surrendered by
Holders exceeds the Offer Amount, the Company shall select the Securities to
be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of
$1,000, or integral multiples thereof, shall be purchased). Holders whose
Securities are purchased only in part will be issued new Securities equal in
principal amount to the unpurchased portion of the Securities surrendered.
(d) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant
to this Section 4.6. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section 4.6, the Company
will comply with the applicable securities laws and regulations and will not
be deemed to have breached its obligations under this Indenture by virtue
thereof.
SECTION IV.7. Limitation on Affiliate Transactions. (a) The Company
will not, and will not permit any Subsidiary to, directly or indirectly,
enter into or conduct any transaction (including the purchase, sale, lease or
exchange of any property or the rendering of any service) with any Affiliate
of the Company (an "Affiliate Transaction") unless: (i) the terms of such
Affiliate Transaction are no less favorable to the Company or such
Subsidiary, as the case may be, than those that could be obtained at the time
of such transaction in arm's-length dealings with a Person who is not such an
Affiliate; (ii) in the event such Affiliate Transaction involves an aggregate
amount in excess of $2.5 million, the terms of such transaction have been
approved by a majority of the members of the Board of Directors of the
Company and by a majority of the disinterested members of such Board, if any
(and such majority or majorities, as the case may be, determines that such
Affiliate Transaction satisfies the criteria in (i) above); and (iii) in the
event such Affiliate Transaction involves an aggregate amount in excess of
$10.0 million, the Company has received a written opinion from an independent
investment banking firm of nationally recognized standing that such Affiliate
Transaction is fair to the Company or such Subsidiary, as the case may be,
from a financial point of view.
(b) The provisions of Section 4.7(a) will not prohibit (i) any
Restricted Payment permitted to be paid pursuant to Section 4.4 (and in the
case of Permitted Investments, only those described in clauses (v), (vi) and
(ix) of the definition of Permitted Investments), (ii) the performance of the
Company's or Subsidiary's obligations under any employment contract,
collective bargaining agreement, employee benefit plan, related trust
agreement or any other similar arrangement heretofore or hereafter entered
into in the ordinary course of business, (iii) payment of compensation to,
and indemnity provided on behalf of, employees, officers, directors or
consultants in the ordinary course of business, (iv) maintenance in the
ordinary course of
42
business of benefit programs or arrangements for employees, officers or
directors, including vacation plans, health and life insurance plans,
deferred compensation plans, and retirement or savings plans and similar
plans, (v) any transaction between the Company and a Wholly-Owned Subsidiary
or between Wholly-Owned Subsidiaries, (vi) the payment of fees under the
Agreements dated as of April 8, 1998 between the Company and Dartford
Partnership L.L.C., Fenway Partners, Inc. and an affiliate of XxXxxx De Leeuw
& Co., respectively, as in effect on the Issue Date and (vii) payments of up
to $800,000 per year to Dartford Partnership L.L.C. as reimbursement of
corporate headquarters expenses and rent for space leased by Dartford
Partnership L.L.C. and used by the Company as corporate headquarters.
SECTION IV.8. Change of Control. (a) Upon the occurrence of a Change of
Control, each Holder shall have the right to require the Company to
repurchase all or any part of such Holder's Securities at a purchase price in
cash equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), such repurchase to be made in accordance with Section
4.8(b).
(b) Within 30 days following any Change of Control, unless the Company
has mailed a redemption notice with respect to all the outstanding Securities
in connection with such Change of Control, the Company shall mail a notice to
each Holder of record with a copy to the Trustee stating: (i) that a Change
of Control has occurred and that such Holder has the right to require the
Company to purchase such Holder's Securities at a purchase price in cash
equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase (subject to the right of Holders of
record on a record date to receive interest on the relevant interest payment
date); (ii) the circumstances and relevant facts and financial information
concerning such Change of Control; (iii) the repurchase date (which shall be
no earlier than 30 days nor later than 60 days from the date such notice is
mailed); and (iv) the procedures determined by the Company, consistent with
this Indenture, that a Holder must follow in order to have its Securities
purchased.
(c) Holders electing to have a Security purchased will be required to
surrender the Security, with an appropriate form duly completed, to the
Company at the address specified in the notice at least three Business Days
prior to the purchase date. Each Holder will be entitled to withdraw its
election if the Company receives, not later than one Business Day prior to
the purchase date, a telegram, telex, facsimile transmission or letter from
such Holder setting forth the name of such Holder, the principal amount of
the Security or Securities which were delivered for purchase by such Holder
and a statement that such Holder is withdrawing his election to have such
Security or Securities purchased.
(d) On the purchase date, all Securities purchased by the Company under
this Section 4.8 shall be delivered to the Trustee for cancellation, and the
Company shall pay the purchase price plus accrued and unpaid interest, if
any, to the Holders entitled thereto.
(e) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant
to this Section 4.8. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section 4.8, the Company
shall comply with the applicable securities laws and regulations and shall
not be
43
deemed to have breached its obligations under this Indenture by virtue
thereof.
SECTION IV.9. Limitation on Sale of Subsidiary Capital Stock. The
Company (i) will not, and will not permit any Subsidiary to, transfer,
convey, sell, lease or otherwise dispose of any Capital Stock of any
Subsidiary to any Person (other than to the Company or a Wholly-Owned
Subsidiary) and (ii) will not permit any Subsidiary to issue any of its
Capital Stock (other than, if necessary, shares of its Capital Stock
constituting directors' qualifying shares) to any Person other than to the
Company or a Wholly-Owned Subsidiary; provided, however, that this Section
4.9 shall not prohibit such conveyance, sale, lease or other disposition of
all the Capital Stock of a Subsidiary if the net cash proceeds from such
transfer, conveyance, sale, lease, other disposition or issuance are applied
in accordance with Section 4.6.
SECTION IV.10. Future Security Guarantors. The Company will cause each
Subsidiary which Incurs Indebtedness or which is a guarantor of Indebtedness
Incurred pursuant to Section 4.3(b)(i) to execute and deliver to the Trustee
a Security Guarantee pursuant to which such Subsidiary will Guarantee,
jointly and severally, to the Holders and the Trustee, subject to
subordination provisions in Article X, the full and prompt payment of the
Securities in the Indenture. Each Security Guarantee will be limited in
amount to an amount not to exceed the maximum amount that can be Guaranteed
by that Subsidiary without rendering the Security Guarantee, as it relates to
such Subsidiary, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally. The Existing Indentures contain similar provisions with
respect to the Existing Notes.
SECTION IV.11. Limitation on Lines of Business. The Company will not,
and will not permit any Subsidiary to, engage in any business, other than the
food business and such other business activities which are incidental or
related thereto.
SECTION IV.12. Maintenance of Office or Agency for Registration of
Transfer, Exchange and Payment of Securities. So long as any of the
Securities shall remain outstanding, the Company will maintain an office or
agency in the Borough of Manhattan, the City of New York, State of New York,
where the Securities may be surrendered for exchange or registration of
transfer as in this Indenture provided, and where notices and demands to or
upon the Company in respect to the Securities may be served, and where the
Securities may be presented or surrendered for payment. The Company may
also from time to time designate one or more other offices or agencies where
Securities may be presented or surrendered for any and 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, State of New York for such purposes. The Company will give
to the Trustee prompt written notice of the location of any such office or
agency and of any change of location thereof. The Company initially appoints
the Trustee c/x Xxxxxx Trust Company of New York, 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 for each of said purposes. In case the Company shall fail to
maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, such surrenders,
presentations and demands may be made and notices may be served at the
principal office of the Trustee in the City of Wilmington, State of Delaware,
and the Company hereby appoints the Trustee its agent to receive at the
aforesaid office all such surrenders, presentations, notices and demands.
The Trustee will give the Company prompt notice of any change in location of
the Trustee's principal office.
