Exhibit 4.2
Conformed Copy
DEL MONTE CORPORATION,
as Issuer
DEL MONTE FOODS COMPANY,
as Guarantor
and
MARINE MIDLAND BANK
as Trustee
INDENTURE
Dated as of April 18, 1997
$150,000,000
12-1/4% Senior Subordinated Notes due 2007
and
Series B 12-1/4% Senior Subordinated Notes due 2007
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) ................................ 7.10
(a)(2) ................................ 7.10
(a)(3) ................................ N.A.
(a)(4) ................................ N.A.
(a)(5) ................................ 7.08; 7.10
(b) ................................ 7.08; 7.10; 13.02
(c) ................................ N.A.
311(a) ................................ 7.11
(b) ................................ 7.11
(c) ................................ N.A.
312(a) ................................ 2.05
(b) ................................ 13.03
(c) ................................ 13.03
313(a) ................................ 7.06
(b)(1) ................................ N.A.
(b)(2) ................................ 7.06
(c) ................................ 7.06; 13.02
(d) ................................ 7.06
314(a) ................................ 4.07; 4.08; 13.02
(b) ................................ N.A.
(c)(1) ................................ 13.04
(c)(2) ................................ 13.04
(c)(3) ................................ N.A.
(d) ................................ N.A.
(e) ................................ 13.05
(f) ................................ N.A.
315(a) ................................ 7.01(b)
(b) ................................ 7.05; 13.02
(c) ................................ 7.01(a)
(d) ................................ 7.01(c)
(e) ................................ 6.11
316(a)(last sentence)........................ 2.09
(a)(1)(A)................................ 6.05
(a)(1)(B)................................ 6.04
(a)(2) ................................ N.A.
(b) ................................ 6.07
(c) ................................ 9.05
317(a)(1) ................................ 6.08
(a)(2) ................................ 6.09
(b) ................................ 2.04
318(a) ................................ 13.01
(c) ................................ 13.01
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions 1
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SECTION 1.02. Incorporation by Reference of TIA 28
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SECTION 1.03. Rules of Construction 28
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ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating 29
SECTION 2.02. Execution and Authentication; Aggregate
Principal Amount 30
SECTION 2.03. Registrar and Paying Agent 31
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SECTION 2.04. Paying Agent To Hold Assets in Trust 32
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SECTION 2.05. Noteholder Lists 32
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SECTION 2.06. Transfer and Exchange 33
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SECTION 2.07. Replacement Notes 34
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SECTION 2.08. Outstanding Notes 34
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SECTION 2.09. Treasury Notes 34
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SECTION 2.10. Temporary Notes 35
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SECTION 2.11. Cancellation 35
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SECTION 2.12. Defaulted Interest 35
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SECTION 2.13. CUSIP Number 35
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SECTION 2.14. Deposit of Moneys 36
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SECTION 2.15. Restrictive Legends 36
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SECTION 2.16. Book-Entry Provisions for Global Note 38
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SECTION 2.17. Special Transfer Provisions 39
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ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee 41
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SECTION 3.02. Selection of Notes To Be Redeemed 41
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SECTION 3.03. Notice of Redemption 42
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SECTION 3.04. Effect of Notice of Redemption 43
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SECTION 3.05. Deposit of Redemption Price 43
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SECTION 3.06. Notes Redeemed in Part 43
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes 44
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SECTION 4.02. Maintenance of Office or Agency 44
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SECTION 4.03. Corporate Existence 45
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SECTION 4.04. Payment of Taxes and Other Claims 45
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SECTION 4.05. Maintenance of Properties and Insurance 45
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SECTION 4.06. Compliance Certificate; Notice of Default 46
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SECTION 4.07. Compliance with Laws 46
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SECTION 4.08. SEC Reports 47
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SECTION 4.09. Waiver of Stay, Extension or Usury Laws 47
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SECTION 4.10. Limitation on Restricted Payments 48
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SECTION 4.11. Limitation on Transactions with Affiliates 50
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SECTION 4.12. Limitation on Incurrence of Additional
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Indebtedness 51
SECTION 4.13. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries 51
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SECTION 4.14. Prohibition on Incurrence of Senior Subordinated
Debt 52
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SECTION 4.15. Change of Control 52
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SECTION 4.16. Limitation on Asset Sales 54
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SECTION 4.17. Limitation on Preferred Stock of Restricted
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Subsidiaries 58
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SECTION 4.18. Limitation on Liens 58
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SECTION 4.19. Limitation on Guarantees by Restricted
Subsidiaries 59
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SECTION 4.20. Restriction of Lines of Business to Food, Food
Distribution and Related Businesses 60
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets of the
Company 60
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SECTION 5.02. Successor Corporation Substituted for the
Company 61
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SECTION 5.03. Merger, Consolidation and Sale of Assets of
Holdings 62
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SECTION 5.04. Successor Corporation Substituted for Holdings 63
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ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default 63
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SECTION 6.02. Acceleration 64
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SECTION 6.03. Other Remedies 65
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SECTION 6.04. Waiver of Past Defaults 66
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SECTION 6.05. Control by Majority 66
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SECTION 6.06. Limitation on Suits 66
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SECTION 6.07. Rights of Holders To Receive Payment 67
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SECTION 6.08. Collection Suit by Trustee 67
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SECTION 6.09. Trustee May File Proofs of Claim 67
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SECTION 6.10. Priorities 68
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SECTION 6.11. Undertaking for Costs 68
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee 68
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SECTION 7.02. Rights of Trustee 70
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SECTION 7.03. Individual Rights of Trustee 71
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SECTION 7.04. Trustee's Disclaimer 71
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SECTION 7.05. Notice of Default 71
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SECTION 7.06. Reports by Trustee to Holders 71
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SECTION 7.07. Compensation and Indemnity 72
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SECTION 7.08. Replacement of Trustee 73
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SECTION 7.09. Successor Trustee by Merger, Etc 74
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SECTION 7.10. Eligibility; Disqualification 74
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SECTION 7.11. Preferential Collection of Claims Against
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Company 74
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations. 74
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SECTION 8.02. Legal Defeasance and Covenant Defeasance 76
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SECTION 8.03. Conditions to Legal Defeasance or Covenant
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Defeasance 77
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SECTION 8.04. Application of Trust Money 79
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SECTION 8.05. Repayment to the Company 79
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SECTION 8.06. Reinstatement 80
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders 80
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SECTION 9.02. With Consent of Holders 81
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SECTION 9.03. Effect on Senior Debt 82
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SECTION 9.04. Compliance with TIA 82
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SECTION 9.05. Revocation and Effect of Consents 83
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SECTION 9.06. Notation on or Exchange of Notes 83
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SECTION 9.07. Trustee To Sign Amendments, Etc 84
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SECTION 9.08. Effect of Supplemental Indentures 84
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ARTICLE TEN
SUBORDINATION
SECTION 10.01. Notes Subordinated to Senior Debt 84
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SECTION 10.02. No Payment on Notes in Certain Circumstances. 84
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SECTION 10.03. Payment Over of Proceeds upon Dissolution, Etc 86
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SECTION 10.04. Payments May Be Paid Prior to Dissolution 87
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SECTION 10.05. Subrogation 87
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SECTION 10.06. Obligations of the Company Unconditional 88
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SECTION 10.07. Notice to Trustee and Paying Agents 88
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SECTION 10.08. Reliance on Judicial Order or Certificate of
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Liquidating Agent 89
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SECTION 10.09. Trustee's Relation to Senior Debt 89
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SECTION 10.10. Subordination Rights Not Impaired by Acts or
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Omissions of the Company or Holders of Senior
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Debt 90
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SECTION 10.11. Noteholders Authorize Trustee and Paying Agent
To Effectuate Subordination of Notes 90
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SECTION 10.12. This Article Ten Not To Prevent Events of
Default 91
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SECTION 10.13. Trustee's Compensation Not Prejudiced 91
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ARTICLE ELEVEN
GUARANTEE OF HOLDINGS
SECTION 11.01. Unconditional Guarantee 91
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SECTION 11.02. Subordination of Guarantee 92
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SECTION 11.03. Severability 92
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SECTION 11.04. Release of Guarantee 92
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SECTION 11.05. Waiver of Subrogation 93
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SECTION 11.06. Execution of Guarantee 93
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SECTION 11.07. Waiver of Stay, Extension or Usury Laws 94
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ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
SECTION 12.01. Guarantee Obligations Subordinated to Guarantor
Senior Debt of Holdings 94
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SECTION 12.02. No Payment on Notes in Certain Circumstances 94
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SECTION 12.03. Payment Over of Proceeds upon Dissolution, Etc 96
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SECTION 12.04. Payments May Be Paid Prior to Dissolution 97
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SECTION 12.05. Subrogation 98
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SECTION 12.06. Obligations of Holdings Unconditional 98
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SECTION 12.07. Notice to Trustee and Paying Agents 98
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SECTION 12.08. Reliance on Judicial Order or Certificate of
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Liquidating Agent 99
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SECTION 12.09. Trustee's Relation to Guarantor Senior Debt of
Holdings 99
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SECTION 12.10. Subordination Rights Not Impaired by Acts or
Omissions of Holdings or Holders of Guarantor
Senior Debt of Holdings 100
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SECTION 12.11. Noteholders Authorize Trustee and Paying Agent
To Effectuate Subordination of Notes 100
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SECTION 12.12. This Article Twelve Not To Prevent Events of
Default 101
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ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA Controls 101
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SECTION 13.02. Notices 101
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SECTION 13.03. Communications by Holders with Other Holders 104
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SECTION 13.04. Certificate and Opinion as to Conditions
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Precedent 104
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SECTION 13.05. Statements Required in Certificate or Opinion 104
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SECTION 13.06. Rules by Trustee, Paying Agent, Registrar 105
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SECTION 13.07. Legal Holidays 105
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SECTION 13.08. Governing Law 105
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SECTION 13.09. No Adverse Interpretation of Other Agreements 105
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SECTION 13.10. No Recourse Against Others 105
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SECTION 13.11. Successors 106
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SECTION 13.12. Duplicate Originals 106
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SECTION 13.13. Severability 106
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Signatures 104
Exhibit A - Form of Initial Note and Guarantee............... A-1
Exhibit B - Form of Exchange Note and Guarantee.............. B-1
Exhibit C - Form of Certificate To Be Delivered in
Connection with Transfers to Non-QIB
Accredited Investors.......................... C-1
Exhibit D - Form of Certificate To Be Delivered in
Connection with Transfers Pursuant to
Regulation S.................................. D-1
Schedule 1 - Assets Being Held For Disposition
Note: This Table of Contents shall not, for any purpose,
be deemed to be part of the Indenture.
INDENTURE, dated as of April 18, 1997, among DEL MONTE
CORPORATION, a New York corporation (the "Company"), DEL MONTE
FOODS COMPANY, a Maryland corporation ("Holdings") and MARINE
MIDLAND BANK, a New York banking and trust company, as Trustee
(the "Trustee").
The Company has duly authorized the creation of an
issue of 12-1/4% Senior Subordinated Notes due 2007 (the "Initial
Notes") and Series B 12-1/4% Senior Subordinated Notes due 2007
(the "Exchange Notes," and together with the Initial Notes, the
"Notes") and, to provide therefor, the Company has duly
authorized the execution and delivery of this Indenture. All
things necessary to make the Notes, when duly issued and executed
by the Company, and authenticated and delivered hereunder, the
valid obligations of the Company, and to make this Indenture a
valid and binding agreement of the Company, have been done.
Holdings has agreed to guarantee the Notes on a senior
subordinated basis.
Each party hereto agrees as follows for the benefit of
the other parties and for the equal and ratable benefit of the
Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acceleration Notice" has the meaning provided in
Section 6.02(a).
"Acquired Indebtedness" means Indebtedness of a Person
or any of its Subsidiaries existing at the time such Person
becomes a Restricted Subsidiary of the Company or at the time it
merges or consolidates with the Company or any of its Restricted
Subsidiaries or assumed by the Company or any of its Restricted
Subsidiaries in connection with the acquisition of assets from
such Person and in each case not incurred by such Person in
connection with, or in anticipation or contemplation of, such
Person becoming a Restricted Subsidiary of the Company or such
acquisition, merger or consolidation.
"Acquisition Financing Indebtedness" means
Indebtedness of the Company incurred in connection with the
acquisition of assets or capital stock (by stock purchase, merger
or otherwise) of a Person engaged in all material respects solely
in the business of food, food distribution and related
businesses.
"Affiliate" means, with respect to any specified
Person, any other Person who directly or indirectly through one
or more intermediaries controls, or is controlled by, or is under
common control with, such specified Person. The term "control"
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative of the foregoing.
"Affiliate Transaction" has the meaning provided in
Section 4.11 .
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Agent Members" has the meaning provided in Section
2.16.
"Applicable Premium" means, with respect to a Note at
any Change of Control Redemption Date, the greater of (i) 1.0% of
the principal amount of such Note and (ii) the excess of (A) the
present value at such time of (1) the redemption price of such
Note at April 15, 2002 determined in accordance with paragraph
6(a) of the Notes plus (2) all required interest payments due on
such Note through April 15, 2002, computed using a discount rate
equal to the Treasury Rate plus 1.00% per annum, over (B) the
principal amount of such Note.
"Asset Acquisition" means (a) an Investment by the
Company or any Restricted Subsidiary of the Company in any other
Person pursuant to which such Person shall become a Restricted
Subsidiary of the Company or shall be merged with or into the
Company or any Restricted Subsidiary of the Company, or (b) the
acquisition by the Company or any Restricted Subsidiary of the
Company of the assets of any Person (other than a Restricted
Subsidiary of the Company) which constitute all or substantially
all of the assets of such Person or comprises any division or
line of business of such Person or any other properties or assets
of such Person other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale,
issuance, conveyance, transfer, lease (other than operating
leases entered into in the ordinary course of business),
assignment or other transfer for value by the Company or any of
its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Wholly
Owned Restricted Subsidiary of the Company of (a) any Capital
Stock of any Restricted Subsidiary of the Company or (b) any
other property or assets of the Company or any Restricted
Subsidiary of the Company other than in the ordinary course of
business; provided, however, that Asset Sales shall not include
(i) a transaction or series of related transactions for which the
Company or its Restricted Subsidiaries receive aggregate
consideration of less than $1,000,000; (ii) the sale, lease,
conveyance, disposition or other transfer of all or substantially
all of the assets of the Company as permitted under Section 5.01;
(iii) the grant of Liens
permitted by Section 4.18; (iv) the sale or transfer of
Receivables Related Assets in connection with a Qualified
Receivables Transaction; and (v) the sale or transfer of certain
assets identified in Schedule 1 to this Indenture as being held
for disposition.
"Asset Swap" means the execution of a definitive
agreement, subject only to customary closing conditions that the
Company in good faith believes will be satisfied, for a
substantially concurrent purchase and sale, or exchange, of
assets (of a kind used or usable by the Company and its
Restricted Subsidiaries in their business as it exists on the
date thereof, or in businesses the same as, or similar or
reasonably related thereto) between the Company or any of its
Restricted Subsidiaries and another Person or group of affiliated
Persons; provided, however, that any amendment to or waiver of
any closing condition that individually or in the aggregate is
material to the Asset Swap shall be deemed to be a new Asset
Swap.
"Authenticating Agent" has the meaning provided in
Section 2.02.
"Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal, state or foreign law for the relief of debtors.
"Blockage Period" has the meaning provided in Section
10.02.
"Board of Directors" means, as to any Person, the
board of directors of such Person or any duly authorized
committee thereof.
"Board Resolution" means, with respect to any Person,
a copy of a resolution certified by the Secretary or an Assistant
Secretary of such Person to have been duly adopted by the Board
of Directors of such Person and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day" means a day that is not a Legal Holiday.
"Capitalized Lease Obligation" means, as to any
Person, the obligations of such Person under a lease that are
required to be classified and accounted for as capital lease
obligations under GAAP and, for purposes of this definition, the
amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance
with GAAP.
"Capital Stock" means (i) with respect to any Person
that is a corporation, any and all shares, interests,
participations or other equivalents (however designated and
whether or not voting) of corporate stock, including each class
of Common Stock and Preferred Stock of such Person and (ii) with
respect to any Person that is not a corporation, any and all
partnership or other equity interests of such Person.
"Cash Equivalents" means (i) obligations issued by, or
unconditionally guaranteed by, the U.S. Government or issued by
any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the
date of acquisition thereof; (ii) obligations issued or fully
guaranteed by any state of the United States or any political
subdivision of any such state or any public instrumentality
thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor's Ratings
Service ("S&P") or Xxxxx'x Investors Service, Inc. ("Moody's");
(iii) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having
the highest rating obtainable from either S&P or Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within
one year from the date of acquisition thereof issued by any bank
organized under the laws of the United States or any state
thereof or the District of Columbia or any U.S. branch of a
foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $250,000,000; (v) repurchase
obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above
entered into with any bank meeting the qualifications specified
in clause (iv) above; and (vi) investments in money market funds
which invest substantially all their assets in securities of the
types described in clauses (i) through (v) above.
"Change of Control" means the occurrence of one or
more of the following events: (i) any sale, lease, exchange or
other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the
Company or Holdings to any Person or group of related Persons for
purposes of Section 13(d) of the Exchange Act (a "Group"),
together with any Affiliates thereof (whether or not otherwise in
compliance with the provisions of this Indenture) other than to
TPG or its Related Parties; (ii) the approval by the holders of
Capital Stock of the Company or Holdings, as the case may be, of
any plan or proposal for the liquidation or dissolution of the
Company or Holdings, as the case may be (whether or not otherwise
in compliance with the provisions of this Indenture); (iii) (A)
any Person or Group (other than TPG or its Related Parties) shall
become the owner, directly or indirectly, beneficially or of
record, of shares representing more than 40% of the aggregate
ordinary voting power represented by the issued and outstanding
Capital Stock (the "Voting Stock") of the Company or Holdings and
(B) TPG and its Related Parties shall beneficially own, directly
or indirectly, in the aggregate a lesser percentage of the Voting
Stock of the Company or Holdings, as the case may be, than such
other Person or Group; or (iv) the replacement of a majority of
the Board of Directors of the Company or Holdings over a two-year
period from the directors who constituted the Board of Directors
of the Company or Holdings, as the case may be, at the beginning
of such period, and such replacement shall not have been approved
by a vote of at least a majority of the Board of Directors of the
Company or Holdings, as the case may be, then still in office who
either were members of such Board of Directors at the beginning
of such period or whose election as a member of such Board of
Directors
was previously so approved or who were nominated by, or designees
of TPG or its Related Parties.
"Change of Control Date" has the meaning provided in
Section 4.15.
"Change of Control Offer" has the meaning provided in
Section 4.15.
"Change of Control Payment Date" has the meaning
provided in Section 4.15.
"Change of Control Redemption Date" has the meaning
provided in Section 4.15.
"Common Stock" of any Person means any and all shares,
interests or other participations in, and other equivalents
(however designated and whether voting or non-voting) of such
Person's common stock, whether outstanding on the Issue Date or
issued after the Issue Date, and includes, without limitation,
all series and classes of such common stock.
"Company" means the party named as such in this
Indenture until a successor replaces it pursuant to this
Indenture and thereafter means such successor.
"Consolidated EBITDA" means, with respect to any
Person, for any period, the sum (without duplication) of (i)
Consolidated Net Income and (ii) to the extent Consolidated Net
Income has been reduced thereby, (A) all income taxes of such
Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period, (B) Consolidated Interest
Expense and (C) Consolidated Non-cash Charges less any non-cash
items increasing Consolidated Net Income for such period, all as
determined on a consolidated basis for such Person and its
Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with
respect to any Person, the ratio of Consolidated EBITDA of such
Person during the four full fiscal quarters (the "Four Quarter
Period") ending on or prior to the date of the transaction giving
rise to the need to calculate the Consolidated Fixed Charge
Coverage Ratio (the "Transaction Date") to Consolidated Fixed
Charges of such Person for the Four Quarter Period. In addition
to and without limitation of the foregoing, for purposes of this
definition, "Consolidated EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a pro forma
basis for the period of such calculation to (i) the incurrence or
repayment of any Indebtedness of such Person or any of its
Restricted Subsidiaries (and the application of the proceeds
thereof) giving rise to the need to make such calculation and any
incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof), other than the incurrence
or repayment of Indebtedness in the ordinary course of business
for working capital purposes pursuant to working capital
facilities, occurring during the Four Quarter Period or at any
time
subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date, as if such incurrence or
repayment, as the case may be (and the application of the
proceeds thereof), occurred on the first day of the Four Quarter
Period and (ii) any Asset Sales or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need
to make such calculation as a result of such Person or one of its
Restricted Subsidiaries (including any Person who becomes a
Restricted Subsidiary as a result of the Asset Acquisition)
incurring, assuming or otherwise being liable for Acquired
Indebtedness and also including any Consolidated EBITDA
(including any pro forma expense and cost reductions calculated
on a basis consistent with Regulation S-X under the Securities
Act) attributable to the assets which are the subject of the
Asset Acquisition or Asset Sale during the Four Quarter Period)
occurring during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date, as if such Asset Sale or Asset
Acquisition (including the incurrence, assumption or liability
for any such Indebtedness or Acquired Indebtedness) occurred on
the first day of the Four Quarter Period. If such Person or any
of its Restricted Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, the preceding sentence shall give
effect to the incurrence of such guaranteed Indebtedness as if
such Person or any Restricted Subsidiary of such Person had
directly incurred or otherwise assumed such guaranteed
Indebtedness. Furthermore, in calculating "Consolidated Fixed
Charges" for purposes of determining the denominator (but not the
numerator) of the "Consolidated Fixed Charge Coverage Ratio," (1)
interest on outstanding Indebtedness determined on a fluctuating
basis as of the Transaction Date and which will continue to be so
determined thereafter shall be deemed to have accrued at a fixed
rate per annum equal to the rate of interest on such Indebtedness
in effect on the Transaction Date, (2) notwithstanding clause (1)
above, interest on Indebtedness determined on a fluctuating
basis, to the extent such interest is covered by agreements
relating to Interest Swap Obligations, shall be deemed to accrue
at the rate per annum resulting after giving effect to the
operation of such agreements, (3) interest on Indebtedness that
may optionally be determined at an interest rate based upon a
factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rate, shall be deemed to have been based
upon the rate actually chosen, or if none, then based upon such
optional rate as such Person may designate, and (4) interest on a
Capitalized Lease Obligation shall be deemed to accrue at an
interest rate reasonably determined by the Board of Directors of
such Person (as evidenced by a Board Resolution) to be the rate
of interest implicit in such Capitalized Lease Obligation in
accordance with GAAP and as reflected in such Person's financial
statements.
"Consolidated Fixed Charges" means, with respect to
any Person for any period, the sum (without duplication) of (i)
Consolidated Interest Expense (excluding amortization or
write-off of deferred financing costs), plus (ii) the product of
(x) the amount of all dividend payments on any series of
Preferred Stock of such Person (other than dividends paid in
Qualified Capital Stock) paid or accrued during such period times
(y) a fraction, the numerator of which is one and the denominator
of which is one
minus the then current effective consolidated federal, state and
local tax rate of such Person, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to
any Person for any period, the sum (without duplication) of: (i)
the aggregate of the interest expense of such Person and its
Restricted Subsidiaries for such period determined on a
consolidated basis in conformity with GAAP, including, without
limitation, (a) any amortization of debt discount and
amortization or write-off of deferred financing costs, (b) the
net costs under Interest Swap Obligations, (c) all capitalized
interest, (d) the interest portion of any deferred payment
obligation, (e) dividends paid in respect of Disqualified Capital
Stock and (f) net payments (whether positive or negative)
pursuant to Interest Swap Obligations; and (ii) the interest
component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Restricted
Subsidiaries during such period as determined on a consolidated
basis in accordance with GAAP. Notwithstanding the foregoing,
Consolidated Interest Expense of the Company shall include the
interest expense of a Person only to the extent that the net
income of such Person is included in the Consolidated Net Income
of the Company.
"Consolidated Net Income" means, with respect to any
Person, for any period, the aggregate net income (or loss) of
such Person and its Restricted Subsidiaries for such period on a
consolidated basis, determined in accordance with GAAP; provided
that there shall be excluded therefrom (a) after-tax gains and
losses from Asset Sales (without regard to the $1 million
limitation set forth in the definition thereof) or abandonments
or reserves relating thereto, (b) after-tax items classified as
extraordinary or nonrecurring gains, (c) the net income of any
Person acquired in a "pooling of interests" transaction accrued
prior to the date it becomes a Restricted Subsidiary of the
referent Person or is merged or consolidated with the referent
Person or any Restricted Subsidiary of the referent Person, (d)
the net income (but not loss) of any Restricted Subsidiary of the
referent Person to the extent that the declaration of dividends
or similar distributions by that Restricted Subsidiary of that
income is restricted by contract, operation of law or otherwise,
(e) the net income of any Person, other than a Restricted
Subsidiary of the referent Person, except to the extent of cash
dividends or distributions paid to the referent Person or a
Wholly Owned Restricted Subsidiary of the referent Person by such
Person, (f) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out
of Consolidated Net Income accrued at any time following the
Issue Date, (g) income or loss attributable to discontinued
operations (including, without limitation, operations disposed of
during such period whether or not such operations were classified
as discontinued), and (h) in the case of a successor to the
referent Person by consolidation or merger or as a transferee of
the referent Person's assets, any earnings of the successor
corporation prior to such consolidation, merger or transfer of
assets. Notwithstanding the foregoing, "Consolidated Net Income"
shall be calculated without giving effect to (i) the amortization
of any premiums, fees or expenses incurred in connection with the
Recapitalization and related financings and (ii) the amortization
or depreciation of any amounts required or permitted by
Accounting Principles Board
Opinion Nos. 16 (including non-cash write-ups and non-cash
charges relating to inventory and fixed assets, in each case
arising in connection with the Recapitalization) and 17
(including non-cash charges relating to intangibles and goodwill
arising in connection with the Recapitalization).
"Consolidated Net Worth" means the total of the
amounts shown on the balance sheet of the Company and its
Restricted Subsidiaries, determined on a consolidated basis, as
of the end of the most recent fiscal quarter of the Company
ending prior to the taking of any action for the purpose of which
the determination is being made, as (i) the par or stated value
of all outstanding Capital Stock of the Company plus (ii) paid-in
capital or capital surplus relating to such Capital Stock plus
(iii) any retained earnings or earned surplus less (A) any
accumulated deficit and (B) any amounts attributable to
Disqualified Capital Stock.
"Consolidated Non-cash Charges" means, with respect to
any Person, for any period, the aggregate depreciation,
amortization, exchange or translation losses on foreign
currencies and other non-cash expenses of such Person and its
Restricted Subsidiaries reducing Consolidated Net Income of such
Person and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP
(excluding any such non-cash charge which requires an accrual of
or a reserve for cash charges for any future period).
"Covenant Defeasance" has the meaning provided in
Section 8.02.
