Exhibit 4.1
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EAGLE FOOD CENTERS, INC.
TO
U.S. BANK TRUST NATIONAL ASSOCIATION,
Trustee
Indenture
Dated as of August 7, 2000
$85,000,000
11% Senior Notes due April 15, 2005
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EAGLE FOOD CENTERS, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of August 7, 2000
Trust Indenture Indenture
Act Section Section
SECTION 310(a)(1)..........................................................609
.....................................................................(a)(2)609
.....................................................................(a)(3)Not Applicable
.....................................................................(a)(4)Not Applicable
........................................................................(b)608
610
SECTION 311(a).............................................................613
........................................................................(b)613
.....................................................................(b)(2)
SECTION 312(a).............................................................701
702(a)
........................................................................(b)702(b)
........................................................................(c)702(c)
SECTION 313(a).............................................................703(a)
........................................................................(b)
........................................................................(c)703(a)
703(b)
........................................................................(d)703
SECTION 314(a).............................................................704
........................................................................(b)Not Applicable
.....................................................................(c)(1)102
.....................................................................(c)(2)102
.....................................................................(c)(3)Not Applicable
........................................................................(d)Not Applicable
........................................................................(e)102
SECTION 315(a).............................................................601
........................................................................(b)602
703(a)
........................................................................(c)601
........................................................................(d)601
.....................................................................(d)(1)601
.....................................................................(d)(2)601
.....................................................................(d)(3)601
........................................................................(e)514
SECTION 316(a).............................................................502
..................................................................(a)(1)(A)502
512
..................................................................(a)(1)(B)513
.....................................................................(a)(2)Not Applicable
........................................................................(b)508
SECTION 317(a)(1)..........................................................503
.....................................................................(a)(2)504
........................................................................(b)1003
SECTION 318(a).............................................................107
----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 101..................................................Definitions 1
SECTION 102.........................Compliance Certificates and Opinions 18
SECTION 103......................Form of Documents Delivered to Trustee 19
SECTION 104................................Acts of Holders; Record Date 19
SECTION 105.......................Notices, etc., to Trustee and Company 20
SECTION 106...................................Notice to Holders; Waiver 21
SECTION 107...........................Conflict with Trust Indenture Act 21
SECTION 108...................Effect of Headings and Table of Contents 22
SECTION 109......................................Successors and Assigns 22
SECTION 110.........................................Separability Clause 22
SECTION 111.......................................Benefits of Indenture 22
SECTION 112...............................................Governing Law 22
SECTION 113..............................................Legal Holidays 22
SECTION 114..................................No Recourse Against Others 23
ARTICLE II
Security Forms
SECTION 201.............................................Forms Generally 23
SECTION 202....................................Form of Face of Security 23
SECTION 203.................................Form of Reverse of Security 25
SECTION 204.............Form of Trustee's Certificate of Authentication 28
ARTICLE III
The Securities
SECTION 301.............................................Title and Terms 28
SECTION 302...............................................Denominations 29
SECTION 303..............Execution, Authentication, Delivery and Dating 29
SECTION 304........................................Temporary Securities 30
SECTION 305.........Registration, Registration of Transfer and Exchange 30
i
SECTION 306............Mutilated, Destroyed, Lost and Stolen Securities 31
SECTION 307..............Payment of Interest; Interest Rights Preserved 32
SECTION 308.......................................Persons Deemed Owners 34
SECTION 309................................................Cancellation 34
SECTION 310.....................................Computation of Interest 34
ARTICLE IV
Satisfaction and Discharge
SECTION 401.....................Satisfaction and Discharge of Indenture 34
SECTION 402..................................Application of Trust Money 36
ARTICLE V
Remedies
SECTION 501...........................................Events of Default 36
SECTION 502..........Acceleration of Maturity; Rescission and Annulment 38
SECTION 503.....Collection of Indebtedness and Suits for Enforcement by
................................................................Trustee 40
SECTION 504............................Trustee May File Proofs of Claim 40
SECTION 505.Trustee May Enforce Claims Without Possession of Securities 41
SECTION 506..............................Application of Money Collected 41
SECTION 507.........................................Limitation on Suits 42
SECTION 508........Unconditional Right of Holders to Receive Principal,
...................................................Premium and Interest 42
SECTION 509..........................Restoration of Rights and Remedies 43
SECTION 510..............................Rights and Remedies Cumulative 43
SECTION 511................................Delay or Omission Not Waiver 43
SECTION 512..........................................Control by Holders 43
SECTION 513.....................................Waiver of Past Defaults 44
SECTION 514.......................................Undertaking for Costs 44
SECTION 515............................Waiver of Stay or Execution Laws 44
ARTICLE VI
The Trustee
SECTION 601.........................Certain Duties and Responsibilities 45
SECTION 602..........................................Notice of Defaults 45
ii
SECTION 603...................................Certain Rights of Trustee 45
SECTION 604......Not Responsible for Recitals or Issuance of Securities 46
SECTION 605.........................................May Hold Securities 47
SECTION 606.........................................Money Held in Trust 47
SECTION 607..............................Compensation and Reimbursement 47
SECTION 608.....................Disqualification; Conflicting Interests 48
SECTION 609.....................Corporate Trustee Required; Eligibility 48
SECTION 610...........Resignation and Removal; Appointment of Successor 48
SECTION 611......................Acceptance of Appointment by Successor 49
SECTION 612.Merger, Conversion, Consolidation or Succession to Business 50
SECTION 613...........Preferential Collection of Claims Against Company 50
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 701...Company to Furnish Trustee Names and Addresses of Holders 51
SECTION 702......Preservation of Information; Communications to Holders 51
SECTION 703..........................................Reports by Trustee 51
SECTION 704..........................................Reports by Company 52
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801......Company May Consolidate, Etc., and Sales and Purchases
........................................of Assets Only on Certain Terms 52
SECTION 802.......................................Successor Substituted 55
ARTICLE IX
Supplemental Indentures
SECTION 901..........Supplemental Indentures Without Consent of Holders 55
SECTION 902.............Supplemental Indentures with Consent of Holders 56
SECTION 903........................Execution of Supplemental Indentures 57
SECTION 904...........................Effect of Supplemental Indentures 57
SECTION 905.........................Conformity with Trust Indenture Act 57
SECTION 906..........Reference in Securities to Supplemental Indentures 57
iii
ARTICLE X
Covenants
SECTION 1001..................Payment of Principal, Premium and Interest 58
SECTION 1002.............................Maintenance of Office or Agency 58
SECTION 1003.............Money for Security Payments to be Held in Trust 58
SECTION 1004...................................................Existence 60
SECTION 1005...................................Maintenance of Properties 60
SECTION 1006...........................Payment of Taxes and Other Claims 60
SECTION 1007....................................Maintenance of Insurance 60
SECTION 1008..................................Limitation on Company Debt 61
SECTION 1009...........Limitation on Subsidiary Debt and Preferred Stock 62
SECTION 1010...........................Limitation on Restricted Payments 62
SECTION 1011...Limitations Concerning Distributions by Subsidiaries, etc 64
SECTION 1012.........................................Limitation on Liens 65
SECTION 1013...............Limitation on Sale and Leaseback Transactions 68
SECTION 1014..................Limitation on Transactions with Affiliates 68
SECTION 1015....................Limitation on Certain Asset Dispositions 69
SECTION 1016....Limitation on Issuances of Capital Stock of Subsidiaries 71
SECTION 1017...........................................Change of Control 71
SECTION 1018..........................Provision of Financial Information 73
SECTION 1019.........................Statement by Officers as to Default 73
SECTION 1020......................................................Rating 73
SECTION 1021.................................Waiver of Certain Covenants 73
ARTICLE XI
Redemption of Securities
SECTION 1101.........................................Right of Redemption 74
SECTION 1102....................................Applicability of Article 74
SECTION 1103.......................Election to Redeem; Notice to Trustee 74
SECTION 1104...........Selection by Trustee of Securities to Be Redeemed 74
SECTION 1105........................................Notice of Redemption 75
SECTION 1106.................................Deposit of Redemption Price 75
SECTION 1107.......................Securities Payable on Redemption Date 76
SECTION 1108.................................Securities Redeemed in Part 76
iv
ARTICLE XII
Defeasance
SECTION 1201...........Company's Option to Effect Defeasance or Covenant
..............................................................Defeasance 77
SECTION 1202....................................Defeasance and Discharge 77
SECTION 1203.............Conditions to Defeasance or Covenant Defeasance 77
SECTION 1204.......Deposited Money and U.S. Government Obligations to be
...........................Held in Trust; Other Miscellaneous Provisions 79
SECTION 1205...............................................Reinstatement 79
v
INDENTURE, dated as of August 7, 2000, between Eagle Food Centers, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at Xxxxx 00 xxx
Xxxxxxxxx Xxxx, Xxxxx, Xxxxxxxx 00000, and U.S. Bank Trust National Association,
a national banking association duly organized and existing under the laws of the
United States of America having its principal office at 000 Xxxx Xxxxx Xxxxxx,
Xx. Xxxx, Xxxxxxxxx 00000, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 11% Senior
Notes due April 15, 2005 of substantially the tenor and amount hereinafter set
forth (the "Securities"), and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
1
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles (whether or not such is indicated herein), and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted as consistently applied by the Company at the date
of this instrument;
(4) unless otherwise specifically set forth herein, all calculations or
determinations of a Person shall be performed or made on a consolidated
basis in accordance with generally accepted accounting principles; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any Person means any other Person (i) which directly or
indirectly through one or more intermediaries controls, is controlled by, or is
under common control with, such Person, (ii) which directly or indirectly
through one or more intermediaries beneficially owns or holds 10% or more of the
combined voting power of the total Voting Stock of such Person or (iii) of which
10% or more of the combined voting power of the total Voting Stock (or, in the
case of a Person which is not a corporation, 10% or more of the equity interest)
directly or indirectly through one or more intermediaries is beneficially owned
or held by such Person, or a Subsidiary or Joint Venture Subsidiary of such
Person.
"Asset Disposition" by any Person means any transfer, conveyance, sale,
lease or other disposition by such Person or any of its Subsidiaries (including
a consolidation or merger or other sale of any such Subsidiary with, into or to
another Person in a transaction in which such Subsidiary ceases to be a
Subsidiary, but excluding a disposition by a Subsidiary of such Person to such
Person or a Wholly Owned Subsidiary of such Person or by such Person to a Wholly
Owned Subsidiary of such Person) of (i) shares of Capital Stock (other than
directors' qualifying shares)
2
or other ownership interests of a Subsidiary or Joint Venture Subsidiary of such
Person, (ii) substantially all of the assets of such Person or any of its
Subsidiaries representing a division or line of business or (iii) other assets
or rights of such Person or any of its Subsidiaries outside of the ordinary
course of business.