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SECTION IV.13. Appointment to Fill a Vacancy in the Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.8, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION IV.14. Provision as to Paying Agent. (a) If the Company shall
appoint a paying agent other than the Trustee, it will cause such Paying
Agent to execute and deliver to the Trustee an instrument in which such agent
shall undertake, subject to the provisions of this Section 4.14,
(i) that it will hold all sums held by it as such agent for
the payment of the principal of, premium, if any, or interest on the
Securities whether such sums have been paid to it by the Company (or
by any other obligor on the Securities) in trust for the benefit of
the holders of the Securities and will notify the Trustee of the
receipt of sums to be so held,
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities) to make any
payment of the principal of, premium, if any, or interest on the
Securities when the same shall be due and payable,
(iii) that it will at any time during the continuance of any
Event of Default specified in Section 6.1(i) or 6.1(ii), upon the
written request of the Trustee, deliver to the Trustee all sums so
held in trust by it, and
(iv) acknowledge, accept and agree to comply in all aspects
with the provisions of this Indenture relating to the duties, rights
and liabilities of such Paying Agent, including, without limitation,
the provision of Article X hereof.
(b) If the Company shall not act as its own Paying Agent, it will, by
10:00 a.m. on the Business Day prior to each due date of the principal of or
premium, if any, or interest on any Securities, deposit with such Paying
Agent a sum in same day funds sufficient to pay the principal of, premium, if
any, or interest so becoming due, such sum to be held in trust for the
benefit of the holders of Securities entitled to such principal of or
premium, if any, or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its failure so to act.
(c) If the Company shall act as its own Paying Agent, it will, on or
before each due date of the principal of or premium, if any, or interest on
the Securities, set aside, segregate and hold in trust for the benefit of the
persons entitled thereto, a sum sufficient to pay such principal or premium
or interest so becoming due and will notify the Trustee of any failure to
take such action.
(d) Anything in this Section 4.14 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it, or any Paying Agent hereunder,
as required by this Section 4.14, such sums to be held by the Trustee upon
the trusts herein contained.
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(e) Anything in this Section 4.14 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.14 is subject
to the provisions of Sections 8.4 and 8.6.
SECTION IV.15. Maintenance of Corporate Existence. So long as any of
the Securities shall remain outstanding, the Company will at all times
(except as otherwise provided or permitted in this Section 4.15 or elsewhere
in this Indenture) do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and franchises and
the corporate existence and franchises of each Subsidiary; provided that
nothing herein shall require the Company to continue the corporate existence
or franchises of any Subsidiary if in the judgment of the Company it shall be
necessary, advisable or in the interest of the Company to discontinue the
same.
SECTION IV.16. Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that in the course of the performance by the
signer of his or her duties as an Officer of the Company he or she would
normally have knowledge of any Default or Event of Default and whether or not
the signer knows of any Default or Event of Default that occurred during such
period. If he or she does, the certificate shall describe the Default or
Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with
TIA Section 314(a)(4).
SECTION IV.17. Further Instruments and Acts. The Company will execute
and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of
this Indenture or as may be reasonably requested by the Trustee.
ARTICLE V
Successor Company
SECTION V.1. When Company May Merge or Transfer Assets. The Company
shall not consolidate with or merge with or into, or convey, transfer or
lease all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the
"Successor Company") is a corporation organized and existing under the
laws of the United States of America, any State thereof or the
District of Columbia and the Successor Company (if not the Company)
expressly assumes by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Subsidiary of the Successor Company as a result of such
transaction as having been Incurred by the Successor Company or such
Subsidiary at the time of such transaction),
46
no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Company would be able to Incur at least an additional $1.00
of Indebtedness pursuant to Section 4.3(a);
(iv) immediately after giving effect to such transaction, the
Successor Company will have Consolidated Net Worth in an amount which
is not less than the Consolidated Net Worth of the Company immediately
prior to such transaction; and
(v) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
The Successor Company shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this
Indenture, but the predecessor, the Company, in the case of a lease of all
or substantially all its assets shall not be released from the obligation
to pay the principal of and interest on the Securities.
Notwithstanding Section 5.1(ii), (iii) and (iv), (i) any
Subsidiary of the Company may consolidate with, merge into or transfer all
or part of its properties and assets to the Company or another wholly-owned
Subsidiary of the Company; and (ii) the Company may merge with an Affiliate
incorporated solely for the purpose of reincorporating the Company in
another jurisdiction to realize tax or other benefits.
ARTICLE VI
Defaults and Remedies
SECTION 6.1. Events of Default. An "Event of Default" occurs
if:
(i) the Company defaults in any payment of interest on any
Security when the same becomes due and payable, whether or not such
payment shall be prohibited by Article X, and such default continues
for a period of 30 days;
(ii) the Company defaults in the payment of the principal of
any Security when the same becomes due and payable at its Stated
Maturity, upon optional redemption, upon required repurchase, upon
declaration or otherwise, whether or not such payment shall be
prohibited by Article X;
(iii) the Company fails to comply with Section 5.1;
(iv) the Company fails to comply with Section 4.2, 4.3, 4.4,
4.5, 4.6, 4.7, 4.8, 4.9, 4.10 or 4.11 (in each case other than a
failure to repurchase Securities when required pursuant to Section 4.6
or 4.8 which failure shall constitute an Event of Default under
Section 6.1(ii)) and such failure continues for 30 days after the
notice specified below;
47
(v) the Company fails to comply with any of its agreements
in the Securities or this Indenture (other than those referred to in
(i), (ii), (iii) or (iv) above) and such failure continues for 60 days
after the notice specified below;
(vi) Indebtedness of the Company or any Subsidiary is not
paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default and the total
amount of such unpaid or accelerated Indebtedness exceeds $10.0
million or its foreign currency equivalent at the time and such
default shall not have been cured or such acceleration rescinded
within a 10-day period;
(vii) the Company or a Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it
in an involuntary case;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(viii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or
any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order,
decree or relief remains unstayed and in effect for 60 days;
48
(ix) any judgment or decree for the payment of money in
excess of $10.0 million or its foreign currency equivalent at the time
(to the extent not covered by insurance) is entered against the
Company or any Significant Subsidiary which is final and
non-appealable and is not discharged and either (A) an enforcement
proceeding has been commenced by any creditor upon such judgment or
decree and is not promptly stayed or (B) there is a period of 60 days
following the entry of such judgment or decree during which such
judgment or decree is not discharged or the execution thereof stayed;
or
(x) the failure of any Security Guarantee to be in full
force and effect (except as contemplated by the terms thereof) or the
denial or disaffirmation by any Security Guarantor of its obligations
hereunder or any Security Guarantee if such default continues for 10
days.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or
any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
Notwithstanding the foregoing, a Default under Section 6.1(iv) or
Section 6.1(v) will not constitute an Event of Default until the Trustee or
the Holders of at least 25% in principal amount of the outstanding
Securities notify the Company of the Default and the Company does not cure
such Default within the time specified in said clause (iv) or (v) after
receipt of such notice. Such notice must specify the Default, demand that
it be remedied and state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee: (i) within 30 days
after the occurrence thereof, written notice in the form of an Officers'
Certificate of any Event of Default under clause (vi) and any event which
with the giving of notice or the lapse of time would become an Event of
Default under clause (iv), (v) or (ix), its status and what action the
Company is taking or proposes to take with respect thereto; and (ii) within
120 days after the end of each fiscal year, written notice in the form of
an Officer's Certificate indicating whether the Officers signing such
Officer's Certificate knew or were aware of any Default that occurred
during such previous fiscal year.