"Credit Agreement" means the Credit Agreement dated as
of April 18, 1997, among Holdings, the Company, the lenders party
thereto in their capacities as lenders thereunder and Bank of
America National Trust and Savings Association and Bankers Trust
Company, as agents, together with the related documents thereto
(including, without limitation, any guarantee agreements and
security documents), in each case as such agreements may be
amended (including any amendment and restatement thereof),
supplemented or otherwise modified from time to time, including
any agreement extending the maturity of, refinancing, replacing
or otherwise restructuring (including, without limitation,
increasing the amount of available borrowings thereunder
(provided that such increase in borrowings is permitted by
Section 4.12) or adding Restricted Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion
of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent,
lender or group of lenders.
"Currency Agreement" means any foreign exchange
contract, currency swap agreement or other similar agreement or
arrangement designed to protect the Company or any Restricted
Subsidiary of the Company against fluctuations in currency
values.
"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any applicable
Bankruptcy Law.
"Default" means an event or condition the occurrence
of which is, or with the lapse of time or the giving of notice or
both would be, an Event of Default.
"Default Notice" has the meaning provided in Section
10.02.
"Depository" means The Depository Trust Company, its
nominees and successors.
"Designated Senior Debt" means (i) Indebtedness under
or in respect of the Credit Agreement and (ii) any other
Indebtedness constituting Senior Debt which, at the time of
determination, has an aggregate principal amount of at least $75
million and is specifically designated by the Company in the
instrument evidencing such Senior Debt as "Designated Senior
Debt".
"Disqualified Capital Stock" means that portion of any
Capital Stock which, by its terms (or by the terms of any
security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the sole option of the holder
thereof, in each case on or prior to the final maturity date of
the Notes.
"Event of Default" has the meaning provided in Section
6.01.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, or any successor statute or statutes thereto.
"Exchange Notes" has the meaning provided in the
preamble to this Indenture.
"Exchange Offer" means the registration by the Company
under the Securities Act pursuant to a registration statement of
the offer by the Company to each Holder of the Initial Notes to
exchange all the Initial Notes held by such Holder for Exchange
Notes in an aggregate principal amount equal to the aggregate
principal amount of the Initial Notes held by such Holder, all in
accordance with the terms and conditions of the Registration
Rights Agreement.
"fair market value" means, with respect to any asset
or property, the price which could be negotiated in an
arm's-length, free market transaction, for cash, between a
willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction.
"GAAP" means generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the
accounting profession of the United States, which are in effect
as of the Issue Date.
"Global Note" has the meaning provided in Section 2.01.
"Guarantee" means, as the context requires, the
Guarantee of Holdings set forth in Article Eleven or a Guarantee
of a Restricted Subsidiary described in Section 4.19.
"Guarantee Obligations" has the meaning provided in
Section 12.01.
"Guarantor" means each of Holdings and any Restricted
Subsidiary that executes a Guarantee pursuant to Section 4.19,
each until a successor replaces it pursuant to this Indenture and
thereafter means such successor. A Restricted Subsidiary whose
Guarantee has terminated pursuant to Section 4.19 shall cease to
be a Guarantor effective as of such termination.
"Guarantor Blockage Period" has the meaning provided in
Section 12.02.
"Guarantor Default Notice" has the meaning provided in
Section 12.02.
"Guarantor Senior Debt" means, with respect to a
Guarantor, the principal of, premium, if any, and interest
(including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest
is an allowed claim under applicable law) on any Indebtedness of
such Guarantor, whether outstanding on the Issue Date or
thereafter created, incurred or assumed, unless, in the case of
any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in
right of payment to the Guarantee of such Guarantor. Without
limiting the generality of the foregoing, "Guarantor Senior Debt"
shall also include the principal of, premium, if any, interest
(including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest
is an allowed claim under applicable law) on, and all other
amounts owing in respect of, (x) all monetary obligations
(including guarantees thereof) of every nature of such Guarantor
under or with respect to the Credit Agreement, including, without
limitation, obligations to pay principal and interest,
reimbursement obligations under letters of credit, fees, expenses
and indemnities, (y) all Interest Swap Obligations (including
guarantees thereof) and (z) all obligations (including guarantees
thereof) under Currency Agreements, in each case whether
outstanding on the Issue
Date or thereafter incurred. Notwithstanding the foregoing,
Guarantor Senior Debt shall not include (i) any Indebtedness of
such Guarantor to a Subsidiary of such Guarantor, (ii)
Indebtedness to, or guaranteed by such Guarantor for the benefit
of, any shareholder (other than a parent corporation), director,
officer or employee of such Guarantor or any Subsidiary of such
Guarantor (including, without limitation, amounts owed for
compensation), (iii) Indebtedness to trade creditors and other
amounts incurred in connection with obtaining goods, materials or
services, (iv) any liability for federal, state, local or other
taxes owed or owing by such Guarantor and (v) any guaranty of
Indebtedness which is, by its express terms, subordinated in
right of payment to any other guaranty of Indebtedness of such
Guarantor.
"Holder" or "Noteholder" means the Person in whose
name a Note is registered on the Registrar's books.
"Holdings" means Del Monte Foods Company, a Maryland
corporation and the parent corporation of the Company, and its
successors in interest.
"incur" has the meaning provided in Section 4.12.
"Indebtedness" means with respect to any Person,
without duplication, (i) all obligations of such Person for
borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all
Capitalized Lease Obligations of such Person (but excluding any
operating lease obligations), (iv) all obligations of such Person
issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all obligations under any title
retention agreement (but excluding trade accounts payable and
other accrued liabilities arising in the ordinary course of
business that are not overdue by 90 days or more or that are
being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted), (v) all obligations for the
reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction, (vi) guarantees and
other contingent obligations in respect of Indebtedness referred
to in clauses (i) through (v) above and clause (viii) below,
(vii) all obligations of any other Person of the type referred to
in clauses (i) through (vi) that are secured by any lien on any
property or asset of such Person, the amount of such obligation
being deemed to be the lesser of the fair market value of such
property or asset or the amount of the obligation so secured,
(viii) all obligations under Currency Agreements and Interest
Swap Obligations of such Person and (ix) all Disqualified Capital
Stock issued by such Person with the amount of Indebtedness
represented by such Disqualified Capital Stock being equal to its
maximum fixed repurchase price (or comparable price that the
Company may be required to pay for the acquisition or retirement
of such Disqualified Capital Stock), but excluding accrued
dividends, if any. For purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Capital Stock which does
not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Capital Stock as
if such Disqualified Capital Stock were purchased on any date on
which Indebtedness shall be required to be determined pursuant to
this
Indenture, and if such price is based upon, or measured by, the
fair market value of such Disqualified Capital Stock, such fair
market value shall be determined reasonably and in good faith by
the Board of Directors of the issuer of such Disqualified Capital
Stock.
"Indenture" means this Indenture, as amended or
supplemented from time to time in accordance with the terms
hereof.
"Independent Financial Advisor" means a firm (i) which
does not, and whose directors, officers and employees or
Affiliates do not, have a direct or indirect equity beneficial
ownership interest in the Company exceeding 10% and (ii) which,
in the judgment of the Board of Directors of the Company, is
otherwise independent and qualified to perform the task for which
it is to be engaged.
"Initial Notes" has the meaning provided in the
preamble to this Indenture.
"Initial Purchasers" means BT Securities Corporation,
Bankers Trust International, plc, BancAmerica Securities, Inc.
and Bear, Xxxxxxx & Co. Inc.
"Institutional Accredited Investor" means an
institution that is an "accredited investor" as that term is
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Interest Swap Obligations" means the obligations of
any Person, pursuant to any arrangement with any other Person,
whereby, directly or indirectly, such Person is entitled to
receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a
stated notional amount in exchange for periodic payments made by
such other Person calculated by applying a fixed or a floating
rate of interest on the same notional amount and shall include,
without limitation, interest rate swaps, caps, floors, collars
and similar agreements.
"Internal Revenue Code" means the Internal Revenue Code
of 1986.
"Investment" means, with respect to any Person, any
direct or indirect loan or other extension of credit (including,
without limitation, a guarantee) or capital contribution to (by
means of any transfer of cash or other property to others or any
payment for property or services for the account or use of
others), or any purchase or acquisition by such Person of any
Capital Stock, bonds, notes, debentures or other securities or
evidences of Indebtedness issued by, any other Person. In the
case of the Company, "Investment" shall exclude extensions of
trade credit (including trade receivables) by the Company and its
Restricted Subsidiaries on commercially
reasonable terms in accordance with normal trade practices of the
Company or such Restricted Subsidiary, as the case may be. For
the purposes of Section 4.10, (i) "Investment" shall include and
be valued at the portion of the fair market value of the net
assets of any Restricted Subsidiary represented by the Company's
equity interest in such Subsidiary at the time that such
Restricted Subsidiary is designated an Unrestricted Subsidiary
and shall exclude the fair market value of the net assets of any
Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary and (ii) the
amount of any Investment shall be the original cost of such
Investment plus the cost of all additional Investments by the
Company or any of its Restricted Subsidiaries, without any
adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment,
reduced by the payment of dividends or distributions in
connection with such Investment or any other amounts received in
respect of such Investment; provided that no such payment of
dividends or distributions or receipt of any such other amounts
shall reduce the amount of any Investment if such payment of
dividends or distributions or receipt of any such amounts would
be included in Consolidated Net Income. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes
of any Common Stock of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any
such sale or disposition, the Company no longer owns, directly or
indirectly, 100% of the outstanding Common Stock of such
Restricted Subsidiary, the Company shall be deemed to have made
an Investment on the date of any such sale or disposition equal
to the fair market value of the Common Stock of such Restricted
Subsidiary not sold or disposed of.
"Issue Date" means the date of original issuance of the
Notes.
"Legal Defeasance" has the meaning provided in Section
8.02.
"Legal Holiday" has the meaning provided in Section
13.07.
"Lien" means any lien, mortgage, deed of trust,
pledge, security interest, charge or encumbrance of any kind
(including any conditional sale or other title retention
agreement, any lease in the nature thereof and any agreement to
give any security interest).
"Management Advisory Agreement" means the Management
Advisory Agreement dated as of April 18, 1997, by and between the
Company and TPG.
"Maturity Date" means April 15, 2007.
"Merger" means the merger of Shield with and into
Holdings pursuant to the Recapitalization Agreement.
"Net Cash Proceeds" means, with respect to any Asset
Sale, the proceeds in the form of cash or Cash Equivalents
including payments in respect of
deferred payment obligations when received in the form of cash or
Cash Equivalents (other than the portion of any such deferred
payment constituting interest) received by the Company or any of
its Restricted Subsidiaries from such Asset Sale net of (a)
reasonable out-of-pocket expenses and fees relating to such Asset
Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions), (b) taxes paid or
payable after taking into account any reduction in consolidated
tax liability due to available tax credits or deductions and any
tax sharing arrangements, (c) repayment of Indebtedness that is
required to be repaid in connection with such Asset Sale and (d)
appropriate amounts to be provided by the Company or any
Restricted Subsidiary, as the case may be, as a reserve, in
accordance with GAAP, against any liabilities associated with
such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with
such Asset Sale.
"Net Proceeds Offer" has the meaning provided in
Section 4.16.
"Net Proceeds Offer Payment Date" has the meaning
provided in Section 4.16.
"Net Proceeds Offer Trigger Date" has the meaning
provided in Section 4.16.
"Non-U.S. Person" means a Person who is not a U.S.
person, as such term is defined in Regulation S.
"Notes" means the Initial Notes and the Exchange Notes
treated as a single class of securities, as amended or
supplemented from time to time in accordance with the terms
hereof, that are issued pursuant to this Indenture. "Obligations"
means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and
other liabilities payable under the documentation governing any
Indebtedness.
"Offering Memorandum" means the Offering Memorandum
dated April 15, 1997, pursuant to which the Initial Notes were
offered, and any supplement thereto.
"Officer" means, with respect to any Person, the
Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, the Controller, the
General Counsel, or the Secretary of such Person, or any other
officer designated by the Board of Directors serving in a similar
capacity.
"Officers' Certificate" means, with respect to any
Person, a certificate signed by two Officers or by an Officer and
either an Assistant Treasurer or an Assistant Secretary of such
Person and otherwise complying with the applicable requirements
of this Indenture, as they relate to the making of an Officers'
Certificate.
"Offshore Physical Notes" has the meaning provided in
Section 2.01.
"Opinion of Counsel" means a written opinion from
legal counsel, who may be internal counsel for the Company, or
who is otherwise reasonably acceptable to the Trustee and not
rendered by any employee of the Company or any of its Affiliates
or Subsidiaries complying with the requirements of Sections 13.04
and 13.05, as they relate to the giving of an Opinion of Counsel.
"Paying Agent" has the meaning provided in Section
2.03.
"Permitted Indebtedness" means, without duplication,
each of the following:
(i) Indebtedness under the Notes and this Indenture;
(ii) Indebtedness incurred pursuant to the Credit
Agreement in an aggregate principal amount at any time
outstanding not to exceed $730 million less (A) the sum of
(y) the amount of all scheduled mandatory principal
payments in respect of term loans thereunder (excluding any
such payments to the extent refinanced at the time of
payment under a replaced Credit Agreement) actually made by
the Company on or before June 30, 2000 plus (z) the amount
of all mandatory principal payments in respect of such term
loans thereunder (other than such excluded payments) made
from (or attributable to) the proceeds received from Asset
Sales; (B) in the case of the revolving facility
thereunder, any required permanent repayments (which are
accompanied by a corresponding permanent commitment
reduction) thereunder made on or before June 30, 2000 or
made by reason of the receipt of the proceeds of Asset
Sales; and (C) the amount of the Receivables Program
Obligations then outstanding;
(iii) other Indebtedness of the Company and its
Restricted Subsidiaries outstanding on the Issue Date
reduced by the amount of any scheduled amortization
payments or mandatory prepayments when actually paid or
permanent reductions thereon;
(iv) Interest Swap Obligations of the Company covering
Indebtedness of the Company or any of its Restricted
Subsidiaries and Interest Swap Obligations of any
Restricted Subsidiary of the Company covering Indebtedness
of such Restricted Subsidiary; provided, however, that such
Interest Swap Obligations are entered into to protect the
Company and its Restricted Subsidiaries from fluctuations
in interest rates on Indebtedness incurred in
accordance with this Indenture to the extent the notional
principal amount of such Interest Swap Obligation does not
exceed the principal amount of the Indebtedness to which
such Interest Swap Obligation relates;
(v) Indebtedness under Currency Agreements; provided
that in the case of Currency Agreements which relate to
Indebtedness, such Currency Agreements do not increase the
Indebtedness of the Company and its Restricted Subsidiaries
outstanding other than as a result of fluctuations in
foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;
(vi) Indebtedness of a Wholly Owned Restricted
Subsidiary of the Company to the Company or to another
Wholly Owned Restricted Subsidiary of the Company, in
either case for so long as such Indebtedness is held by the
Company or a Wholly Owned Restricted Subsidiary of the
Company, in each case subject to no Lien held by a Person
other than the Company or a Wholly Owned Restricted
Subsidiary of the Company; provided that, if as of any date
any Person other than the Company or a Wholly Owned
Restricted Subsidiary of the Company owns or holds any such
Indebtedness or holds a Lien in respect of such
Indebtedness, there shall be deemed to have occurred on
such date, the incurrence of Indebtedness not constituting
Permitted Indebtedness by the issuer of such Indebtedness;
(vii) Indebtedness of the Company to a Wholly Owned
Restricted Subsidiary of the Company for so long as such
Indebtedness is held by a Wholly Owned Restricted
Subsidiary of the Company, in each case subject to no Lien;
provided that (a) any Indebtedness of the Company to any
Wholly Owned Restricted Subsidiary of the Company is
unsecured and subordinated, pursuant to a written
agreement, to the Company's obligations under this
Indenture and the Notes and (b) if as of any date any
Person other than a Wholly Owned Restricted Subsidiary of
the Company owns or holds any such Indebtedness or any
Person holds a Lien in respect of such Indebtedness, there
shall be deemed to have occurred on such date, the
incurrence of Indebtedness not constituting Permitted
Indebtedness by the Company;
(viii) Indebtedness arising from the honoring by a
bank or other financial institution of a check, draft or
similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in
the ordinary course of business; provided, however, that
such Indebtedness is extinguished within five business days
of incurrence;
(ix) Indebtedness of the Company or any of its
Restricted Subsidiaries in respect of workers' compensation
claims, payment obligations in connection with
self-insurance, performance bonds, surety bonds or similar
requirements in the ordinary course of business;
(x) Capitalized Lease Obligations and Purchase Money
Indebtedness of the Company and its Restricted Subsidiaries
incurred in the ordinary course of business not to exceed
$25 million at any one time outstanding;
(xi) guarantees by the Company and its Wholly Owned
Restricted Subsidiaries of each other's Indebtedness;
provided that such Indebtedness is permitted to be incurred
under this Indenture, including, with respect to guarantees
by Wholly Owned Restricted Subsidiaries of the Company, the
provisions of Section 4.19;
(xii) Acquired Indebtedness and Acquisition Financing
Indebtedness; provided that (y) if such Indebtedness is
incurred on or before June 30, 1999, the Consolidated Fixed
Charge Coverage Ratio of the Company and its Restricted
Subsidiaries after giving effect to the transaction in
which such Acquired Indebtedness or Acquisition Financing
Indebtedness is incurred (a "pro forma Consolidated Fixed
Charge Coverage Ratio") (A) shall be greater than 1.8 to
1.0 and (B) shall be at least equal to the Consolidated
Fixed Charge Coverage Ratio at such time without giving
effect to the incurrence of such Acquired Indebtedness or
Acquisition Financing Indebtedness or (z) if such
Indebtedness is incurred on or after July 1, 1999, such pro
forma Consolidated Fixed Charge Coverage Ratio shall be
greater than 2.0 to 1.0;
(xiii) Indebtedness arising from agreements providing
for indemnification, adjustment of purchase price or
similar obligations, or from Guarantees or letters of
credit, surety bonds or performance bonds securing any
obligations of the Company or any of its Restricted
Subsidiaries pursuant to such agreements, in each case
incurred in connection with the disposition of any business
assets or Restricted Subsidiary of the Company (other than
Guarantees of Indebtedness or other obligations incurred by
any Person acquiring all or any portion of such business
assets or Restricted Subsidiary of the Company for the
purpose of financing such acquisition) in a principal
amount not to exceed the gross proceeds actually received
by the Company or any of its Restricted Subsidiaries in
connection with such disposition; provided, however, that
the principal amount of any Indebtedness incurred pursuant
to this clause (xiii), when taken together with all
Indebtedness incurred pursuant to this clause (xiii) and
then outstanding, shall not exceed $20 million;
(xiv) guarantees furnished by the Company or its
Restricted Subsidiaries in the ordinary course of business
of Indebtedness of another Person in an aggregate amount
not to exceed $10 million at any time outstanding;
(xv) Refinancing Indebtedness;
(xvi) Receivables Program Obligations; and
(xvii) additional Indebtedness of the Company and its
Restricted Subsidiaries in an aggregate principal amount
not to exceed $50 million at any one time outstanding
(which amount may, but need not, be incurred in whole or in
part under the Credit Agreement).
"Permitted Investments" means: (i) Investments by the
Company or any Restricted Subsidiary of the Company in any Person
that is or will become immediately after such Investment a
Restricted Subsidiary of the Company or that will merge or
consolidate into the Company or a Restricted Subsidiary of the
Company, provided that such Person is engaged, in all material
respects, solely in the business of food, food distribution and
related businesses; (ii) Investments in the Company by any
Restricted Subsidiary of the Company; provided that any
Indebtedness evidencing such Investment is unsecured and
subordinated, pursuant to a written agreement, to the Company's
obligations under the Notes and this Indenture; (iii) Investments
in cash and Cash Equivalents; (iv) loans and advances to
employees and officers of the Company and its Restricted
Subsidiaries in the ordinary course of business for bona fide
business purposes not in excess of $5 million at any one time
outstanding; (v) Currency Agreements and Interest Swap
Obligations entered into in the ordinary course of the Company's
or its Restricted Subsidiaries' businesses and otherwise in
compliance with this Indenture; (vi) additional Investments not
to exceed $25 million at any one time outstanding; (vii)
Investments in securities of trade creditors or customers
received in settlement of obligations or pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or
insolvency of such trade creditors or customers; (viii)
Investments made by the Company or its Restricted Subsidiaries as
a result of consideration received in connection with an Asset
Sale made in compliance with Section 4.16 or not constituting an
Asset Sale by reason of the $1 million threshold contained in the
definition thereof; (ix) Investments specifically permitted by
and made in accordance with the provisions of Section 4.11; (x)
guarantees permitted by Section 4.19; (xi) Related Business
Investments in companies and ventures in which the Company or a
Restricted Subsidiary of the Company holds an equity ownership
interest of not less than 33-1/3% in an aggregate amount not
exceeding the sum of (x) the unutilized portion of the amount of
Investments permitted by clause (vi) of this definition, (y) the
proceeds of the sale of certain assets identified in Schedule 1
to this Indenture plus (z) $25 million; and (xii) Investments
made in connection with a Qualified Receivables Transaction.
"Permitted Liens" means the following types of Liens:
(i) Liens for taxes, assessments or governmental
charges or claims either (a) not delinquent or (b)
contested in good faith by appropriate proceedings and as
to which the Company or any of its Restricted Subsidiaries
shall have set aside on its books such reserves as may be
required pursuant to GAAP;
(ii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, suppliers, materialmen,
repairmen and other Liens imposed by law incurred in the
ordinary course of business for sums not yet delinquent for
a period of more than 60 days or being contested in good
faith, if such reserve or other appropriate provision, if
any, as shall be required by GAAP shall have been made in
respect thereof;
(iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers'
compensation, unemployment insurance and other types of
social security or similar obligations, including any Lien
securing letters of credit issued in the ordinary course of
business consistent with past practice in connection
therewith, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and
return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed
money);
(iv) judgment Liens not giving rise to an Event of
Default so long as such Lien is adequately bonded and any
appropriate legal proceedings which may have been duly
initiated for the review of such judgment shall not have
been finally terminated or the period within which such
proceedings may be initiated shall not have expired;
(v) easements, rights-of-way, zoning restrictions and
other similar charges or encumbrances in respect of real
property not interfering in any material respect with the
ordinary conduct of the business of the Company or any of
its Restricted Subsidiaries;
(vi) any interest or title of a lessor under any
lease, whether or not characterized as capital or
operating; provided that such Liens do not extend to any
property or assets which is not leased property subject to
such lease;
(vii) Liens securing Capitalized Lease Obligations and
Purchase Money Indebtedness permitted by Section 4.12;
provided, however, that in the case of Purchase Money
Indebtedness (A) the Indebtedness shall not exceed the cost
of such property or assets being acquired or constructed
and shall not be secured by any property or assets of the
Company or any Restricted Subsidiary of the Company other
than the property and assets being acquired or constructed
and (B) the Lien securing such Indebtedness shall be
created within 90 days of such acquisition or construction;
(viii) Liens upon specific items of inventory or other
goods and proceeds of any Person securing such Person's
obligations in respect of
bankers' acceptances issued or created for the account of
such Person to facilitate the purchase, shipment or storage
of such inventory or other goods;
(ix) Liens securing reimbursement obligations with
respect to letters of credit which encumber documents and
other property relating to such letters of credit and
products and proceeds thereof;
(x) Liens encumbering deposits made to secure
obligations arising from statutory, regulatory,
contractual, or warranty requirements of the Company or any
of its Restricted Subsidiaries, including rights of offset
and set-off;
(xi) Liens securing Interest Swap Obligations that
relate to Indebtedness that is otherwise permitted under
this Indenture;
(xii) Liens securing Indebtedness under Currency
Agreements;
(xiii) Liens securing Acquired Indebtedness incurred
in accordance with Section 4.12; provided that (A) such
Liens secured such Acquired Indebtedness at the time of and
prior to the incurrence of such Acquired Indebtedness by
the Company or a Restricted Subsidiary of the Company and
were not granted in connection with, or in anticipation of,
the incurrence of such Acquired Indebtedness by the Company
or a Restricted Subsidiary of the Company and (B) such
Liens do not extend to or cover any property or assets of
the Company or of any of its Restricted Subsidiaries other
than the property or assets that secured the Acquired
Indebtedness prior to the time such Indebtedness became
Acquired Indebtedness of the Company or a Restricted
Subsidiary of the Company and are no more favorable to the
lienholders than those securing the Acquired Indebtedness
prior to the incurrence of such Acquired Indebtedness by
the Company or a Restricted Subsidiary of the Company;
(xiv) leases or subleases granted to others not
interfering in any material respect with the business of the
Company or its Restricted Subsidiaries;
(xv) Liens arising out of consignment or similar
arrangements for the sale of goods entered into by the
Company or any of its Restricted Subsidiaries in the
ordinary course of business; and
(xvi) Liens on Receivables Program Assets securing
Receivables Program Obligations.
"Person" means an individual, partnership,
corporation, limited liability company, unincorporated
organization, trust or joint venture, or a governmental agency or
political subdivision thereof.
"Physical Notes" has the meaning provided in Section
2.01.
"Preferred Stock" of any Person means any Capital
Stock of such Person that has preferential rights to any other
Capital Stock of such Person with respect to dividends or
redemptions or upon liquidation.
"principal" of any Indebtedness (including the Notes)
means the outstanding principal amount of such Indebtedness plus
the premium, if any, on such Indebtedness.
"Private Placement Legend" has the meaning provided in
Section 2.15.
"Proceeds Purchase Date" has the meaning provided in
Section 4.16.
"pro forma" means, with respect to any calculation
made or required to be made pursuant to the terms of this
Indenture, a calculation in accordance with Article 11 of
Regulation S-X under the Securities Act, as determined by the
Board of Directors of the Company.
"Public Equity Offering" means an underwritten public
offering of Qualified Capital Stock of Holdings or the Company
pursuant to a registration statement filed with the SEC in
accordance with the Securities Act; provided that, in the event
of a Public Equity Offering by Holdings, Holdings contributes to
the capital of the Company the portion of the net cash proceeds
of such Public Equity Offering necessary to pay the aggregate
redemption price (plus accrued interest to the redemption date)
of the Notes to be redeemed pursuant to Paragraph 6(b) of the
Notes.
"Purchase Money Indebtedness" means Indebtedness of
the Company or any of its Restricted Subsidiaries incurred in the
normal course of business for the purpose of financing all or any
part of the purchase price, or the cost of installation,
construction or improvement, of property or assets.
"Purchase Money Note" means a promissory note
evidencing the obligation of a Receivables Subsidiary to pay the
purchase price for Receivables or other indebtedness to the
Company or to any other Seller in connection with a Qualified
Receivables Transaction, which note shall be repaid from cash
available to the maker of such note, other than cash required to
be held as reserves pursuant to Receivables Documents, amounts
paid in respect of interest, principal and other amounts owing
under Receivables Documents and amounts paid in connection with
the purchase of newly generated Receivables.
"Qualified Capital Stock" means any Capital Stock that
is not Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have
the meaning specified in Rule 144A under the Securities Act.