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capital Lease Obligation, and at any
date as of which the amount thereof is to be determined, the total net amount of
rent required to be paid by such Person under such lease during the initial term
thereof as determined in accordance with generally accepted accounting
principles, discounted from the last date of such initial term to the date of
determination at a rate per annum equal to the discount rate which would be
applicable to a Capital Lease Obligation with like term in accordance with
generally accepted accounting principles. The net amount of rent required to be
paid under any such lease for any such period shall be the aggregate amount of
rent payable by the lessee with respect to such period after excluding amounts
required to be paid on account of insurance, taxes, assessments, utility,
operating and labor costs and similar charges. In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net amount shall
also include the amount of such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated. "Attributable Value" means, as to a Capital Lease
Obligation under which any Person is at the time liable and at any date as of
which the amount thereof is to be determined, the capitalized amount thereof
that would appear on the face of a balance sheet of such Person in accordance
with generally accepted accounting principles.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors or such independent members of the Board of Directors as may be
specified in this Indenture and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York, New York, are
authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay rent
or other payment amounts under a lease of (or other Debt arrangements conveying
the right to use) real or personal property of Such Person which is required to
be classified and accounted for as a capital lease or a liability on the face
3
of a balance sheet of such Person in accordance with generally accepted
accounting principles. The stated maturity of such obligation shall be the date
of the last payment of rent or any otheramount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without payment
of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Change of Control" has the meaning specified in Section 1017.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that does
not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture and thereafter "Company" shall mean such
successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President, a
Vice President or Treasurer, and delivered to the Trustee.
"Consolidated Cash Flow Available for Fixed Charges" of any Person means
for any period the Consolidated Net Income for such period increased by the sum
of (i) Consolidated Interest Expense of such Person for such period, plus (ii)
Xxxxxxx dated Income Tax Expense of such Person for such period, plus (iii) the
consolidated depreciation and amortization expense included in the income
statement of such Person for such period, plus (iv) other non-cash charges of
such Person for such period deducted from consolidated revenues in determining
Consolidated Net Income for such period, minus (v) non-cash items of such Person
for such period increasing consolidated revenues in determining Consolidated Net
Income for such period.
4
"Consolidated Cash Flow Ratio" of any Person means for any period the ratio
of (i) Consolidated Cash Flow Available For Fixed Charges of such Person for
such period to (ii) the sum of (A) Consolidated Interest Expense of such Person
for such period plus (B) the annual interest expense (including the amortization
of debt discount) with respect to any Debt proposed to be Incurred by such
Person or its Subsidiaries plus (C) the annual interest expense (including the
amortization of debt discount) with respect to any other Debt Incurred by such
Person or its Subsidiaries since the end of such period to the extent not
included in Clause (ii) (A) minus (D) Consolidated Interest Expense of such
Person to the extent included in Clause (ii) (A) with respect to any Debt that
will no longer be outstanding as a result of the Incurrence of the Debt proposed
to be Incurred; PROVIDED, HOWEVER, that in making such computation, the
Consolidated Interest Expense of such Person attributable to interest on any
Debt bearing a floating interest rate shall be computed on a pro forma basis as
if the rate in effect on the date of computation had been the applicable rate
for the entire period; and PROVIDED FURTHER that, in the event such Person or
its Subsidiaries has made Asset Dispositions or acquisitions of assets not in
the ordinary course of business (including acquisitions of other Persons by
merger, consolidation or purchase of Capital Stock) during or after such period,
such computation shall be made on a pro forma basis as if the Asset Dispositions
or acquisitions had taken place on the first day of such period.
"Consolidated Income Tax Expense" of any Person means for any period the
consolidated provision for income taxes of such Person for such period
calculated on a consolidated basis in accordance with generally accepted
accounting principles.
"Consolidated Interest Expense" for any Person means for any period the
consolidated interest expense included in a consolidated income statement
(without deduction of interest income) of such Person for such period calculated
on a consolidated basis in accordance with generally accepted accounting
principles, including without limitation or duplication (or, to the extent not
so included, with the addition of), (i) the amortization of Debt discounts; (ii)
any payments or fees with respect to letters of credit, bankers acceptances or
similar facilities; (iii) fees with respect to interest rate swap or similar
agreements or foreign currency hedge, exchange or similar agreements; and (iv)
the portion of any rental obligation in respect of Capital Lease Obligations
allocable to interest expense in accordance with generally accepted accounting
principles.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person for such period determined on a
consolidated basis in accordance with generally accepted accounting principles;
PROVIDED that there shall be excluded therefrom (a) the net income (or loss) of
any Person acquired by such Person or a Subsidiary of such Person in a
pooling-of-
5
interests transaction for any period prior to the date of such transaction, (b)
the net income (but not net loss) of any Subsidiary of such Person which is
subject to restrictions which prevent the payment of dividends or the making of
distributions to such Person to the extent of such restrictions, (c) the net
income (or loss) of any Person that is not a Subsidiary of such Person except to
the extent of the amount of dividends or other distributions actually paid to
such Person by such other Person during such period, (d) gains or losses on
Asset Dispositions by such Person or its Subsidiaries (except gains on Asset
Dispositions relating to a Joint Venture Subsidiary, including the sale or other
disposition of all or a portion of the Capital Stock of a Joint Venture
Subsidiary, to the extent of the amount of cash dividends or other cash
distributions in respect of its Capital Stock relating to the sale of the
property or assets or Capital Stock of such Joint Venture Subsidiary that are
actually paid to, and received by, the Company during such period out of funds
legally available therefor), (e) all extraordinary gains and extraordinary
losses and (f) the cumulative effect of changes in accounting principles in the
year of adoption of such change.
"Consolidated Net Worth" of any Person means the consolidated stockholders'
equity of such Person, determined on a consolidated basis in accordance with
generally accepted accounting principles, less amounts attributable to
Redeemable Stock of such Person; PROVIDED that, with respect to the Company,
adjustments following the date of this Indenture to the accounting books and
records of the Company in accordance with Accounting Principles Board Opinions
Nos. 16 and 17 (or successor opinions thereto) or otherwise resulting from the
acquisition of control of the Company by another Person shall not be given
effect to.
"Consolidated Subsidiaries" of any Person means all corporations in which
such Person has an interest that would be accounted for on a consolidated basis
in such Person's financial statements in accordance with generally accepted
accounting principles.
"Consolidated Tangible Assets" of any Person means the sum of the Tangible
Assets of such Person after eliminating inter-company items, determined on a
consolidated basis in accordance with generally accepted accounting principles,
including appropriate deductions for any minority interest in Tangible Assets of
such Person's Subsidiaries; PROVIDED, HOWEVER, that, with respect to the
Company, adjustments following the date of this Indenture to the accounting
books and records of the Company in accordance with Accounting Principles Board
Opinions Nos. 16 and 17 (or successor opinions thereto) or otherwise resulting
from the acquisition of control of the Company by another Person shall not be
given effect to.
"Consolidated Tangible Net Worth" of a Person other than the Company means
the consolidated stockholders' equity of such Person and its
6
Consolidated Subsidiaries, as determined in accordance with generally accepted
accounting principles, less the net book value as shown by the accounting books
and records of such Person and its Consolidated Subsidiaries of (i) all its
licenses, patents, patent applications, copyrights, trademarks, trade names,
goodwill, non-compete agreements or organiza tional expense and other like
intangibles, (ii) unamortized debt discount and expense and (iii) any investment
by such Person and its Consolidated Subsidiaries in the Company.
"Corporate Trust Office" means the principal office of the Trustee in St.
Xxxx, Minnesota, at which at any particular time its corporate trust business
shall be administered.
"corporation" means a corporation, association, company, joint-stock
company, partnership, business trust or other business entity.
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not
contingent, (i) every obligation of such Person for money borrowed, (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations Incurred in connection with the acquisition
of property, assets or businesses, (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business which are not overdue or are being contested in good
faith), (v) every Capital Lease Obligation of such Person, (vi) the maximum
fixed redemption or repurchase price of Redeemable Stock of such Person at the
time of determination, (vii) every net obligation of such Person under interest
rate swap or similar agreements or foreign currency hedge, exchange or similar
agreements of such Person at the time of determination and (viii) every
obligation of the type referred to in Clauses (i) through (vii) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has Guaranteed or is responsible or liable, directly or indirectly,
as obligor, Guarantor or otherwise.
"Disqualified Stock" of any Person means 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, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the Company, any
Subsidiary of the Company or the holder thereof, in whole or in part, on or
prior to the final Stated Maturity of the Securities.
7
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934 as it may be
amended and any successor act thereto.
"Expiration Date" has the meaning specified in the definition of Offer to
Purchase.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person guaranteeing any Debt of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, and including, without limitation,
any obligation of such Person, (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Debt of the payment of such Debt, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); PROVIDED, HOWEVER, that the Guaranty by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Debt or other obligation of any Person,
to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
or the recording, as required pursuant to generally accepted accounting
principles or otherwise, of any such Debt or other obligation on the balance
sheet of such Person (and "Incurrence", "Incurred", "Incurrable" and "Incurring"
shall have meanings correlative to the foregoing); PROVIDED, HOWEVER, that a
change in generally accepted accounting principles that results in an obligation
of such Person that exists at such time becoming Debt shall not be deemed an
Incurrence of such Debt.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities, and, in the case of distribution of shares of Common
Stock of the Company as provided for pursuant to Section 301 hereof, shall mean
October 15, 2001 and October 15, 2002, respectively.
8
"Investment" by any Person means any direct or indirect loan, advance or
other extension of credit or capital contribution to (by means of transfers of
cash or other property to others or payments for property or services for the
account or use of others, or otherwise), or purchase or acquisition of Capital
Stock, bonds, notes, debentures or other securities or evidence of Debt issued
by any other Person.
"Joint Venture Subsidiary" means (i) any corporation (a) which would be a
Subsidiary but for its designation as a Joint Venture Subsidiary by the Board of
Directors of the Company at or before the time of determination as provided
below and evidenced by a Board Resolution and (b) in which any Person other than
the Company or any of its Affiliates which in the unanimous determination of the
independent members of the Board of Directors of the Company evidenced by a
Board Resolution has a significant joint or shared equity interest with the
Company or any of its Subsidiaries and which is created in connection with the
purchase of properties and assets used in the business of the Company, and (ii)
any Subsidiary of a Joint Venture Subsidiary. The Board of Directors may
designate any Subsidiary (including any newly acquired or newly formed
Subsidiary) which satisfies the requirements of Clause (i)(b) above to be a
Joint Venture Subsidiary unless such Subsidiary owns any Capital Stock of or
owns or holds any Lien on any property or assets of the Company or any other
Subsidiary of the Company which is not a Subsidiary of the Subsidiary to be so
designated, PROVIDED that immediately after giving pro forma effect to such
designation (1) the Consolidated Cash Flow Ratio would be greater than 2.0 to 1
and (2) there would not exist any Event of Default or event that with the
passing of time or the giving of notice, or both, would become an Event of
Default. The Board of Directors of the Company may designate any Joint Venture
Subsidiary to be a Subsidiary, PROVIDED that, immediately after giving pro forma
effect to such designation, (1) the Consolidated Cash Flow Ratio would be
greater than 2.0 to 1 and (2) there would not exist any Event of Default or
event that with the passing of time or the giving of notice, or both, would
become an Event of Default.