SECTION 6.2. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.1(vii) or (viii) with respect to
the Company) occurs and is continuing, the Trustee by notice to the
Company, or the Holders of at least 25% in outstanding principal amount of
the Securities by notice to the Company and the Trustee, may declare the
principal of and accrued and unpaid interest on all the Securities to be
due and payable. Upon such a declaration, such principal and interest
shall be due and payable immediately. If an Event of Default specified in
Section 6.1(vii) or (viii) with respect to the Company occurs and is
continuing, the principal of and accrued and unpaid interest on all the
Securities shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of
49
the Trustee or any Holders. The Holders of a majority in principal amount
of the Securities by notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely
because of acceleration. No such rescission shall affect any subsequent
Default or Event of Default or impair any right consequent thereto.
SECTION 6.3. Other Remedies. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities 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.
SECTION 6.4. Waiver of Past Defaults. The Holders of a majority
in outstanding principal amount of the Securities by notice to the Trustee
may waive an existing Default or Event of Default and its consequences
except (i) a Default or Event of Default in the payment of the principal of
or interest on a Security or (ii) a Default or Event of Default in respect
of a provision that under Section 9.2 cannot be amended without the consent
of each Holder affected. When a Default or Event of Default is waived, it
is deemed cured, but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any consequent right.
SECTION 6.5. Control by Majority. The Holders of a majority in
outstanding principal amount of the Securities may direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with
law or this Indenture or, subject to Section 7.1, that the Trustee
determines is unduly prejudicial to the rights of other Holders (it being
understood that, subject to Section 7.1, the Trustee shall have no duty to
ascertain whether or not such actions or forebearances are unduly
prejudicial to such Holders) or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action
deemed proper by the Trustee that is not inconsistent with such direction.
Prior to taking any action hereunder, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against all
losses and expenses caused by taking or not taking such action.
SECTION 6.6. Limitation on Suits. Except to enforce the right
to receive payment of principal, premium, (if any) or interests when due, a
Holder may not pursue any remedy with respect to this Indenture or the
Securities unless:
(i) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(ii) the Holders of at least 25% in outstanding principal
amount of the
50
Securities make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(v) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction that, in the opinion of
the Trustee are inconsistent with the request during such 60-day
period.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.7. 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 the Securities
held by such Holder, on or after the respective due dates expressed in the
Securities, 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 6.8. Collection Suit by Trustee. If an Event of Default
specified in Section 6.1(i) or (ii) occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts
provided for in Section 7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Holders
allowed in any judicial proceedings relative to the Company, its
Subsidiaries or their respective creditors or properties and, unless
prohibited by law or applicable regulations, may vote on behalf of the
Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the
Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due
it for the compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel, and any other amounts due the Trustee
under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or
property in the following order:
FIRST: Costs and expenses of collection, including all sums paid
or advanced by the Trustee hereunder and the compensation, expenses
and disbursements of the Trustee, its agents, and counsel and all
other amounts due to the Trustee under Section 7.7;
SECOND: to holders of Senior Indebtedness to the extent required
by Article X;
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THIRD: to Holders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Securities
for principal and interest, respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10. At least 15 days before
such record date, the Company shall mail to each Holder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a
court in its discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in
outstanding principal amount of the Securities.
ARTICLE VII
Trustee
SECTION 7.1. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default: (i)
the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and (ii)
in the absence of bad faith on its part, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful
misconduct, except that: (i) this paragraph does not limit the effect of
Section 7.1(b); (ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and (iii) the
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant
to Section 6.5.
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(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to Sections 7.1(a), 7.1(b) and 7.1(c).
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.1 and to the provisions of the
TIA.
SECTION 7.2. Rights of Trustee. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good faith
in reliance on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed in good faith.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers; provided, however, that the Trustee's conduct does
not constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture
and the Securities shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(f) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, Officer's Certificate, or other certificated statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing so to do by the Holders of not less
than a majority in aggregate principal amount of the Securities then
outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation
53
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such examination
shall be paid by the Company or, if advanced by the Trustee, shall be
repaid by the Company upon demand.
(g) The Trustee shall not be required to give any bond or surety
in respect of the performance of its power and duties hereunder.
(h) The Trustee shall not be bound to ascertain or inquire as to
the performance or observance of any covenants, conditions, or agreements
on the part of the Company, except as otherwise set forth herein, but the
Trustee may require of the Company full information and advice as to the
performance of the covenants, conditions and agreements contained herein
and shall be entitled in connection herewith to examine the books, records
and premises of the Company.
(i) The permissive rights of the Trustee to do things enumerated
in this Indenture shall not be construed as a duty and the Trustee shall
not be answerable for other than its negligence or willful default.
(j) Except for (i) a default under Sections 6.1(i) or (ii)
hereof, or (ii) any other event of which the Trustee has "actual knowledge"
and which event, with the giving of notice or the passage of time or both,
would constitute an Event of Default under this Indenture, the Trustee
shall not be deemed to have notice of any default or event unless
specifically notified in writing of such event by the Company or the
Holders of not less than 25% in aggregate principal amount of the
Securities Outstanding; as used herein, the term "actual knowledge" means
the actual fact or statement of knowing, without any duty to make any
investigation with regard thereto.
SECTION 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with
the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy
of this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities, it shall not be
responsible for the use or application of any money received by any Paying
Agent (other than itself as Paying Agent), and it shall not be responsible
for any statement of the Company in this Indenture or in any document
issued in connection with the sale of the Securities or in the Securities
other than the Trustee's certificate of authentication.
SECTION 7.5. Notice of Defaults. If a Default or Event of
Default occurs and is continuing and if a Trust Officer has actual
knowledge thereof, the Trustee shall mail to each Holder notice of the
Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, or
interest on, any Security (including payments pursuant to the optional
redemption or required repurchase provisions of
54
such Security, if any), the Trustee may withhold the notice if and so long
as its board of directors, the Executive Committee of its board of
directors or a committee of its Trust Officers in good faith determines
that withholding the notice is in the interests of Securityholders.
SECTION 7.6. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date
of this Indenture, and in any event prior to July 15 in each year, the
Trustee shall mail to each Holder a brief report dated as of such May 15
that complies with TIA Section 313(a). The Trustee also shall comply with
TIA Section 313(b). The Trustee shall also transmit by mail all reports
required by TIA Section 313(c).
A copy of each report at the time of its mailing to Holders shall
be filed by the Company with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of
any delisting thereof.
SECTION 7.7. Compensation and Indemnity. The Company shall pay
to the Trustee from time to time, and the Trustee shall be entitled to,
compensation for its services as set forth in a separate fee agreement
between the Trustee and the Company. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust.
The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred or made by it, including costs of
collection, costs of preparing and reviewing reports, certificates and
other documents, costs of preparation and mailing of notices to Holders and
reasonable costs of counsel retained by the Trustee in connection with the
delivery of an Opinion of Counsel or otherwise, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's
agents, counsel, accountants and experts. The Company shall indemnify and
hold harmless the Trustee against any and all loss, liability or expense
(including reasonable attorneys' fees) incurred by it in connection with
the administration of this trust and the performance of its duties
hereunder, including the costs and expenses of enforcing this Indenture
(including this Section 7.7) and of defending itself against any claims
(whether asserted by any Holder, the Company or otherwise). The Trustee
shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend
the claim and the Trustee may have separate counsel and the Company shall
pay the fees and expenses of such counsel. The Company need not reimburse
any expense or indemnify against any loss, liability or expense incurred by
the Trustee through the Trustee's own wilful misconduct or negligence.
To secure the Company's payment obligations in this Section 7.7,
the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee other than money or property held
in trust to pay principal of and interest on particular Securities. The
Trustee's right to receive payment of any amounts due under this Section
7.7 shall not be subordinate to any other liability or indebtedness of the
Company.
The Company's payment obligations pursuant to this Section 7.7
shall survive the discharge of this Indenture. When the Trustee incurs
expenses after the occurrence of a Default specified in Section 6.1(vii) or
(viii) with respect to the Company, the expenses are intended to constitute
expenses of administration under any Bankruptcy Law.