"Qualified Receivables Transaction" means any
transaction or series of transactions that may be entered into by
the Company or any Subsidiary of the Company pursuant to which
the Company or any such Subsidiary may sell, convey or otherwise
transfer to a Receivables Subsidiary (in the case of a transfer
by the Company or any other Seller) and any other person (in the
case of a transfer by a Receivables Subsidiary), or may grant a
security interest in, any Receivables Program Assets (whether now
existing or arising in the future); provided that:
(a) no portion of the indebtedness or any other
obligations (contingent or otherwise) of a Receivables
Subsidiary or Special Purpose Vehicle (i) is guaranteed by
the Company or any other Seller (excluding guarantees of
obligations pursuant to Standard Securitization
Undertakings), (ii) is recourse to or obligates the Company
or any other Seller in any way other than pursuant to
Standard Securitization Undertakings or (iii) subjects any
property or asset of the Company or any other Seller,
directly or indirectly, contingently or otherwise, to the
satisfaction of obligations incurred in such transactions,
other than pursuant to Standard Securitization
Undertakings;
(b) neither the Company or any other Seller has any
material contract, agreement, arrangement or understanding
with a Receivables Subsidiary or a Special Purpose Vehicle
(except in connection with a Purchase Money Note or
Qualified Receivables Transaction) other than on terms no
less favorable to the Company or such Seller than those
that might be obtained at the time from persons that are
not affiliates of the Company, other than fees payable in
the ordinary course of business in connection with
servicing accounts receivable; and
(c) the Company and the other Sellers do not have any
obligation to maintain or preserve the financial condition
of a Receivables Subsidiary or a Special Purpose Vehicle or
cause such entity to achieve certain levels of operating
results.
"Recapitalization" means the recapitalization of
Holdings pursuant to the Merger Agreement.
"Recapitalization Agreement" means the Agreement and
Plan of Merger, dated as of February 21, 1997, as amended and
restated as of April 14, 1997, entered into among TPG, Shield and
Holdings.
"Receivables" means all rights of the Company or any
other Seller to payments (whether constituting accounts, chattel
paper, instruments, general intangibles or otherwise, and
including the right to payment of any interest or finance
charges),
which rights are eligible to be identified in the accounting
records of the Company or such Seller as accounts receivable.
"Receivables Documents" means (x) a receivables
purchase agreement, pooling and servicing agreement, credit
agreement, agreements to acquire undivided interests or other
agreements to transfer, or create a security interest in,
Receivables Program Assets, in each case as amended, modified,
supplemented or restated and in effect from time to time and
entered into by the Company, another Seller and/or a Receivables
Subsidiary, and (y) each other instrument, agreement and other
document entered into by the Company, any other Seller or a
Receivables Subsidiary relating to the transactions contemplated
by the agreements referred to in clause (x) above, in each case
as amended, modified, supplemented or restated and in effect from
time to time.
"Receivables Program Assets" means (a) all Receivables
which are described as being transferred by the Company, another
Seller or a Receivables Subsidiary pursuant to the Receivables
Documents, (b) all Receivables Related Assets, and (c) all
collections (including recoveries) and other proceeds of the
assets described in the foregoing clauses.
"Receivables Program Obligations" means (a) notes,
trust certificates, undivided interests, partnership interests or
other interests representing the right to be paid a specified
principal amount for the Receivables Program Assets, and (b)
related obligations of the Company, a Subsidiary of the Company
or a Special Purpose Vehicle (including, without limitation,
rights in respect of interest or yield, breach of warranty claims
and expense reimbursement and indemnity provisions).
"Receivables Related Assets" means (i) any rights
arising under the documentation governing or relating to
Receivables (including rights in respect of liens securing such
Receivables and other credit support in respect of such
Receivables), (ii) any proceeds of such Receivables and any
lockboxes or accounts in which such proceeds are deposited, (iii)
spread accounts and other similar accounts (and any amounts on
deposit therein) established in connection with a Qualified
Receivables Transaction, (iv) any warranty, indemnity, dilution
and other intercompany claim arising out of Receivables Documents
and (v) other assets which are customarily transferred or in
respect of which security interests are customarily granted in
connection with asset securitization transactions involving
accounts receivable.
"Receivables Subsidiary" means a special purpose
wholly owned Subsidiary of the Company created in connection with
the transactions contemplated by a Qualified Receivables
Transaction, which Subsidiary engages in no activities other than
those incidental to such Qualified Receivables Transaction and
which is designated as a Receivables Subsidiary by the Company's
Board of Directors. Any such designation by the Board of
Directors shall be evidenced by filing with the Trustee a Board
Resolution of the Company giving effect to such designation and
an Officers' Certificate certifying, to the best of such
officers' knowledge and belief after consulting
with counsel, such designation, and the transactions in which the
Receivables Subsidiary will engage, comply with the requirements
of the definition of Qualified Receivables Transaction.
"Record Date" means each of the dates designated as
such in the Notes, whether or not a Legal Holiday.
"Redemption Date," when used with respect to any Note
to be redeemed, means the date fixed for such redemption pursuant
to this Indenture and the Notes.
"Redemption Price," when used with respect to any Note
to be redeemed, means the price fixed for such redemption
pursuant to this Indenture and the Notes.
"Reference Date" has the meaning provided in Section 4.10.
"Refinance" means, in respect of any security or
Indebtedness, to refinance, extend, renew, refund, repay, prepay,
redeem, defease or retire, or to issue a security or Indebtedness
in exchange or replacement for, such security or Indebtedness, in
whole or in part. "Refinanced" and "Refinancing" shall have
correlative meanings.
"Refinancing Indebtedness" means any Refinancing by
the Company or any Restricted Subsidiary of the Company of
Indebtedness incurred in accordance with Section 4.12 (other than
pursuant to clauses (ii), (iv), (v), (vi), (vii), (viii), (ix),
(x), (xi), (xiii) or (xiv) of the definition of Permitted
Indebtedness), in each case that does not (1) result in an
increase in the aggregate principal amount of Indebtedness of
such Person as of the date of such proposed Refinancing (plus the
amount of any premium required to be paid under the terms of the
instrument governing such Indebtedness and plus the amount of
reasonable expenses incurred by the Company in connection with
such Refinancing) or (2) create Indebtedness with (A) a Weighted
Average Life to Maturity that is less than the Weighted Average
Life to Maturity of the Indebtedness being Refinanced or (B) a
final maturity earlier than the final maturity of the
Indebtedness being Refinanced; provided that (x) if such
Indebtedness being Refinanced is Indebtedness solely of the
Company, then such Refinancing Indebtedness shall be Indebtedness
solely of the Company and (y) if such Indebtedness being
Refinanced is subordinate or junior to the Notes, then such
Refinancing Indebtedness shall be subordinate to the Notes at
least to the same extent and in the same manner as the
Indebtedness being Refinanced.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration
Rights Agreement dated April 18, 1997 among the Company and the
Initial Purchasers for the
benefit of themselves and the Holders, as the same may be amended
or modified from time to time in accordance with the terms
thereof.
"Regulation S" means Regulation S under the Securities
Act.
"Related Business Investment" means (i) any Investment
by a Person in any other Person a majority of whose revenues are
derived from the food, food distribution or related businesses;
and (ii) any Investment by such Person in any cooperative or
other supplier, including, without limitation, any joint venture
which is intended to supply any product or service useful to the
business of the Company and its Restricted Subsidiaries.
"Related Party" means any Affiliate of TPG.
"Replacement Assets" has the meaning provided in
Section 4.16.
"Representative" means the indenture trustee or other
trustee, agent or representative in respect of any Designated
Senior Debt; provided that, if and for so long as any Designated
Senior Debt lacks such a representative, then the Representative
for such Designated Senior Debt shall at all times constitute the
holders of a majority in outstanding principal amount of such
Designated Senior Debt in respect of any Designated Senior Debt.
As of the date first written above, the only representative in
respect of Designated Senior Debt is Bank of America National
Trust and Savings Association, as administrative agent under the
Credit Agreement.
"Restricted Payment" has the meaning provided in
Section 4.10.
"Restricted Security" has the meaning assigned to such
term in Rule 144(a)(3) under the Securities Act; provided that
the Trustee shall be entitled to request and conclusively rely on
an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Security.
"Restricted Subsidiary" of any Person means any
Subsidiary of such Person which at the time of determination is
not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any direct or
indirect arrangement with any Person or to which any such Person
is a party, providing for the leasing to the Company or a
Restricted Subsidiary of the Company of any property, whether
owned by the Company or any Restricted Subsidiary at the Issue
Date or later acquired, which has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such
Person or to any other Person from whom funds have been or are to
be advanced by such Person on the security of such Property.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended, or any successor statute or statutes thereto.
"Seller" means the Company or any Subsidiary or other
Affiliate of the Company (other than a Receivables Subsidiary)
which is a party to a Receivables Document.
"Senior Debt" means the principal of, premium, if any,
and interest (including any interest accruing subsequent to the
filing of a bankruptcy petition at the rate provided for in the
documentation with respect thereto, whether or not such interest
is an allowed claim under applicable law) on any Indebtedness of
the Company, whether outstanding on the Issue Date or thereafter
created, incurred or assumed, unless, in the case of any
particular Indebtedness, the instrument creating or evidencing
the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of
payment to the Notes. Without limiting the generality of the
foregoing, "Senior Debt" shall also include the principal of,
premium, if any, interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether
or not such interest is an allowed claim under applicable law)
on, and all other amounts owing in respect of, (x) all monetary
obligations (including guarantees thereof) of every nature of the
Company under the Credit Agreement, including, without
limitation, obligations to pay principal and interest,
reimbursement obligations under letters of credit, fees, expenses
and indemnities, (y) all Interest Swap Obligations (including
guarantees thereof) and (z) all obligations (including guarantees
thereof) under Currency Agreements, in each case whether
outstanding on the Issue Date or thereafter incurred.
Notwithstanding the foregoing, Senior Debt shall not include (i)
any Indebtedness of the Company to a Subsidiary of the Company,
(ii) Indebtedness to, or guaranteed by the Company for the
benefit of, any shareholder (other than a parent corporation),
director, officer or employee of the Company or any Subsidiary of
the Company (including, without limitation, amounts owed for
compensation), (iii) Indebtedness to trade creditors and other
amounts incurred in connection with obtaining goods, materials or
services, (iv) Indebtedness represented by Disqualified Capital
Stock, (v) any liability for federal, state, local or other taxes
owed or owing by the Company, (vi) any Indebtedness incurred in
violation of the provisions set forth under Section 4.12 and
(vii) any Indebtedness which is, by its express terms,
subordinated in right of payment to any other Indebtedness of the
Company.
"Shield" means TPG Shield Acquisition Corporation.
"Significant Subsidiary" shall have the meaning set
forth in Rule 1.02(w) of Regulation S-X under the Securities Act.
"Special Purpose Vehicle" means a trust, partnership
or other special purpose Person established by the Company and/or
any of its Subsidiaries to implement a Qualified Receivables
Transaction.
"Standard Securitization Undertakings" means
representations, warranties, covenants and indemnities entered
into by the Company or any Subsidiary of the Company which are
reasonably customary in accounts receivable transactions.
"Subsidiary", with respect to any Person, means (i)
any corporation of which the outstanding Capital Stock having at
least a majority of the votes entitled to be cast in the election
of directors under ordinary circumstances shall at the time be
owned, directly or indirectly, by such Person or (ii) any other
Person of which at least a majority of the voting interest under
ordinary circumstances is at the time owned, directly or
indirectly, by such Person.
"Surviving Entity" has the meaning provided in Section
5.01.
"Surviving Parent Entity" has the meaning provided in
Section 5.03.
"Tax Sharing Agreement" means the tax sharing
agreement between the Company and Holdings allocating the
obligations to contribute amounts for the payment of income taxes
and the benefits of any credits or other reductions of tax
payments so as to approximate the income taxes that would be
payable by the Company and Holdings on a stand-alone basis if no
consolidated tax return were filed by such entities.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
xx.xx. 77aaa-77bbbb), as amended, as in effect on the date of
this Indenture, except as otherwise provided in Section 9.04.
"TPG" means TPG Partners, L.P., a Delaware limited
partnership.
"Transaction Advisory Agreement" means the Transaction
Advisory Agreement, dated as of April 18, 1997, by and between
the Company and TPG.
"Treasury Rate" means the yield to maturity at the
time of computation of U.S. Treasury securities with a constant
maturity (as compiled and published in the most recent Federal
Reserve Release H.15 (519) which has become publicly available at
least two Business Days prior to the Change of Control Redemption
Date (or, if such Release is no longer published, any publicly
available source or similar market data)) closest to the period
from the Change of Control Redemption Date to April 15, 2002;
provided, however, that if the period from the Change of Control
Redemption Date to April 15, 2002, is not equal to the constant
maturity of a U.S. Treasury security for which a weekly average
yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of one year)
from the weekly
average yields of U.S. Treasury securities for which such yields
are given, except that if the period from the Change of Control
Redemption Date to April 15, 2002, is less than one year, the
weekly average yield on actually traded U.S. Treasury securities
adjusted to a constant maturity of one year shall be used.
"Trust Officer" means any officer of the Trustee
assigned by the Trustee to administer this Indenture, or in the
case of a successor trustee, an officer assigned to the
department, division or group performing the corporation trust
work of such successor and assigned to administer this Indenture.
"Trustee" means the party named as such in this
Indenture until a successor replaces it in accordance with the
provisions of this Indenture and thereafter means such successor.
"Unrestricted Subsidiary" of any Person means (i) any
Subsidiary of such Person that at the time of determination shall
be or continue to be designated an Unrestricted Subsidiary by the
Board of Directors of such Person in the manner provided below
and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board
of Directors of the Company may designate any Subsidiary of the
Company (including any newly acquired or newly formed Subsidiary)
to be an Unrestricted Subsidiary unless such Subsidiary owns any
Capital Stock of, or owns or holds any Lien on any property of,
the Company or any other Subsidiary of the Company that is not a
Subsidiary of the Subsidiary to be so designated; provided that
(x) the Company certifies to the Trustee in an Officers'
Certificate that such designation complies with Section 4.10 and
(y) each Subsidiary to be so designated and each of its
Subsidiaries has not at the time of designation, and does not
thereafter, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender thereof has recourse to
any of the assets of the Company or any of its Restricted
Subsidiaries. The Board of Directors of the Company may designate
any Unrestricted Subsidiary to be a Restricted Subsidiary only if
(x) immediately after giving effect to such designation, the
Company is able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance
with Section 4.12 and (y) immediately before and immediately
after giving effect to such designation, no Default or Event of
Default shall have occurred and be continuing. Any such
designation by the Board of Directors shall be evidenced to the
Trustee by promptly filing with the Trustee a copy of the Board
Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" means direct obligations
of, and obligations guaranteed by, the United States for the
payment of which the full faith and credit of the United States
is pledged.
"U.S. Legal Tender" means such coin or currency of the
United States as at the time of payment shall be legal tender for
the payment of public and private debts.
"U.S. Physical Notes" has the meaning provided in
Section 2.01.
"Weighted Average Life to Maturity" means, when
applied to any Indebtedness at any date, the number of years
obtained by dividing (a) the then outstanding aggregate principal
amount of such Indebtedness into (b) the sum of the total of the
products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other
required payment of principal, including payment at final
maturity, in respect thereof, by (ii) the number of years
(calculated to the nearest one-twelfth) which will elapse between
such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person
means any Restricted Subsidiary of such Person of which all the
outstanding voting securities (other than, in the case of a
foreign Restricted Subsidiary, directors' qualifying shares or an
immaterial amount of shares otherwise required to be owned by
other Persons pursuant to applicable law) are owned by such
Person or any Wholly Owned Restricted Subsidiary of such Person.
SECTION 1.02 Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the
TIA, such provision is incorporated by reference in, and made a
part of, this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder or a
Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the Company
or any other obligor on the Notes.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute
or defined by SEC rule and not otherwise defined herein have the
meanings assigned to them therein.
SECTION 1.03 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP as in effect
on the date hereof;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words
in the plural include the singular; and
(5) "herein," "hereof" and other words of similar
import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
ARTICLE TWO
THE NOTES
SECTION 2.01 Form and Dating.
The Initial Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A
hereto. The Exchange Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit B
hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or depository rule or usage.
The Company and the Trustee shall approve the form of the Notes
and any notation, legend or endorsement on them. Each Note shall
be dated the date of its issuance and shall show the date of its
authentication.
The terms and provisions contained in the forms of the
Notes annexed hereto as Exhibits A and B, shall constitute, and
are hereby expressly made, a part of this Indenture and, to the
extent applicable, the parties hereto, by their execution and
delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall
be issued initially in the form of one or more permanent global
Notes in registered form, substantially in the form set forth in
Exhibit A (the "Global Note"), deposited with the Registrar as
custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Global Note may from time to
time be increased or decreased by adjustments made on the records
of the Registrar, as custodian for the Depository, as hereinafter
provided.
Notes offered and sold in offshore transactions in
reliance on Regulation S shall be issued in the form of permanent
certificated Notes in registered form in substantially the form
set forth in Exhibit A (the "Offshore Physical Notes"). Notes
offered and sold in reliance on any other applicable exemption
from registration under the Securities Act other than as
described in the preceding paragraph may be issued in the form of
permanent certificated Notes in registered form, in substantially
the form set forth in Exhibit A (the "U.S. Physical Notes"). The
Offshore Physical Notes and the U.S. Physical Notes are sometimes
collectively herein referred to as the "Physical Notes." Physical
Notes initially shall be registered in the name of the Depository
or the nominee of such Depository and be delivered to the
Registrar as custodian for such Depository. Beneficial owners of
Physical Notes, however, may request registration of such
Physical Notes in their names or the names of their nominees.
SECTION 2.02 Execution and Authentication; Aggregate
Principal Amount.
Two Officers, or an Officer and an Assistant
Secretary, shall sign, or one Officer shall sign and one Officer
or an Assistant Secretary (each of whom shall, in each case, have
been duly authorized by all requisite corporate actions) shall
attest to, the Notes for the Company by manual or facsimile
signature.
If an Officer or Assistant Secretary whose signature
is on a Note was an Officer or Assistant Secretary at the time of
such execution but no longer holds that office or position at the
time the Trustee authenticates the Note, the Note shall
nevertheless be valid.
A Note shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of
authentication on the Note. The signature shall be conclusive
evidence that the Note has been authenticated under this
Indenture.
The Trustee shall authenticate (i) Initial Notes for
original issue in the aggregate principal amount not to exceed
$150,000,000, and (ii) Exchange Notes from time to time for issue
only in exchange for a like principal amount of Initial Notes, in
each case upon written orders of the Company in the form of an
Officers' Certificate. The Officers' Certificate shall specify
the amount of Notes to be authenticated, the date on which the
Notes are to be authenticated and the aggregate principal amount
of Notes outstanding on the date of authentication, whether the
Notes are to be Initial Notes or Exchange Notes, and shall
further specify the amount of such Notes to be issued as the
Global Note, Offshore Physical Notes or U.S. Physical Notes. The
aggregate principal amount of Notes outstanding at any time may
not exceed $150,000,000, except as provided in Section 2.07.
The Trustee shall not be required to authenticate
Notes if the issuance of such Notes pursuant to this Indenture
will affect the Trustee's own rights, duties or
immunities under the Notes and this Indenture in a manner which
is not reasonably acceptable to the Trustee.
The Trustee may appoint an authenticating agent (the
"Authenticating Agent") reasonably acceptable to the Company to
authenticate Notes. Unless otherwise provided in the appointment,
an Authenticating Agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such
Authenticating Agent. An Authenticating Agent has the same rights
as an Agent to deal with the Company and Affiliates of the
Company. The Trustee hereby appoints Bankers Trust Company as its
initial Authentication Agent, and by its acknowledgement and
acceptance on the signature page hereto, Bankers Trust Company
hereby agrees to so act.
Any Person into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to
which any Authenticating Agent shall be a party, or any Person
succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
Any Authenticating Agent may at any time resign by
giving at least 30 days' advance written notice of resignation to
the Trustee and the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving
written notice of resignation or upon such a termination, the
Trustee may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Company and shall mail
notice of such appointment (at the Company's expense) to all
Holders. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the
rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as
Authenticating Agent. Any such Authenticating Agent shall be
entitled to reasonable compensation for its services and, if paid
by the Trustee, it shall be a reimbursable expense pursuant to
Section 7.07.
The Notes shall be issuable in fully registered form
only, without coupons, in denominations of $1,000 and any
integral multiple thereof.
SECTION 2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency (which
shall be located in the Borough of Manhattan in the City of New
York, State of New York) where (a) Notes may be presented or
surrendered for registration of transfer or for exchange (the
"Registrar"), (b) Notes may be presented or surrendered for
payment (the "Paying Agent") and (c) notices and demands to or
upon the Company in respect of the Notes and this Indenture may
be served. The Registrar shall keep a register of the Notes and
of their transfer and exchange. The Company, upon prior written
notice to the Trustee, may have one or more co-Registrars and one
or more additional paying agents reasonably acceptable to the
Trustee. The term "Paying Agent" includes any additional Paying
Agent.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, which
agreement shall incorporate the provisions of the TIA and
implement the provisions of this Indenture that relate to such
Agent. The Company shall notify the Trustee, in advance, of the
name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, or fails to give the
foregoing notice, the Trustee shall act as such.
The Company initially appoints Bankers Trust Company
as Registrar, Paying Agent and agent for service of demands and
notices in connection with the Notes, until such time as the
Trustee has resigned or a successor has been appointed, and by
its acknowledgement and acceptance on the signature page hereto,
Bankers Trust Company hereby agrees to so act. The Paying Agent
or Registrar may resign upon 30 days written notice to the
Company and the Trustee, provided that a replacement Paying Agent
or Registrar, as the case may be, has been duly appointed and has
agreed to act as such, or that the Trustee has assumed the duties
of the Paying Agent or the Registrar, as the case may be.
Upon the occurrence of an Event of Default described
in Section 6.01(6) or (7), the Trustee shall, or upon the
occurrence of any other Event of Default by notice to the
Company, the Registrar and the Paying Agent, the Trustee may,
assume the duties and obligations of the Registrar and the Paying
Agent hereunder.
SECTION 2.04 Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than
the Trustee to agree in writing that each Paying Agent shall hold
in trust for the benefit of the Holders or the Trustee all assets
held by the Paying Agent for the payment of principal of, or
interest on, the Notes (whether such assets have been distributed
to it by the Company or any other obligor on the Notes), and the
Company and the Paying Agent shall notify the Trustee of any
Default by the Company (or any other obligor on the Notes) in
making any such payment. The Company at any time may require a
Paying Agent to distribute all assets held by it to the Trustee
and account for any assets disbursed and the Trustee may at any
time during the continuance of any payment Default or Event of
Default, upon written request to a Paying Agent, require such
Paying Agent to distri bute all assets held by it to the Trustee
and to account for any assets distributed. Upon distribution to
the Trustee of all assets that shall have been delivered by the
Company to the Paying Agent, the Paying Agent shall have no
further liability for such assets.
SECTION 2.05 Noteholder Lists.
The Registrar shall preserve in as current a form as
is reasonably practicable the most recent list available to it of
the names and addresses of the Holders. If the Trustee or any
Paying Agent is not the Registrar, the Company shall furnish or
cause the Registrar to furnish to the Trustee or any such Paying
Agent on or before the third Business Day preceding each Record
Date and at such other times as the Trustee or any such Paying
Agent may request in writing a list as of such date and in such
form as the Trustee may reasonably require of the names and
addresses of the Holders, which list may be conclusively relied
upon by the Trustee or any such Paying Agent.
SECTION 2.06 Transfer and Exchange.
Subject to the provisions of Sections 2.16 and 2.17,
when Notes are presented to the Registrar or a co-Registrar with
a request to register the transfer of such Notes or to exchange
such Notes for an equal principal amount of Notes of other
authorized denominations, the Registrar or co-Registrar shall
register the transfer or make the exchange as requested if the
requirements for such transaction are met; provided, however,
that the Notes presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the
Company and the Registrar or co-Registrar, duly executed by the
Holder thereof or his or her attorney duly authorized in writing.
To permit registrations of transfer and exchanges, the Company
shall execute and the Trustee shall authenticate Notes at the
Registrar's or co-Registrar's request. No service charge shall be
made for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant
to Sections 2.10, 3.06, 4.15, 4.16 or 9.06, in which event the
Company shall be responsible for the payment of such taxes).
In the event that the Company delivers to the Trustee
a copy of an Officers' Certificate certifying that a registration
statement under the Securities Act with respect to the Exchange
Offer has been declared effective by the SEC and that the Company
has offered registered Notes to the Holders in accordance with
the Exchange Offer, the Registrar shall exchange, upon request of
any Holder, such Holder's Initial Notes of any series for
registered Notes of such series upon the terms set forth in the
Exchange Offer and in accordance with Section 2.06 hereof,
provided that the Initial Notes so surrendered for exchange are
duly endorsed and accompanied by a letter of
transmittal or written instrument of transfer in form
satisfactory to the Company and the Registrar, in addition to any
certifications and representations required by the provisions of
the Registration Rights Agreement, and duly executed by the
Holder thereof or such Holder's attorney who shall be duly
authorized in writing to execute such document on behalf of such
Holder.
The Registrar or co-Registrar shall not be required to
register the transfer of or exchange of any Note (i) during a
period beginning at the opening of business 15 days before the
mailing of a notice of redemption of Notes and ending at the
close of business on the day of such mailing and (ii) selected
for redemption in whole or in part pursuant to Article Three,
except the unredeemed portion of any Note being redeemed in part.
Any Holder of an interest in any Global Note shall, by
acceptance of such interest, agree that transfers of beneficial
interests in such Global Note may be effected only through a
book-entry system maintained by the Holder of such Global Note
(or its agent), and that ownership of a beneficial interest in
the Global Note shall be required to be reflected in a book-entry
system.
SECTION 2.07 Replacement Notes.
If a mutilated Note is surrendered to the Registrar or
if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the
Trustee or any authenticating agent of the Trustee shall
authenticate a replacement Note if the Registrar's requirements
are met. If required by the Registrar or the Company, such Holder
must provide an affidavit of lost certificate and an indemnity
bond or other indemnity, sufficient, in the judgment of both the
Company and the Registrar, to protect the Company, the Trustee
and any Agent from any loss which any of them may suffer if a
Note is replaced. The Company may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Note, including
reasonable fees and expenses of counsel. Every replacement Note
shall constitute an additional obligation of the Company.
SECTION 2.08 Outstanding Notes.
Notes outstanding at any time are all the Notes that
have been authenticated by the Trustee except those cancelled by
the Registrar, those delivered to the Registrar for cancellation
and those described in this Section as not outstanding. Subject
to the provisions of Section 2.09, a Note does not cease to be
outstanding because the Company or any of its Affiliates holds
the Note.
If a Note is replaced pursuant to Section 2.07 (other
than a mutilated Note surrendered for replacement), it ceases to
be outstanding unless the Registrar receives an Opinion of
Counsel that the replaced Note is held by a bona fide purchaser.
A mutilated Note ceases to be outstanding upon surrender of such
Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the
Paying Agent holds U.S. Legal Tender or U.S. Government
Obligations sufficient to pay all of the principal and interest
due on the Notes payable on that date and is not prohibited from
paying such money to the Holders thereof pursuant to the terms of
this Indenture, then on and after that date such Notes cease to
be outstanding and interest on them ceases to accrue.
SECTION 2.09 Treasury Notes.