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including, without
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
9
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Net Available Proceeds" from any Asset Disposition by any Person means
cash or readily marketable cash equivalents received (including by way of sale
or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiror of Debt or other obligations relating to such properties or assets or
received in any other noncash form) therefrom by such Person, net of (i) all
legal, title and recording tax expenses, commissions and other fees and expenses
Incurred and all federal, state, local, provincial and foreign taxes required to
be accrued as a liability as a consequence of such Asset Disposition, (ii)
reasonable fees and expenses (including brokerage commissions) Incurred by such
Person in connection with such Asset Disposition, (iii) all payments made by
such Person or its Subsidiaries on any Debt which is secured by such assets in
accordance with the terms of any Lien (or agreement creating such Lien) upon or
with respect to such assets or which must by the terms of such Lien, 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, (iv) all payments made
with respect to liabilities associated with the assets which are the subject of
the Asset Disposition, including, without limitation, trade payables and other
accrued liabilities, (v) appropriate amounts to be provided by such Person or
any Subsidiary thereof, as the case may be, as a reserve in accordance with
generally accepted accounting principles against any liabilities associated with
such assets and retained by such Person or any Subsidiary thereof, as the case
may be, after such Asset Disposition, including, without limitation, liabilities
under any indemnification obligations and severance and other employee
termination costs associated with such Asset Disposition, (vi) all distributions
and other payments made to minority interest holders in Subsidiaries of such
Person or joint ventures as a result of such Asset Disposition and (vii) in
connection with any sale of the Company's Westville, Indiana distribution
facility, any payment made by the Company after the date of this Indenture for
the purchase of the lease existing on the date of this Indenture and covering
such facility.
"Offer" has the meaning specified in the definition of Offer to Purchase.
"Offer to Purchase" means a written offer (the "Offer") sent by the Company
by first class mail, postage prepaid, to each Holder at his address appearing in
the Security Register on the date of the Offer offering to purchase up to the
principal amount of Securities specified in such Offer at the purchase price
specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise
10
required by applicable law, the Offer shall specify an expiration date (the
"Expiration Date") of the Offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days nor more than 60
days after the date of such Offer and a settlement date (the "Purchase Date")
for purchase of Securities within five Business Days after the Expiration Date.
The Company shall notify the Trustee at least 15 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be mailed
by the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company. The Offer shall contain all instructions and
materials necessary to enable such Holders to tender Securities pursuant to the
Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Securities
offered to be purchased by the Company pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such has
been determined pursuant to the Section hereof requiring the Offer to
Purchase) (the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as
specified pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a
Security tendered must be tendered in an integral multiple of $1.00
principal amount;
(6) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the Purchase Price will become due and
payable upon each Security accepted for payment pursuant to the Offer
to Purchase and that interest thereon shall cease to accrue on and
after the Purchase Date;
11
(9) that each Holder electing to tender a Security pursuant to the
Offer to Purchase will be required to surrender such Security at the
place or places specified in the Offer prior to the close of business
on the Expiration Date (such Security being, if the Company or the
Trustee so requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing);
(10) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its Paying Agent) receives, not
later than the close of business on the Expiration Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security the Holder tendered, the
certificate number of the Security the Holder tendered and a statement
that such Holder is withdrawing all or a portion of his tender;
(11) that (a) if Securities in an aggregate principal amount less than
or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (b) if Securities in an aggregate principal amount in
excess of the Purchase Amount are tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase Securities having
an aggregate principal amount equal to the Purchase Amount on a pro
rata basis (with such adjustments as may be deemed appropriate so that
only Securities in denominations of $1.00 or integral multiples thereof
shall be purchased); and
(12) that in case of any Holder whose Security is purchased only in
part, the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by
such Holder, in an aggregate principal amount equal to and in exchange
for the unpurchased portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
12
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, EXCEPT:
(ii) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(iii) Securities for whose payment or redemption money or U.S.
Government Obligations in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such
Securities; PROVIDED that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
BONA FIDE purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"PARI PASSU", when used with respect to the ranking of any Debt of any
Person in relation to other Debt of such Person, means that each such Debt (a)
either (i) is not subordinated in right of payment to any other Debt of such
Person or (ii) is subordinate in right of payment to the same extent to the same
Debt of such Person as is the other Debt and (b) is not subordinate in right of
payment to the other or to any Debt of such Person as to which the other is not
so subordinate.
13
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of such Person of any class or classes (however designated) that
ranks prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of Capital Stock of any other class of such Person.
"Pro Forma Interest Expense" means, for any period, the pro forma amount of
interest, determined on the basis of the interest rate payable on the
Securities, that would be payable for such period on a principal amount equal to
the aggregate amount of the Net Available Proceeds that, within 12 months of the
receipt thereof, have not been used to repay Debt which is PARI PASSU to the
Securities, to invest in assets related to the business of the Company or to
repurchase Securities.
"Purchase Amount" has the meaning specified in the definition of Offer to
Purchase.
"Purchase Date" has the meaning specified in the definition of Offer to
Purchase.
"Purchase Price" has the meaning specified in the definition of Offer to
Purchase.
"Qualified Investment" means the following kinds of instruments if, on the
date of purchase or other acquisition of any such instrument by the Company or
any Subsidiary thereof, the remaining term to maturity thereof is not more than
one year: (i) obligations issued or unconditionally guaranteed as to principal
and interest by the United States or by any agency or authority controlled or
supervised
14
by and acting as an instrumentality of the United States; (ii) obligations
(including, but not limited to, demand or time deposits, bankers' acceptances
and certificates of deposit) issued by (a) a depository institution or trust
company incorporated under the laws of the United States, any state thereof or
the District of Columbia, (b) a U.S. branch office or agency of any foreign
depository institution or (c) Wholly Owned Subsidiaries of any U.S. depository
institution guaranteed by such U.S. bank or depository, PROVIDED that such U.S.
bank, trust company or U.S. branch office or agency has, at the time of the
Company's or any Subsidiary's investment therein, or contractual commitment
providing for such investment, capital, surplus or undivided profits (as of the
date of such institution's most recently published financial statements) in
excess of $100,000,000 and the long-term unsecured debt obligations (other than
such obligations rated on the basis of the credit of a Person or entity other
than such institution) of such institution, at the time of the Company's or such
Subsidiary's investment therein or contractual commitment providing for such
investment, is rated at least A by Standard & Poor's Corporation or A3 by
Xxxxx'x Investors Service, Inc.; and (iii) debt obligations (including, but not
limited to, commercial paper and medium-term notes) issued or unconditionally
guaranteed as to principal and interest by any corporation, state or municipal
government or agency or instrumentality thereof, or foreign sovereignty if the
commercial paper of such corporation, state or municipal government or foreign
sovereignty has, at the time of the Company's or any such Subsidiary's
investment therein or contractual commitment providing for such investment,
credit ratings of A-1 by Standard & Poor's Corporation or P-1 by Xxxxx'x
Investors Service, Inc., or the debt obligations of such corporation, state or
municipal government or foreign sovereignty, at the time of the Company's or any
such Subsidiary's investment therein or contractual commitment providing for
such investment, have credit ratings of at least A by Standard & Poor's
Corporation or A3 by Xxxxx'x Investors Service, Inc.
"Redeemable Stock" of any Person means any equity security of such Person
that by its terms or otherwise is required to be redeemed prior to the final
Stated Maturity of the Securities or is redeemable at the option of the holder
thereof at any time prior to the final Stated Maturity of the Securities.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
means April 1 or October 1 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date, or in the case of
15
distributions of shares of Common Stock of the Company as provided for pursuant
to Section 301 hereof, shall mean October 15, 2001 and October 15, 2002,
respectively.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Payments" has the meaning specified in Section 1010.
"Revolving Credit Facility" means the Amended and Restated Loan and
Security Agreement, dated as of August 7, 2000, between the Company and
Congress Financial Corporation (Central), as such may be amended, modified,
supplemented, replaced, renewed, extended, refinanced, refunded or restated
from time to time; PROVIDED, that no such amendment, modification,
supplement, replacement, renewal, extension, refinancing, refunding or
restatement shall constitute a "Revolving Credit Facility" if it allows
loans, letters of credit and other principal amounts outstanding at any time
in excess of $50,000,000 in the aggregate or if it is secured by any property
or assets other than inventory and the proceeds thereof; and PROVIDED FURTHER
that in no event shall the aggregate principal amount of Debt outstanding
under the Revolving Credit Facility, together with any refinancing or
refunding of any such Debt, exceed $50,000,000.
"Sale and Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person after the acquisition
thereof or the completion of construction or commencement of operation thereof
to such lender or investor or to any person to whom funds have been or are to be
advanced by such lender or investor on the security of such property or asset.
The stated maturity of such arrangement shall be the date of the last payment of
rent or any other amount due under such arrangement prior to the first date on
which such arrangement may be terminated by the lessee without payment of a
penalty.
16
"Securities" means securities designated in the first paragraph of the
RECITALS OF THE COMPANY.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security is due and payable.
"Store Swap" means any Asset Disposition by the Company or a Subsidiary of
the Company pursuant to which (a) the Company or such Subsidiary exchanges (i)
title to property and assets used in the business of the Company for (ii) title
to the property and assets of another Person of substantially equivalent fair
market value located within 150 miles of Milan, Illinois, for use in the
business of the Company and (b) the Company or such Subsidiary, on the one hand,
or such Person, on the other hand, pays no cash to the other Person in
connection with such Store Swap except to the extent necessary to offset any
difference between the fair market value of the respective properties and assets
being exchanged.
"Subordinated Debt" means Debt of the Company as to which the payment of
principal of (and premium, if any) and interest and other payment obligations in
respect of such Debt shall be subordinate to the prior payment in full of the
Securities.
"Subsidiary" of any Person means (i) a corporation more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof; PROVIDED, HOWEVER, that a Joint Venture
Subsidiary shall not be deemed to be a Subsidiary for purposes of this Indenture
and the Securities.