55
SECTION 7.8. Replacement of Trustee. The Trustee may resign at
any time by so notifying the Company. The Holders of a majority in
outstanding principal amount of the Securities may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee. The Company
shall remove the Trustee if: (i) the Trustee fails to comply with Section
7.10; (ii) the Trustee is adjudged bankrupt or insolvent; (iii) a receiver
or other public officer takes charge of the Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the
Holders of a majority in outstanding principal amount of the Securities and
such Holders do not reasonably promptly appoint a successor Trustee, or if
a vacancy exists in the office of Trustee for any reason (the Trustee in
such event being referred to herein as the retiring Trustee), the Company
shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to the Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.7.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in outstanding principal amount of the Securities 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 the replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall continue for
the benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation or banking association without any further act shall be the
successor Trustee.
If at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture, any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and if at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name
of the successor to the Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have.
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SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Trustee
shall have a combined capital and surplus of at least $400 million as set
forth in its most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b); provided, however, that there shall
be excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent
indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.1. Discharge of Liability on Securities; Defeasance.
(a) When (i) the Company delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.7) for
cancellation or (ii) all outstanding Securities have become due and
payable, whether at maturity or as a result of the mailing of a notice of
redemption pursuant to Article III hereof and the Company irrevocably
deposits with the Trustee funds sufficient to pay at maturity or upon
redemption all outstanding Securities (other than Securities replaced
pursuant to Section 2.7), including interest thereon to maturity or such
redemption date, and if in either case the Company pays all other sums
payable hereunder by the Company, then this Indenture shall, subject to
Section 8.1(c), cease to be of further effect. The Trustee shall
acknowledge satisfaction and discharge of this Indenture on demand of the
Company (accompanied by an Officers' Certificate and an Opinion of Counsel
stating that all conditions precedent specified herein relating to the
satisfaction and discharge of this Indenture have been complied with) and
at the cost and expense of the Company.
(b) Subject to Sections 8.1(c) and 8.2, the Company at any time
may terminate (i) all its obligations under the Securities and this
Indenture and all obligations of the Subsidiary Guarantors under the
Subsidiary Guarantee and this Indenture ("legal defeasance option") or (ii)
its obligations under Sections 4.2 through 4.15, 5.1(iii) and 5.1(iv) and
the operation of Sections 6.1(iv), 6.1(v), 6.1(vi), 6.1(vii) (but only with
respect to a Subsidiary), 6.1(viii) (but only with respect to a Subsidiary)
and 6.1(ix) ("covenant defeasance option"); provided, however, no deposit
under this Article VIII shall be effective to terminate the obligations of
the Company under the Securities or this Indenture prior to 123 days
following any such deposit. The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance
option.
If the Company exercises its legal defeasance option, payment of
the Securities may not be accelerated because of an Event of Default. If
the Company exercises its covenant defeasance option, payment of the
Securities may not be accelerated because of an Event of Default specified
in Sections 6.1(iv), 6.1(vi), 6.1(vii) (but only with respect to a
Subsidiary), 6.1(viii) (but only with respect to a Subsidiary), 6.1(ix) and
6.1(x) or because of the failure of the
57
Company to comply with Section 5.1(iii) and Section 5.1(iv).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the
discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.1(a) and (b),
the Company's obligations in Sections 2.3, 2.4, 2.5, 2.6, 2.7, 7.7, 7.8,
8.4, 8.5 and 8.6 shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.7, 8.4 and 8.5 shall
survive.
SECTION 8.2. Conditions to Defeasance. The Company may exercise
its legal defeasance option or its covenant defeasance option only if:
(i) the Company irrevocably deposits in trust with the
Trustee money or U.S. Government Obligations for the payment of
principal of and interest on the Securities to maturity or redemption,
as the case may be;
(ii) the Company delivers to the Trustee a certificate from
a nationally recognized firm of independent accountants expressing
their opinion that the payments of principal and interest when due and
without reinvestment of the deposited U.S. Government Obligations plus
any deposited money without reinvestment will provide cash at such
times and in such amounts as will be sufficient to pay principal and
interest when due on all the Securities to maturity or redemption, as
the case may be;
(iii) (A) no Event of Default (excluding a Default or Event
of Default arising from breach of Section 4.3 as a result of the
borrowing of funds to be applied to such deposit) shall have occurred
or be continuing on the date of such deposit and (B) 123 days pass
after the deposit is made and during the 123-day period no Default
specified in Section 6.1(vii) or 6.1(viii) with respect to the Company
occurs which is continuing at the end of such period;
(iv) the deposit does not constitute a default under any
other agreement binding on the Company and is not prohibited by
Article X;
(v) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the deposit does
not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (B) since the date hereof there
has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Holders will not recognize income, gain or
loss for Federal income tax purposes as a result of such 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;
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(vii) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders will not recognize income, gain or loss
for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred;
(viii) The Holders shall have a perfected security interest under
applicable law in the cash or U.S. Government Obligations deposited
pursuant to Section 8.2(i) above;
(ix) The Company shall have delivered to the Trustee an Opinion
of Counsel, in form and substance reasonably satisfactory to the
Trustee, to the effect that, after the passage of 123 days following
the deposit, the trust funds will not be subject to any applicable
bankruptcy, insolvency, reorganization or similar law affecting
creditors' rights generally;
(x) such defeasance shall not cause the Trustee to have a
conflicting interest with respect to any securities of the Company;
and
(xi) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the Securities
and this Indenture as contemplated by this Article VIII have been
complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future
date in accordance with Article III.
SECTION 8.3. Application of Trust Money. The Trustee shall hold
in trust money or U.S. Government Obligations deposited with it pursuant to
this Article VIII. It shall apply the deposited money and the money from
U.S. Government Obligations through the Paying Agent and in accordance with
this Indenture to the payment of principal of and interest on the
Securities. Money and securities so held in trust are not subject to
Article X.
SECTION 8.4. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money
or securities held by them upon payment of all the obligations under this
Indenture.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal of or interest on the Securities that
remains unclaimed for two years, and, thereafter, Holders entitled to the
money must look to the Company for payment as general creditors.
SECTION 8.5. Indemnity for U.S. Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
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SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
this Article VIII 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 obligations of
the Company and the Subsidiary Guarantors under this Indenture and the
Securities shall be revived and reinstated as though no deposit had
occurred pursuant to this Article VIII until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided, however, that,
if the Company has made any payment of interest on or principal of any
Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by
the Trustee or Paying Agent.
ARTICLE IX
Amendments
SECTION 9.1. Without Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to or
consent of any Holder:
(i) to cure any ambiguity, omission, defect or
inconsistency;
(ii) to comply with Article V;
(iii) to provide for uncertificated Securities in addition to
or in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(iv) to make any change in Article X that would limit or
terminate the benefits available to any holder of Senior Indebtedness
(or Representatives therefor) under Article X;
(v) to add Guarantees with respect to the Securities or to
secure the Securities;
(vi) to add to the covenants of the Company for the benefit
of the Holders or to surrender any right or power herein conferred
upon the Company;
(vii) to comply with any requirement of the SEC in connection
with qualifying this Indenture under the TIA;
(viii) to make any change that does not adversely affect the
rights of any Holder; or
(ix) to provide for the issuance of the Exchange Notes,
which will have terms substantially identical in all material respects
to the Initial Notes (except that the
60
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.
An amendment under this Section 9.1 may not make any change that
adversely affects the rights under Article X of any holder of Senior
Indebtedness or Guarantor Senior Indebtedness then outstanding unless the
holders of such Senior Indebtedness or Guarantor Senior Indebtedness (or
any group or representative thereof authorized to give a consent) consent
to such change.
After an amendment under this Section 9.1 becomes effective, the
Company shall mail to each Holder a notice briefly describing such
amendment. The failure to give such notice to all Holders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section 9.1.