In determining whether the Holders of the required
principal amount of Notes have concurred in any direction,
waiver, consent or notice, Notes owned by the Company or any of
its Affiliates shall be considered as though they are not
outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction,
waiver or consent, only Notes which a Trust Officer of the
Trustee actually knows are so owned shall be so considered. The
Company shall notify the Trustee, in writing, when it or any of
its Affiliates repurchases or otherwise acquires Notes, of the
aggregate principal amount of such Notes so repurchased or
otherwise acquired.
SECTION 2.10 Temporary Notes.
Until definitive Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary
Notes upon receipt of a written order of the Company in the form
of an Officers' Certificate. The Officers' Certificate shall
specify the amount of temporary Notes to be authenticated and the
date on which the temporary Notes are to be authenticated.
Temporary Notes shall be substantially in the form of definitive
Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate upon
receipt of a written order of the Company pursuant to Section
2.02 definitive Notes in exchange for temporary Notes.
SECTION 2.11 Cancellation.
The Company at any time may deliver Notes to the
Registrar for cancellation. The Paying Agent shall forward to the
Registrar any Notes surrendered to it for registration of
transfer, exchange, purchase or payment. The Registrar shall
cancel and, at the written direction of the Company, shall
dispose of all Notes surrendered for registration of transfer,
exchange, purchase, payment or cancellation. Subject to Section
2.07, the Company may not issue new Notes to replace Notes that
it has paid or delivered to the Registrar for cancellation. If
the Company shall acquire any of the Notes, such acquisition
shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and until the same
are surrendered to the Registrar for cancellation pursuant to
this Section 2.11.
SECTION 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on
the Notes, it shall pay the defaulted interest, plus (to the
extent lawful) any interest payable on the defaulted interest to
the Persons who are Holders on a subsequent special record date,
which date shall be the fifteenth day next preceding the date
fixed by the Company for the payment of defaulted interest or the
next succeeding Business Day if such date is not a Business Day.
At least 15 days before the subsequent special record date, the
Company shall mail to each Person who was a Holder as of a recent
date selected by the Company, with a copy to the Trustee and the
Paying Agent, a notice that states the subsequent special record
date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
SECTION 2.13 CUSIP Number.
The Company in issuing the Notes may use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number in
notices of redemption or exchange as a convenience to Holders;
provided that no representation is hereby deemed to be made by
the Trustee as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be
placed only on the other identification numbers printed on the
Notes. The Company shall promptly notify the Trustee and the
Registrar of any change in the CUSIP number.
SECTION 2.14 Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each
Interest Payment Date and on the Maturity Date, the Company shall
have deposited with the Paying Agent in immediately available
funds money sufficient to make cash payments, if any, due on such
Interest Payment Date or Maturity Date, as the case may be, in a
timely manner which permits the Paying Agent to remit payment to
the Holders on such Interest Payment Date or Maturity Date, as
the case may be.
SECTION 2.15 Restrictive Legends.
Each Global Note and Physical Note that constitutes a
Restricted Security shall bear the following legend (the "Private
Placement Legend") on the face thereof until April 18, 2000 (or
such earlier date as shall be specified in an Officer's
Certificate to the effect that the Notes are no longer Restricted
Securities delivered to the Trustee and the Registrar) unless
otherwise agreed by the Company and the Holder thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH
BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR") OR (C)
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT,, (2) AGREES THAT IT WILL NOT WITHIN THREE YEARS
(OR SUCH SHORTER PERIOD AS MAY BE PROVIDED UNDER THE SECURITIES
ACT FOR THE RESALE BY NON-AFFILIATES OF RESTRICTED SECURITIES)
AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR PURCHASES THIS SECURITY IN A MINIMUM
PRINCIPAL AMOUNT OF NOT LESS THAN $250,000 AND THAT, PRIOR TO
SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A
U.S. BROKER-DEALER) TO THE REGISTRAR A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE OR REGISTRAR), (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY
WITHIN THREE YEARS (OR SUCH SHORTER PERIOD AS MAY BE PROVIDED
UNDER THE SECURITIES
ACT FOR THE RESALE BY NON-AFFILIATES OF RESTRICTED SECURITIES)
AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE REGISTRAR AND THE ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF
THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
Each Global Note shall also bear the following legend
on the face thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF
THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE DEPOSITORY, OR BY
THE DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK LIMITED PURPOSE TRUST COMPANY ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION
2.17 OF THE INDENTURE.
SECTION 2.16 Book-Entry Provisions for Global Note.
(a) The Global Note initially shall (i) be registered
in the name of the Depository or the nominee of such Depository,
(ii) be delivered to the Registrar as custodian for such
Depository and (iii) bear legends as set forth in Section 2.15.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect
to any Global Note held on their behalf by the Depository, or the
Registrar as its custodian, or under the Global Note, and the
Depository may be treated by the Company, the Trustee, each Agent
and any agent of the Company, the Trustee or any Agent as the
absolute owner of the Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee, each Agent or any agent of the Company, the
Trustee or any Agent from giving effect to any written
certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices governing the
exercise of the rights of a holder of any Note.
(b) Transfers of the Global Note shall be limited to
transfers in whole, but not in part, to the Depository, its
successors or their respective nominees. Interests of beneficial
owners in the Global Note may be transferred or exchanged for
Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of Section 2.17. In addition,
Physical Notes shall be transferred to all beneficial owners in
exchange for their beneficial interests in the Global Note only
if (i) the Depository notifies the Company that it is unwilling
or unable to continue as Depository for the Global Note and a
successor depositary is not appointed by the Company within 90
days of such notice or (ii) an Event of Default has occurred and
is continuing and the Registrar has received a written request
from the Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a
portion of the beneficial interest in the Global Note to
beneficial owners pursuant to paragraph (b), the Registrar shall
(if one or more Physical Notes are to be issued) reflect on its
books and records the date and a decrease in the principal amount
of the Global Note in an amount equal to the principal amount of
the beneficial interest in the Global Note to be transferred, and
the Company shall execute, and the Trustee shall authenticate and
deliver, one or more Physical Notes of like tenor and amount.
(d) In connection with the transfer of the entire Global
Note to beneficial owners pursuant to paragraph (b), the Global
Note shall be deemed to be surrendered to the Registrar for
cancellation, and the Company shall execute, and the Trustee
shall authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial
interest in the Global Note, an equal aggregate principal amount
of Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Security
delivered in exchange for an interest in the Global Note pursuant
to paragraph (b) or (c) shall, except as otherwise provided by
paragraphs (a)(i)(x) and (c) of Section 2.17, bear the legend
regarding transfer restrictions applicable to the Physical Notes
set forth in Section 2.15.
(f) The Holder of the Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under this
Indenture or the Notes.
SECTION 2.17 Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited
Investors and Non-U.S. Persons. The following provisions shall
apply with respect to the registration of any proposed transfer
of a Note constituting a Restricted Security to any Institutional
Accredited Investor which is not a QIB or to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any
Note constituting a Restricted Security, whether or not
such Note bears the Private Placement Legend, if (x) the
requested transfer is after April 18, 2000 (or such earlier
date as shall be specified in an Officers' Certificate to
the effect that the Notes are no longer Restricted
Securities delivered to the Trustee and the Registrar) or
(y) (1) in the case of a transfer to an Institutional
Accredited Investor which is not a QIB (excluding Non-U.S.
Persons), such transfer is made with respect to Notes in a
minimum principal amount of not less than $250,000 and the
proposed transferee has delivered to the Registrar a
certificate substantially in the form of Exhibit C hereto
or (2) in the case of a transfer to a Non-U.S. Person, the
proposed transferor has delivered to the Registrar a
certificate substantially in the form of Exhibit D hereto
and such other information that the Registrar may
reasonably request in order to confirm that such
transaction is being made pursuant to an exemption from or
in a transaction not subject to the registration
requirements of the Securities Act; and
(ii) if the proposed transferor is an Agent Member
holding a beneficial interest in the Global Note, upon
receipt by the Registrar of (x) the certificate, if any,
required by paragraph (i) above and (y) instructions given
in accordance with the Depository's and the Registrar's
procedures,
whereupon (a) the Registrar shall reflect on its books and
records the date and (if the transfer does not involve a transfer
of outstanding Physical Notes) a decrease in the principal amount
of the Global Note in an amount equal to the principal amount of
the beneficial interest in the Global Note to be transferred, and
(b) the Company shall execute and the Trustee or its
authentication agent shall authenticate and deliver one or more
Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed transfer
of a Note constituting a Restricted Security to a QIB (excluding
transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has
checked the box provided for on the form of Note stating,
or has otherwise advised the Company and the Registrar in
writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or
has otherwise advised the Company and the Registrar in
writing, that it is purchasing the Note for its own account
or an account with respect to which it exercises sole
investment discretion and that it and any such account is a
QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule
144A or has determined not to request such information and
that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption
from registration provided by Rule 144A; and
(ii) if the Notes to be transferred consist of
Physical Notes which after transfer are to be evidenced by
an interest in the Global Note, upon receipt by the
Registrar of instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar
shall reflect on its books and records the date and an
increase in the principal amount of the Global Note in an
amount equal to the principal amount of the Physical Notes
to be transferred, and the Registrar shall cancel the
Physical Notes so transferred.
(c) Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Notes not bearing the
Private Placement Legend, the Registrar shall deliver Notes that
do not bear the Private Placement Legend. Upon the registration
of transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Registrar shall deliver only Notes that
bear the Private Placement Legend unless (i) the circumstance
contemplated by paragraph (a)(i)(x) of this Section 2.17 exists
or (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Registrar to the
effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(d) General. By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such a Note acknowledges
the restrictions on transfer of such Note set forth in this
Indenture and in the Private Placement Legend and agrees that it
will transfer such Note only as provided in this Indenture.
The Registrar shall retain copies of all letters,
notices and other written communications received pursuant to
Section 2.16 or this Section 2.17. The Company shall have the
right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to
Paragraph 6 of the Notes, it shall notify the Trustee and the
Paying Agent in writing of the Redemption Date and the principal
amount of the Notes to be redeemed.
The Company shall give each notice provided for in
this Section 3.01 at least 30 days before the Redemption Date
(unless a shorter notice period shall be satisfactory to the
Trustee and the Paying Agent, as evidenced in a writing signed on
behalf of the Trustee and the Paying Agent), together with an
Officers' Certificate stating that such redemption shall comply
with the conditions contained herein and in the Notes.
SECTION 3.02 Selection of Notes To Be Redeemed.
If fewer than all of the Notes are to be redeemed,
selection of the Notes to be redeemed will be made by the Trustee
in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if
the Notes are not then listed on a national securities exchange,
on a pro rata basis, by lot or in such other fair and reasonable
manner chosen at the discretion of the Trustee; provided,
however, that if a partial redemption is made with the proceeds
of a Public Equity Offering, selection of the Notes or portion
thereof for redemption shall be made by the Trustee only on a pro
rata basis, to the extent practical, unless such method is
otherwise prohibited. The Company shall promptly notify the
Trustee and the Paying Agent in writing of the date of listing
and the name of the securities exchange if and when the Notes are
listed on a principal national securities exchange. The Trustee
shall make the selection from the Notes outstanding and not
previously called for redemption and shall promptly notify the
Company and the Paying Agent in writing of the Notes selected for
redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes in
denominations of $1,000 may be redeemed only in whole. The
Trustee may select for redemption portions (equal to $1,000 or
any integral multiple thereof) of the principal of Notes that
have denominations larger than $1,000. Provisions of this
Indenture that apply to Notes called for redemption also apply to
portions of Notes called for redemption.
SECTION 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail or cause to be mailed a
notice of redemption by first class mail, postage prepaid, to
each Holder whose Notes are to be redeemed, with a copy to the
Trustee and any Paying Agent. At the Company's written request,
the Paying Agent shall give the notice of redemption in the
Company's name and at the Company's expense.
Each notice for redemption shall identify the Notes to
be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued
interest, if any, to be paid;
(3) the name and address of the Paying Agent;
(4) the subparagraph of the Notes pursuant to which
such redemption is being made;
(5) that Notes called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Priceplus accrued interest, if any, and that interest on
the Notes to be redeemed will cease to accrue on and
after the applicable Redemption Date, whether or not
such Notes are presented for payment.
(6) that, unless the Company defaults in making the
redemption payment, interest on Notes called for redemption
ceases to accrue on and after the Redemption Date, and the
only remaining right of the Holders of such Notes is to
receive payment of the Redemption Price plus accrued
interest, if any, upon surrender to the Paying Agent of the
Notes redeemed;
(7) if any Note is being redeemed in part, the portion
of the principal amount of such Note to be redeemed and
that, after the Redemption Date, and upon surrender of such
Note, a new Note or Notes in the aggregate principal amount
equal to the unredeemed portion thereof will be issued; and
(8) if fewer than all the Notes are to be redeemed,
the identification of the particular Notes (or portion
thereof) to be redeemed, as well as the aggregate principal
amount of Notes to be redeemed and the aggregate principal
amount of Notes to be outstanding after such partial
redemption.
SECTION 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with
Section 3.03, Notes called for redemption become due and payable
on the Redemption Date and at the Redemption Price plus accrued
interest, if any. Upon surrender to the Paying Agent, such Notes
called for redemption shall be paid at the Redemption Price
(which shall include accrued interest thereon to the Redemption
Date), but installments of interest, the maturity of which is on
or prior to the Redemption Date, shall be payable to Holders of
record at the close of business on the relevant record dates
referred to in the Notes.
SECTION 3.05 Deposit of Redemption Price.
On or before 11:00 a.m. New York City time on the
Redemption Date, the Company shall deposit with the Paying Agent
U.S. Legal Tender sufficient to pay the Redemption Price plus
accrued interest, if any, of all Notes to be redeemed on that
date. The Paying Agent shall promptly return to the Company any
U.S. Legal Tender so deposited which is not required for that
purpose, except with respect to monies owed as obligations to the
Trustee pursuant to Article Seven.
If the Company complies with the preceding paragraph,
then, unless the Company defaults in the payment of such
Redemption Price plus accrued interest, if any, interest on the
Notes to be redeemed will cease to accrue on and after the
applicable Redemption Date, whether or not such Notes are
presented for payment.
SECTION 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in
part, the Company shall execute and the Trustee shall
authenticate for the Holder a new Note or Notes equal in
principal amount to the unredeemed portion of the Note
surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Notes.
The Company shall pay the principal of and interest on
the Notes on the dates and in the manner provided in the Notes
and in this Indenture. An installment of principal of or interest
on the Notes shall be considered paid on the date it is due if
the Trustee or Paying Agent (other than the Company or an
Affiliate of the Company) holds on that date U.S. Legal Tender
designated for and sufficient to pay the installment in full and
is not prohibited from paying such money to the Holders pursuant
to the terms of this Indenture.
The Company shall pay, to the extent such payments are
lawful, interest on overdue principal and on overdue installments
of interest (without regard to any applicable grace periods) from
time to time on demand at the rate borne by the Notes plus 2% per
annum. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
Notwithstanding anything to the contrary contained in
this Indenture, the Company may, to the extent it is required to
do so by law, deduct or withhold income or other similar taxes
imposed by the United States from principal or interest payments
hereunder.
SECTION 4.02 Maintenance of Office or Agency.
The Company shall maintain the office or agency
required under Section 2.03. The Company shall give prior written
notice to the Trustee and the Paying Agent of the location, and
any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee and the Paying
Agent with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the
Trustee set forth in Section 13.02.
The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented
or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough
of Manhattan, The City of New York, for such purposes. The
Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 4.03 Corporate Existence.
Except as otherwise permitted by Article Five and
Section 4.16, the Company shall do or cause to be done, at its
own cost and expense, all things necessary to preserve and keep
in full force and effect its corporate existence and the
corporate existence of each of its Restricted Subsidiaries in
accordance with the respective organizational documents of each
such Restricted Subsidiary and the material rights (charter and
statutory) and franchises of the Company and each such Restricted
Subsidiary.
SECTION 4.04 Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid
or discharged, before the same shall become delinquent, (i) all
material taxes, assessments and governmental charges (including
withholding taxes and any penalties, interest and additions to
taxes) levied or imposed upon it or any of its Subsidiaries or
properties of it or any of its Subsidiaries and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, might
by law become a Lien upon the property of it or any of its
Subsidiaries; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by
appropriate proceedings properly instituted and diligently
conducted for which adequate reserves, to the extent required
under GAAP, have been taken.
SECTION 4.05 Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its
Restricted Subsidiaries to, maintain its material properties in
good working order and condition (subject to ordinary wear and
tear) and make all necessary repairs, renewals, replacements,
additions, betterments and improvements thereto and actively
conduct and carry on its business; provided, however, that
nothing in this Section 4.05 shall prevent the Company or any of
its Restricted Subsidiaries from discontinuing the operation and
maintenance of any of its properties, if such discontinuance is,
in the good faith judgment of the Board of Directors of the
Company or the Restricted Subsidiary, as the case may be,
desirable in the conduct of their respective businesses and is
not disadvantageous in any material respect to the Holders.
(b) The Company shall provide or cause to be provided,
for itself and each of its Restricted Subsidiaries, insurance
(including appropriate self-insurance) against loss or damage of
the kinds that, in the good faith judgment of the Board of
Directors of the Company, are adequate and appropriate for the
conduct of the business of the Company and such Restricted
Subsidiaries in a prudent manner, with reputable insurers or with
the government of the United States or an agency or
instrumentality thereof, in such amounts, with such deductibles,
and by such methods as shall be customary, in the good faith
judgment of the Board of Directors of the Company, for companies
similarly situated in the industry.
SECTION 4.06 Compliance Certificate; Notice of Default.
(a) The Company and each Guarantor shall deliver to
the Trustee, within 90 days after the end of the Company's fiscal
year, an Officers' Certificate stating that a review of its
activities and the activities of its Subsidiaries during the
preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company
or such Guarantor, as the case may be, has kept, observed,
performed and fulfilled its obligations under this Indenture and
further stating, as to each such Officer signing such
certificate, that to the best of such Officer's knowledge the
Company or such Guarantor, as the case may be, during such
preceding fiscal year has kept, observed, performed and fulfilled
each and every such covenant and no Default or Event of Default
occurred during such year and at the date of such certificate
there is no Default or Event of Default that has occurred and is
continuing or, if such signers do know of such Default or Event
of Default, the certificate shall describe the Default or Event
of Default and its status with particularity. The Officers'
Certificate of the Company shall also notify the Trustee should
the Company elect to change the manner in which it fixes its
fiscal year end.
(b) The annual financial statements delivered pursuant
to Section 4.08 shall be accompanied by a written report of the
Company's independent accountants (who shall be a firm of
established national reputation) that in conducting their audit
of such financial statements nothing has come to their attention
that would lead them to believe that the Company has violated any
provisions of Article Four, Five or Six of this Indenture insofar
as they relate to accounting matters or, if any such violation
has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to
obtain knowledge of any such violation.
(c) (i) If any Default or Event of Default has occurred
and is continuing or (ii) if any Holder seeks to exercise any
remedy hereunder with respect to a claimed Default under this
Indenture or the Notes, the Company shall deliver to the Trustee,
at its address set forth in Section 13.02 hereof, by registered
or certified mail or by telegram or facsimile transmission
followed by hard copy by registered or certified mail an
Officers' Certificate specifying such event, notice or other
action within five Business Days of its becoming aware of such
occurrence. The Trustee shall not be deemed to have notice of any
Default or Event of Default unless one of its Trust Officers
receives written notice thereof from the Company or any of the
Holders.
SECTION 4.07 Compliance with Laws.
The Company shall comply, and shall cause each of its
Restricted Subsidiaries to comply, with all applicable statutes,
rules, regulations, orders and restrictions of the United States,
all states and municipalities thereof, and of any governmental
department, commission, board, regulatory authority, bureau,
agency and instrumentality of the foregoing, in respect of the
conduct of their respective businesses and the ownership of their
respective properties, except for such noncompliances as are not
in the aggregate reasonably likely to have a material adverse
effect on the financial condition or results of operations of the
Company and its Restricted Subsidiaries, taken as a whole.
SECTION 4.08 SEC Reports.
(a) So long as the Notes are outstanding, the Company
and each Guarantor (at its own expense) shall file with the SEC
and shall file with the Trustee within 15 days after it files
them with the SEC copies of the quarterly and annual reports and
of the information, documents, and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) to be filed pursuant to Section 13 or
15(d) of the Exchange Act (without regard to whether the Company
or such Guarantor is subject to the requirements of such Section
13 or 15(d) of the Exchange Act); provided that prior to the
consummation of the Exchange Offer and the issuance of the
Exchange Notes, the Company and each Guarantor (at their own
expense) will mail to the Trustee and Holders in accordance with
paragraph (b) of this Section 4.08 substantially the same
information that would have been required by the foregoing
documents within 15 days of when any such document would
otherwise have been required to be filed with the SEC. Upon
qualification of this Indenture under the TIA, the Company shall
also comply with the provisions of TIA ss. 314(a).
(b) At the Company's expense, the Company shall cause
an annual report if furnished by it to stockholders generally and
each quarterly or other financial report if furnished by it to
stockholders generally to be filed with the Trustee and mailed to
the Holders at their addresses appearing in the register of Notes
maintained by the Registrar at the time of such mailing or
furnishing to stockholders.
(c) The Company shall provide to any Holder any
information reasonably requested by such Holder concerning the
Company (including financial statements) and in order to permit
such Holder to sell or transfer Notes in compliance with Rule
144A under the Securities Act.
SECTION 4.09 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead,
or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or other
law that would prohibit or forgive the Company from paying all or
any portion of the principal of or interest on the Notes as
contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
SECTION 4.10 Limitation on Restricted Payments.
The Company shall not, and shall not cause or permit
any of its Restricted Subsidiaries to, directly or indirectly,
(a) declare or pay any dividend or make any distribution (other
than dividends or distributions payable in Qualified Capital
Stock of the Company or in options, warrants or other rights to
purchase such Qualified Capital Stock) on or in respect of shares
of the Company's Capital Stock to holders of such Capital Stock,
(b) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Company or any warrants, rights or options
to purchase or acquire shares of any class of such Capital Stock
(in each case other than in exchange for Qualified Capital Stock
of the Company or options, warrants or other rights to purchase
such Qualified Capital Stock), (c) make any principal payment on,
purchase, defease, redeem, prepay, decrease or otherwise acquire
or retire for value, prior to any scheduled final maturity,
scheduled repayment or scheduled sinking fund payment, any
Indebtedness of the Company that is subordinate or
junior in right of payment to the Notes or (d) make any
Investment (other than Permitted Investments) (each of the
foregoing actions set forth in clauses (a), (b) (c) and (d) being
referred to as a "Restricted Payment"), if at the time of such
Restricted Payment or immediately after giving effect thereto,
(i) a Default or an Event of Default shall have occurred and be
continuing or (ii) the Company is not able to incur at least
$1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.12 or (iii) the
aggregate amount of Restricted Payments (including such proposed
Restricted Payment) made subsequent to the Issue Date (the amount
expended for such purposes, if other than in cash, being the fair
market value of such property as determined reasonably and in
good faith by the Board of Directors of the Company) shall exceed
the sum of: (v) $10,000,000; plus (w) 50% of the cumulative
Consolidated Net Income (or if cumulative Consolidated Net Income
shall be a loss, minus 100% of such loss) of the Company earned
subsequent to the Issue Date and on or prior to the date on which
the Restricted Payment occurs or is to occur (the "Reference
Date") (treating such period as a single accounting period); plus
(x) 100% of the aggregate net cash proceeds received by the
Company from any Person (other than a Subsidiary of the Company)
from the issuance and sale subsequent to the Issue Date and on or
prior to the Reference Date of Qualified Capital Stock of the
Company (including by conversion of Indebtedness into Qualified
Capital Stock) and, subject to the limitation set forth in clause
(8) of the immediately succeeding paragraph, 100% of the fair
market value of non-cash consideration received in any such
issuance and sale; plus (y) without duplication of any amounts
included in clause (iii)(x) above, 100% of the aggregate net cash
proceeds of any equity contribution received by the Company from
a holder of the Company's Capital Stock and, subject to the
limitation set forth in clause (8) of the immediately succeeding
paragraph, 100% of the fair market value of non-cash
consideration of any equity contribution received by the Company
from a holder of the Company's Capital Stock; plus (z) without
duplication, the sum of (1) the aggregate amount returned in cash
on or with respect to Investments (other than Permitted
Investments) made subsequent to the Issue Date whether through
interest payments, principal payments, dividends or other
distributions or payments, (2) the net cash proceeds received by
the Company or any Restricted Subsidiary from the disposition of
all or any portion of such Investments (other than to a
Subsidiary of the Company) and, subject to the limitations set
forth in clause (8) of the immediately succeeding paragraph, 100%
of the fair market value of non-cash consideration received in
any such disposition and (3) upon redesignation of an
Unrestricted Subsidiary as a Restricted Subsidiary, the fair
market value of such Subsidiary; provided, however, that with
respect to all Investments made in any Unrestricted Subsidiary or
joint venture, the sum of clauses (1), (2) and (3) above with
respect to such Investment shall not exceed the aggregate amount
of all such Investments made subsequent to the Issue Date in such
Unrestricted Subsidiary or joint venture.
Notwithstanding the foregoing, the provisions set
forth in the immediately preceding paragraph do not prohibit: (1)
the payment of any dividend within 60 days after the date of
declaration of such dividend if the dividend would have been
permitted on the date of declaration; (2) the acquisition of any
shares of Capital Stock of the Company, either (i) solely in
exchange for shares of Qualified Capital Stock of the Company or
(ii) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock
of the Company; (3) if no Default or Event of Default shall have
occurred and be continuing, the acquisition of any Indebtedness
of the Company that is subordinate or junior in right of payment
to the Notes either (i) solely in exchange for shares of
Qualified Capital Stock of the Company or Indebtedness of the
Company that is subordinate or junior in right of payment to the
Notes at least to the extent of the subordination provisions
contained in Article Ten of this Indenture and having no
maturity, sinking fund payment or scheduled mandatory redemption
prior to maturity of the Notes, or (ii) through the application
of net proceeds of a substantially concurrent sale for cash
(other than to a Subsidiary of the Company) of (A) shares of
Qualified Capital Stock of the Company or (B) Refinancing
Indebtedness; (4) so long as no Default or Event of Default shall
have occurred and be continuing, payments for the purpose of and
in an amount equal to the amount required to permit Holdings to
redeem or repurchase Common Stock of Holdings or options in
respect thereof from employees or officers of Holdings or any of
its Subsidiaries or their estates or authorized representatives
upon the death, disability or termination of the employment of
such employees or officers in an aggregate amount not to exceed
$10 million; (5) the making of distributions, loans or advances
in an amount not to exceed $1 million per annum sufficient to
permit Holdings to pay the ordinary operating expenses of
Holdings related to Holdings' ownership of Capital Stock of the
Company; (6) the payment of any amounts pursuant to the Tax
Sharing Agreement; (7) aggregate payments of not more than $835
million pursuant to the Recapitalization and made within 30 days
of the date of the consummation of the Recapitalization; and (8)
in the event that the Company has not realized cash from the
proceeds of the payment, sale or disposition of any non-cash
consideration referred to in clause (iii)(x), (iii)(y) and
(iii)(z)(2) of the immediately preceding paragraph, Restricted
Payments permitted by reason of such non-cash consideration;
provided, that such Restricted Payments may be made only in kind
of the non-cash consideration so received. In determining the
aggregate amount of Restricted Payments made subsequent to the
Issue Date in accordance with clause (iii) of the immediately
preceding paragraph, amounts expended pursuant to clauses (1),
(2), (4) and (8) shall be included in such calculation and
amounts expended pursuant to clauses (3), (5), (6) and (7) shall
be excluded from such calculation.