"Tangible Assets" of any Person means, at any date, the gross book value as
shown by the accounting books and records of such Person of all its property,
both real and personal, less (i) the net book value of all its licenses,
patents, patent applications, copyrights, trademarks, trade names, goodwill,
non-compete agreements or organizational expenses and other like intangibles,
(ii) unamortized
17
Debt discount and expense, (iii) all reserves for depreciation, obsolescence,
depletion and amortization of its properties and (iv) all other proper reserves
which in accordance with generally accepted accounting principles should be
provided in connection with the business conducted by such Person; PROVIDED,
HOWEVER, that, with respect to the Company and its Consolidated Subsidiaries,
adjustments following the date of this Indenture to the accounting books and
records of the Company and its Consolidated Subsidiaries in accordance with
Accounting Principles Board Opinions Nos. 16 and 17 (or successor opinions
thereto) or otherwise resulting from the acquisition of control of the Company
by another Person shall not be given effect to.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
905; PROVIDED, HOWEVER, that in the event the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" means securities that are direct obligations
of the United States of America for the payment of which its full faith and
credit is pledged which are not callable or redeemable at the option of the
issuer thereof.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of Securities has such voting power by reason of any contingency.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
all of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
18
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous.
19
Any such certificate or opinion of counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATE.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust Indenture Act,
fix any day as the record date for the purpose of determining the Holders
entitled to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation
20
of a Holder made by any Person in respect of any such action, or, in the case of
any such vote, prior to such vote, the record date for any such action or vote
shall be the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be. With regard to any record date, only
the Holders on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular
21
Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be part of and govern
this Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein, the Cross-Reference Table and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and
22
the Holders of Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, Purchase Date
or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date or Purchase
Date, or at the Stated Maturity, PROVIDED that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date or Purchase
Date or Stated Maturity, as the case may be.
SECTION 114. NO RECOURSE AGAINST OTHERS.
The Securities and the obligations of the Company under this Indenture are
solely obligations of the Company and no officer, director, employee or
stockholder, as such, of the Company shall be liable for any failure by the
Company to pay any amounts on the Securities when due or perform any such
obligation.
ARTICLE II
Security Forms
SECTION 201. FORMS GENERALLY.
The Securities and the Trustee's certificates of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
23
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
on which the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
SECTION 202. FORM OF FACE OF SECURITY.
11% SENIOR NOTES DUE APRIL 15, 2005
No. ____________ $____________
Eagle Food Centers, Inc., a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ______________________________, or
registered assigns, the principal sum of _______________________________ Dollars
on April 15, 2005 and to pay interest thereon from August 7, 2000 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on April 15 and October 15 in each year, commencing
October 15, 2000 at the rate of 11% per annum, until the principal hereof is
paid or made available for payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of 11% per annum on any
overdue principal and premium and on any overdue installment of interest until
paid. The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the April 1 or October 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than five business days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
24
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; PROVIDED, HOWEVER, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
Eagle Food Centers, Inc.
[Seal]
By
Title:
Attest:
-----------------------------------
Title:
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 11% Senior Notes due April 15, 2005 (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $85,000,000, issued and to be issued
under an Indenture, dated as of August 7, 2000 (herein called the "Indenture"),
between the Company and U.S. Bank Trust National Association, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities
25
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered.
The Securities are subject to redemption upon not less than 30 nor more
than 60 days' notice by mail, at any time, in whole or in part, at the election
of the Company, at 100% of the principal amount, together in the case of any
such redemption with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.
The Securities do not have the benefit of any sinking fund obligations.
In the event of redemption or purchase pursuant to an Offer to Purchase of
this Security in part only, a new Security or Securities for the unredeemed or
unpurchased portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture provides that, subject to certain conditions, if (i) certain
Net Available Proceeds are available to the Company as a result of Asset
Dispositions, (ii) a Change of Control occurs or (iii) certain Net Available
Proceeds are available to the Company as a result of Sale and Leaseback
Transactions, the Company shall be required to make an Offer to Purchase for all
or a specified portion of the Securities.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in
26
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in the Borough of Manhattan, The City of New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1.00 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day year
of twelve 30-day months.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
27
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety by the
Company pursuant to Section 801, 1015 or 1017 of the Indenture, check the box:
|_|
If you want to elect to have only a part of this Security purchased by the
Company pursuant to Section 801, 1015 or 1017 of the Indenture, state the
amount: $________.
Dated: Your Signature:___________________
(Sign exactly as name appears
on the other side of this Security)
Signature Guarantee: _____________________________________
(Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or
other signature guarantor acceptable to the trustee)
-------------------------------------
Employer Identification Number/
Social Security Number
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By ________________________________
Authorized Signatory
28
ARTICLE III
The Securities
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to $85,000,000, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 304, 305, 306, 906 or
1108 or in connection with an Offer to Purchase pursuant to Section 801, 1015 or
1017.
The Securities shall be known and designated as the "11% Senior Notes due
April 15, 2005" of the Company. Their Stated Maturity shall be April 15, 2005
and they shall bear interest at the rate of 11% per annum, from August 7, 2000
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, as the case may be, payable semi-annually on April 15, and
October 15 commencing October 15, 2000 until the principal thereof is paid or
made available for payment. In addition, (i) unless a Change of Control shall
have occurred prior to October 15, 2001, the Holders of Outstanding Securities
shall be entitled to the distribution of their PRO RATA share of 5% (five
percent) of the authorized Common Stock of the Company (rounded to the closest
number of whole shares), and (ii) unless a Change of Control shall have occurred
prior to October 15, 2002, the Holders of Outstanding Securities shall be
entitled to the distribution of their PRO RATA share of a further 5% (five
percent) of the authorized Common Stock of the Company (rounded to the closest
number of whole shares).
The principal of (and premium, if any) and interest on the Securities shall
be payable at the office or agency of the Company in the Borough of Manhattan,
The City of New York, New York, maintained for such purpose and at any other
office or agency maintained by the Company for such purpose; PROVIDED, HOWEVER,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The Securities shall be subject to repurchase by the Company pursuant to an
Offer to Purchase as provided in Sections 801, 1015 and 1017.
The Securities shall be redeemable as provided in Article Eleven.
SECTION 302. DENOMINATIONS.
29
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1.00 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
30
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration or transfer of any Security at an office or
agency of the Company designated pursuant to Section 1002 for such purpose, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
31
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1108 or in accordance with any Offer
to Purchase pursuant to Section 801, 1015 or 1017 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Security during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 1104 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of like tenor and principal amount and bearing a number not
contemporane ously outstanding.
If there shall be delivered to the Trustee (i) evidence to its satisfaction
of the destruction, loss or theft of any Security and (ii) such security or
indemnity as may be required by it to save each of the Trustee and the Company
and any agent of either of them harmless from any loss which either of them may
suffer if a Security is replaced, then, in the absence of notice to the Trustee
that such Security has been acquired by a BONA FIDE purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
32
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest (including the distribution of shares of Common Stock of the
Company as provided for pursuant to Section 301 hereof) on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest 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 satisfac tory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 10 business
days and not less than five business days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the
33
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it
appears in the Security Register, not less than five business days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of, transfer of, or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or any Offer to Purchase pursuant to Section 801, 1015 or
1017 shall, if surrendered to any Person other than the Trustee, be delivered to
the Trustee and shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities
34
shall be authenticated in lieu of or in exchange for any Securities cancelled
as provided in this Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be disposed of by the Trustee
and a Certificate of Destruction shall be delivered to the Company.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
ARTICLE IV
Satisfaction and Discharge
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money or
U.S. Government Obligations has theretofore been deposited in
trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore deliv ered to the
Trustee for cancellation
(i) have become due and payable, or
35
(ii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), or (ii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose, money or U.S. Government
Obligations sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if
any) and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction arid discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
(a) Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
36
(b) All shares of Common Stock of the Company required for the
distribution to Holders as provided pursuant to Section 301 hereof shall be
deposited with the Trustee shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
distribution, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto. In the event that any shares of Common Stock of the Company
are not distributable and will not become distributable (due to the occurrence
of a Change of Control or the satisfaction and discharge of this Indenture as
provided in Section 401 hereof) all such shares shall be transferred to the
Company.
ARTICLE V
Remedies
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of the principal of (or premium, if any, on)
any Security at its Maturity; or
(2) default in the payment of any interest (including the distribution
of Common Stock of the Company as provided for pursuant to Section 301
hereof) upon any Security when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(3) default, on the applicable Purchase Date, in the purchase of
Securities required to be purchased by the Company pursuant to an Offer
to Purchase as to which an Offer has been mailed to Holders; or
(4) default in the performance, or breach, of Section 801; or
(5) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default or
breach for a
37
period of 30 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(6) a default or defaults under any bond(s), debenture(s), note(s) or
other evidence(s) of Debt for money borrowed by the Company or any
Subsidiary of the Company or under any mortgage(s), indenture(s) or
instru ment(s) under which there may be issued or by which there may be
secured or evidenced any Debt of such type by the Company or any such
Subsidiary with a principal amount then outstanding (or, if such Debt
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the maturity thereof,
in an amount not greater than such lesser amount), individually or in
the aggregate, of at least $3,000,000 or greater, whether such Debt now
exists or shall hereafter be created, (i) which results from a failure
to pay any portion of the principal of such Debt when due or (ii) shall
have resulted in such Debt becoming or being declared due and payable
prior to the date on which it would otherwise have become due and
payable; or
(7) a final judgment or final judgments for the payment of money are
entered against the Company or any Subsidiary of the Company in an
aggregate amount in excess of $1,000,000 by a court or courts of
competent jurisdiction, which judgments remain undischarged or unbonded
for a period (during which execution shall not be effectively stayed)
of 60 days after the right to appeal all such judgments has expired; or
(8) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Subsidiary
of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or any
such Subsidiary a bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any such Subsidiary
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any such Subsidiary or of any substantial
part of the property of the Company or any such Subsidiary, or ordering
the winding up or liquidation of the affairs of the Company or any such
Subsidiary, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period
of 60 consecutive days; or
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(9) the commencement by the Company or any Subsidiary of the Company of
a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by the Company or any such Subsidiary to the entry of a
decree or order for relief in respect of the Company or any Subsidiary
of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insol vency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company or any Subsidiary of
the Company, or the filing by the Company or any such Subsid iary of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by the Company or
any such Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or any Subsidiary of the Company or of any substantial part of
the property of the Company or any Subsidiary of the Company, or the
making by the Company or any Subsidiary of the Company of an assignment
for the benefit of creditors, or the admission by the Company or any
such Subsidiary in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company or
any such Subsidiary in furtherance of any such action.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in Section
501(8) or (9)) occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities may declare the principal of all the Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal shall become
immediately due and payable. If an Event of Default specified in Section 501(8)
or (9) occurs, the principal of and any accrued interest on the Securities then
Outstanding shall IPSO FACTO become immediately due and payable without any
declaration or other Act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
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(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration (including any Securities required to have been
purchased on the Purchase Date pursuant to an Offer to
Purchase made by the Company) and, to the extent that payment
of such interest is lawful, interest thereon at the rate
provided by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided by the
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the principal
of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, it
any, on) any Security at the Maturity thereof or, with respect to
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any Security required to have been purchased pursuant to an Offer to
Purchase made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
provided by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disburse ments and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
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No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Secu rities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless
42
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Sections 301,
307 and 402 hereof) interest (including the distribution of Common Stock of the
Company as provided for pursuant to Section 301 hereof) on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date or in the case of an Offer to Purchase made
by the Company and required to be accepted as to such Security, on the Purchase
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
43
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding Securities
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
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The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or interest
on any Security (including any Security which is required to have been
purchased pursuant to an Offer to Purchase which has been made by the
Company), or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
In any Suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; PROVIDED, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE VI
The Trustee
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
Except during the continuance of an event of default, 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.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any default hereunder as and
to the extent provided by the Trust Indenture Act; PROVIDED, HOWEVER, that in
the case of any default of the character specified in Section 501(5), no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
46
(c) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically pre scribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
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The Trustee, any Paying Agent, any Security Registrar or any other agent of
the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or
48
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $25,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a majority
in principal amount of the Outstanding Securities, delivered to the Trustee and
to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a BONA
FIDE Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any
such Holder, or
49
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a BONA FIDE
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if
a vacancy shall occur in the office of Trustee for any cause, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a BONA
FIDE Holder of a Security for at least six months may on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of the
Trustee and each appointment of a successor Trustee to all Holders in the manner
provided in Section 106. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property (including shares of Common Stock
of the Company held pursuant to
50
Section 402 hereof) and money held by such retiring Trustee hereunder. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record Date, a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the Holders as of such Regular Record Date, and
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(b) at such other times as the Trustee may request in writing, within 30 days
after the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities and the corresponding
rights and duties of the Trustee, shall be provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to the names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act within 60 days of May 15 of each year and such other the times as
may be required thereby and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
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The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; PROVIDED that any such information,
documents or reports required to be filed with Commission pursuant to Section 13
or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days
after the same is so required to be filed with the Commission.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., AND SALES AND PURCHASES OF
ASSETS ONLY ON CERTAIN TERMS.