SECTION 9.2. With Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to any
Holder but with the written consent of the Holders of at least a majority
in principal amount of the Securities. However, without the consent of
each Holder affected, an amendment may not:
(i) reduce the amount of Securities whose Holders must
consent to an amendment;
(ii) reduce the rate of or extend the time for payment of
interest on any Security;
(iii) reduce the principal of or extend the Stated Maturity
of any Security;
(iv) reduce the premium payable upon the redemption or
repurchase of any Security or change the time at which any Security
may or shall be redeemed or repurchased in accordance with this
Indenture;
(v) make any Security payable in money other than that
stated in the Security;
(vi) modify or affect in any manner adverse to the Holders
the terms and conditions of the obligation of the Company for the due
and punctual payment of the principal of or interest on Securities; or
(vii) make any change in Section 6.4 or 6.7 or the second
sentence of this Section 9.2.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
An amendment under this Section 9.2 may not make any change that
adversely
61
affects the rights under Article X of any holder of Senior Indebtedness
then outstanding unless the holders of such Senior Indebtedness (or any
group or representative thereof authorized to give a consent) consent to
such change.
After an amendment under this Section 9.2 becomes effective, the
Company shall mail to Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein,
shall not impair or affect the validity of an amendment under this Section
9.2.
SECTION 9.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as
then in effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind
the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same debt as the consenting Holder's Security,
even if notation of the consent or waiver is not made on the Security.
However, any such Holder or subsequent Holder may revoke the consent or
waiver as to such Holder's Security or portion of the Security if the
Trustee receives the notice of revocation before the date the amendment or
waiver becomes effective. After an amendment or waiver becomes effective,
it shall bind every Holder.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to give their consent
or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any
consent previously given or to take any such action, whether or not such
Persons continue to be Holders after such record date. No such consent
shall become valid or effective more than 120 days after such record date.
SECTION 9.5. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the
Holder of the Security to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Security regarding the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Security shall
not affect the validity of such amendment.
SECTION 9.6. Trustee To Sign Amendments. The Trustee shall sign
any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing
such amendment the Trustee shall be entitled to receive indemnity
reasonably satisfactory to it and to receive, and (subject to Section 7.1)
shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that such amendment is authorized or permitted
by this Indenture.
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ARTICLE X
Subordination
SECTION 10.1. Agreement To Subordinate. The Company and each
Subsidiary Guarantor agrees, and each Holder by accepting a Security and
the related Subsidiary Guarantee agrees, that the Indebtedness evidenced by
the Securities and the related Subsidiary Guarantee is subordinated in
right of payment, to the extent and in the manner provided in this Article
X, to the prior payment in full in cash or Cash Equivalents when due of (i)
all Senior Indebtedness in the case of the Securities and (ii) all
Guarantor Senior Indebtedness of such Subsidiary Guarantor in the case of
its obligations under the Subsidiary Guarantee and that the subordination
is for the benefit of and enforceable by the holders of Senior Indebtedness
and such Guarantor Senior Indebtedness. The Securities shall in all
respects rank pari passu with all other Senior Subordinated Indebtedness of
the Company, the related Subsidiary Guarantee of each Subsidiary Guarantor
shall in all respects rank pari passu with all Guarantor Senior
Subordinated Indebtedness of such Subsidiary Guarantor and only
Indebtedness of the Company which is Senior Indebtedness will rank senior
to the Securities and only Indebtedness of such Subsidiary Guarantor which
is Guarantor Senior Indebtedness of such Subsidiary Guarantor shall rank
senior to the obligations of such Subsidiary Guarantor under the Subsidiary
Guarantee in accordance with the provisions set forth herein. For purposes
of these subordination provisions, the Indebtedness evidenced by the
Securities is deemed to include the liquidated damages payable pursuant to
the provisions set forth in the Securities. All provisions of this Article
X shall be subject to Section 10.12.
SECTION 10.2. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company or any Subsidiary
Guarantor to creditors upon a total or partial liquidation or a total or
partial dissolution of the Company or such Subsidiary Guarantor or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or such Subsidiary Guarantor or their respective
properties:
(i) holders of Senior Indebtedness in the case of the
Company or holders of Guarantor Senior Indebtedness of such Subsidiary
Guarantor in the case of such Subsidiary Guarantor shall be entitled
to receive payment in full in cash or Cash Equivalents of all Senior
Indebtedness in the case of the Company or all such Guarantor Senior
Indebtedness in the case of such Subsidiary Guarantor before the
Holders shall be entitled to receive any payment of principal of or
interest on or other amounts with respect to the Securities from the
Company or such Subsidiary Guarantor, whether directly by the Company
or pursuant to the Subsidiary Guarantee; and
(ii) until the Senior Indebtedness in the case of the
Company or such Guarantor Senior Indebtedness in the case of such
Subsidiary Guarantor is paid in full in cash or Cash Equivalents, any
payment or distribution to which Securityholders would be entitled but
for this Article X shall be made to holders of Senior Indebtedness in
the case of payments or distributions made by the Company or the
holders of such Guarantor Senior Indebtedness in the case of payments
or distributions made by such Subsidiary Guarantor, in each case as
their respective interests may appear.
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SECTION 10.3. Default on Senior Indebtedness or Guarantor Senior
Indebtedness. Neither the Company nor any Subsidiary Guarantor may pay the
principal of, premium (if any) or interest on or other amounts with respect
to the Securities or make any deposit pursuant to Section 8.1 or
repurchase, redeem or otherwise retire any Securities, whether directly by
the Company or by such Subsidiary Guarantor under the Subsidiary Guarantee
(collectively, "pay the Securities") if (i) any Senior Indebtedness in the
case of the Company or any Guarantor Senior Indebtedness of such Subsidiary
Guarantor in the case of such Subsidiary Guarantor is not paid when due or
(ii) any other default on Senior Indebtedness in the case of the Company or
such Guarantor Senior Indebtedness in the case of such Subsidiary Guarantee
occurs and the maturity of such Senior Indebtedness in the case of the
Company or such Guarantor Senior Indebtedness in the case of such
Subsidiary Guarantor is accelerated in accordance with its terms unless, in
either case, (x) the default has been cured or waived and any such
acceleration has been rescinded in writing or (y) such Senior Indebtedness
in the case of the Company or such Guarantor Senior Indebtedness in the
case of such Subsidiary Guarantor has been paid in full in cash or Cash
Equivalents; provided, however, that the Company or such Subsidiary
Guarantor may pay the Securities, whether directly or pursuant to the
Subsidiary Guarantee, without regard to the foregoing if the Company or
such Subsidiary Guarantor and the Trustee receive written notice approving
such payment from the Representative of the Designated Senior Indebtedness
in the case of the Company or such Guarantor Senior Indebtedness in the
case of such Subsidiary Guarantor with respect to which either of the
events set forth in clause (i) or (ii) of the immediately preceding
sentence has occurred and is continuing. During the continuance of any
default (other than a default described in clause (i) or (ii) of the
preceding sentence) with respect to any Designated Senior Indebtedness
pursuant to which the maturity thereof may be accelerated immediately
without further notice (except such notice as may be required to effect
such acceleration) or the expiration of any applicable grace periods,
neither the Company (in the case of Designated Senior Indebtedness of the
Company) nor any Subsidiary Guarantor (in the case of Designated Senior
Indebtedness of such Subsidiary Guarantor) may pay the Securities, either
directly or pursuant to the Subsidiary Guarantee, for a period (a "Payment
Blockage Period") commencing upon the receipt by the Company and the
Trustee (with a copy to such Subsidiary Guarantor) of written notice (a
"Blockage Notice") of such default from the Representative of the holders
of such Designated Senior Indebtedness specifying an election to effect a
Payment Blockage Period and ending 179 days thereafter (or earlier if such
Payment Blockage Period is terminated (i) by written notice to the Trustee
and the Company or such Subsidiary Guarantor from the Person or Persons who
gave such Blockage Notice, (ii) because the default giving rise to such
Blockage Notice is no longer continuing or (iii) by repayment in full in
cash or Cash Equivalents of such Designated Senior Indebtedness).