Not later than the date of making any Restricted
Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment complies with
this Indenture and setting forth in reasonable detail the basis
upon which the required calculations were computed, which
calculations may be based upon the Company's latest available
internal quarterly financial statements. The Trustee shall have
no duty or obligation to recalculate or otherwise verify the
accuracy of the calculations set forth in any such Officers'
Certificates.
SECTION 4.11 Limitation on Transactions with
Affiliates.
(a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly, enter
into or permit to exist any transaction or series of related
transactions (including, without limitation, the purchase, sale,
lease or exchange of any property or the rendering of any
service) with, or for the benefit of, any of its Affiliates (each
an "Affiliate Transaction"), other than (x) Affiliate
Transactions permitted under paragraph (b) below and (y)
Affiliate Transactions on terms that are no less favorable to the
Company or the relevant Restricted Subsidiary than those that
might reasonably have been obtained in a comparable transaction
at such time on an arm's-length basis from a Person that is not
an Affiliate of the Company or such Restricted Subsidiary. All
Affiliate Transactions (and each series of related Affiliate
Transactions which are related to a common plan) involving
aggregate payments or other property with a fair market value in
excess of $1 million shall be approved by the Board of Directors
of the Company or such Restricted Subsidiary, as the case may be,
such approval to be evidenced by a Board Resolution stating that
such Board of Directors has determined that such transaction
complies with the foregoing provisions. If the Company or any
Restricted Subsidiary of the Company enters into an Affiliate
Transaction (or a series of related Affiliate Transactions
related to a common plan) that involves an aggregate fair market
value or payments to an Affiliate, as the case may be, of more
than $10 million, the Company or such Restricted Subsidiary, as
the case may be, shall, prior to the consummation thereof, obtain
a favorable opinion as to the fairness of such transaction or
series of related transactions to the Company or the relevant
Restricted Subsidiary, as the case may be, from a financial point
of view, from an Independent Financial Advisor and file the same
with the Trustee.
(b) The foregoing restrictions shall not apply to (i)
reasonable fees and compensation paid to (including issuances and
grant of securities and stock options), employment agreements and
stock option and ownership plans for the benefit of, and
indemnity provided on behalf of, officers, directors, employees
or consultants of the Company or any Restricted Subsidiary of the
Company as determined in good faith by the Company's Board of
Directors or senior management; (ii) transactions between or
among the Company and any of its Restricted Subsidiaries or
exclusively between or among such Restricted Subsidiaries,
provided that such transactions are not otherwise prohibited by
this Indenture; (iii) any agreement as in effect as of the Issue
Date or any amendment thereto or any transaction contemplated
thereby (including pursuant to any amendment thereto or any
replacement agreement thereto so long as any such amendment or
replacement agreement is not more disadvantageous to the Holders
in any material respect than the original agreement as in effect
on the Issue Date); (iv) payments and investments permitted by
this Indenture; (v) payments made in connection with the
Recapitalization, including transaction fees to stockholders of
Holdings not exceeding $10,000,000); (vi) the issuance of
Qualified Capital Stock of the Company; (vii) any obligations of
the Company pursuant to the Management Advisory Agreement and the
Transaction Advisory Agreement; (viii) transactions permitted by,
and complying with, Article Five; (ix) transactions with
suppliers or other purchasers or sales of goods or services, in
each case in the ordinary course of business (including, without
limitation, pursuant to joint venture agreements) and otherwise
in compliance with the terms of this Indenture which are fair to
the Company, in the good faith determination of the Board of
Directors of the Company or the senior management thereof, and on
terms at least as favorable as might reasonably have been
obtained at such time from an unaffiliated party; and (x)
Qualified Receivables Transactions.
SECTION 4.12 Limitation on Incurrence of Additional
Indebtedness.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create,
incur, assume, guarantee, acquire, become liable, contingently or
otherwise, with respect to, or otherwise become responsible for
payment of (collectively, "incur") any Indebtedness (other than
Permitted Indebtedness); provided, however, that if no Default or
Event of Default shall have occurred and be continuing at the
time or as a consequence of the incurrence of any such
Indebtedness, the Company may incur Indebtedness (including,
without limitation, Acquired Indebtedness) and the Restricted
Subsidiaries of the Company may incur Acquired Indebtedness, in
each case if on the date of the incurrence of such Indebtedness,
after giving effect to the incurrence thereof, the Consolidated
Fixed Charge Coverage Ratio of the Company is greater than 2.0 to
1.0.
SECTION 4.13 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.
The Company shall not, and shall not cause or permit
any of its Restricted Subsidiaries to, directly or indirectly,
create or otherwise cause or permit to exist or become effective
any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary of the Company to (a) pay dividends or make
any other distributions on or in respect of its Capital Stock;
(b) make loans or advances or to pay any Indebtedness or other
obligation owed to the Company or any other Restricted Subsidiary
of the Company; or (c) transfer any of its property or assets to
the Company or any other Restricted Subsidiary of the Company,
except for such encumbrances or restrictions existing under or by
reason of: (1) applicable law; (2) this Indenture; (3) customary
non-assignment provisions of any contract or lease governing a
leasehold or ownership interest of any Restricted Subsidiary of
the Company; (4) any instrument governing Acquired Indebtedness,
which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person
or the properties or assets of the Person so acquired; (5)
agreements existing on the Issue Date (including, without
limitation, the Credit Agreement) to the extent and in the manner
such agreements are in effect on the Issue Date; (6) secured
Indebtedness otherwise permitted to be incurred pursuant to the
provisions of Sections 4.12 and 4.18 that limit the right of the
debtor to dispose of the assets securing such Indebtedness; (7)
customary net worth provisions contained in leases and other
agreements entered into by a Restricted Subsidiary in the
ordinary course of business; (8) customary restrictions with
respect to a Restricted Subsidiary pursuant to an agreement that
has been entered into for the sale or disposition of all or
substantially all of the Capital Stock of such Restricted
Subsidiary; (9) customary provisions in joint venture agreements
and other similar agreements relating solely to the securities,
assets and revenues of such joint venture or other business
venture; (10) an agreement governing Indebtedness incurred to
Refinance the Indebtedness issued, assumed or incurred pursuant
to an agreement referred to in clause (2), (4), (5) or (6) above;
provided, however, that the provisions relating to such
encumbrance or restriction contained in any such Indebtedness are
not, in the aggregate, materially less
favorable to the Company in any material respect as determined by
the Board of Directors of the Company in its reasonable and good
faith judgment than the provisions relating to such encumbrance
or restriction contained in agreements referred to in such clause
(2), (4), (5) or (6); and (11) Standard Securitization
Undertakings relating to a Receivables Subsidiary or Special
Purpose Vehicle.
SECTION 4.14 Prohibition on Incurrence of Senior
Subordinated Debt.
The Company shall not incur or suffer to exist
Indebtedness that is senior in right of payment to the Notes and
subordinate in right of payment to any other Indebtedness of the
Company.
SECTION 4.15 Change of Control.
(a) At any time on or prior to April 15, 2002, the
Company may, at its option, redeem the Notes, in whole, upon the
occurrence of a Change of Control, upon not less than 30 nor more
than 60 days prior notice (but in no event more than 90 days
after the occurrence of such Change of Control) at a redemption
price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued and unpaid interest, if
any, to the date fixed for such redemption (the "Change of
Control Redemption Date") (subject to the right of the Holders of
record on the relevant record date to receive interest due on the
relevant interest payment date).
(b) Upon the occurrence of a Change of Control, if the
Company does not redeem the Notes as provided in Section 4.15(a)
of this Indenture, Company shall make the "Change of Control
Offer", and each Holder will have the right to require that the
Company purchase all or a portion of such Holder's Notes pursuant
to such Change of Control Offer, at a purchase price equal to
101% of the principal amount thereof plus accrued interest, if
any, to the date of purchase. Prior to the mailing of the notice
referred to below, but in any event within 30 days following any
Change of Control, the Company shall (i) repay in full and
terminate all commitments under Indebtedness under the Credit
Agreement and all other Senior Debt the terms of which require
repayment upon a Change of Control or offer to repay in full and
terminate all commitments under all Indebtedness under the Credit
Agreement and all other such Senior Debt and to repay the
Indebtedness owed to each lender in full which has accepted such
offer or (ii) obtain the requisite consents under the Credit
Agreement and all other Senior Debt to permit the repurchase of
the Notes as provided below. The Company shall first comply with
the covenant in the immediately preceding sentence before it
shall be required to repurchase Notes pursuant to the provisions
described in this Section 4.15. The Company's failure to comply
with the immediately preceding sentence shall constitute an Event
of Default under Section 6.01(3) and not under Section 6.01(2).
(c) Within 30 days following the date upon which the
Change of Control occurred (the "Change of Control Date"), unless
the Company has mailed a notice with respect to a redemption
pursuant to Section 4.15(a) of this Indenture, the Company shall
send, by first class mail, a notice to each Holder, with a copy
to the Trustee and each Paying Agent, which notice shall govern
the terms of the Change of Control Offer. The notice to the
Holders shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Change of
Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made
pursuant to this Section 4.15 and that all Notes tendered
and not withdrawn will be accepted for payment;
(2) the purchase price (including the amount of
accrued interest) and the purchase date (which shall be no
earlier than 30 days nor later than 45 days from the date
such notice is mailed, other than as may be required by
law) (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making
payment therefor, any Note accepted for payment pursuant to
the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
(5) that Holders electing to have a Note purchased
pursuant to a Change of Control Offer will be required to
surrender the Note, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the third
Business Day prior to the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than
five Business Days prior to the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount
of the Notes the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to
have such Notes purchased;
(7) that Holders whose Notes are purchased only in
part will be issued new Notes in a principal amount equal
to the unpurchased portion of the Notes surrendered;
provided that each Note purchased and each new Note issued
shall be in an original principal amount of $1,000 or
integral multiples thereof; and
(8) the circumstances and relevant facts regarding such
Change of Control.
On or before the Change of Control Payment Date, the
Company shall (i) accept for payment Notes or portions thereof
tendered pursuant to the Change of Control Offer, (ii) deposit
with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price plus accrued interest, if any, of all Notes so
tendered and (iii) deliver to the Registrar Notes so accepted
together with an Officers' Certificate stating the Notes or
portions thereof being purchased by the Company. The Paying Agent
shall promptly mail to the Holders of Notes so accepted payment
in an amount equal to the purchase price plus accrued interest,
if any, and the Trustee shall promptly authenticate and mail to
such Holders new Notes equal in principal amount to any
unpurchased portion of the Notes surrendered. Any Notes not so
accepted shall be promptly mailed by the Company to the Holder
thereof.
Any amounts remaining after the purchase of Notes
pursuant to a Change of Control Offer shall be returned by the
Paying Agent to the Company.
The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations
are applicable in connection with the repurchase of Notes
pursuant to a Change of Control Offer. To the extent the
provisions of any securities laws or regulations conflict with
this Section 4.15, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.15 by virtue
thereof.
SECTION 4.16 Limitation on Asset Sales.
(a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, consummate an Asset Sale unless
(i) the Company or the applicable Restricted Subsidiary, as the
case may be, receives consideration at the time of such Asset
Sale at least equal to the fair market value of the assets sold
or otherwise disposed of (in each case as determined in good
faith by the Company's Board of Directors); (ii) at least 75% of
the consideration received by the Company or the Restricted
Subsidiary, as the case may be, from such Asset Sale shall be in
the form of cash or Cash Equivalents (provided that (A) the
amount of any liabilities (as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet) of the Company
or any such Restricted Subsidiary (other than liabilities that
are by their terms subordinated to the Notes) that are assumed by
the transferee of any such assets and (B) the fair market value
of any marketable securities received by the Company or a
Restricted Subsidiary in exchange for any such assets that are
promptly converted into cash shall be deemed to be cash for the
purposes of this provision) and is received at the time of such
disposition; provided that the Company and its Restricted
Subsidiaries may make Asset Sales not exceeding $2 million in the
aggregate in each year for non-cash consideration; and (iii) upon
the consummation of an Asset Sale, the
Company shall apply, or cause such Restricted Subsidiary to
apply, the Net Cash Proceeds relating to such Asset Sale within
360 days of receipt thereof either (A) to prepay any Senior Debt
and, in the case of any Senior Debt under any revolving credit
facility effect a permanent reduction in the availability under
such revolving credit facility, or to so prepay any Indebtedness
of a Wholly Owned Restricted Subsidiary, (B) to make an
investment in properties and assets that replace the properties
and assets that were the subject of such Asset Sale or in
properties and assets that will be used in the business of the
Company and its Restricted Subsidiaries as it exists on the date
of such Asset Sale or in businesses the same, similar or
reasonably related thereto ("Replacement Assets"), or (C) a
combination of prepayment and investment permitted by the
foregoing clauses (iii)(A) and (iii)(B). Subject to the last
sentence of this paragraph, on the 361st day after an Asset Sale
or such earlier date, if any, as the Board of Directors of the
Company or of such Restricted Subsidiary determines not to apply
the Net Cash Proceeds relating to such Asset Sale as set forth in
clause (iii)(A), (iii)(B) or (iii)(C) of the next preceding
sentence (each, a "Net Proceeds Offer Trigger Date"), such
aggregate amount of Net Cash Proceeds which have not been applied
on or before such Net Proceeds Offer Trigger Date as permitted in
clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding
sentence (each a "Net Proceeds Offer Amount") shall be applied by
the Company or such Restricted Subsidiary to make an offer to
purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds
Offer Payment Date") not less than 30 nor more than 45 days
following the applicable Net Proceeds Offer Trigger Date, from
all Holders on a pro rata basis, that amount of Notes equal to
the Net Proceeds Offer Amount at a price equal to 100% of the
principal amount of the Notes to be purchased, plus accrued and
unpaid interest thereon, if any, to the date of purchase;
provided, however, that if at any time any non-cash consideration
received by the Company or any Restricted Subsidiary of the
Company, as the case may be, in connection with any Asset Sale is
converted into or sold or otherwise disposed of for cash (other
than interest received with respect to any such non-cash
consideration), then such conversion or disposition shall be
deemed to constitute an Asset Sale hereunder and the Net Cash
Proceeds thereof shall be applied in accordance with this
covenant. The Company may defer the Net Proceeds Offer until
there is an aggregate unutilized Net Proceeds Offer Amount equal
to or in excess of $10 million resulting from one or more Asset
Sales (at which time, the entire unutilized Net Proceeds Offer
Amount, and not just the amount in excess of $10 million, shall
be applied as required pursuant to this paragraph).
In the event of the transfer of substantially all (but
not all) of the property and assets of the Company and its
Restricted Subsidiaries as an entirety to a Person in a
transaction permitted under Section 5.01, the successor Person
shall be deemed to have sold the properties and assets of the
Company and its Restricted Subsidiaries not so transferred for
purposes of this covenant, and shall comply with the provisions
of this covenant with respect to such deemed sale as if it were
an Asset Sale. In addition, the fair market value of such
properties and assets of the Company or its Restricted
Subsidiaries deemed to be sold shall be deemed to be Net Cash
Proceeds for purposes of this Section 4.16.
Each Net Proceeds Offer will be mailed to the record
Holders as shown on the register of Holders within 25 days
following the Net Proceeds Offer Trigger Date, with a copy to the
Trustee and each Paying Agent, and shall comply with the
procedures set forth in this Indenture. Upon receiving notice of
the Net Proceeds Offer, Holders may elect to tender their Notes
in whole or in part in integral multiples of $1,000 in exchange
for cash. To the extent Holders properly tender Notes in an
amount exceeding the Net Proceeds Offer Amount, Notes of
tendering Holders will be purchased on a pro rata basis (based on
amounts tendered). To the extent that the aggregate amount of
Notes tendered pursuant to a Net Proceeds Offer is less than the
Net Proceeds Offer Amount, the Company may use such excess Net
Proceeds Offer Amount for general corporate purposes or for any
other purpose not prohibited by this Indenture. Upon completion
of any such Net Proceeds Offer, the Net Proceeds Offer Amount
shall be reset at zero. A Net Proceeds Offer shall remain open
for a period of 20 business days or such longer period as may be
required by law.
Notwithstanding the foregoing, the Company and its
Restricted Subsidiaries will be permitted to consummate an Asset
Swap if (i) at the time of entering into such Asset Swap or
immediately after giving effect to such Asset Swap, no Default or
Event of Default shall have occurred or be continuing or would
occur as a consequence thereof, (ii) in the event that such Asset
Swap involves an aggregate amount in excess of $10 million, the
terms of such Asset Swap have been approved by a majority of the
members of the Board of Directors of the Company, and (iii) in
the event such Asset Swap involves an aggregate amount in excess
of $50 million, the Company has received a written opinion from
an Independent Financial Advisor that such Asset Swap is fair to
the Company or such Restricted Subsidiary, as the case may be,
from a financial point of view.
(b) Subject to the deferral of the Net Proceeds Offer
Trigger Date contained in the second paragraph of subsection (a)
above, each notice of a Net Proceeds Offer pursuant to this
Section 4.16 shall be mailed or caused to be mailed, by first
class mail, by the Company not more than 25 days after the Net
Proceeds Offer Trigger Date to all Holders at their last
registered addresses as of a date within 15 days of the mailing
of such notice, with a copy to the Trustee and each Paying Agent.
The notice shall contain all instructions and materials necessary
to enable such Holders to tender Notes pursuant to the Net
Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant
to Section 4.16 and that all Notes tendered will be
accepted for payment; provided, however, that if the
aggregate principal amount of Notes tendered in a Net
Proceeds Offer exceeds the aggregate amount of the Net
Proceeds Offer, the Company shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may
be deemed appropriate by the Company so that only Notes in
denominations of $1,000 or multiples thereof shall be
purchased);
(2) the purchase price (including the amount of
accrued interest) and the purchase date (which shall be 20
Business Days from the date of mailing of notice of such
Net Proceeds Offer, or such longer period as required by
law) (the "Proceeds Purchase Date");
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making
payment therefor, any Note accepted for payment pursuant to
the Net Proceeds Offer shall cease to accrue interest after
the Proceeds Purchase Date;
(5) that Holders electing to have a Note purchased
pursuant to a Net Proceeds Offer will be required to
surrender the Note, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the third
Business Day prior to the Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than five
Business Days prior to the Proceeds Purchase Date, a
telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement
that such Holder is withdrawing his election to have such
Note purchased; and
(7) that Holders whose Notes are purchased only in
part will be issued new Notes in a principal amount equal
to the unpurchased portion of the Notes surrendered;
provided that each Note purchased and each new Note issued
shall be in an original principal amount of $1,000 or
integral multiples thereof;
On or before the Proceeds Purchase Date, the Company
shall (i) accept for payment Notes or portions thereof tendered
pursuant to the Net Proceeds Offer which are to be purchased in
accordance with item (b)(1) above, (ii) deposit with the Paying
Agent U.S. Legal Tender sufficient to pay the purchase price plus
accrued interest, if any, of all Notes to be purchased and (iii)
deliver to the Paying Agent Notes so accepted together with an
Officers' Certificate stating the Notes or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail to
the Holders of Notes so accepted payment in an amount equal to
the purchase price plus accrued interest, if any.
Any amounts remaining after the purchase of Notes
pursuant to a Net Proceeds Offer shall be returned by the Trustee
to the Company.
The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent
such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the
extent that the provisions of any securities laws or regulations
conflict with this Section 4.16, the Company shall comply with
the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.16
by virtue thereof.
SECTION 4.17 Limitation on Preferred Stock of
Restricted Subsidiaries.
The Company shall not permit any of its Restricted
Subsidiaries (other than a Receivables Subsidiary or a Special
Purpose Vehicle) to issue any Preferred Stock (other than to the
Company or to a Wholly Owned Restricted Subsidiary of the
Company) or permit any Person (other than the Company or a Wholly
Owned Restricted Subsidiary of the Company) to own any Preferred
Stock of any Restricted Subsidiary of the Company (other than a
Receivables Subsidiary or a Special Purpose Vehicle).
SECTION 4.18 Limitation on Liens.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, create, incur, assume or suffer to
exist any Liens of any kind against or upon any property or
assets of the Company or any of its Restricted Subsidiaries
whether owned on the Issue Date or acquired after the Issue Date,
or any proceeds therefrom, or assign or otherwise convey any
right to receive income or profits therefrom for purposes of
security unless (i) in the case of Liens securing Indebtedness
that is expressly subordinate or junior in right of payment to
the Notes, the Notes are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Liens and
(ii) in all other cases, the Notes are equally and ratably
secured, except for (A) Liens existing as of the Issue Date to
the extent and in the manner such Liens are in effect as of the
Issue Date; (B) Liens securing Senior Debt and Liens on assets of
Restricted Subsidiaries securing guarantees of Senior Debt; (C)
Liens securing the Notes; (D) Liens of the Company or a Wholly
Owned Restricted Subsidiary of the Company on assets of any
Restricted Subsidiary of the Company; (E) Liens securing
Refinancing Indebtedness which is incurred to Refinance
Indebtedness which has been secured by a Lien permitted under
this Indenture and which has been incurred in accordance with the
provisions of this Indenture; provided, however, that such Liens
(1) are not materially less favorable to the Holders and are not
materially more favorable to the lienholders with respect to such
Liens than the Liens in respect of the Indebtedness being
Refinanced and (2) do not extend to or cover any property or
assets of the Company or any of its Restricted Subsidiaries not
securing the Indebtedness so Refinanced; and (F) Permitted Liens.
SECTION 4.19 Limitation on Guarantees by Restricted
Subsidiaries.
The Company shall not permit any of its domestic
Restricted Subsidiaries, directly or indirectly, by way of the
pledge of any intercompany note or otherwise, to assume,
guarantee or in any other manner become liable with respect to
any Indebtedness of the Company or any other Restricted
Subsidiary (other than Permitted Indebtedness of a Restricted
Subsidiary), unless, in any such case (a) such Restricted
Subsidiary executes and delivers a supplemental indenture to this
Indenture, providing a guarantee of payment of the Notes by such
Restricted Subsidiary (a "Guarantee") substantially similar to
the Guarantee of Holdings contained in Article Eleven and (b) (x)
if any such assumption, guarantee or other liability of such
Restricted Subsidiary is provided in respect of Senior Debt, the
guarantee or other instrument provided by such Restricted
Subsidiary in respect of such Senior Debt may be superior to such
Guarantee pursuant to subordination provisions no less favorable
to the Holders of the Notes than those contained in this
Indenture (and in particular the subordination of Guaranteed
Obligations of Holdings set forth in Article Twelve), and (y) if
such assumption, guarantee or other liability of such Restricted
Subsidiary is provided in respect of Indebtedness that is
expressly subordinated to the Notes, the guarantee or other
instrument provided by such Restricted Subsidiary in respect of
such subordinated Indebtedness shall be subordinated to such
Guarantee pursuant to subordination provisions no less favorable
to the Holders of the Notes than those contained in this
Indenture.
Each Guarantee of a Restricted Subsidiary will be
limited in amount to an amount not to exceed the maximum amount
that can be guaranteed by a Restricted Subsidiary without
rendering such Guarantee, as it relates to such Restricted
Subsidiary, void or voidable under applicable laws relating to
fraudulent conveyance or fraudulent transfer or other similar
laws affecting the rights of creditors generally; provided that
in the event that such Guarantee is subordinated in right of
payment to a guaranty constituting Guarantor Senior Debt
containing a comparable limitation, such limitation in such other
guaranty shall not be given effect in calculating the limitation
on the amount of the Guarantee made to this Section 4.19. In
addition, such Guarantee shall contain appropriate provisions
relating to contribution among all Restricted Subsidiaries
executing Guarantees.
Notwithstanding the foregoing, any such Guarantee of
the Notes by a Restricted Subsidiary of the Company shall provide
by its terms that it shall be automatically and unconditionally
released and discharged, without any further action required on
the part of the Trustee or any Holder, upon: (i) the
unconditional release of such Restricted Subsidiary from its
liability in respect of the Indebtedness in connection with which
such Guarantee was executed and delivered pursuant to the
preceding paragraph; or (ii) any sale or other disposition (by
merger or otherwise) to any Person which is not a Restricted
Subsidiary of the Company, of all of the Company's Capital Stock
in, or all or substantially all of the assets of, such Restricted
Subsidiary; provided that (a) such sale or disposition of such
Capital Stock or assets is otherwise in compliance with the terms
of this Indenture and (b) such assumption, guarantee or other
liability of such Restricted Subsidiary has been released by the
holders of the other Indebtedness so guaranteed.
SECTION 4.20 Restriction of Lines of Business to Food,
Food Distribution and Related Businesses.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, engage in any material business
activity except for food, food distribution and related
businesses.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01 Merger, Consolidation and Sale of Assets
of the Company.
(a) The Company shall not, in a single transaction or
a series of related transactions, consolidate with or merge with
or into any Person, or sell, assign, transfer, lease, convey or
otherwise dispose of (or cause or permit any Restricted
Subsidiary of the Company to sell, assign, transfer, lease,
convey or otherwise dispose of) all or substantially all of the
Company's assets (determined on a consolidated basis for the
Company and its Restricted Subsidiaries), whether as an entirety
or substantially as an entirety, to any Person unless:
(1) either (A) the Company shall be the surviving or
continuing corporation or (B) the Person (if other than the
Company) formed by such consolidation or into which the
Company is merged or the Person which acquires by sale,
assignment, transfer, lease, conveyance or other
disposition the properties and assets of the Company and
its Restricted Subsidiaries substantially as an entirety
(the "Surviving Entity") (x) shall be a corporation
organized and validly existing under the laws of the United
States or any state thereof or the District of Columbia and
(y) shall expressly assume, by supplemental indenture (in
form and substance reasonably satisfactory to the Trustee),
executed and delivered to the Trustee, the due and punctual
payment of the principal of and premium, if any, and
interest on all of the Notes and the performance of every
covenant of the Notes, this Indenture and, if applicable,
the Registration Rights Agreement on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction
and the assumption contemplated by clause (1) (B) (y)
above (including giving effect to any Indebtedness and
Acquired Indebtedness incurred or anticipated to be
incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the
case may be, shall be able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness)
in compliance with Section 4.12;
(3) immediately after giving effect to such
transaction, the Company or the Surviving Entity, as the
case may be, will have Consolidated Net Worth in an amount
that is not less than the Consolidated Net Worth of the
Company immediately prior to such transaction;
(4) immediately before and immediately after giving
effect to such transaction and the assumption contemplated
by clause (1)(B)(y) above (including, without limitation,
giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred and any Lien granted
in connection with or in respect of such transaction), no
Default or Event of Default shall have occurred and be
continuing; and
(5) the Company or the Surviving Entity, as the case
may be, shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, sale, assignment, transfer,
lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture complies with the
applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such
transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by
lease, assignment, sale or otherwise, in a single transaction or
series of transactions) of all or substantially all of the
properties and assets of one or more Restricted Subsidiaries of
the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company,
shall be deemed to be the transfer of all or substantially all of
the properties and assets of the Company.