The Company (a) shall not consolidate with or merge into any other Person;
(b) shall not permit any other Person to consolidate with or merge into the
Company or any Subsidiary of the Company (in a transaction in which such
Subsidiary remains a Subsidiary of the Company); (c) shall not, directly or
indirectly, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of its properties and assets; and (d) shall not, and shall not
permit any Subsidiary of the Company to, (i) directly or indirectly acquire
capital Stock or other ownership interests of any other Person such that such
Person becomes a Subsidiary of the Company or (ii) directly or indirectly,
purchase, lease or otherwise acquire all or substantially all of the property
and assets of any Person (except pursuant to a Sale and Leaseback Transaction
permitted under Section 1013) or any existing business (whether existing as a
separate entity, subsidiary, division, unit or otherwise) of any Person, if,
with respect to subclauses (i) and (ii) of this Clause (d), the amount of
consideration (including the fair market value of property other than cash, as
determined in good faith by the Board of Directors evidenced by a Board
Resolution) paid for such Capital Stock or other ownership interests and/or
properties or assets and the amount of any Debt Incurred in connection therewith
plus the aggregate amount of consideration (including the fair market value of
property other than cash, as determined in good faith by the Board of Directors
evidenced by a Board Resolution) paid by the Company or its Subsidiaries for
other such acquisitions consummated during the twelve-month period immediately
preceding the date of such acquisition and the amount of any Debt Incurred in
connection therewith exceeds 5% of the Consolidated Tangible Assets of the
Company as of the latest available consolidated balance sheet of the Company
prior to such acquisition; UNLESS, in any such transaction:
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(1) in the case the Company shall consolidate with or merge into
another Person or shall directly or indirectly transfer, convey, sell,
lease or otherwise dispose of all or substantially all of its
properties and assets as an entirety, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by transfer, conveyance, sale, lease or other disposition all
or substantially all of the properties and assets of the Company as an
entirety (for purposes of this Article Eight, a "Successor Company")
shall be a corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume by
an indenture supplemental hereto executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of
the principal of (and premium, if any) and interest on all the
Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately before and after giving effect to such transaction and
treating any Debt Incurred by the Company or a Subsidiary of the
Company as a result of such transaction as having been Incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default shall have happened and be continuing;
(3) immediately after giving effect to such transaction, the Xxxxxxx
dated Net Worth of the Company or, if applicable, the Successor Company
shall be equal to or greater than the Consolidated Net Worth of the
Company immediately prior to such transaction;
(4) immediately after giving effect to such transaction, and treating
any Debt Incurred by the Company or any Subsidiary of the Company as a
result of such transaction as having been Incurred at the time of such
transaction, the Company or the Successor Company could Incur at least
$1.00 of additional Debt pursuant to the first paragraph under Section
1008;
(5) if, as a result of any such transaction, property and assets of the
Company or any Subsidiary of the Company (other than property or assets
that are being acquired in such acquisition) would become subject to a
Lien which would not be permitted by Section 1012, the Company or, if
applicable, the Successor Company, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities
equally and ratably with (or prior to) Debt secured by such Lien in
accordance with Section 1012; and
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(6) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer, lease or acquisition and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, complies with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with, and, with respect to such Officer's
Certificate, setting forth the manner of determination of the Xxxxxxx
dated Net Worth and the ability to Incur Debt in accordance with Clause
(4) of Section 801, the Company or, if applicable, of the Successor
Company as required pursuant to the foregoing.
In the event that, in connection with a sale or other disposition of the
Company or any transfer, conveyance, sale, lease or other disposition of all or
substantially all of the Company's properties and assets (whether by means of a
merger, consolidation, sale of assets or otherwise), the Company makes an Offer
to Purchase all Outstanding Notes at a purchase price in cash equal to 100% of
their principal amount, plus accrued interest to the Purchase Date, then such
transaction and any financing or other transactions in connection therewith
shall be deemed to have been Incurred not in violation of any covenant of this
Indenture, irrespective of whether such transaction or financing would otherwise
violate any covenant of this Indenture (PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Purchase Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307). Holders will
have the right to have their Securities repurchased if such Securities are
tendered for repurchase no later than five business days prior to the applicable
repurchase date. Each Holder shall be entitled to tender all or any portion of
the Securities owned by such Holder pursuant to the Offer to Purchase, subject
to the requirement that any portion of a Security tendered must be tendered in
an integral multiple of $1.00 principal amount. The obligations set forth in
Section 1017 (b) shall also apply to any Offer to Purchase made pursuant to this
Section 801 as if fully set forth herein.
Notwithstanding that the Company shall have made any Offer with respect to
an Offer to Purchase pursuant to this Section 801, the Company shall have no
obligation to consummate any transaction that is the subject of any such Offer,
PROVIDED that the Company shall mail a notice to Holders stating that the
proposed transaction was not consummated and that Holders will not have the
right to have their Securities repaid by the Successor Company not later than
two business days after the Company determines that any such transaction will
not be consummated, and the Company, at its own cost, will promptly return by
first class mail any Securities tendered for prepayment to their respective
Holders.
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SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any transfer, conveyance, sale, lease or other disposition
of all or substantially all of the properties and assets of the Company as an
entirety in accordance with Section 801, the Successor Company shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE IX
Supplemental Indentures
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holder, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) 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; or
(3) to secure the Securities pursuant to the requirements of Section
1012 or otherwise; or
(4) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(5) to cure any ambiguity, defect or inconsistency with any other
provision herein, to correct or supplement any provision herein which
may be inconsistent with any other provision herein, or to make any
other provisions
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with respect to matters or questions arising under this Indenture which
shall not be inconsistent with the provisions of this Indenture,
PROVIDED such action pursuant to this Clause (5) shall not adversely
affect the interests of the Holders in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable thereon, or change
the place of payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforce ment of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date or, in the case of an Offer to Purchase
which has been made, on or after the applicable Purchase Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1021, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) following the mailing of an Offer with respect to an Offer to
Purchase pursuant to Section 801, 1015 or 1017, modify the provisions
of this Indenture with respect to such Offer to Purchase in a manner
adverse to such Holder.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
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ARTICLE X
Covenants
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of and interest on
the Securities in accordance with the terms of the Securities and this
Indenture. The Company will, on the date of issuance of the Securities, deposit
with the Trustee shares representing 10% (ten percent) of the authorized Common
Stock of the Company.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside the Borough of Manhattan, The City of New York) where
the Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; PROVIDED, HOWEVER, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York, for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of (and premium, if any) or interest on
any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents, it will, prior
to each due date of the principal of (and premium, if any) or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal
(and premium, if any) or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money or U.S. Government Obligations deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the
principal of (and premium, if any) or interest on any Security and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such
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trust money, and all liability of the Company as trustee thereof, shall
thereupon cease.
SECTION 1004. EXISTENCE.
Subject to Article Eight and Section 1015, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; PROVIDED, HOWEVER,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors in good faith shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 1005. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary of the Company to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined by the Board of Directors in good faith,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any of its Subsidiaries or upon
the income, profits or property of the Company or any of its Subsidiaries, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any of its
Subsidiaries; PROVIDED, HOWEVER, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings.
SECTION 1007. MAINTENANCE OF INSURANCE.
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The Company shall, and shall cause its Subsidiaries to, keep at all times
all of their properties which are of an insurable nature insured against loss or
damage with insurers believed by the Company to be responsible to the extent
that property of similar character is usually so insured by corporations
similarly situated and owning like properties in accordance with good business
practice. The Company shall, and shall cause its Subsidiaries to, use the
proceeds from any such insurance policy to repair, replace or otherwise restore
the property to which such proceeds relate.
SECTION 1008. LIMITATION ON COMPANY DEBT.
(a) The Company shall not Incur any Debt UNLESS, immediately after giving effect
to the Incurrence of such Debt, the Consolidated Cash Flow Ratio for the four
full fiscal quarters next preceding the Incurrence of such Debt would be greater
than 2.0 to 1.