Notwithstanding the provisions of the immediately preceding sentence (but
subject to the provisions contained in the first sentence of this Section
10.3), unless the holders of such Designated Senior Indebtedness or the
Representative of such holders shall have accelerated the maturity of such
Designated Senior Indebtedness, the Company or such Subsidiary Guarantor
may resume payments on the Securities, either directly or pursuant to the
Subsidiary Guarantee, after such Payment Blockage Period. Not more than
one Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to Designated Senior
Indebtedness during such period; provided, however, that if any Blockage
Notice within such 360-day period is given by or on behalf of any holders
of Designated Senior Indebtedness (other than the Bank Indebtedness), the
Representative of the Bank Indebtedness may give another Blockage Notice
within such period; provided further, however, that in no event may the
total number of days during which any Payment Blockage Period or Periods is
in effect exceed 179 days in the
64
aggregate during any 360 consecutive day period (unless the Designated
Senior Indebtedness in respect of which such default exists has been
declared due and payable in its entirety, in which case no payment may be
made on the Securities until such acceleration has been rescinded or
annulled.
SECTION 10.4. Acceleration of Payment of Securities. If payment
of the Securities is accelerated because of an Event of Default, the
Company, the Subsidiary Guarantors or the Trustee shall promptly notify the
holders of the Designated Senior Indebtedness and their Representatives of
the acceleration. If any Designated Senior Indebtedness is outstanding,
neither the Company (in the case of any Designated Senior Indebtedness of
the Company) nor any Subsidiary Guarantor (in the case of any Designated
Senior Indebtedness of such Subsidiary Guarantor) may pay the Securities,
either directly or pursuant to the Subsidiary Guarantee, until five
Business days after the Representative of such Designated Senior
Indebtedness receives notice of such acceleration and, thereafter, the
Company (in the case of any Designated Senior Indebtedness of the Company)
or such Subsidiary Guarantor (in the case of any Designated Senior
Indebtedness of such Subsidiary Guarantor) may pay the Securities, either
directly or pursuant to the Subsidiary Guarantee, only if this Article X
otherwise permits payments at that time.
SECTION 10.5. When Distribution Must Be Paid Over. If a
distribution is made to the Trustee or the Securityholders that because of
this Article X should not have been made to them or which the Trustee or
the Securityholders are otherwise not entitled to retain under the
provisions of this Article X, the Trustee or the Securityholders who
receive the distribution shall hold it in trust for holders of Senior
Indebtedness and Guarantor Senior Indebtedness and promptly pay it over to
them as their respective interests may appear.
SECTION 10.6. Subrogation. After all Senior Indebtedness and
Guarantor Senior Indebtedness is paid in full in cash or Cash Equivalents
and all commitments in respect of the Senior Indebtedness have expired or
terminated and until the Securities are paid in full, Securityholders shall
be subrogated (without any duty on the part of the holders of Senior
Indebtedness to warrant, create, effectuate, preserve or protect such
subrogation) to the rights of holders of Senior Indebtedness and Guarantor
Senior Indebtedness to receive distributions applicable to Senior
Indebtedness and Guarantor Senior Indebtedness. A distribution made under
this Article X to holders of Senior Indebtedness or Guarantor Senior
Indebtedness which otherwise would have been made to Securityholders is
not, as between the Company and Securityholders, a payment by the Company
of Senior Indebtedness or, as between a Subsidiary Guarantor and
Securityholders, a payment by such Subsidiary Guarantor of Guarantor Senior
Indebtedness.
SECTION 10.7. Relative Rights. This Article X defines the
relative rights of Securityholders and holders of Senior Indebtedness and
Guarantor Senior Indebtedness. Nothing in this Indenture shall:
(i) impair, as between the Company or the Subsidiary
Guarantors, as the case may be, and Securityholders, the obligation of
the Company or the Subsidiary Guarantors, as the case may be, which is
absolute and unconditional, to pay principal of and interest on the
Securities in accordance with their terms; or
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(ii) prevent the Trustee or any Securityholder from
exercising its available remedies upon a Default, subject to the
rights of holders of Senior Indebtedness and Guarantor Senior
Indebtedness to receive distributions otherwise payable to
Securityholders.
SECTION 10.8. Subordination May Not Be Impaired by Company or
the Subsidiary Guarantors. No right of any holder of Senior Indebtedness
or Guarantor Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Securities or the related Subsidiary
Guarantee shall be impaired by any act or failure to act by the Company or
any Subsidiary Guarantor or by failure of any of them to comply with this
Indenture or by any act or failure to act on the part of any such holder or
any other holder of Senior Indebtedness, regardless of any knowledge
thereof which any such holder or any other holder of Senior Indebtedness
may have or otherwise be charged with.
SECTION 10.9. Rights of Trustee and Paying Agent. The Company
shall give prompt written notice to the Trustee of any fact known to the
Company that would prohibit the making of any payment to or by the Trustee
in respect of the Securities, but failure to give such notice shall not
affect the subordination of the Securities to the Senior Indebtedness
provided in this Article X and shall not result in any default or event of
default under this Indenture or the Securities. Notwithstanding Section
10.3, the Trustee or Paying Agent may continue to pay the Securities and
shall not be charged with knowledge of the existence of facts that would
prohibit the making of any such payments unless, not less than two Business
Days prior to the date of any such payment, a Trust Officer of the Trustee
receives written notice satisfactory to it that payments may not be made
under this Article X. The Company, the Registrar or co-registrar, the
Paying Agent, a Representative or a holder of Senior Indebtedness or
Guarantor Senior Indebtedness may give the notice; provided, however, that,
if an issue of Senior Indebtedness or Guarantor Senior Indebtedness has a
Representative, only the Representative may give the notice. Nothing in
this Section 10.9 is intended to or shall relieve any Securityholder from
the obligations imposed under this Article X with respect to monies or
other distributions received in violation of the provisions hereof. The
Trustee shall be entitled to rely on the delivery to it of a written notice
by a Person representing himself or itself to be a holder of any Senior
Indebtedness (or a Representative of such holder) to establish that such
notice has been given by a holder of such Senior Indebtedness or
Representative thereof.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness or Guarantor Senior Indebtedness with the same rights
it would have if it were not Trustee. The Registrar and co-registrar and
the Paying Agent may do the same with like rights. The Trustee shall be
entitled to all the rights set forth in this Article X with respect to any
Senior Indebtedness or Guarantor Senior Indebtedness which may at any time
be held by it, to the same extent as any other holder of Senior
Indebtedness or Guarantor Senior Indebtedness; and nothing in Article VII
shall deprive the Trustee of any of its rights as such holder. Nothing in
this Article X shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 7.7.
SECTION 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness or Guarantor Senior Indebtedness, the distribution may
be made and the notice given to their Representative (if any).
SECTION 10.11. Article X Not To Prevent Events of Default or
Limit Right To
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Accelerate. The failure to make a payment in respect of the Securities,
whether directly or pursuant to the Subsidiary Guarantee, by reason of any
provision in this Article X shall not be construed as preventing the
occurrence of a Default or Event of Default. Nothing in this Article X
shall have any effect on the right of the Securityholders or the Trustee to
accelerate the maturity of the Securities, subject, however, to the rights
under this Article X of the holders of Senior Indebtedness to receive
payments or other distributions otherwise payable to or received by the
Securityholders or the Trustee upon the exercise of any remedy in
connection with such acceleration.
SECTION 10.12. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the
proceeds of U.S. Government Obligations held in trust under Article VIII by
the Trustee for the payment of principal of and interest on the Securities
shall not be subordinated to the prior payment of any Senior Indebtedness
or Guarantor Senior Indebtedness or subject to the restrictions set forth
in this Article X, and none of the Securityholders shall be obligated to
pay over any such amount to the Company, any Subsidiary Guarantor, any
holder of Senior Indebtedness of the Company, any holder of Guarantor
Senior Indebtedness or any other creditor of the Company or any Subsidiary
Guarantor.