(c) Notwithstanding the foregoing, the merger of the
Company with an Affiliate incorporated solely for the purpose of
reincorporating the Company in another jurisdiction shall be
permitted without regard to Section 5.01(a)(2) and (3) hereof.
SECTION 5.02 Successor Corporation Substituted for the
Company.
Upon any consolidation, combination or merger or any
transfer of all or substantially all of the assets of the Company
in accordance with the foregoing, in which the Company is not the
continuing corporation, the successor Person formed by such
consolidation or into which the Company is merged or to which
such conveyance, lease or transfer is made shall succeed to, and
be substituted for, and may exercise
every right and power of, the Company under this Indenture and
the Notes with the same effect as if such surviving entity had
been named as such; provided, however that solely for purposes of
computing amounts described in subclause (iii) of the first
paragraph of Section 4.10, any such surviving entity shall only
be deemed to have succeeded to and be substituted for the Company
with respect to periods subsequent to the effective time of such
merger, consolidation or transfer of assets.
SECTION 5.03 Merger, Consolidation and Sale of Assets
of Holdings.
(a) Holdings shall not, in a single transaction or a
series of related transactions, consolidate with or merge with or
into any Person, or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of Holdings' assets
(determined on a consolidated basis for Holdings and its
Subsidiaries), whether as an entirety or substantially as an
entirety, unless:
(1) either (A) Holdings shall be the surviving or
continuing corporation or (B) the Person (if other than
Holdings) formed by such consolidation or into which
Holdings is merged or the Person which acquires by sale,
assignment, transfer, lease, conveyance or other
disposition the properties and assets of Holdings and its
Subsidiaries substantially as an entirety (the "Surviving
Parent Entity") (x) shall be a corporation organized and
validly existing under the laws of the United States or any
state thereof or the District of Columbia and (y) shall
expressly assume, by supplemental indenture (in form and
substance reasonably satisfactory to the Trustee), executed
and delivered to the Trustee, obligations of Holdings of
the due and punctual payment of the principal of and
premium, if any, and interest on all of the Notes and the
performance of every covenant of this Indenture to be
performed or observed by Holdings;
(2) immediately before and immediately after giving
effect to such transaction and the assumption contemplated
by clause (1)(B)(y) above (including, without limitation,
giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred and any Lien granted
in connection with or in respect of the transaction), no
Default or Event of Default shall have occurred and be
continuing; and
(3) Holdings or the Surviving Parent Entity, as the
case may be, shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture complies with the
applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such
transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by
lease, assignment, sale or otherwise, in a single transaction or
series of transactions) of all or substantially all of the
properties and assets of one or more Subsidiaries of Holdings,
the Capital Stock of which constitutes all or substantially all
of the properties and assets of Holdings, shall be deemed to be
the transfer of all or substantially all of the properties and
assets of Holdings.
(c) Notwithstanding the foregoing, the merger of
Shield with and into Holdings and the merger of Holdings with and
into the Company shall be permitted; provided that, with respect
to the merger of Holdings with and into the Company, the
requirements of Section 5.01(a) shall be satisfied.
SECTION 5.04 Successor Corporation Substituted for
Holdings.
Upon any consolidation, combination or merger or any
transfer of all or substantially all of the assets of Holdings in
accordance with the foregoing, in which Holdings is not the
continuing corporation, the successor Person formed by such
consolidation or into which Holdings is merged or to which such
conveyance, lease or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of,
Holdings under this Indenture with the same effect as if such
surviving entity had been named as such.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01 Events of Default.
An "Event of Default" occurs if:
(1) the Company fails to pay interest on any Notes
when the same becomes due and payable and the Default
continues for a period of 30 days (whether or not such
payment shall be prohibited by Article Ten of this
Indenture); or
(2) the Company fails to pay the principal on any
Notes when such principal becomes due and payable, at
maturity, upon redemption or otherwise (including the
failure to make a payment to purchase Notes tendered
pursuant to a Change of Control Offer or a Net Proceeds
Offer) (whether or not such payment shall be prohibited by
Article Ten); or
(3) the Company defaults in the observance or
performance of any other covenant or agreement contained in
this Indenture and which default continues for a period
of 30 days after written notice specifying the default (and
demanding that such default be remedied) is received by
the Company from the Trustee or by the Company and the
Trustee from the Holders of at least 25% of the outstanding
principal amount of the Notes; or
(4) the Company fails to pay at final stated maturity
(giving effect to any applicable grace periods and any
extensions thereof) the principal amount of any
Indebtedness for borrowed money of the Company or any
Restricted Subsidiary of the Company, or the acceleration
of the final stated maturity of any such Indebtedness, in
either case, if the aggregate principal amount of such
Indebtedness, together with the principal amount of any
other such Indebtedness in default for failure to pay
principal at final stated maturity or which has been
accelerated, aggregates $20 million or more at any time; or
(5) one or more judgments for the payment of money in
an aggregate amount in excess of $20 million (to the extent
not covered by insurance) shall have been rendered against
the Company or any of its Restricted Subsidiaries and such
judgments remain undischarged, unpaid or unstayed for a
period of 60 days after such judgment or judgments become
final and non-appealable; or
(6) the Company or any Significant Subsidiary of the
Company (A) commences a voluntary case or proceeding under
any Bankruptcy Law with respect to itself, (B) consents to
the entry of a judgment, decree or order for relief against
it in an involuntary case or proceeding under any
Bankruptcy Law, (C) consents to the appointment of a
Custodian of it or for substantially all of its property,
(D) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it, (E)
makes a general assignment for the benefit of its
creditors, or (F) takes any corporate action to authorize
or effect any of the foregoing; or
(7) a court of competent jurisdiction enters a
judgment, decree or order for relief in respect of the
Company or any Significant Subsidiary of the Company in an
involuntary case or proceeding under any Bankruptcy Law,
which shall (A) approve as properly filed a petition
seeking reorganization, arrangement, adjustment or
composition in respect of the Company or any such
Significant Subsidiary, (B) appoint a Custodian of the
Company or any such Significant Subsidiary or for
substantially all of its property or (C) order the
winding-up or liquidation of its affairs; and such
judgment, decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(8) the failure of a Guarantee to be in full force and
effect (except as contemplated by the terms thereof) or the
denial or disaffirmation of such obligations by a
Guarantor.
SECTION 6.02 Acceleration.
(a) If an Event of Default (other than an Event of
Default specified in Section 6.01(6) or (7) with respect to the
Company) occurs and is continuing and has not been waived
pursuant to Section 6.04, then the Trustee or the Holders of at
least 25% in principal amount of outstanding Notes may declare
the principal of and accrued interest on all the Notes to be due
and payable by notice in writing to the Company and the Trustee
specifying the respective Event of Default and that it is a
"notice of acceleration" (the "Acceleration Notice"), and the
same (i) shall become immediately due and payable or (ii) if
there are any amounts outstanding under the Credit Agreement,
shall become immediately due and payable upon the first to occur
of an acceleration under the Credit Agreement or five Business
Days after receipt by the Company and the Representative under
the Credit Agreement of such Acceleration Notice, but only if
such Event of Default is then continuing. Upon any such
declaration, but subject to the immediately preceding sentence,
such amount shall be immediately due and payable.
(b) If an Event of Default specified in Section
6.01(6) or (7) occurs and is continuing with respect to the
Company, all unpaid principal of and premium, if any, and accrued
and unpaid interest on all of the outstanding Notes shall ipso
facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any
Holder.
(c) At any time after the delivery of an Acceleration
Notice with respect to the Notes in accordance with Section
6.02(a), the Holders of a majority in principal amount of the
Notes may, on behalf of the Holders of all of the Notes, rescind
and cancel such declaration and its consequences (i) if the
rescission would not conflict with any judgment or decree, (ii)
if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due
solely because of the acceleration, (iii) to the extent the
payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become
due otherwise than by such declaration of acceleration, has been
paid, (iv) if the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its expenses,
disbursements and any other amounts due the Trustee under Section
7.07 and advances and (v) in the event of the cure or waiver of
an Event of Default of the type described in Section 6.01(6) or
(7), the Trustee shall have received an Officers' Certificate and
an Opinion of Counsel that such Event of Default has been cured
or waived. No such rescission shall affect any subsequent Default
or impair any right consequent thereto. The Holders of a majority
in principal amount of the Notes may waive any existing Default
or Event of Default under this Indenture and its consequences,
except a default in the payment of the principal of or interest
on any Notes.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of or interest on
the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any Holder
in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are
cumulative to the extent permitted by law.
SECTION 6.04 Waiver of Past Defaults.
Subject to Sections 2.09, 6.07 and 9.02, the Holders
of a majority in principal amount of the outstanding Notes by
notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except a Default in the payment of
principal of or interest on any Note as specified in clauses (1)
and (2) of Section 6.01. When a Default or Event of Default is
waived, it is cured and ceases.
SECTION 6.05 Control by Majority.
Subject to Section 2.09, the Holders of a majority in
principal amount of the outstanding Notes may direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power
conferred on it, including, without limitation, any remedies
provided for in Section 6.03. Subject to Section 7.01, however,
the Trustee may refuse to follow any direction that the Trustee
reasonably believes conflicts with any law or this Indenture,
that the Trustee determines may be unduly prejudicial to the
rights of another Holder, or that may involve the Trustee in
personal liability; provided that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent
with such direction; and provided further that this provision
shall not affect the rights of the Trustee set forth in Section
7.01(d).
SECTION 6.06 Limitation on Suits.
A Holder may not pursue any remedy with respect to
this Indenture or the Notes unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) Holders of at least 25% in principal amount of the
outstanding Notes make a written request to the Trustee to
pursue the remedy;
(3) such Holders offer to the Trustee indemnity in its
sole discretion satisfactory to the Trustee against any
loss, liability or expense to be incurred in compliance
with such request;
(4) the Trustee does not comply with the request
within 45 days after receipt of the request and the offer
of satisfactory indemnity; and
(5) during such 45-day period the Holders of a
majority in principal amount of the outstanding Notes do
not give the Trustee a direction which, in the opinion of
the Trustee, is inconsistent with the request.
A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority
over such other Holder.
SECTION 6.07 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture,
the right of any Holder to receive payment of principal of and
interest on a Note, on or after the respective due dates
expressed in such Note, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default in payment of principal or
interest specified in clause (1) or (2) of Section 6.01 occurs
and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company or
any other obligor on the Notes for the whole amount of principal
and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest
at the rate set forth in Section 4.01 and such further amount as
shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and its
counsel, and any other amounts due the Trustee under Section
7.07.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other
papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the
reasonable expenses and disbursements of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section
7.07) and the Holders allowed in any judicial proceedings
relating to the Company or any other obligor upon the Notes, any
of their respective creditors or any of their respective property
and shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such
claims and to distribute the same, and any Custodian in any such
judicial proceedings is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the
reasonable expenses and disbursements of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under
Section 7.07. The Company's payment obligations under this
Section 6.09 shall be secured in accordance with the provisions
of Section 7.07 hereunder. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money or property pursuant
to this Article Six, it shall pay out the money in the following
order:
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders are forced to proceed against the
Company directly without the Trustee, to Holders for their
collection costs;
Third: to Holders for amounts due and unpaid on the Notes
for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable
on the Notes for principal and interest, respectively; and
Fourth: to the Company or any other obligor on the Notes,
as their interests may appear, or as a court of competent
jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix
a record date and payment date for any payment to Holders
pursuant to this Section 6.10.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of
more than 10% in principal amount of the outstanding Notes.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If a Default or an Event of Default has occurred
and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture and use the same degree
of care and skill in its exercise thereof as a prudent person
would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants
or obligations shall be implied in this Indenture against
the Trustee.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein
contained, the Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it
is proved that the Trustee was negligent in ascertaining
the pertinent facts.
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.02, 6.04 or 6.05.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(e) Whether or not herein expressly provided, every
provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this
Section 7.01.
(f) The Trustee shall not be liable for interest on
any money or assets received by it except as the Trustee may
agree in writing with the Company. Assets held in trust by the
Trustee need not be segregated from other assets except to the
extent required by law.
SECTION 7.02 Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, note or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate
any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate, an
Opinion of Counsel or both, which shall conform to Sections 11.04
and 11.05. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
indirectly or by or through agents or attorneys and the Trustee
shall not be responsible for the misconduct or negligence of any
agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action that it
takes or omits to take in good faith which it reasonably believes
to be authorized or within its rights or powers.
(e) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, notice, request,
direction, consent, order, bond, debenture, or other paper or
document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled, upon
reasonable notice to the Company and to the extent reasonably
related to such facts or matters to examine the books, records,
and premises of the Company, personally or by agent or attorney
and to consult with the officers and representatives of the
Company, including the Company's accountants and attorneys.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders pursuant to the
provisions of this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to the
Trustee in its sole discretion against the costs, expenses and
liabilities which may be incurred by it in compliance with such
request, order or direction.
(g) The Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties
hereunder.
SECTION 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity
may become the owner or pledgee of Notes and may otherwise deal
with the Company, any Subsidiary of the Company or their
respective Affiliates with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer.
The recitals contained herein and in the Notes shall
be taken as statements of the Company and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representation as to the validity or adequacy of this Indenture
or the Notes, and it shall not be accountable for the Company's
use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Company in this Indenture or
the Notes other than the Trustee's certificate of authentication.
SECTION 7.05 Notice of Default.
If a Default or an Event of Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall
mail to each Holder notice of the uncured Default or Event of
Default within 90 days after such Default or Event of Default
occurs. Except in the case of a Default or an Event of Default in
payment of principal of, or interest on, any Note, including an
accelerated payment and the failure to make payment on the Change
of Control Payment Date pursuant to a Change of Control Offer or
on the Proceeds Purchase Date pursuant to a Net Proceeds Offer
and, except in the case of a failure to comply with Article Five
hereof, the Trustee may withhold such notice if and so long as
its Board of Directors, the executive committee of its Board of
Directors or a committee of its directors and/or Trust Officers
in good faith determines that withholding the notice is in the
interest of the Holders.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each May 15, the Trustee shall,
to the extent that any of the events described in TIA ss. 313(a)
occurred within the previous twelve months, but not otherwise,
mail to each Holder a brief report dated as of such date that
complies with TIA ss. 313(a). The Trustee also shall comply with
TIA xx.xx. 313(b), (c) and (d).
A copy of each report at the time of its mailing to
Holders shall be mailed to the Company and filed with the SEC and
each stock exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the
Notes become listed on any stock exchange and the Trustee shall
comply with TIA ss. 313(d).
SECTION 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee and each Agent
from time to time reasonable compensation for their respective
services. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable fees
and expenses, including reasonable and documented out-of-pocket
expenses incurred or made by it in connection with the
performance of its duties under this Indenture. Such expenses
shall include the reasonable fees and expenses of the Trustee's
and such Agent's agents, consultants and counsel.
The Company shall indemnify the Trustee and each Agent
and their respective agents, employees, stockholders and
directors and officers for, and hold them harmless against, any
loss, liability or expense incurred by them except for such
actions to the extent caused by any negligence, bad faith or
willful misconduct on their part, arising out of or in connection
with the administration of this trust including the reasonable
costs and expenses of defending themselves against any claim or
liability in
connection with the exercise or performance of any of their
rights, powers or duties hereunder. The Trustee and each Agent
shall notify the Company promptly of any claim asserted against
the Trustee or such Agent for which it may seek indemnity. At the
Trustee's or such Agent's, as the case may be, sole discretion,
the Company shall defend the claim and the Trustee or such Agent,
as the case may be, shall cooperate and may participate in the
defense; provided that any settlement of a claim shall be
approved in writing by the Trustee or such Agent, as the case may
be. Alternatively, the Trustee or such Agent, as the case may be,
may at its option have separate counsel of its own choosing and
the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without
its written consent. The Company need not reimburse any expense
or indemnify against any loss or liability to the extent incurred
by the Trustee through its negligence, bad faith or willful
misconduct.
To secure the Company's payment obligations in this
Section 7.07, the Trustee shall have a lien prior to the Notes on
all assets or money held or collected by the Trustee, in its
capacity as Trustee, except assets or money held in trust to pay
principal of or interest on particular Notes. The Trustee's right
to receive payment of any amounts due under this Section 7.07
shall not be subordinate to any other liability or indebtedness
of the Company (even though the Notes may be subordinate to such
other liability or indebtedness).
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(6) or (7)
shall have occurred, such expenses and the compensation for such
services are intended to constitute expenses of administration
under any Bankruptcy Law; provided, however, that this shall not
affect the Trustee's rights as set forth in the preceding
paragraph or Section 6.10.
The Company's obligations under this Section 7.07 and
any lien arising hereunder shall survive the resignation or
removal of the Trustee, the discharge of the Company's
obligations pursuant to Article Eight or other termination of
this Indenture and any rejection or termination of this Indenture
under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee.
The Trustee may resign by so notifying the Company.
The Holders of a majority in principal amount of the outstanding
Notes may remove the Trustee by so notifying the Company and the
Trustee and may appoint a successor Trustee reasonably acceptable
to the Company. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall
notify each Holder of such event and shall promptly appoint a
successor Trustee. Within one year after the successor Trustee
takes office, the Holders of a majority in principal amount of
the Notes may appoint a successor Trustee reasonably acceptable
to the Company to replace the successor Trustee appointed by the
Company.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company.
Immediately thereafter, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee, subject
to the lien provided in Section 7.07, the resignation or removal
of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the outstanding Notes may petition any court
of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any
Holder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor
Trustee.
Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company's obligations under Section 7.07
shall continue for the benefit of the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate
trust business to another corporation, the resulting, surviving
or transferee corporation without any further act shall, if such
resulting, surviving or transferee corporation is otherwise
eligible hereunder, be the successor Trustee; provided that such
corporation shall be otherwise qualified and eligible under this
Article Seven.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who
satisfies the requirement of TIA xx.xx. 310(a)(1), (2) and (5).
The Trustee (or, in the case of a corporation included in a bank
holding company system, the related bank holding company) shall
have a combined capital and surplus of at least $50 million as
set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included
in a bank holding company system, the Trustee, independently of
such bank holding company, shall meet the capital requirements of
TIA ss. 310(a)(2). The Trustee shall comply with TIA ss. 310(b);
provided, however, that there shall be excluded from the
operation of TIA ss. 310(b)(1) any indenture or indentures under
which other securities, or certificates of interest or
participation in other securities, of the Company are
outstanding, if the requirements for such exclusion set forth in
TIA ss. 310(b)(1) are met. The provisions of TIA ss. 310 shall
apply to the Company, as obligor of the Notes.
SECTION 7.11 Preferential Collection of Claims Against
Company.
The Trustee shall comply with TIA ss. 311(a),
excluding any creditor relationship listed in TIA ss. 311(b). A
Trustee who has resigned or been removed shall be subject to TIA
ss. 311(a) to the extent indicated therein. The provisions of TIA
ss. 311 shall apply to the Company, as obligor on the Notes.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01 Termination of the Company's Obligations.
The Company may terminate its obligations under the
Notes and this Indenture, except those obligations referred to in
the penultimate paragraph of this Section 8.01, if all Notes
previously authenticated and delivered (other than destroyed,
lost or stolen Notes which have been replaced or paid or Notes
for whose payment U.S. Legal Tender has theretofore been
deposited with the Trustee or the Paying Agent in trust or
segregated and held in trust by the Company and thereafter repaid
to the Company, as provided in Section 8.05) have been delivered
to the Registrar for cancellation and the Company has paid all
sums payable by it hereunder, or if:
(a) either (i) pursuant to Article Three, the Company shall
have given notice to the Trustee and each Paying Agent and mailed
a notice of redemption to each Holder of the redemption of all of
the Notes under arrangements satisfactory to the Trustee for the
giving of such notice or (ii) all Notes have otherwise become due
and payable hereunder;
(b) the Company shall have irrevocably deposited or caused
to be deposited with the Trustee or a trustee satisfactory to the
Trustee, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, as trust funds in
trust solely for the benefit of the Holders for that purpose,
U.S. Legal Tender in such amount as is sufficient without
consideration of reinvestment of such interest, to pay principal
of, premium, if any, and interest on the outstanding Notes to
maturity or redemption; provided that the Trustee shall have been
irrevocably instructed to apply such U.S. Legal Tender to the
payment of said principal, premium, if any, and interest with
respect to the Notes and; provided, further, that from and after
the time of deposit, the money deposited shall not be subject to
the rights of holders of Senior Debt pursuant to the provisions
of Article Ten;
(c) no Default or Event of Default with respect to this
Indenture or the Notes shall have occurred and be continuing on
the date of such deposit or shall occur as a result of such
deposit and such deposit will not result in a breach or violation
of, or constitute a default under, any other instrument to which
the Company is a party or by which it is bound;
(d) the Company shall have paid all other sums payable by
it hereunder; and
(e) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent providing for or relating to the
termination of the Company's obligations under the Notes and this
Indenture have been complied with. Such Opinion of Counsel shall
also state that such satisfaction and discharge does not result
in a default under the Credit Agreement (if then in effect) or
any other agreement or instrument then known to such counsel that
binds or affects the Company.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 7.07,
8.05 and 8.06 shall survive until the Notes are no longer
outstanding pursuant to the last paragraph of Section 2.08. After
the Notes are no longer outstanding, the Company's obligations in
Sections 7.07, 8.05 and 8.06 shall survive.
After such delivery or irrevocable deposit, the
Trustee upon request shall acknowledge in writing the discharge
of the Company's obligations under the Notes and this Indenture
except for those surviving obligations specified above.
SECTION 8.02 Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board
Resolution, at any time, elect to have either paragraph (b) or
(c) below be applied to all outstanding Notes upon compliance
with the conditions set forth in Section 8.03.
(b) Upon the Company's exercise under paragraph (a)
hereof of the option applicable to this paragraph (b), the
Company shall, subject to the satisfaction of the conditions set
forth in Section 8.03, be deemed to have been discharged from its
obligations with respect to all outstanding Notes on the date the
conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be "outstanding" only for the purposes of
Section 8.04 hereof and the other Sections of this Indenture
referred to in (i) and (ii) below, and to have satisfied all its
other obligations under such Notes and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging the same), and Holders
of the Notes and any amounts deposited under Section 8.03 hereof
shall cease to be subject to any obligations to, or the rights
of, any holder of Senior Debt under Article Ten or otherwise,
except for the following provisions, which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of
Holders of outstanding Notes to receive solely from the trust
fund described in Section 8.04 hereof, and as more fully set
forth in such Section, payments in respect of the principal of
and interest on such Notes when such payments are due, (ii) the
Company's obligations with respect to such Notes under Article
Two and Section 4.02 hereof, (iii) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's
obligations in connection therewith and (iv) this Article Eight.
Subject to compliance with this Article Eight, the Company may
exercise its option under this paragraph (b) notwithstanding the
prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a)
hereof of the option applicable to this paragraph (c), the
Company shall, subject to the satisfaction of the conditions set
forth in Section 8.03 hereof, be released from its obligations
under the covenants contained in Sections 4.10 through 4.20 and
Article Five hereof with respect to the outstanding Notes on and
after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all
other purposes hereunder (it being understood that such Notes
shall not be deemed outstanding for accounting purposes) and
Holders of the Notes and any amounts deposited under Section 8.03
hereof shall cease to be subject to any obligations to, or the
rights of, any holder of Senior Debt under Article Ten or
otherwise. For this purpose, such Covenant Defeasance means that,
with respect to the outstanding Notes, the Company may omit to
comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a
Default or an Event or Default under Section 6.01(3) hereof, but,
except as specified above, the remainder of this Indenture and
such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under paragraph (a) hereof of the option
applicable to this paragraph (c), subject to
the satisfaction of the conditions set forth in Section 8.03
hereof, Sections 6.01(3), 6.01(4) and 6.01(5) shall not
constitute Events of Default.
SECTION 8.03 Conditions to Legal Defeasance or Covenant
Defeasance.
The following shall be the conditions to the
application of either Section 8.02(b) or 8.02(c) hereof to the
outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, U.S.
Legal Tender or U.S. Government Obligations which through
the scheduled payment of principal and interest in respect
thereof in accordance with their terms, will provide, not
later than one day before the due date of any scheduled
payment on the Notes, U.S. Legal Tender, in such amounts as
will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay
the principal of, premium, if any, and interest on the
Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be, of such
principal or installment of principal of or interest on the
Notes; provided that the Trustee shall have received an
irrevocable written order from the Company instructing the
Trustee to apply or cause the Paying Agent to apply such
U.S. Legal Tender or the proceeds of such U.S. Government
Obligations to said payments with respect to the Notes;
(b) in the case of an election under Section 8.02(b)
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that (A) the Company
has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of
this Indenture, there has been a change in the applicable
federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm
that, the Holders of the Notes will not recognize income,
gain or loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance
had not occurred;
(c) in the case of an election under Section 8.02(c)
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee
confirming that the Holders of the Notes will not recognize
income, gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit (other than a
Default or Event of Default resulting from the incurrence
of Indebtedness all or a portion of the proceeds of which
will be used to defease the Notes pursuant to this Article
Eight concurrently with such incurrence) or insofar as
Sections 6.01(6) and 6.01(7) hereof are concerned, at any
time in the period ending on the 91st day after the date of
such deposit;
(e) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of or constitute a
default under this Indenture or any other material
agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made
by the Company with the intent of preferring the Holders
over any other creditors of the Company or with the intent
of defeating, hindering, delaying or defrauding any other
creditors of the Company or others;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance
have been complied with; and
(h) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that (i) the trust funds
will not be subject to any rights of any holders of Senior
Debt, including, without limitation, those arising under
this Indenture, and (ii) assuming no intervening bankruptcy
or insolvency of the Company between the date of deposit
and the 91st day following the deposit and that no Holder
is an insider of the Company, after the 91st day following
the deposit, the trust funds will not be subject to the
effect of any applicable Bankruptcy Law.
SECTION 8.04 Application of Trust Money.
The Trustee or Paying Agent shall hold in trust U.S.
Legal Tender or U.S. Government Obligations deposited with it
pursuant to Article Eight, and shall apply the deposited U.S.
Legal Tender and the proceeds from U.S. Government Obligations in
accordance with this Indenture to the payment of principal of and
interest on the Notes. The Trustee shall be under no obligation
to invest said U.S. Legal Tender or U.S. Government Obligations
except as it may agree with the Company.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the U.S. Legal Tender or U.S. Government Obligations
deposited pursuant to Section 8.03 hereof or the principal and
interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of
the outstanding Notes.
Anything in this Article Eight to the contrary
notwithstanding, the Trustee shall, or shall request the Paying
Agent to, deliver or pay to the Company from time to time upon
the Company's request any U.S. Legal Tender or U. S. Government
Obligations held by it as provided in Section 8.03 hereof which,
in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof
that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.05 Repayment to the Company.