(b) Notwithstanding the foregoing paragraph, the Company may Incur the following
Debt:
(i) Debt under the Revolving Credit Facility Incurred solely to fund
the Company's working capital requirements and for general corporate
purposes in an aggregate principal amount not to exceed $50,000,000 at
any one time outstanding;
(ii) Debt owed by the Company to any Wholly Owned Subsidiary of the
Company (PROVIDED that such Debt is at all times held by a Person which
is a Wholly Owned Subsidiary of the Company) or Debt owed by a
Subsidiary of the Company to the Company or a Wholly Owned Subsidiary
of the Company (PROVIDED that such Debt is at all times held by the
Company or a Person which is a Wholly Owned Subsidiary of the Company);
(iii) Capital Lease Obligations outstanding on the date of this
Indenture;
(iv) Capital Lease Obligations relating to property used in the
business of the Company after the date of this Indenture; and
(v) Debt Incurred to renew, extend, refinance or refund any Debt
permitted in the immediately preceding paragraph (a) and in Clauses
(ii), (iii) and (iv) above or the Securities; PROVIDED, HOWEVER, that
such Debt does not exceed the principal amount (or, if such Debt
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the maturity thereof,
in an amount not greater than such lesser
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amount) of Debt so renewed, extended, refinanced or refunded; and
PROVIDED FURTHER, that Debt the proceeds of which are used to refinance
or refund Debt which is PARI PASSU to the Securities or Debt which is
subordinate in right of payment to the Securities shall only be
permitted if (A) in the case of any renewal, refinancing, refunding or
extension of Debt which is PARI PASSU to the Securities, the renewal,
refinancing, refunding or extension of Debt is made PARI PASSU to the
Securities or subordinated to the Securities, and, in the case of any
renewal, refinancing, refunding or extension of Debt which is
subordinated to the Securities, the renewal, refinancing, refunding or
extension Debt is made subordinate to the Securities to substantially
the same extent as the Debt being renewed, refinanced, refunded or
extended and (B) in any such case, the renewal, refinancing, refunding
or extension Debt by its terms, or by the terms of any agreement or
instrument pursuant to which such Debt is issued, (x) does not provide
for payments of all or a portion of the principal of such Debt at the
stated maturity thereof or by way of a sinking fund applicable thereto
or by way of any mandatory redemption, defeasance, retirement or
repurchase thereof by the Company (including any redemption, retirement
or repurchase which is contingent upon events or circumstances, but
excluding any retirement required by virtue of acceleration of such
Debt upon an event of default thereunder), in each case prior to the
stated maturity of the Debt being renewed, refinanced, refunded or
extended and (y) does not permit redemption or other retirement
(including pursuant to an offer to purchase made by the Company) of
such Debt at the option of the holder thereof prior to the final stated
maturity of the Debt being refinanced or refunded.
SECTION 1009. LIMITATION ON SUBSIDIARY DEBT AND PREFERRED STOCK.
The Company shall not permit any Subsidiary of the Company to Incur or
suffer to exist any Debt or issue any Preferred Stock, except (i) Debt owed by a
Subsidiary of the Company to the Company or a Wholly Owned Subsidiary of the
Company (PROVIDED that such Debt is at all times held by the Company or a Person
which is a Wholly Owned Subsidiary of the Company) or (ii) Debt which becomes an
obligation of a Subsidiary in accordance with the provisions of Section 801.
SECTION 1010. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company (i) shall not, directly or indirectly, declare or pay any
dividend, or make any distribution, of any kind or character (whether in cash,
property or securities) in respect of any class of its Capital Stock or to the
holders of any class of its Capital Stock, (ii) shall not, and shall not permit
any Subsidiary or Joint Venture Subsidiary, directly or indirectly, to purchase,
redeem or otherwise
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acquire or retire for value (1) any Capital Stock of the Company or any
securities convertible or exchange able into shares of Capital Stock of the
Company or (2) any options, warrants or rights to purchase or acquire shares of
Capital Stock of the Company or securities convertible or exchangeable into
shares of Capital Stock of the Company, (iii) shall not make, or permit any
Subsidiary of the Company to make, any Investment (which shall not include any
payment of a management or servicing fee by a Joint Venture Subsidiary to an
Affiliate for BONA FIDE management services or servicing rendered by such
Affiliate) in, or payment on a Guarantee of any obligation of, any Affiliate or
Joint Venture Subsidiary, other than the Company or a Wholly Owned Subsidiary of
the Company (which is not a Joint Venture Subsidiary) which is a Wholly Owned
Subsidiary prior to such Investment, and (iv) shall not, and shall not permit
any Subsidiary or Joint Venture Subsidiary to, redeem, defease (including, but
not limited to, legal or covenant defeasance), repurchase, retire or otherwise
acquire or retire for value prior to any scheduled maturity, repayment or
sinking fund payment Debt of the Company (other than the Securities) which is
subordinate in any respect in right of payment to the Securities (the
transactions described in Clauses (i) through (iv) being referred to herein as
"Restricted Payments"), if at the time thereof:
(1) an Event of Default, or an event that with the lapse of time or the
giving of notice, or both, would constitute an Event of Default, shall
have occurred and is continuing,
(2) upon giving effect to such Restricted Payment, the Company could
not Incur at least $1.00 of additional Debt pursuant to the first
paragraph under Section 1008, or
(3) upon giving effect to such Restricted Payment, the aggregate of all
Restricted Payments (net of any repayment of a Restricted Payment
described under clause (iii) of the definition of Restricted Payment)
made subsequent to the date of this Indenture by the Company and its
Subsidiaries and Joint Venture Subsidiaries would exceed the sum of:
(A) 50% (or minus 100% in the event of a deficit) of
cumulative Consolidated Net Income of the Company for the
period commencing August 1, 2000 and ending on the last day of
the last full fiscal quarter ending immediately preceding the
date of such Restricted Payment; plus
(B) 100% of the aggregate net proceeds, including the fair
value of property other than cash (determined in good faith by
the Board of Directors and evidenced by a Board Resolution),
from the issuance after the date of this Indenture of Capital
Stock (other than
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Disqualified Stock or Capital Stock issued as described in
Clause (c) below) of the Company (and, in the event the
Company merges or consolidates with another corporation in a
transaction in which the outstanding Common Stock of the
Company prior to the transaction is cancelled, the Xxxxxxx
dated Tangible Net Worth of such other corporation), other
than to a Subsidiary of the Company or a Joint Venture
Subsidiary, or options, warrants or other rights on Capital
Stock (other than Disqualified Stock) of the Company; plus
(C) the principal amount of Debt that has been converted into
Capital Stock (other than Disqualified Stock) of the Company
after the date of this Indenture (or, if such Debt provides
for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the maturity
thereof, in an amount not greater than such lesser amount).
(b) Notwithstanding the foregoing limitations of this Section 1010, the
following transactions, in an aggregate amount not to exceed $20,000,000, shall
not constitute "Restricted Payments" for purposes of this Indenture or the
Securities and shall not be subject to any other limitation under this Indenture
or the Securities: (i) any direct or indirect declaration or payment of any
dividend, or any distribution, in respect of the Company's Capital Stock or to
the holders thereof, (ii) any purchase, redemption or other acquisition or
retirement for value of (1) any Capital Stock of the Company or any securities
convertible or exchangeable into shares of Capital Stock of the Company or (2)
any options, warrants or rights to purchase or acquire shares of Capital Stock
of the Company or any securities convertible or exchangeable into shares of
Capital Stock of the Company, (iii) any Investment in, or payment on a Guarantee
of any obligation of, any Affiliate or Joint Venture Subsidiary or (iv) any
redemption, defeasance, repurchase, retirement or other acquisition or
retirement for value prior to any scheduled maturity, repayment or sinking fund
payment, of Debt of the Company which is subordinate in any respect in right of
payment to the Securities, by the Company, any Subsidiary of the Company or any
Joint Venture Subsidiary; PROVIDED, HOWEVER, that in the event and to the extent
that a transaction is permitted under Clause (a) of this Section 1010, the
amount of such transaction shall not reduce the amount available for
transactions under this Clause (b); and PROVIDED FURTHER that none of the
transactions referred to in this Clause (b) shall be consummated if an Event of
Default shall have occurred and be continuing.
(c) The foregoing provision shall not be violated by reason of (i) the
payment of any dividend on Capital Stock of the Company within 60 days after
declaration thereof if at the declaration date such payment would have complied
with the foregoing provision; or (ii) any refinancing or refunding of any Debt
otherwise
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permitted under Clause (v) of Section 1008(b). For purposes of Clauses (a) (i)
and (a) (ii) above, any amounts so paid shall thereafter be considered as
Restrictive Payments for purposes of calculating aggregate Restricted Payments
under Clause (a) (3) above.
SECTION 1011. LIMITATIONS CONCERNING DISTRIBUTIONS BY SUBSIDIARIES, ETC.
The Company shall not, and shall not permit any Subsidiary of the Company
to, suffer to exist any consensual encumbrance or restriction on the ability of
any Subsidiary of the Company (i) to pay, directly or indirectly, dividends or
make any other distributions in respect of its Capital Stock or pay any Debt or
other obligation owed to the Company or any other Subsidiary of the Company;
(ii) to make loans or advances to the Company or any Subsidiary of the Company;
or (iii) to transfer any of its property or assets to the Company, except, in
any such case, any encumbrance or restrictions with respect to clauses (ii) and
(iii) if and to the extent such restriction or encumbrance is:
(a) pursuant to any agreement in effect on the date of this Indenture, or
(b) pursuant to an agreement relating to any Debt Incurred by such Subsidiary
prior to the date on which such Subsidiary was acquired by the Company and
outstanding on such date and not Incurred in anticipation of becoming a
Subsidiary, or
(c) pursuant to customary provisions contained in any lease governing a
leasehold interest of any Subsidiary of the Company that do no more than
restrict the subletting of the property subject to such lease or the assignment
of such lease, or
(d) pursuant to an agreement effecting a renewal, extension, refinancing or
refunding of Debt Incurred pursuant to an agreement referred to in Clause (a) or
(b) above; PROVIDED, HOWEVER, that the provisions contained in such renewal,
extension, refinancing or refunding agreement relating to such encumbrance or
restriction are no more restrictive in any material respect than the provisions
contained in the agreement the subject thereof in the reasonable judgment of the
Board of Directors and evidenced by a Board Resolution.
SECTION 1012. LIMITATION ON LIENS.
(a) The Company shall not, and shall not permit any Subsidiary of the Company
to, Incur or permit to exist any Lien upon any property or assets of the Company
or any such Subsidiary now owned or hereafter acquired or any interest therein
or any income or profits therefrom without making, or causing such Subsidiary to
make, effective provision for securing the Securities (and, if the
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Company shall so determine, any other Debt of the Company or of such
Subsidiary, including Debt which is subordinate to the Securities, PROVIDED
that Liens securing the Securities and any Debt PARI PASSU to the Securities
is senior to such Lien securing such Subordinated Notes) (x) equally and
ratably with such Debt or (y) in the event such Debt is Subordinated Debt,
prior to such Debt, in either case as to such property or assets for so long
as such Debt shall be so secured.