SECTION 10.13. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article X, the Trustee and the
Securityholders shall be entitled to rely (i) upon any order or decree of a
court of competent jurisdiction in which any proceedings of the nature
referred to in Section 10.2 are pending, (ii) upon a certificate of the
liquidating trustee or agent or other Person making such payment or
distribution to the Trustee or to the Securityholders or (iii) upon the
Representatives for the holders of Senior Indebtedness or Guarantor Senior
Indebtedness for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior
Indebtedness, Guarantor Senior Indebtedness and other Indebtedness of the
Company or the Subsidiary Guarantors, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article X. In the event that the
Trustee determines, in good faith, that evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness or Guarantor
Senior Indebtedness to participate in any payment or distribution pursuant
to this Article X, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness or Guarantor Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under
this Article X, and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment. The provisions of Sections
7.1 and 7.2 shall be applicable to all actions or omissions of actions by
the Trustee pursuant to this Article X.
SECTION 10.14. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee
on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Securityholders and
the holders of Senior Indebtedness and Guarantor Senior Indebtedness as
provided in this Article X and appoints the Trustee as attorney-in-fact for
any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness or
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Guarantor Senior Indebtedness. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness or Guarantor Senior
Indebtedness and shall not be liable to any such holders if it shall
mistakenly pay over or distribute to Securityholders or the Company, the
Subsidiary Guarantors or any other Person, money or assets to which any
holders of Senior Indebtedness or Guarantor Senior Indebtedness shall be
entitled by virtue of this Article X or otherwise.
SECTION 10.16. Changes in Senior Indebtedness. Any holder of
Senior Indebtedness may at any time and from time to time without the
consent of or notice to any Securityholder or the Trustee: (i) extend,
renew, modify, waive or amend the terms of the Senior Indebtedness; (ii)
sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Indebtedness; (iii) release any
guarantor or any other person (except the Company) liable in any manner for
the Senior Indebtedness or amend or waive the terms of any guaranty of the
Senior Indebtedness; (iv) exercise or refrain from exercising any rights
against the Company or any other person; (v) apply any sums by whomever
paid or however realized to Senior Indebtedness; and (vi) take any other
action which otherwise might be deemed to impair the rights of the holders
of the Senior Indebtedness. Any and all of such actions may be taken by
the holders of Senior Indebtedness without incurring responsibility to any
Securityholder or the Agent and, subject to the provisions of the
definition of Senior Indebtedness, without impairing or releasing the
obligations of any Securityholder or the Trustee under this Article X.
SECTION 10.17. Reliance by Holders of Senior Indebtedness and
Guarantor Senior Indebtedness on Subordination Provisions. Each
Securityholder by accepting a Security acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Indebtedness or
Guarantor Senior Indebtedness, whether such Senior Indebtedness or
Guarantor Senior Indebtedness was created or acquired before or after the
issuance of the Securities, to acquire and continue to hold, or to continue
to hold, such Senior Indebtedness or Guarantor Senior Indebtedness and such
holder of Senior Indebtedness or Guarantor Senior Indebtedness shall be
deemed conclusively to have relied on such subordination provisions in
acquiring and continuing to hold, or in continuing to hold, such Senior
Indebtedness or Guarantor Senior Indebtedness.
SECTION 10.18. Legend. The Notes shall be conspicuously
legended indicating that their payment is subordinated to Senior
Indebtedness in accordance with this Article X.
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ARTICLE XI
Subsidiary Guarantee
SECTION 11.1. Subsidiary Guarantee. Subject to the
subordination provisions contained in Article X, each Subsidiary Guarantor
which becomes a party hereto by executing and delivering a supplement to
this Indenture pursuant to Section 4.10 hereby, jointly and severally,
unconditionally and irrevocably, Guarantees to each Holder and to the
Trustee and its successors and assigns (i) the full and punctual payment of
principal of, premium (if any) and interest on the Securities when due,
whether at maturity, by acceleration, by redemption or otherwise, and all
other monetary obligations owing of the Company under this Indenture
(including obligations owing to the Trustee) and the Securities and (ii)
the full and punctual performance within applicable grace periods of all
other obligations of the Company under this Indenture and the Securities
(all the foregoing being hereinafter collectively called the
"Obligations"). The Subsidiary Guarantors further agree that the
Obligations may be extended or renewed, in whole or in part, without notice
or further assent from the Subsidiary Guarantors, and that the Subsidiary
Guarantors will remain bound under this Article XI notwithstanding any
extension or renewal of any Obligation.
The Subsidiary Guarantors waive presentation to, demand of,
payment from and protest to the Company of any of the Obligations and also
waive notice of protest for nonpayment. The Subsidiary Guarantors waive
notice of any default under the Securities or the Obligations. The
obligations of the Subsidiary Guarantors hereunder shall not be affected by
(i) the failure of any Holder or the Trustee to assert any claim or demand
or to enforce any right or remedy against the Company or any other Person
under this Indenture, the Securities or any other agreement or otherwise;
(ii) any extension or renewal of any Obligation; (iii) any rescission,
waiver, amendment, modification or supplement of any of the terms or
provisions of this Indenture (other than this Article XI), the Securities
or any other agreement; (iv) the release of any security held by any Holder
or the Trustee for the Obligations or any of them; (v) the failure of any
Holder or the Trustee to exercise any right or remedy against any other
guarantor of the Obligations; or (vi) any change in the ownership of the
Company.
The Subsidiary Guarantors further agree that their Guarantees
herein constitute a guarantee of payment, performance and compliance when
due (and not a guarantee of collection) and waive any right to require that
any resort be had by any Holder or the Trustee to any security held for
payment of the Obligations.
The Guarantee of each Subsidiary Guarantor is, to the extent and
in the manner set forth in Article X, subordinated and subject in right of
payment to the prior payment in full of the principal of and premium, if
any, and interest on all Guarantor Senior Indebtedness of such Subsidiary
Guarantor and this Guarantee is made subject to such provisions of this
Indenture.
The obligations of the Subsidiary Guarantors hereunder shall not
be subject to any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense, setoff, counterclaim,
recoupment or termination whatsoever or by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise. Without
limiting the generality of the
69
foregoing, the obligations of the Subsidiary Guarantors herein shall not be
discharged or impaired or otherwise affected by the failure of any Holder
or the Trustee to assert any claim or demand or to enforce any remedy under
this Indenture, the Securities or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Obligations, or by any other act or
thing or omission or delay to do any other act or thing which may or might
in any manner or to any extent vary the risk of the Subsidiary Guarantors
or would otherwise operate as a discharge of the Subsidiary Guarantors as a
matter of law or equity.
The Subsidiary Guarantors further agree that their Guarantees
herein shall continue to be effective or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any Obligation is rescinded
or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against
the Subsidiary Guarantors by virtue hereof, upon the failure of the Company
to pay any Obligation when and as the same shall become due, whether at
maturity, by acceleration, by redemption or otherwise, or to perform or
comply with any other Obligation, the Subsidiary Guarantors hereby promise
to and will, upon receipt of written demand by the Trustee, forthwith pay,
or cause to be paid, in cash, to the Holders or the Trustee an amount equal
to the sum of (i) the unpaid principal amount of such Obligations, (ii)
accrued and unpaid interest on such Obligations (but only to the extent not
prohibited by law) and (iii) all other monetary Obligations of the Company
to the Holders and the Trustee.
The Subsidiary Guarantors agree that, as between the Subsidiary
Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the Obligations guaranteed hereby may be
accelerated as provided in Article VI for the purposes of the Guarantee
herein, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Obligations guaranteed
hereby, and (y) in the event of any declaration of acceleration of such
Obligations as provided in Article VI, such Obligations (whether or not due
and payable) shall forthwith become due and payable by the Subsidiary
Guarantors for the purposes of this Section 11.1.