Subject to Article Eight, the Trustee and the Paying
Agent shall promptly pay to the Company upon request any excess
U.S. Legal Tender or U.S. Government Obligations held by them at
any time and thereupon shall be relieved from all liability with
respect thereto. The Trustee and the Paying Agent shall pay to
the Company upon request any money held by them for the payment
of principal or interest that remains unclaimed for two years;
provided that the Trustee or such Paying Agent, before being
required to make any payment, may at the expense of the Company
cause to be published once in a newspaper of general circulation
in the City of New York or mail to each Holder entitled to such
money notice that such money remains unclaimed and that after a
date specified therein which shall be at least 30 days from the
date of such publication or mailing any unclaimed balance of such
money then remaining will be repaid to the Company. After payment
to the Company, Holders entitled to such money must look to the
Company for payment as general creditors unless an applicable law
designates another Person to whom such Holders may look.
SECTION 8.06 Reinstatement.
If the Trustee or Paying Agent is unable to apply any
U.S. Legal Tender or U.S. Government Obligations in accordance
with Article Eight by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application,
the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred
pursuant to Article Eight until such time as the Trustee or
Paying Agent is permitted to apply all such U.S. Legal Tender or
U.S. Government Obligations in accordance with Article Eight;
provided that if the Company has made any payment of interest on
or principal of any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Holders of such Notes to receive such payment from the U.S. Legal
Tender or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01 Without Consent of Holders.
The Company and Holdings, each when authorized by a
Board Resolution, and the Trustee, together, may amend or
supplement this Indenture or the Notes without notice to or
consent of any Holder:
(1) to cure any ambiguity herein, or to correct or
supplement any provision hereof which may be inconsistent
with any other provision hereof or to add any other
provisions with respect to matters or questions arising
under this Indenture; provided that such actions shall not
adversely affect the interests of the Holders of Notes in
any material respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes in addition to
or in place of certificated Notes;
(4) to comply with any requirements of the SEC in
order to effect or maintain the qualification of this
Indenture under the TIA;
(5) to make any change that would provide any additional benefit or
rights to the Holders;
(6) to provide for issuance of the Exchange Notes,
which will have terms substantially identical in all
material respects to the Initial Notes (except that the
transfer restrictions contained in the Initial Notes will
be modified or eliminated, as appropriate), and which will
be treated together with any outstanding Initial Notes, as
a single issue of securities;
(7) to add a Guarantor pursuant to Section 4.19; or
(8) to make any other change that does not, in the
good faith judgment of the Trustee, adversely affect in any
material respect the rights of any Holders hereunder;
provided that the Company has delivered to the Trustee an Opinion
of Counsel stating that such amendment or supplement complies
with the provisions of this Section 9.01.
In addition, without the consent of the Holders, the
Company and the Trustee may amend this Indenture to provide for
the assumption by a successor corporation, partnership, trust or
limited liability company of the obligations of the Company under
this Indenture as permitted by Article Five, to add further
Guarantees with respect to the Notes, to secure the Notes, to add
to the covenants of the Company for the benefit of the Holders or
to surrender any right or power conferred upon the Company by
this Indenture or the Notes.
SECTION 9.02 With Consent of Holders.
Subject to Section 6.07, the Company and Holdings,
each when authorized by a Board Resolution, and the Trustee,
together, upon receipt of the written consent of the Holder or
Holders of at least a majority of the aggregate outstanding
principal amount of the Notes, may amend or supplement this
Indenture or the Notes, without notice to any other Holders.
Subject to Section 6.07, the Holder or Holders of a majority in
aggregate outstanding principal amount of the Notes may waive
compliance by the Company with any provision of this Indenture or
the Notes without notice to any other Holder. Notwithstanding the
forgoing, no amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, shall, without the consent of each
Holder of each Note affected thereby:
(1) reduce the amount of Notes whose Holders must
consent to an amendment;
(2) reduce the rate of or change or have the effect of
changing the time for payment of interest, including
defaulted interest, on any Notes;
(3) reduce the principal of or change or have the
effect of changing the fixed maturity of any Notes, or
change the date on which any Notes may be subject to
redemption, or reduce the redemption price therefor;
(4) make any Notes payable in a currency other than
that stated in the Notes;
(5) make any change in provisions of this Indenture
protecting the right of each Holder to receive payment of
principal of and interest on such Note on or after the due
date thereof or to bring suit to enforce such payment, or
permitting Holders of a majority in principal amount of
Notes to waive Defaults or Events of Default, other than
ones with respect to the payment of principal of or
interest on the Notes;
(6) amend, modify, change or waive any provision of
this Section 9.02;
(7) amend, modify or change in any material respect the
obligation of the Company to make or consummate a Change
of Control Offer in the event of a Change of Control or
modify any of the provisions or definitions with respect
thereto after a Change of Control has occurred; or
(8) modify Articles Ten or Twelve or the definitions
used in Articles Ten or Twelve to adversely affect the
Holders of the Notes in any material respect.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of any
proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this
Section 9.02 becomes effective, the Company shall mail to the
Holders affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.03 Effect on Senior Debt.
No amendment of this Indenture shall adversely affect
the rights of any holder of Senior Debt under Article Ten of this
Indenture, without the consent of such holder.
SECTION 9.04 Compliance with TIA.
Every amendment, waiver or supplement of this
Indenture or the Notes shall comply with the TIA as then in
effect.
SECTION 9.05 Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes
effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's
Note, even if notation of the consent is not made on any Note.
Subject to the following paragraph, any such Holder or subsequent
Holder may revoke the consent as to such Holder's Note or portion
of such Note by written notice to the Trustee or the Company
received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the
requisite principal amount of Notes have consented (and not
theretofore revoked such consent) to the amendment, supplement or
waiver.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled
to consent to any amendment, supplement or waiver, which record
date shall be at least 10 days prior to the first solicitation of
such consent. If a record date is fixed, then notwithstanding the
last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to
revoke any consent
previously given, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes
effective, it shall bind every Holder, unless it makes a change
described in any of clauses (1) through (8) of Section 9.02, in
which case the amendment, supplement or waiver shall bind only
each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note; provided that any
such waiver shall not impair or affect the right of any Holder to
receive payment of principal of and interest on a Note on or
after the respective due dates expressed in such Note, or to
bring suit for the enforcement of any such payment on or after
such respective dates without the consent of such Holder.
SECTION 9.06 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the
terms of a Note, the Trustee may require the Holder of such Note
to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Note about the changed terms and
return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Note shall
issue and the Trustee shall authenticate a new Note that reflects
the changed terms. Any such notation or exchange shall be made at
the sole cost and expense of the Company.
SECTION 9.07 Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or
waiver authorized pursuant to this Article Nine; provided that
the Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own
rights, duties or immunities under this Indenture. The Trustee
shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel and an Officers' Certificate
each complying with Section 13.04 and 13.05 and stating that the
execution of any amendment, supplement or waiver authorized
pursuant to this Article Nine is authorized or permitted by this
Indenture. Such Opinion of Counsel shall not be an expense of the
Trustee.
SECTION 9.08 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under
this Article Nine, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Notes
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
ARTICLE TEN
SUBORDINATION
SECTION 10.01 Notes Subordinated to Senior Debt.
The Company covenants and agrees, and each Holder of
the Notes, by its acceptance thereof, likewise covenants and
agrees, that all Notes shall be issued subject to the provisions
of this Article Ten; and each Person holding any Note, whether
upon original issue or upon registration of transfer, assignment
or exchange thereof, accepts and agrees that the payment of all
Obligations on the Notes by the Company shall, to the extent and
in the manner herein set forth, be subordinated and junior in
right of payment to the prior payment in full in cash or Cash
Equivalents of all Obligations on or in respect of Senior Debt;
that the subordination is for the benefit of, and shall be
enforceable directly by, the holders of Senior Debt, and that
each holder of Senior Debt whether now outstanding or hereafter
created, incurred, assumed or guaranteed shall be deemed to have
acquired Senior Debt in reliance upon the covenants and
provisions contained in this Indenture and the Notes.
SECTION 10.02 No Payment on Notes in Certain Circumstances.
(a) If any default occurs and is continuing in the
payment when due, whether at maturity, upon redemption, by
declaration or otherwise, of any principal of, interest on,
unpaid drawings for letters of credit issued in respect of, or
regularly accruing fees with respect to, any Senior Debt, no
payment of any kind or character shall be made by, or on behalf
of, the Company or any other Person on its or their behalf with
respect to any Obligations on the Notes, or to acquire any of the
Notes for cash or property or otherwise. In addition, if any
other event of default occurs and is continuing with respect to
any Designated Senior Debt, as such event of default is defined
in the instrument creating or evidencing such Designated Senior
Debt, permitting the holders of such Designated Senior Debt then
outstanding to accelerate the maturity thereof and if the
Representative for the respective issue of Designated Senior Debt
gives written notice of the event of default to the Trustee and
each Paying Agent (a "Default Notice"), then, unless and until
all events of default have been cured or waived or have ceased to
exist or the Trustee and each Paying Agent receives notice
thereof from the Representative for the respective issue of
Designated Senior Debt terminating the Blockage Period (as
defined below), during the 179 days after the delivery of such
Default Notice (the "Blockage Period"), neither the Company nor
any other Person on its behalf shall (x) make any payment of any
kind or character with respect to any Obligations on the Notes
(other than payment of amounts already deposited in accordance
with the defeasance provisions of this Indenture) or (y) acquire
any of the Notes for cash or property or otherwise.
Notwithstanding anything herein to the contrary, in no event will
a Blockage Period extend beyond 180 days from the date the
payment on the Notes was due and only one such Blockage Period
may be commenced within any 360
consecutive days. No event of default which existed or was
continuing on the date of the commencement of any Blockage Period
with respect to the Designated Senior Debt shall be, or be made,
the basis for the commencement of a second Blockage Period by the
Representative of such Designated Senior Debt whether or not
within a period of 360 consecutive days, unless such event of
default shall have been cured or waived for a period of not less
than 90 consecutive days (it being acknowledged that any
subsequent action or any breach of any financial covenants for a
period commencing after the date of commencement of such Blockage
Period that, in either case, would give rise to an event of
default pursuant to any provisions under which an event of
default previously existed or was continuing shall constitute a
new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing,
any payment shall be received by the Trustee, any Paying Agent or
any Holder when such payment is prohibited by Section 10.02(a),
such payment shall be held in trust for the benefit of, and shall
be forthwith paid over or delivered to, the holders of Senior
Debt (pro rata to such holders on the basis of the respective
amount of Senior Debt held by such holders) or their respective
Representatives, as their respective interests may appear for
application to the payment of such Senior Debt until all such
Senior Debt shall have been paid in full, after giving effect to
any concurrent payment or distribution or provision therefor to
the holders of such Senior Debt. The Trustee and each Paying
Agent shall be entitled to rely on information regarding amounts
then due and owing on the Senior Debt, if any, received from the
holders of Senior Debt (or their Representatives) or, if such
information is not received from such holders or their
Representatives, from the Company and only amounts included in
the information provided to the Trustee or any Paying Agent shall
be paid to the holders of Senior Debt.
Nothing contained in this Article Ten shall limit the
right of the Trustee or the Holders of Notes to take any action
to accelerate the maturity of the Notes pursuant to Section 6.02
or to pursue any rights or remedies hereunder; provided that all
Senior Debt thereafter due or declared to be due shall first be
paid in full in cash or Cash Equivalents before the Holders are
entitled to receive any payment of any kind or character with
respect to Obligations on the Notes.
SECTION 10.03 Payment Over of Proceeds upon
Dissolution, Etc.
(a) Upon any payment or distribution of assets of the
Company of any kind or character to creditors, whether in cash,
property or securities upon any total or partial liquidation,
dissolution, winding-up, reorganization, assignment for the
benefit of creditors or marshaling of assets of the Company or in
a bankruptcy, reorganization, insolvency, receivership or other
similar proceeding relating to the Company or its property,
whether voluntary or involuntary, all Obligations due or to
become due upon all Senior Debt shall first be paid in full in
cash or Cash Equivalents, or such payment duly provided for to
the satisfaction of the holders of Senior Debt, before any
payment or distribution of any kind or character is made on
account of any Obligations on the Notes, or for the acquisition
of any of the Notes for cash or property or otherwise. Upon any
such dissolution, winding-up, liquidation, reorganization,
receivership or similar proceeding, any payment or distribution
of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Holders of the Notes
would be entitled, except for the provisions hereof, shall be
paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders if received by them, directly to
the holders of Senior Debt (pro rata to such holders on the basis
of the respective amounts of Senior Debt held by such holders) or
their respective Representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Debt may
have been issued, as their respective interests may appear, for
application to the payment of Senior Debt remaining unpaid until
all such Senior Debt has been paid in full in cash or Cash
Equivalents after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of
Senior Debt.
(b) To the extent any payment of Senior Debt (whether
by or on behalf of the Company, as proceeds of security or
enforcement of any right of setoff or otherwise) is declared to
be fraudulent or preferential, set aside or required to be paid
to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then, if such
payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar
Person, the Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if
such payment had not occurred.
(c) In the event that, notwithstanding the foregoing,
any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, shall be
received by any Holder when such payment or distribution is
prohibited by this Section 10.03(c), such payment or distribution
shall be held in trust for the benefit of, and shall be forthwith
paid over or delivered to, the holders of Senior Debt (pro rata
to such holders on the basis of the respective amount of Senior
Debt held by such holders) or their respective Representatives,
or to the trustee or trustees under any indenture pursuant to
which any of such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment
of Senior Debt remaining unpaid until all such Senior Debt has
been paid in full in cash or Cash Equivalents, after giving
effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Debt.
(d) The consolidation of the Company with, or the
merger of the Company with or into, another Person or the
liquidation or dissolution of the Company following the
conveyance or transfer of all or substantially all of its assets,
to another Person upon the terms and conditions provided in
Article Five hereof and as long as permitted under the terms of
the Senior Debt shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section
10.03 if such other Person shall, as a part of such
consolidation, merger, conveyance or transfer, assume the
Company's obligations hereunder in accordance with Article Five
hereof.
SECTION 10.04 Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Ten or elsewhere in
this Indenture shall prevent (i) the Company, except under the
conditions described in Sections 10.02 and 10.03, from making
payments at any time in respect of principal of and interest on
the Notes, or from depositing with the Trustee any moneys for
such payments, or (ii) in the absence of actual knowledge by the
Trustee or any Paying Agent that a given payment would be
prohibited by Section 10.02 or 10.03, the application by the
Trustee or such Paying Agent, as the case may be, of any moneys
deposited with it for the purpose of making such payments of
principal of, and interest on, the Notes to the Holders entitled
thereto unless at least two Business Days prior to the date upon
which such payment would otherwise become due and payable a Trust
Officer or officers of the Paying Agent, as the case may be,
shall have actually received the written notice provided for in
the second sentence of Section 10.02(a) or in Section 10.07
(provided that, notwithstanding the foregoing, such application
shall otherwise be subject to the provisions of the first
sentence of Section 10.02(a) and Section 10.03). The Company
shall give prompt written notice to the Trustee and each Paying
Agent of any dissolution, winding-up, liquidation or
reorganization of the Company.
SECTION 10.05 Subrogation.
Subject to the payment in full in cash or Cash
Equivalents of all Senior Debt, the Holders of the Notes shall be
subrogated to the rights of the holders of Senior Debt to receive
payments or distributions of cash, property or securities of the
Company applicable to the Senior Debt until the Notes shall be
paid in full; and, for the purposes of such subrogation, no such
payments or distributions to the holders of the Senior Debt by or
on behalf of the Company or by or on behalf of the Holders by
virtue of this Article Ten which otherwise would have been made
to the Holders shall, as between the Company and the Holders of
the Notes, be deemed to be a payment by the Company to or on
account of the Senior Debt, it being understood that the
provisions of this Article Ten are and are intended solely for
the purpose of defining the relative rights of the Holders of the
Notes, on the one hand, and the holders of the Senior Debt, on
the other hand.
SECTION 10.06 Obligations of the Company
Unconditional.
Nothing contained in this Article Ten or elsewhere in
this Indenture or in the Notes is intended to or shall impair, as
among the Company, its creditors other than the holders of Senior
Debt, and the Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders the principal
of and any interest on the Notes as and when the same shall
become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders
and creditors of the Company other than the holders of the Senior
Debt, nor shall anything herein or therein prevent the Holder of
any Note or the Trustee on its behalf from exercising all
remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, in respect of
cash, property or securities of the Company received upon the
exercise of any such remedy.
SECTION 10.07 Notice to Trustee and Paying Agents.
The Company shall give prompt written notice to the
Trustee and each Paying Agent of any fact known to the Company
which would prohibit the making of any payment to or by the
Trustee or any Paying Agent in respect of the Notes pursuant to
the provisions of this Article Ten. Regardless of anything to the
contrary contained in this Article Ten or elsewhere in this
Indenture, neither the Trustee nor any Paying Agent shall be
charged with knowledge of the existence of any default or event
of default with respect to any Senior Debt or of any other facts
which would prohibit the making of any payment to or by the
Trustee or any Paying Agent unless and until the Trustee or such
Paying Agent, as the case may be, shall have received notice in
writing from the Company, or from a holder of Senior Debt or a
Representative therefor, together with proof satisfactory to the
Trustee or such Paying Agent, as the case may be, of such holding
of Senior Debt or of the authority of such Representative, and,
prior to the receipt of any such written notice, the Trustee
shall be entitled to assume (in the absence of actual knowledge
to the contrary) that no such facts exist.
In the event that the Trustee or any Paying Agent
determines in good faith that any evidence is required with
respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this
Article Ten, the Trustee or such Paying Agent, as the case may
be, may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee or such Paying Agent, as the case may
be, as to the amounts of Senior Debt held by such Person, the
extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the
rights of such Person under this Article Ten, and if such
evidence is not furnished the Trustee or such Paying Agent, as
the case may be, may defer any payment to such Person pending
judicial determination as to the right of such Person to receive
such payment.
SECTION 10.08 Reliance on Judicial Order or Certificate
of Liquidating Agent.
Upon any payment or distribution of assets of the
Company referred to in this Article Ten, the Trustee, subject to
the provisions of Article Seven hereof, each Paying Agent and the
Holders of the Notes shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which any
insolvency, bankruptcy, receivership, dissolution, winding-up,
liquidation, reorganization or similar case or proceeding is
pending, or upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, receiver, assignee for the
benefit of creditors, agent or other Person making such payment
or distribution, delivered to the Trustee or the Holders of the
Notes, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the
Senior Debt and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article Ten.
SECTION 10.09 Trustee's Relation to Senior Debt.
The Trustee, each Agent and any agent of the Company,
of the Trustee or any Agent shall be entitled to all the rights
set forth in this Article Ten with respect to any Senior Debt
which may at any time be held by it in its individual or any
other capacity to the same extent as any other holder of Senior
Debt and nothing in this Indenture shall deprive the Trustee, any
Agent or any such agent of any of its rights as such a holder.
With respect to the holders of Senior Debt, the
Trustee and each Agent undertakes to perform or to observe only
such of its covenants and obligations as are specifically set
forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be
read into this Indenture against the Trustee or any Agent.
Neither the Trustee nor any Agent shall be deemed to owe any
fiduciary duty to the holders of Senior Debt.
Whenever a distribution is to be made or a notice is
to be given to holders or owners of Senior Debt, the distribution
may be made and the notice may be given to their Representatives,
if any.
SECTION 10.10 Subordination Rights Not Impaired by
Acts or Omissions of the Company or Holders of Senior Debt.
No right of any present or future holders of any
Senior Debt to enforce subordination as provided herein shall at
any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or
failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Debt may, at any time
and from time to time, without the consent of or notice to the
Trustee, without incurring responsibility to the Trustee or the
Holders of the Notes and without impairing or releasing the
subordination provided in this Article Ten or the obligations
hereunder of the Holders of the Notes to the holders of the
Senior Debt, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt, or any instrument
evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior
Debt; (iii) release any Person liable in any manner for the
payment or collection of Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Company and any
other Person.
SECTION 10.11 Noteholders Authorize Trustee and Paying
Agent To Effectuate Subordination of Notes.
Each Holder of Notes by its acceptance of them
authorizes and expressly directs the Trustee and each Paying
Agent on its behalf to take such action as may be necessary or
appropriate to effectuate, as between the holders of Senior Debt
and the Holders of Notes, the subordination provided in this
Article Ten, and appoints the Trustee and each Paying Agent its
attorney-in-fact for such purposes, including, in the event of
any dissolution, winding-up, liquidation or reorganization of the
Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Company, the filing
of a claim for the unpaid balance of its Notes and accrued
interest in the form required in those proceedings.
If the Trustee does not file a proper claim or proof
of debt in the form required in such proceeding prior to 30 days
before the expiration of the time to file such claim or claims,
then the holders of the Senior Debt or their Representatives are
hereby authorized to have the right to file and are hereby
authorized to file an appropriate claim for and on behalf of the
Holders of said Notes. Nothing herein contained shall be deemed
to authorize the Trustee or the holders of Senior Debt or their
Representatives to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of
any Holder thereof, or to authorize the Trustee or the holders of
Senior Debt or their Representatives to vote in respect of the
claim of any Holder in any such proceeding.
SECTION 10.12 This Article Ten Not To Prevent Events of
Default.
The failure to make a payment on account of principal
of or interest on the Notes by reason of any provision of this
Article Ten will not be construed as preventing the occurrence of
an Event of Default.
SECTION 10.13 Trustee's Compensation Not Prejudiced.
Nothing in this Article Ten will apply to amounts due
to the Trustee pursuant to other sections in this Indenture.
ARTICLE ELEVEN
GUARANTEE OF HOLDINGS
SECTION 11.01 Unconditional Guarantee.
Holdings hereby unconditionally guarantees (such
guarantee to be referred to herein as the "Guarantee") to each
Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns on behalf of such
Holder, the Notes or the obligations of the Company hereunder or
thereunder, that: (i) the principal of and interest on the Notes
will be promptly paid in full when due, subject to any applicable
grace period, whether at maturity, by acceleration or otherwise
and interest on the overdue principal, if any, and interest on
any interest, to the extent lawful, of the Notes and all other
obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof;
and (ii) in case of any extension of time of payment or renewal
of any Notes or of any such other obligations, the same will be
promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, subject to any applicable
grace period, whether at stated maturity, by acceleration or
otherwise. Holdings hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity
or enforceability of the Notes or this Indenture, the absence of
any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance with might
otherwise constitute a legal or equitable discharge or defense of
a guarantor. Holdings hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that this Guarantee will not be
discharged except by complete performance of the obligations
contained in the Notes, this Indenture and in this Guarantee. If
any Noteholder, the Trustee or any Paying Agent is required by
any court or otherwise to return to the Company, Holdings, or any
custodian, trustee, liquidator or other similar official acting
in relation to the Company or Holdings, any amount paid by the
Company or Holdings to the Trustee or such Paying Agent or
Noteholder, this Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. Holdings further
agrees that, as between Holdings, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of
the obligations guaranteed hereby may be accelerated as provided
in Article Six for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of
such obligations as provided in Article Six, such obligations
(whether or not due and payable) shall forthwith become due and
payable by Holdings for the purpose of this Guarantee.
SECTION 11.02 Subordination of Guarantee.
The obligations of Holdings to the Holders of the
Notes and to the Trustee on behalf of the Holders pursuant to the
Guarantee and this Indenture are expressly subordinate and
subject in right of payment to the prior payment in full of all
Guarantor Senior Debt of Holdings, to the extent and in the
manner provided in Article Twelve.
SECTION 11.03 Severability.
In case any provision of this Guarantee 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 11.04 Release of Guarantee.
Upon (i) the release by the lenders under the Credit
Agreement and future refinancings thereof of all guarantees of
Holdings relating to such Indebtedness, or (ii) the sale or
disposition (whether by merger, stock purchase, asset sale or
otherwise) of Holdings (or all or substantially all of its
assets) to an entity which is not a Subsidiary of the Company and
which sale or disposition is otherwise in compliance with the
terms of this Indenture, Holdings shall be deemed released from
all obligations under this Article Eleven without any further
action required on the part of the Trustee or any Holder;
provided, however, that any such release shall occur only to the
extent that all obligations of Holdings under all of its
guarantees of such Indebtedness of the Company shall also be
released upon such release, sale or disposition.
The Trustee shall deliver an appropriate instrument
evidencing such release upon receipt of a request by the Company
accompanied by an Officers' Certificate certifying as to the
compliance with this Section 11.04.
SECTION 11.05 Waiver of Subrogation.
Until payment in full is made of the Notes and all
other obligations of the Company to the Holders or the Trustee on
behalf of the Holders hereunder and under the Notes, Holdings
hereby irrevocably waives any claim or other rights which it may
now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of Holdings'
obligations under the Guarantee of this Indenture, including
without limitation, any right of subrogation, reimbursement,
exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder of Notes against the Company,
whether or not such claim, remedy or right arises in equity, or
under contract, statute or common law, including, without
limitation, the right to take or receive from the Company,
directly or indirectly, in cash or other property or by set-off
or any other manner, payment or security on account of such claim
or other rights. If any amount shall be paid to Holdings in
violation of the preceding sentence and the Notes shall not have
been paid in full, such amount shall have been deemed to have
been paid to Holdings for the benefit of, and held in trust for
the benefit of, the Holders of the Notes, and shall forthwith be
paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Notes, whether matured or
unmatured, in accordance with the terms of this Indenture.
Holdings acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this
Indenture and that the waiver set forth in this Section 11.05 is
knowingly made in contemplation of such benefits.
SECTION 11.06 Execution of Guarantee.
To evidence its guarantee to the Noteholders set forth
in this Article Eleven, Holdings hereby agrees to execute the
Guarantee in substantially the form included in Exhibits A and
Exhibit B, which shall be endorsed on such Note ordered to be
authenticated and delivered by the Trustee. Holdings hereby
agrees that its Guarantee set forth in this Article Eleven shall
remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee. Each such
Guarantee shall be signed on behalf of Holdings by two Officers,
or an Officer and an Assistant Secretary prior to the
authentication of the Note on which it is endorsed, and the
delivery of such Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of such
Guarantee on behalf of Holdings. Such signatures upon the
Guarantee may be by manual or facsimile signature of such
officers and may be imprinted or otherwise reproduced on the
Guarantee, and in case any such officer who shall have signed the
Guarantee shall cease to be such officer before the Note on which
such Guarantee is endorsed shall have been authenticated and
delivered by the Trustee or disposed of by the Company, such Note
nevertheless may be authenticated and delivered or disposed of as
though the person who signed the Guarantee had not ceased to be
such Officer of Holdings.
SECTION 11.07 Waiver of Stay, Extension or Usury Laws.
Holdings covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
stay or extension law or any usury law or other law that would
prohibit or forgive Holdings from performing its Guarantee as
contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may
lawfully do so) Holdings hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
SECTION 12.01 Guarantee Obligations Subordinated to Guarantor
Senior Debt of Holdings.
Holdings covenants and agrees, and each Holder of the
Notes, by its acceptance thereof, likewise covenants and agrees,
that any payment of obligations by Holdings in respect of its
Guarantee (its "Guarantee Obligations") shall be made subject to
the provisions of this Article Twelve, and each Person holding
any Note, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that the
payment of all Guarantee Obligations by Holdings shall, to the
extent and in the manner herein set forth, be subordinated and
junior in right of payment to the prior payment in full in cash
or Cash Equivalents of all Obligations on the Guarantor Senior
Debt of Holdings, that the subordination is for the benefit of,
and shall be enforceable directly by, the holders of Guarantor
Senior Debt of Holdings, and that each holder of Guarantor Senior
Debt of Holdings whether now outstanding or hereafter created,
incurred, assumed or guaranteed shall be deemed to have acquired
Guarantor Senior Debt of Holdings in reliance upon the covenants
and provisions contained in this Indenture and the Notes.