The foregoing restrictions will not apply to Liens in respect of Debt
existing at the date of this Indenture or to:
(i) Liens securing only the Securities;
(ii) Liens on property existing immediately prior to the time of the
acquisition thereof (and not Incurred in anticipation of such
acquisition);
(iii) Liens on property of a Person existing at the time such Person is
merged into or consolidated with the Company or any Subsidiary of the
Company (and not Incurred in anticipation of such merger or
consolidation);
(iv) Liens to secure Debt Incurred for the purpose of financing all or
any part of the purchase price or the cost of construction or
improvement of property used in the business of the Company and subject
to such Liens, PROVIDED, HOWEVER, that (1) the principal amount of any
Debt secured by such a Lien does not exceed 100% of such purchase price
or cost, (2) such Lien does not extend to or cover any property other
than such property and any such improvements and (3) the incurrence of
such Debt is permitted by Sections 1008 and 1009;
(v) Liens to secure Debt Incurred for the purpose of financing all or
any part of the purchase price of property used in the business of the
Company and subject to such Liens, PROVIDED, HOWEVER, that (1) the
principal amount of any Debt secured by such a Lien does not exceed
100% of such purchase price or cost and (2) such Lien does not extend
to or cover any property other than such property and any such
improvements;
(vi) Liens for taxes or assessments or other governmental charges or
levies which are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and for which
a reserve or other appropriate provision, if any, as shall be required
in accordance with generally accepted accounting principles shall have
been made;
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(vii) Liens to secure obligations under workmen's compensation laws or
similar legislation, including Liens with respect to judgments which
are not currently dischargeable;
(viii) Liens Incurred to secure performance bonds or other obligations
of a like nature incurred in the ordinary course of business;
(ix) materialmen's, mechanics', workmen's, repairmen's, warehouse
men's, landlords', vendors' or carriers' Liens created by law Incurred
by the Company or any Subsidiary of the Company in good faith in the
ordinary course of business, or deposits or pledges arising and
continuing in the ordinary course of business to obtain the release of
any such Liens;
(x) any Lien created in connection with a Capital Lease Obligation that
the Company is permitted to enter into pursuant to Clause (iv) of
Section 1008(b);
(xi) Liens on the Company's inventory to secure amounts used for
working capital and general corporate purposes borrowed under,
reimbursement obligations in respect of letters of credit issued
pursuant to, and all other amounts owing under, the Revolving Credit
Facility;
(xii) any Lien on property or assets to secure Debt incurred in
connection with the acquisition by the Company or any Subsidiary of the
Company of such property or assets, as permitted by Clause (5) of
Section 801;
(xiii) Liens to secure Debt Incurred to extend, renew, refinance or
refund (or successive extensions, renewals, refinancings or
refundings), in whole or in part, Debt secured by any Lien referred to
in the foregoing Clauses (i) to (xi) so long as such Liens do not
extend to any other property and the principal amount (or, if such Debt
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the maturity thereof,
in an amount not greater than such lesser amount) of the Debt so
secured is not increased;
(xiv) zoning restrictions, easements, covenants, reservations and
restrictions on the use of real property, or minor irregularities of
title in real property, that do not in the aggregate materially detract
from the value or marketability of the property of the Company or any
of its Subsidiaries or impair the use of such property in the operation
of the business of the Company or any such Subsidiary; and
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(xv) any Lien securing Debt owing by the Company to a Wholly Owned
Subsidiary of the Company (provided that such Debt is at all times held
by a Person which is a Wholly Owned Subsidiary of the Company) and any
Lien securing Debt owing by one or more Wholly Owned Subsidiaries to
the Company, but only so long as such Debt is held by the Company;
PROVIDED, HOWEVER, that for purposes of this Section 1012 and Section
1013, upon either (x) the transfer or other disposition of a Debt
secured by a Lien so permitted to a Person other than the Company or
another Wholly Owned Subsidiary of the Company or (y) the issuance
(other than directors' qualifying shares), sale, lease, transfer or
other disposition of shares of Capital Stock of any such Wholly Owned
Subsidiary to a Person other than the Company or another Wholly Owned
Subsidiary of the Company, the provisions of this Clause (xv) shall no
longer be applicable to such Lien and such Lien shall be subject (if
otherwise subject) to the requirements of this Section 1012 without
regard to this Clause (xv).
(b) In addition to the foregoing, the Company and its Subsidiaries may Incur a
Lien to secure any Debt, without securing the Securities equally and ratably
with or prior to such Debt if at the time of such Incurrence the amount of Debt
subject to Liens arising after the date of this Indenture and otherwise
prohibited by this Indenture, does not exceed 10% of Consolidated Tangible
Assets.
SECTION 1013. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any Subsidiary of the Company
to, enter into any Sale and Leaseback Transaction unless at least 25% of the
proceeds of the Sale and Leaseback Transaction are used to pay down the
Securities issued pursuant to this Indenture.
SECTION 1014. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any Subsidiary of the Company
to, directly or indirectly enter into any transaction (including, without
limitation, the purchase, sale, lease or exchange of property, the rendering of
any service or the making of any loan, advance or investment, but excluding
transactions between the Company and Wholly Owned Subsidiaries of the Company)
involving aggregate consideration in excess of $500,000, with any Affiliate of
the Company, UNLESS:
(i) such transaction is, in the good faith judgment of the Board of
Directors evidenced by a Board Resolution, on terms no less favorable
to the Company or such Subsidiary than those that could be obtained in
a comparable arm's length transaction with an entity that is not an
Affiliate;
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(ii) if such transaction (or series of related transactions occurring
within any single fiscal year which are similar or part of a common
plan) involves in excess of $1,000,000, a majority of the independent
members of the Board of Directors determines, in their good faith
judgment evidenced by a resolution of such members filed with the
Trustee, that such transaction is in the best interests of the Company
or such Subsidiary; and
(iii) if such transaction (or series of related transactions occurring
within any single fiscal year which are similar or part of a common
plan) involves in excess of $5,000,000, the Company shall obtain a
fairness opinion from an independent banking firm of national standing
with experience in appraising the terms and conditions of the type of
transaction (or series of related transactions) for which a fairness
opinion is required.
SECTION 1015. LIMITATION ON CERTAIN ASSET DISPOSITIONS.
(a) The Company shall not, and shall not permit any Subsidiary of the Company
to, make any Asset Disposition (other than Asset Dispositions permitted by
Section 1013) in one or more transactions by the Company or a Subsidiary of the
Company in any fiscal year that results in aggregate Net Available Proceeds in
excess of $2,000,000, unless:
(i) the Company (or the Subsidiary of the Company, as the case may be)
receives consideration at the time of such disposition at least equal
to the fair market value of the shares or assets disposed of (which
shall be as determined in good faith by the Board of Directors and
evidenced by a Board Resolution), and
(ii) (1) either the Asset Disposition is a Store Swap, or (2) (x) at
least 75% of the consideration for such disposition consists of cash or
readily marketable cash equivalents or the assumption of Debt of the
Company or other obligations relating to such assets and release from
all liability on the Debt or other obligations assumed; and (y) 100% of
the Net Available Proceeds from such disposition and from the sale of
any marketable securities received therein, less any amounts applied
within 12 months of such disposition to the repayment of Debt which is
PARI PASSU to the Securities or to investment in assets related to the
business of the Company, are applied within 12 months of such
disposition to purchase Outstanding Securities pursuant to an Offer to
Purchase at a purchase price equal to 100% of their principal amount
plus accrued interest to the date of purchase; PROVIDED, HOWEVER, that
if the amount of Net Available Proceeds available to purchase
Securities is less than $5,000,000, the Company's obligation to make an
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Offer to Purchase may be deferred until such time as Net Available
Proceeds, plus the aggregate amount of Net Available Proceeds resulting
from any subsequent Asset Disposition or Asset Dispositions not
otherwise used to repay Debt which is PARI PASSU to the Securities or
to invest in assets related to the business of the Company, are at
least equal to $5,000,000, at which time the Company shall be obligated
to make such Offer to Purchase at a purchase price equal to 100% of
their principal amount plus accrued interest to the date of repurchase.
Pending application thereof in accordance with the preceding
Clause (ii) (2) (y), the Company shall invest such Net Available
Proceeds in Qualified Investments. To the extent the Company uses any
portion of the Net Available Proceeds for any purpose other than to
repay Debt which is PARI PASSU to the Securities or to invest in assets
related to the business of the Company, or to repurchase the
Securities, for purposes of computing Consolidated Interest Expense,
the Company will be deemed to have Incurred an interest expense equal
to the Pro Forma Interest Expense.
(b) The Company will mail the Offer for an Offer to Purchase required pursuant
to Section 1015(a) not more than 90 days after consummation of the disposition
referred to in Section 1015(a). The aggregate principal amount of the Securities
to be offered to be purchased pursuant to the Offer to Purchase shall equal the
Net Available Proceeds available thereof (rounded down to the next lowest
integral multiple of $1.00). Each Holder shall be entitled to tender all or any
portion of the Securities owned by such Holder pursuant to the Offer to
Purchase, subject to the requirement that any portion of a Security tendered
must be tendered in an integral multiple of $1.00 principal amount.
The Company shall not be entitled to any credit against its obligations
under this Section 1015 for the principal amount of any Securities acquired by
the Company otherwise than pursuant to the Offer to Purchase pursuant to this
Section 1015.
(c) Not later than the date of the Offer with respect to an Offer to Purchase
pursuant to this Section 1015, the Company shall deliver to the Trustee an
Officers' Certificate as to (i) the Purchase Amount, (ii) the allocation of the
Net Available Proceeds from the Asset Disposition pursuant to which such Offer
is being made, including, if amounts are invested in assets related to the
business, the actual assets acquired and a statement as to the necessity of such
assets for the maintenance of such business and (iii) the compliance of such
allocation with the provisions of paragraph (a).
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The Company and the Trustee shall perform their respective obligations
specified in the Offer for the Offer to Purchase. On or prior to the Purchase
Date, the Company shall (i) accept for payment (on a pro rata basis, if
necessary) Securities or portions thereof tendered pursuant to the Offer, (ii)
deposit with the paying agent (or, if the Company is acting as its own paying
agent, segregate and hold in trust as provided in Section 1003) money sufficient
to pay the purchase price of all Securities or portions thereof so accepted and
(iii) deliver or cause to be delivered to the Trustee all Securities so accepted
together with an Officers' Certificate stating the Securities or portions
thereof accepted for payment by the Company. The paying agent (or the Company,
if so acting) shall promptly mail or deliver to Holders of Securities so
accepted payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new Security equal
in principal amount to any unpurchased portion of the Security surrendered. Any
Security not accepted for payment shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company shall publicly announce the results
of the Offer on or as soon as practicable after the Purchase Date.