The Subsidiary Guarantors also agree to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or
any Holder in enforcing any rights under this Section 11.1.
SECTION 11.2. Limitation on Liability. Any term or provision of
this Indenture to the contrary notwithstanding, the maximum, aggregate
liability of each Subsidiary Guarantor hereunder shall not exceed the
maximum amount that can be guaranteed by such Subsidiary Guarantor under
applicable federal and state laws relating to insolvency of debtors.
SECTION 11.3. Successors and Assigns. (a) This Article XI shall
be binding upon the Subsidiary Guarantors and their successors and assigns
and shall enure to the benefit of the successors and assigns of the Trustee
and the Holders and, in the event of any transfer or assignment of rights
by any Holder or the Trustee, the rights and privileges conferred upon that
party in this Indenture and in the Securities shall automatically extend to
and be vested in such transferee or assignee, all subject to the terms and
conditions of this Indenture.
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(b) Notwithstanding the foregoing, all obligations of a
Subsidiary Guarantor under this Article XI shall be automatically and
unconditionally released and discharged, without any further action
required on the part of the Trustee or any Holder, upon (i) the
unconditional release of such Subsidiary from its liability in respect of
the Indebtedness in connection with which it became a Subsidiary Guarantor
hereunder pursuant to Section 4.10; or (ii) any sale or other disposition
(by merger or otherwise) to any Person which is not a Subsidiary of the
Company, of all of the Capital Stock in, or all or substantially all of the
assets of, such Subsidiary Guarantor; provided that (i) such sale or
disposition of such Capital Stock or assets is otherwise in compliance with
this Indenture and (ii) such Subsidiary Guarantor has been unconditionally
released from its liability in respect of the Indebtedness in connection
with which it became a Subsidiary Guarantor hereunder pursuant to Section
4.10.
SECTION 11.4. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article XI shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further
exercise of any right, power or privilege. The rights, remedies and
benefits of the Trustee and the Holders herein expressly specified are
cumulative and not exclusive of any other rights, remedies or benefits
which either may have under this Article XI at law, in equity, by statute
or otherwise.
SECTION 11.5. Right of Contribution. Each Subsidiary Guarantor
hereby agrees that to the extent that a Subsidiary Guarantor shall have
paid more than its proportionate share of any payment made hereunder, such
Subsidiary Guarantor shall be entitled to seek and receive contribution
from and against any other Subsidiary Guarantor hereunder who has not paid
its proportionate share of such payment. Each Subsidiary Guarantor's right
of contribution shall be subject to the terms and conditions of Section
11.6. The provisions of this Section 11.5 shall in no respect limit the
obligations and liabilities of any Subsidiary Guarantor to the Trustee and
the Holders and each Subsidiary Guarantor shall remain liable to the
Trustee and the Holders for the full amount guaranteed by such Subsidiary
Guarantor hereunder.
SECTION 11.6. No Subrogation. Notwithstanding any payment or
payments made by any of the Subsidiary Guarantors hereunder, no Subsidiary
Guarantor shall be entitled to be subrogated to any of the rights of the
Trustee or any Holder against the Company or any other Subsidiary Guarantor
or any collateral security or guarantee or right of offset held by the
Trustee or any Holder for the payment of the Obligations, nor shall any
Subsidiary Guarantor seek or be entitled to seek any contribution or
reimbursement from the Company or any other Subsidiary Guarantor in respect
of payments made by such Subsidiary Guarantor hereunder, until all amounts
owing to the Trustee and the Holders by the Company on account of the
Obligations are paid in full. If any amount shall be paid to any
Subsidiary Guarantor on account of such subrogation rights at any time when
all of the Obligations shall not have been paid in full, such amount shall
be held by such Subsidiary Guarantor in trust for the Trustee and the
Holders, segregated from other funds of such Subsidiary Guarantor, and
shall, forthwith upon receipt by such Subsidiary Guarantor, be turned over
to the Trustee in the exact form received by such Subsidiary Guarantor
(duly indorsed by such Subsidiary Guarantor to the Trustee, if required),
to be applied against the Obligations.
SECTION 11.7. Modification. No modification, amendment or
waiver of any
71
provision of this Article XI, nor the consent to any departure by the
Subsidiary Guarantors therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Trustee, and then such waiver or
consent shall be effective only in the specific instance and for the
purpose for which given. No notice to or demand on the Subsidiary
Guarantors in any case shall entitle the Subsidiary Guarantors to any other
or further notice or demand in the same, similar or other circumstances.
ARTICLE XII
Miscellaneous
SECTION 12.1. Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies or conflicts with another provision which
is required to be included in this Indenture by the TIA, the provision
required by the TIA shall control.
SECTION 12.2. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Aurora Foods Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: M. Xxxxxx Xxxxxxxx
if to the Subsidiary Guarantors:
c/o Aurora Foods Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: M. Xxxxxx Xxxxxxxx
if to the Trustee:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration.
The Company, any of the Subsidiary Guarantors, or the Trustee by
notice to the others may designate additional or different addresses for
subsequent notices or communications.
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Any notice or communication mailed to a Holder shall be mailed to
the Holder at the Holder's address as it appears on the registration books
of the Registrar and shall be sufficiently given if so mailed within the
time prescribed.
Failure to mail a notice or communication to a 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 12.3. Communication by Holders with other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 12.4. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee
to take or refrain from taking any action under this Indenture, the Company
shall, if requested, furnish to the Trustee: (i) an Officers' Certificate
in form and substance reasonably satisfactory to the Trustee stating that,
in the opinion of the signer, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied
with; and (ii) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 12.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include: (i) a statement
that the individual making such certificate or opinion has read such
covenant or condition; (ii) 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; (iii) a statement that,
in the opinion of such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of such individual,
such covenant or condition has been complied with.
SECTION 12.6. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the
Company or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company shall be
disregarded and deemed not to be outstanding, except that, for the purpose
of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows
are so owned shall be so disregarded. Also, subject to the foregoing, only
Securities outstanding at the time shall be considered in any such
determination.
SECTION 12.7. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Holders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
SECTION 12.8. Legal Holidays. A "Legal Holiday" is a Saturday,
a Sunday or a day on which banking institutions are not required to be open
in the State of New York or in
73
the State of Delaware. If a payment date is a Legal Holiday, payment shall
be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a regular record date
is a Legal Holiday, the record date shall not be affected.
SECTION 12.9. Governing Law. This Indenture and the Securities
shall be governed by, and construed in accordance with, the laws of the
State of New York but without giving effect to applicable principles of
conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
SECTION 12.10. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder shall
waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Securities.
SECTION 12.11. Successors. All agreements of the Company and
the Subsidiary Guarantors in this Indenture and the Securities shall bind
their respective successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 12.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement. One signed copy is
enough to prove this Indenture.
SECTION 12.13. Variable Provisions. The Company initially
appoints the Trustee as Paying Agent and Registrar and custodian with
respect to any Global Securities.
SECTION 12.14. Qualification of Indenture. The Company shall
qualify this Indenture under the TIA in accordance with the terms and
conditions of the Registration Rights Agreement and shall pay all
reasonable costs and expenses (including attorneys' fees for the Company,
the Trustee and the Holders) incurred in connection therewith, including,
but not limited to, costs and expenses of qualification of the Indenture
and the Securities and printing this Indenture and the Securities. The
Trustee shall be entitled to receive from the Company any such Officers'
Certificates, Opinions of Counsel or other documentation as it may
reasonably request in connection with any such qualification of this
Indenture under the TIA.
SECTION 12.15. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections
of this Indenture have been inserted for convenience of reference only, are
not intended to be considered a part hereof and shall not modify or
restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
AURORA FOODS INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice Chairman
WILMINGTON TRUST COMPANY, as Trustee
By: /a/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