(d) Notwithstanding the foregoing, this Section 1015 shall not apply to any
Asset Disposition which constitutes a transfer, conveyance, sale, lease or other
disposition of all or substantially all of the Company's properties or assets
within the meaning of Section 801 hereof.
SECTION 1016. LIMITATION ON ISSUANCES OF CAPITAL STOCK OF SUBSIDIARIES.
The Company may not permit any Subsidiary to issue shares of its Capital
Stock or securities convertible or exchangeable into, or options, warrants,
rights or any other interest with respect to, its Capital Stock to any Person
other than to the Company or a Wholly Owned Subsidiary of the Company.
SECTION 1017. CHANGE OF CONTROL.
(a) Upon the occurrence of a Change in Control, the Company will be required to
make an Offer to Purchase Outstanding Securities at a purchase price in cash
equal to 100% of their principal amount, plus accrued interest to the Purchase
Date, subject to the consummation of the Change of Control, and such transaction
and any financing or other transactions in connection therewith will be deemed
to have been incurred not in violation of any covenant of this Indenture
(irrespective of whether such transaction or financing or other transactions
would otherwise violate any covenant of the Indenture). If the Company takes any
action in connection with such transaction which would violate any covenant of
this Indenture, the Company will give Holders notice of such right of repurchase
not more than 45 days prior to the date of consummation of such transaction,
mailed by first class mail to the
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Holders' last addresses as they appear in the Security Register, and any Holder
who elects to require the Company to repurchase his or her Securities will be
paid prior to or concurrently with the consumma tion of any such transaction. In
all other instances, the Company shall, as soon as practicable following the
consummation of a transaction resulting in a Change of Control, mail an Offer
with respect to an Offer to Purchase all Outstanding Securities, by first class
mail to the Holders' last addresses as they appear in the Security Register, at
a purchase price in cash equal to 100% of their aggregate principal amount plus
accrued interest to the Purchase Date (PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Purchase Date shall be
payable to the Holders of such Securities, or one or more Predecessor Securities
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307), and any Holder who
elects to require the Company to purchase his or her Securities will be paid 45
days following the date of such notice. Holders will have the right to have
their Securities repurchased if such Securities are tendered for repurchase no
later than five business days prior to the applicable repurchase date. Each
Holder shall be entitled to tender all or any portion of the Securities owned by
such Holder pursuant to the Offer to Purchase, subject to the requirement that
any portion of a Security tendered must be tendered in an integral multiple of
$1.00 principal amount.
(b) The Company and the Trustee shall perform their respective obligations
specified in the Offer to Purchase. Prior to the Purchase Date, the Company
shall (i) accept for payment Securities or portions thereof tendered pursuant to
the Offer, (ii) deposit with the Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
money sufficient to pay the purchase price of all Securities or portions thereof
so accepted and (iii) deliver or cause to be delivered to the Trustee all
Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof accepted for payment by the Company. The Paying
Agent shall promptly mail or deliver to Holders of Securities so accepted
payment in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security or Securities
equal in principal amount to any unpurchased portion of the Security surrendered
as requested by the Holder. Any Security not accepted for payment shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
shall publicly announce the results of the Offer on or as soon as practicable
after the Purchase Date.
(c) A "Change of Control" will be deemed to have occurred at such time as either
(a) any Person or any Persons (other than Odyssey Partners, L.P., or any
Subsidiary thereof so long as such Subsidiary remains a Subsidiary of Odyssey
Partners, L.P.) acting together that would constitute a "group" (for purposes of
Section 13(d) of the Exchange Act, or any successor provision thereto) (a
"Group"), together with any Affiliates thereof, shall beneficially own (as
defined in Rule 13d-3
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under the Exchange Act, or any successor provision thereto) at least 50% of the
Voting Stock of the Company; or (b) any Person (other than Odyssey Partners,
L.P., or any Subsidiary thereof so long as such Subsidiary remains a Subsidiary
of Odyssey Partners, L.P.) or Group, together with any Affiliates thereof, shall
succeed in having sufficient of its nominees elected to the Board of Directors
of the Company such that such nominees, when added to any existing director
remaining on the Board of Directors of the Company after such election who is an
Affiliate of such Group, will constitute a majority of the Board of Directors of
the Company.
SECTION 1018. PROVISION OF FINANCIAL INFORMATION.
Whether or not the Company is required to be subject to Section 13(a) or
15(d) of the Exchange Act, or any successor provision thereto, the Company shall
file with the Commission the annual reports, quarterly reports and other
information, documents and reports which the Company would have been required to
file with the Commission pursuant to such Section 13(a) or 15(d) or any
successor provision thereto if the Company were so required, such documents to
be filed with the Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been required so to file such
documents if the Company were so required. The Company shall also in any event
(a) within 15 days of each Required Filing Date (i) transmit by mail to all
Holders, as their names and addresses appear in the Security Register, without
cost to such Holders, and (ii) file with the Trustee copies of the annual
reports, quarterly reports and other information, documents and reports which
the Company would have been required to file with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act, or any successor provision thereto,
if the Company were required to be subject to such Sections and (b) if filing
such information, documents or reports by the Company with the Commission is not
permitted under the Exchange Act, promptly upon written request supply copies of
such documents to any prospective Holder.
SECTION 1019. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company will deliver to the Trustee, within 90 days after the end of
each fiscal year of the Company ending after the date hereof an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of Section 801 or Sections 1004 to 1019, inclusive,
and if the Company shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge.
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(b) The Company shall deliver to the Trustee, as soon as possible and in any
event within 10 days after the Company becomes aware or should reasonably become
aware of the occurrence of an Event of Default or an event which, with notice or
the lapse of time or both, would constitute an Event of Default, an Officers'
Certificate setting forth the details of such Event of Default or default, and
the action which the Company proposes to take with respect thereto.
SECTION 1020. RATING.
The Company will, on or prior to September 30, 2000, use its best efforts
to cause the Securities to be rated by either Xxxxx'x Investor Service, Inc. or
Standard & Poors.
SECTION 1021. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Section 801 and Sections 1004 to 1018, if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect; PROVIDED, HOWEVER, with respect to an Offer to Purchase as to which an
Offer has been mailed, no such waiver may be made or shall be effective against
any Holder tendering Securities pursuant to such Offer, and the Company may not
omit to comply with the terms of such Offer as to such Holder.
ARTICLE XI
Redemption of Securities
SECTION 1101. RIGHT OF REDEMPTION.
The Securities may be redeemed at the election of the Company, in whole or
from time to time in part, at any time, as specified in the form of Security
hereinbe fore set forth together with accrued interest to the Redemption Date.
SECTION 1102. APPLICABILITY OF ARTICLE.
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Redemption of Securities at the election of the Company, as permitted by
any provision of this Indenture, shall be made in accordance with such provision
and this Article.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant to Section
1101 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of less than all the Securities, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities to be redeemed.
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $1.00 or any integral multiple thereof) of the principal amount of
Securities of a denomination larger than $1.00.
The Trustee shall promptly notify the Company and each Security Registrar
in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be redeemed, the
identification (and, in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date, and
(5) the place or places where such Securities are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money or
U.S. Government Obligations sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that Date.
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; PROVIDED, HOWEVER, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate provided by the Security.
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SECTION 1108. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered at
an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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ARTICLE XII
Defeasance
SECTION 1201. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may at its option by Board Resolution, at any time, elect to
have either Section 1202 applied to the Outstanding Securities upon compliance
with the conditions set forth below in this Article Twelve.
SECTION 1202. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section 1201
applicable to this Section, and subject to compliance with this Article Twelve,
the Company shall be deemed to have been discharged from its obligations with
respect to the Outstanding Securities on the date the conditions set forth below
are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities and to have satisfied all
its other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A) the
rights at Holders of such Securities to receive, from the trust fund described
in Section 1203 and as more fully set forth in such Section, payments in respect
of the principal of (and premium, if any) and interest on such Securities when
such payments are due, (B) the Company's obligations with respect to such
Securities under Sections 304, 305, 306, 1001, 1002 and 1003, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article Twelve.
SECTION 1203. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of Section 1202 to the
then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Twelve applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely
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to, the benefit of the Holders of such Securities, (A) the shares of
Common Stock of the Company as provided for in Section 1001 hereof and,
(B) money in an amount, or U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or a combination
thereof, sufficient to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, the
principal of (premium, if any) and each instalment of interest on the
Securities on the Stated Maturity of such principal or instalment of
interest in accordance with the terms of this Indenture and of such
Securities.
(2) In the case of an election under Section 1202, the Company shall
have delivered to the Trustee an Opinion of Counsel confirming that the
Holders of the Outstanding Securities will not recognize gain or loss
for Federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred.
(3) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(4) Such defeasance shall not cause the Trustee to have a conflicting
interest as defined in Section 608 and for purposes of the Trust
Indenture Act with respect to any securities of the Company.
(5) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default shall have occurred and be
continuing on the date of such deposit.
(6) Such defeasance shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which
the Company is a party or by which it is bound.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance under Section 1202
have been complied with.
(8) Such defeasance shall not result in the trust arising from such
deposit constituting an investment company as defined in the Investment
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Company Act of 1940, as amended, or such trust shall be qualified under
such act or exempt from regulation thereunder.
SECTION 1204. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all money,
shares of Common Stock of the Company and U.S. Government Obligations (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee
-- collectively, for purposes of this Section 1204, the Trustee) pursuant to
Section 1203 in respect of the Securities shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the shares of Common Stock of the
Company or the U.S. Government Obligations deposited pursuant to Section 1203 or
the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1203 which are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent defeasance or covenant
defeasance.
SECTION 1205. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 1202 by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Twelve until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 1202; PROVIDED, HOWEVER, that if the
Company makes any payment of principal of (and premium, if any) or interest on
any Security following the reinstatement of its obligations, the Company shall
be subrogated to the rights of
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the Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or the Paying Agent.
This instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
EAGLE FOODS CENTER, INC.
By__________________________________
Attest:
U.S. BANK TRUST NATIONAL ASSOCIATION
By__________________________________
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of _____________________________, 2000, before me
personally came ______________________________________________________, to me
known, who, being by me duly sworn, did depose and say that [he - she] is of
Eagle Food Centers, Inc., one of the corporations described in and which
executed the foregoing instrument; that [he - she] knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that [he - she] signed [his - her] name thereto by like
authority.
00
XXXXX XX XXXXXXXXX )
) ss.:
COUNTY OF XXXXXX )
On the _____ day of ______________, 2000, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that [he - she] is______________________________________________
U.S. BANK TRUST NATIONAL ASSOCIATION, one of the corporations described in and
which executed the foregoing instrument; that [he - she] knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that [he - she] signed [his - her] name thereto by like
authority.
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