SECTION 12.02 No Payment on Notes in Certain
Circumstances.
(a) If any default occurs and is continuing in the
payment when due, whether at maturity, upon redemption, by
declaration or otherwise, of any principal of, interest on,
unpaid drawings for letters of credit issued in respect of, or
regularly accruing fees with respect to, any Guarantor Senior
Debt of Holdings, no payment of any kind or character shall be
made by, or on behalf of, Holdings, or any other Person on its or
their behalf with respect to any Guarantee Obligations, or to
acquire any of the Notes for cash or property or otherwise. In
addition, if any other event of default occurs and is continuing
with respect to any Guarantor Senior Debt of Holdings, as such
event of default is defined in the instrument creating or
evidencing such Guarantor Senior Debt of Holdings, permitting the
holders of such Guarantor Senior Debt of Holdings then
outstanding to accelerate the maturity thereof and if the
Representative for the respective issue of Guarantor Senior Debt
of Holdings gives notice of the event of default to the Trustee
and each Paying Agent (a "Guarantor Default Notice"), then,
unless and until all events of default have been cured or waived
or have ceased to exist or the Trustee and each Paying Agent
receives notice thereof from the Representative for the
respective issue of Guarantor Senior Debt of Holdings terminating
the Guarantor Blockage Period (as defined below), during the 179
days after the delivery of such Guarantor Default Notice (the
"Guarantor Blockage Period"), neither Holdings nor any other
Person on its behalf shall (x) make any payment of any kind or
character with respect to any Guarantee Obligations or (y)
acquire any of the Notes for cash or property or otherwise.
Notwithstanding anything herein to the contrary, in no event will
a Guarantor Blockage Period extend beyond 180 days from the date
the payment on the Notes was due and only one such Guarantor
Blockage Period may be commenced within any 360 consecutive days.
No event of default which existed or was continuing on the date
of the commencement of any Guarantor Blockage Period with respect
to the Guarantor Senior Debt of Holdings shall be, or be made,
the basis for the commencement of a second Guarantor Blockage
Period by the Representative of such Guarantor Senior Debt of
Holdings whether or not within a period of 360 consecutive days,
unless such event of default shall have been cured or waived for
a period of not less than 90
consecutive days (it being acknowledged that any subsequent
action or any breach of any financial covenants for a period
commencing after the date of commencement of such Guarantor
Blockage Period that, in either case, would give rise to an event
of default pursuant to any provisions under which an event of
default previously existed or was continuing shall constitute a
new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing,
any payment shall be received by the Trustee, any Paying Agent or
any Holder when such payment is prohibited by Section 12.02(a),
such payment shall be held in trust for the benefit of, and shall
be forthwith paid over or delivered to, the holders of Guarantor
Senior Debt of Holdings (pro rata to such holders on the basis of
the respective amount of Guarantor Senior Debt of Holdings held
by such holders) or their respective Representatives, as their
respective interests may appear. The Trustee and each Paying
Agent shall be entitled to rely on information regarding amounts
then due and owing on the Guarantor Senior Debt of Holdings, if
any, received from the holders of such Guarantor Senior Debt (or
their Representatives) or, if such information is not received
from such holders or their Representatives, from Holdings and
only amounts included in the information provided to the Trustee
and each Paying Agent shall be paid to the holders of Guarantor
Senior Debt of Holdings.
Nothing contained in this Article Twelve shall limit
the right of the Trustee or the Holders of Notes to take any
action to accelerate the maturity of the Notes pursuant to
Section 6.02 or to pursue any rights or remedies hereunder;
provided that all Guarantor Senior Debt of Holdings thereafter
due or declared to be due shall first be paid in full in cash or
Cash Equivalents before the Holders are entitled to receive any
payment of any kind or character with respect to Guarantee
Obligations.
SECTION 12.03 Payment Over of Proceeds upon
Dissolution, Etc.
(a) Upon any payment or distribution of assets of
Holdings of any kind or character to creditors, whether in cash,
property or securities, upon any total or partial liquidation,
dissolution, winding-up, reorganization, assignment for the
benefit of creditors or marshaling of assets of Holdings or in a
bankruptcy, reorganization, insolvency, receivership or other
similar proceeding relating to Holdings or its property, whether
voluntary or involuntary, all Obligations due or to become due
upon all Guarantor Senior Debt of Holdings shall first be paid in
full in cash or Cash Equivalents, or such payment duly provided
for to the satisfaction of the holders of Guarantor Senior Debt
of Holdings, before any payment or distribution of any kind or
character is made on account of any Guarantee Obligations, or for
the acquisition of any of the Notes for cash or property or
otherwise. Upon any such dissolution, winding-up, liquidation,
reorganization, receivership or similar proceeding, any payment
or distribution of assets of Holdings of any kind or character,
whether in cash, property or securities, to which the Holders of
the Notes or the Trustee under this Indenture would be entitled,
except for the provisions hereof, shall be paid by Holdings or by
any receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution, or by the
Holders or by
the Trustee under this Indenture if received by them, directly to
the holders of Guarantor Senior Debt of Holdings (pro rata to
such holders on the basis of the respective amounts of Guarantor
Senior Debt of Holdings held by such holders) or their respective
Representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Guarantor Senior Debt of
Holdings may have been issued, as their respective interests may
appear, for application to the payment of Guarantor Senior Debt
of Holdings remaining unpaid until all such Guarantor Senior Debt
of Holdings has been paid in full in cash or Cash Equivalents
after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of Guarantor Senior Debt
of Holdings.
(b) To the extent any payment of Guarantor Senior Debt
of Holdings (whether by or on behalf of Holdings, as proceeds of
security or enforcement of any right of setoff or otherwise) is
declared to be fraudulent or preferential, set aside or required
to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person under any bankruptcy,
insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such
receiver, trustee in bankruptcy, liquidating trustee, agent or
other similar Person, the Guarantor Senior Debt of Holdings or
part thereof originally intended to be satisfied shall be deemed
to be reinstated and outstanding as if such payment had not
occurred.
(c) In the event that, notwithstanding the foregoing,
any payment or distribution of assets of Holdings of any kind or
character, whether in cash, property or securities, shall be
received by any Holder when such payment or distribution is
prohibited by this Section 12.03(c), such payment or distribution
shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Guarantor Senior Debt of Holdings
(pro rata to such holders on the basis of the respective amount
of Guarantor Senior Debt of Holdings held by such holders) or
their respective Representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Guarantor
Senior Debt of Holdings may have been issued, as their respective
interests may appear, for application to the payment of Guarantor
Senior Debt of Holdings remaining unpaid until all such Guarantor
Senior Debt of Holdings has been paid in full in cash or Cash
Equivalents, after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such
Guarantor Senior Debt of Holdings.
(d) The consolidation of Holdings with, or the merger
of Holdings with or into, another Person or the liquidation or
dissolution of Holdings following the conveyance or transfer of
all or substantially all of its assets, to another Person upon
the terms and conditions provided in Article Five hereof and as
long as permitted under the terms of the Guarantor Senior Debt of
Holdings shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section
12.03 if such other Person shall, as a part of such
consolidation, merger, conveyance or transfer, assume Holdings'
obligations hereunder in accordance with Article Five hereof.
SECTION 12.04 Payments May Be Paid Prior to
Dissolution.
Nothing contained in this Article Twelve or elsewhere
in this Indenture shall prevent (i) Holdings, except under the
conditions described in Sections 12.02 and 12.03, from making
payments at any time in respect of Guarantee Obligations, or from
depositing with the Trustee any moneys for such payments, or (ii)
in the absence of actual knowledge by the Trustee or any Paying
Agent that a given payment would be prohibited by Section 12.02
or 12.03, the application by the Trustee or such Paying Agent, as
the case may be, of any moneys deposited with it for the purpose
of making such payments of principal of, and interest on,
Guarantee Obligations to the Holders entitled thereto unless at
least two Business Days prior to the date upon which such payment
would otherwise become due and payable a Trust Officer or officer
of the Paying Agent, as the case may be, shall have actually
received the written notice provided for in the second sentence
of Section 12.02(a) or in Section 12.07 (provided that,
notwithstanding the foregoing, such application shall otherwise
be subject to the provisions of the first sentence of Section
12.02(a) and Section 12.03). Holdings shall give prompt written
notice to the Trustee and each Paying Agent of any dissolution,
winding-up, liquidation or reorganization of Holdings.
SECTION 12.05 Subrogation.
Subject to the payment in full in cash or Cash
Equivalents of all Guarantor Senior Debt of Holdings, the Holders
of the Guarantee Obligations shall be subrogated to the rights of
the holders of Guarantor Senior Debt of Holdings to receive
payments or distributions of cash, property or securities of
Holdings applicable to the Guarantor Senior Debt of Holdings
until the Guarantee Obligations shall be paid in full; and, for
the purposes of such subrogation, no such payments or
distributions to the holders of the Guarantor Senior Debt of
Holdings by or on behalf of Holdings or by or on behalf of the
Holders by virtue of this Article Twelve which otherwise would
have been made to the Holders shall, as between Holdings and the
Holders of the Guarantee Obligations, be deemed to be a payment
by Holdings to or on account of the Guarantor Senior Debt of
Holdings, it being understood that the provisions of this Article
Twelve are and are intended solely for the purpose of defining
the relative rights of the Holders of the Guarantee Obligations,
on the one hand, and the holders of the Guarantor Senior Debt of
Holdings, on the other hand.
SECTION 12.06 Obligations of Holdings Unconditional.
Nothing contained in this Article Twelve or elsewhere
in this Indenture or in the Notes is intended to or shall impair,
as among Holdings, its creditors other than the holders of
Guarantor Senior Debt of Holdings, and the Holders, the
obligation of Holdings, which is absolute and unconditional, to
pay the Guarantee Obligations to the Holders as and when the same
shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the Holders
and creditors of Holdings other than the holders of the Guarantor
Senior Debt of Holdings, nor shall anything herein or therein
prevent the Holder of any Note or the Trustee on its behalf from
exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any,
in respect of cash, property or securities of Holdings received
upon the exercise of any such remedy.
SECTION 12.07 Notice to Trustee and Paying Agents.
Holdings shall give prompt written notice to the
Trustee and each Paying Agent of any fact known to Holdings which
would prohibit the making of any payment to or by the Trustee in
respect of the Notes pursuant to the provisions of this Article
Twelve. Regardless of anything to the contrary contained in this
Article Twelve or elsewhere in this Indenture, neither the
Trustee nor any Paying Agent shall be charged with knowledge of
the existence of any default or event of default with respect to
any Guarantor Senior Debt of Holdings or of any other facts which
would prohibit the making of any payment to or by the Trustee or
any Paying Agent unless and until the Trustee or such Paying
Agent, as the case may be, shall have received notice in writing
from Holdings, or from a holder of Guarantor Senior Debt of
Holdings or a Representative therefor, together with proof
satisfactory to the Trustee or such Paying Agent, as the case may
be, of such holding of Guarantor Senior Debt of Holdings or of
the authority of such Representative, and, prior to the receipt
of any such written notice, the Trustee shall be entitled to
assume (in the absence of actual knowledge to the contrary) that
no such facts exist.
In the event that the Trustee or any Paying Agent
determines in good faith that any evidence is required with
respect to the right of any Person as a holder of Guarantor
Senior Debt of Holdings to participate in any payment or
distribution pursuant to this Article Twelve, the Trustee or such
Paying Agent, as the case may be, may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee or
such Paying Agent, as the case may be, as to the amounts of
Guarantor Senior Debt of Holdings held by such Person, the extent
to which such Person is entitled to participate in such payment
or distribution and any other facts pertinent to the rights of
such Person under this Article Twelve, and if such evidence is
not furnished, the Trustee or such Paying Agent, as the case may
be, may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
SECTION 12.08 Reliance on Judicial Order or Certificate
of Liquidating Agent.
Upon any payment or distribution of assets of Holdings
referred to in this Article Twelve, the Trustee, subject to the
provisions of Article Seven hereof, such Paying Agent and the
Holders of the Notes shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which any
insolvency, bankruptcy, receivership, dissolution, winding-up,
liquidation, reorganization or similar case or proceeding is
pending, or upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, receiver, assignee for the
benefit of creditors, agent or other Person making such payment
or distribution, delivered to the Trustee or the Holders of the
Notes, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of the
Guarantor Senior Debt of Holdings and other Indebtedness of
Holdings, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Twelve.
SECTION 12.09 Trustee's Relation to Guarantor Senior
Debt of Holdings.
The Trustee, each Agent and any agent of Holdings, the
Trustee or any Agent shall be entitled to all the rights set
forth in this Article Twelve with respect to any Guarantor Senior
Debt of Holdings which may at any time be held by it in its
individual or any other capacity to the same extent as any other
holder of Guarantor Senior Debt of Holdings and nothing in this
Indenture shall deprive the Trustee, any Agent or any such agent
of any of its rights as such a holder.
With respect to the holders of Guarantor Senior Debt
of Holdings, the Trustee and each Agent undertakes to perform or
to observe only such of its covenants and obligations as are
specifically set forth in this Article Twelve, and no implied
covenants or obligations with respect to the holders of Guarantor
Senior Debt of Holdings shall be read into this Indenture against
the Trustee. Neither the Trustee nor any Agent shall be deemed to
owe any fiduciary duty to the holders of Guarantor Senior Debt of
Holdings.
Whenever a distribution is to be made or a notice is
to be given to holders or owners of Guarantor Senior Debt of
Holdings, the distribution may be made and the notice may be
given to their Representatives, if any.
SECTION 12.10. Subordination Rights Not Impaired by Acts or
Omissions of Holdings or Holders of Guarantor Senior Debt of Holdings.
No right of any present or future holders of any
Guarantor Senior Debt of Holdings to enforce subordination as
provided herein shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of Holdings or
by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by Holdings with the terms of this
Indenture, regardless of any knowledge thereof which any such
holder may have or otherwise be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Guarantor Senior Debt of
Holdings may, at any time and from time to time, without the
consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Notes and
without impairing or releasing the subordination provided in this
Article Twelve or the obligations hereunder of the Holders of the
Notes to the holders of the Guarantor Senior Debt of Holdings, do
any one or more of the following: (i) change the manner, place or
terms of payment or extend the time of payment of, or renew or
alter, Guarantor Senior Debt of Holdings, or otherwise amend or
supplement in any manner Guarantor Senior Debt of Holdings, or
any instrument evidencing the same or any agreement under which
Guarantor Senior Debt of Holdings is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Guarantor Senior Debt of
Holdings; (iii) release any Person liable in any manner for the
payment or collection of Guarantor Senior Debt of Holdings; and
(iv) exercise or refrain from exercising any rights against
Holdings and any other Person.
SECTION 12.11. Noteholders Authorize Trustee and Paying
Agent To Effectuate Subordination of Notes.
Each Holder of Notes by its acceptance of them
authorizes and expressly directs the Trustee and each Paying
Agent on its behalf to take such action as may be necessary or
appropriate to effectuate, as between the holders of Guarantor
Senior Debt of Holdings and the Holders of Notes, the
subordination provided in this Article Twelve, and appoints the
Trustee and each Paying Agent its attorney-in-fact for such
purposes, including, in the event of any dissolution, winding-up,
liquidation or reorganization of Holdings (whether in bankruptcy,
insolvency, receivership, reorganization or similar proceedings
or upon an assignment for the benefit of creditors or otherwise)
tending towards liquidation of the business and assets of
Holdings, the filing of a claim for the unpaid balance of its
Notes and accrued interest in the form required in those
proceedings.
If the Trustee does not file a proper claim or proof
of debt in the form required in such proceeding prior to 30 days
before the expiration of the time to file such claim or claims,
then the holders of the Guarantor Senior Debt of Holdings or
their Representatives are hereby authorized to have the right to
file and are hereby authorized to file an appropriate claim for
and on behalf of the Holders of said Notes. Nothing herein
contained shall be deemed to authorize the Trustee or the holders
of Guarantor Senior Debt of Holdings or their Representatives to
authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Guarantor
Senior Debt of Holdings or their Representatives to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 12.12. This Article Twelve Not To Prevent Events of Default.
The failure to make a payment on account of Guarantee
Obligations by reason of any provision of this Article Twelve
will not be construed as preventing the occurrence of an Event of
Default.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01 TIA Controls.
If any provision of this Indenture limits, qualifies,
or conflicts with another provision which is required to be
included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.02 Notices.
Any notices or other communications required or
permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by commercial
courier service, by telecopier or registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
if to the Company or Holdings:
Del Monte Corporation
and
Del Monte Foods Company
Xxx Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Senior Vice President and Treasurer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Del Monte Corporation
and
Del Monte Foods Company
Xxx Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Vice President, Legal Affairs
and Secretary
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No: (000) 000-0000
if to the Trustee:
Marine Midland Bank
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Department
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
if to the Paying Agent or Registrar:
Bankers Trust Company
4th Floor
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Market Services
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Each of the Company, Holdings, the Trustee and the
Paying Agent by written notice to each other such Person may
designate additional or different addresses for notices to such
Person. Any notice or communication to the Company, Holdings, the
Trustee and the Paying Agent shall be deemed to have been given
or made as of the date so delivered if personally delivered; when
receipt is confirmed if delivered by commercial courier service;
when receipt is acknowledged, if faxed; and five (5) calendar
days after mailing if sent by registered or certified mail,
postage prepaid (except that a notice of change of address shall
not be deemed to have been given until actually received by the
addressee).
In the event any additional Guarantors are added
pursuant to Section 4.19, this Section 13.02 shall be
supplemented to provide for delivery of any notices or
communications described herein to each such Guarantor.
Any notice or communication mailed to a Holder shall
be mailed to him by first class mail or other equivalent means at
his address as it appears on the registration books of the
Registrar and shall be sufficiently given to him if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Holder
or any defect in it shall not affect its sufficiency with respect
to other Holders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the
addressee receives it.
SECTION 13.03 Communications by Holders with Other
Holders.
Holders may communicate pursuant to TIA ss. 312(b)
with other Holders with respect to their rights under this
Indenture or the Notes. The Company, the Trustee, the Registrar
and any other Person shall have the protection of TIA ss. 312(c).
SECTION 13.04 Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company or
Holdings to the Trustee to take any action under this Indenture,
the Company or Holdings, as the case may be, shall furnish to the
Trustee:
(1) an Officers' Certificate, in form and substance
reasonably satisfactory to the Trustee, stating that, in
the opinion of the signers, all conditions precedent to be
performed by the Company, if any, provided for in this
Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel stating that, in the opinion
of such counsel, all such conditions precedent to be
performed by the Company, if any, provided for in this
Indenture relating to the proposed action have been
complied with.
SECTION 13.05 Statements Required in Certificate or
Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture,
other than the Officers' Certificate required by Section 4.06,
shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition
and the definitions relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such Person,
he or she has made such examination or investigation as is
reasonably necessary to enable him or her to express an
informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion
of each such Person, such condition or covenant has been
complied with.
SECTION 13.06 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance
with the Trustee's customary practices for action by or at a
meeting of Holders. Each of the Paying Agent or Registrar may
make reasonable rules in accordance with customary practices for
its functions.
SECTION 13.07 Legal Holidays.
A "Legal Holiday" used with respect to a particular
place of payment is a Saturday, a Sunday or a day on which
banking institutions in New York, New York or at such place of
payment are not required to be open. If a payment date is a Legal
Holiday at such place, payment may be made at such place on the
next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.
SECTION 13.08 Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. EACH
OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE.
SECTION 13.09 No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any of its
Subsidiaries. Any such indenture, loan or debt agreement may not
be used to interpret this Indenture.
SECTION 13.10. No Recourse Against Others.
A director, officer, employee, stockholder or
incorporator, as such, of the Company, any Guarantor or of the
Trustee shall not have any liability for any obligations of the
Company or any Guarantor under the Notes, the Guarantees or this
Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. Such waiver and
release are part of the consideration for the issuance of the
Notes.
SECTION 13.11. Successors.
All agreements of the Company and Holdings in this
Indenture and the Notes shall bind their respective successors.
All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 13.12. Duplicate Originals.
All parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
SECTION 13.13. Severability.
In case any one or more of the provisions in this
Indenture or in the Notes shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent
permitted by law.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the date first
written above.
Issuer:
DEL MONTE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name:
Title:
Guarantor:
DEL MONTE FOODS COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name:
Title:
Trustee:
MARINE MIDLAND BANK,
as Trustee
By: /s/ Metin Cancer
------------------------------
Name: Metin Cancer
Title: Vice President
ACKNOWLEDGED AND AGREED:
BANKERS TRUST COMPANY,
as Registrar, Paying Agent
and Authenticating Agent
By: /s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Treasurer
EXHIBIT A
CUSIP No.:
DEL MONTE CORPORATION
12-1/4% SENIOR SUBORDINATED NOTE DUE 2007
No. $
DEL MONTE CORPORATION, a New York corporation (the
"Company," which term includes any successor entity), for value
received promises to pay to or registered assigns, the principal
sum of Dollars, on April 15, 2007.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
Reference is made to the further provisions of this
Note contained herein, which will for all purposes have the same
effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note
to be signed manually or by facsimile by its duly authorized
officers and a facsimile of its corporate seal to be affixed
hereto or imprinted hereon.
DEL MONTE CORPORATION
By:
Name:
Title:
By:
Name:
Dated: __________, Title:
Certificate of Authentication
This is one of the 12-1/4% Senior Subordinated Notes
due 2007 referred to in the within-mentioned Indenture.
MARINE MIDLAND BANK, or MARINE MIDLAND BANK,
as Trustee as Trustee
By:
Authorized Signatory By: BANKERS TRUST COMPANY,
as Authenticating Agent
By:
Authorized Signatory
(REVERSE OF SECURITY)
12-1/4% SENIOR SUBORDINATED NOTE DUE 2007
1. Interest. DEL MONTE CORPORATION, a New York
corporation (the "Company"), promises to pay interest on the
principal amount of this Note at the rate per annum shown above.
Interest on the Notes will accrue from the most recent date on
which interest has been paid or, if no interest has been paid,
from April 18, 1997. The Company will pay interest semi-annually
in arrears on each Interest Payment Date, commencing October 15,
1997. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
The Company shall pay interest on overdue principal
and on overdue installments of interest from time to time on
demand at the rate borne by the Notes plus 2% per annum and on
overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful.
2. Method of Payment. The Company shall pay interest
on the Notes (except defaulted interest) to the Persons who are
the registered Holders at the close of business on the Record
Date immediately preceding the Interest Payment Date even if the
Notes are cancelled on registration of transfer or registration
of exchange after such Record Date. Holders must surrender Notes
to a Paying Agent to collect principal payments. The Company
shall pay principal and interest in money of the United States
that at the time of payment is legal tender for payment of public
and private debts ("U.S. Legal Tender"). However, the Company may
pay principal and interest by its check payable in such U.S.
Legal Tender. The Company may deliver any such interest payment
to the Paying Agent or to a Holder at the Holder's registered
address.
3. Paying Agent and Registrar. Initially, Bankers Trust
Company, 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, will act as
Paying Agent and Registrar. The Company may change any Paying
Agent, Registrar or co-Registrar without notice to the Holders.
4. Indenture and Guarantee. The Company issued the
Notes under an Indenture, dated as of April 18, 1997 (amended and
supplemented from time to time, the "Indenture"), among the
Company, Del Monte Foods Company ("Holdings") and Marine Midland
Bank, as Trustee (the "Trustee", which term includes any
successor Trustee under the Indenture). This Note is one of a
duly authorized issue of Initial Notes of the Company designated
as its 12-1/4% Senior Subordinated Notes due 2007 (the "Initial
Notes"). The Notes are limited in aggregate principal amount to
$150,000,000. The Notes include the Initial Notes and the
Exchange Notes, as defined below, issued in exchange for the
Initial Notes pursuant to the Indenture. The Initial Notes and
the Exchange Notes are treated as a single class of securities
under the Indenture. Capitalized terms herein are used as defined
in the Indenture unless otherwise defined herein. The terms of
the Notes include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code xx.xx. 77aaa-77bbbb) (the "TIA"), as in effect
on the date of the Indenture. Notwithstanding anything to the
contrary herein, the Notes are subject to all such terms, and
Holders of Notes are referred to the Indenture and said Act for a
statement of such terms, including the respective rights, duties
and immunities thereunder of the Company, the Guarantors, the
Trustee and the
Holders of the Notes and the terms upon which the Notes are, and
are to be, authenticated and delivered. The Notes are general
unsecured obligations of the Company. Payment on each Note is
guaranteed on a senior subordinated basis by Holdings pursuant to
Article Eleven of the Indenture.
5. Subordination. The Notes are subordinated in right
of payment, in the manner and to the extent set forth in the
Indenture, to the prior payment in full in cash or Cash
Equivalents of all Senior Debt of the Company, whether
outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed. Each Holder by his acceptance
hereof agrees to be bound by such provisions and authorizes and
expressly directs the Trustee and the Paying Agent, on his
behalf, to take such action as may be necessary or appropriate to
effectuate the subordination provided for in the Indenture and
appoints the Trustee his attorney-in-fact for such purposes.
6. Redemption.
(a) Optional Redemption. The Notes will be redeemable,
at the Company's option, in whole at any time or in part from
time to time, on and after April 15, 2002, upon not less than 30
nor more than 60 days' notice, at the following redemption prices
(expressed as percentages of the principal amount thereof) if
redeemed during the twelve-month period commencing on April 15 of
the year set forth below, plus, in each case, accrued and unpaid
interest thereon, if any, to the date of redemption:
Year Percentage
2002.............................................. 106.313%
2003.............................................. 104.734%
2004.............................................. 103.156%
2005.............................................. 101.587%
2006 and thereafter .............................. 100.000%
(b) Optional Redemption Upon Public Equity Offerings.
At any time, or from time to time, on or prior to April 15, 2000,
the Company may, at its option, use the net cash proceeds of one
or more Public Equity Offerings (as defined in the Indenture) to
redeem up to 35% of the aggregate principal amount of Notes
originally issued at a redemption price equal to 112.625% of the
principal amount thereof plus, in each case, accrued interest to
the date of redemption; provided that at least 65% of the
principal amount of Notes originally issued remains outstanding
immediately after any such redemption.
In order to effect the foregoing redemption with the
proceeds of any Public Equity Offering, the Company shall make
such redemption not more than 120 days after the consummation of
any such Public Equity Offering.
(c) Optional Redemption Upon Change of Control. At any
time, on or prior to April 15, 2002, the Company may, at its
option, redeem the Notes, in whole, upon the occurrence of a
Change of Control (as defined in the Indenture), upon not less
than 30 nor more than 60 days prior notice (but in no event more
than 90 days after the occurrence of such Change
of Control) at a redemption price equal to 100% of the principal
amount thereof plus the Applicable Premium (as defined below) as
of, and accrued and unpaid interest, if any, to the date of
redemption (the "Change of Control Redemption Date").
"Applicable Premium" means, with respect to a Note at
any Change of Control Redemption Date, the greater of (i) 1.0% of
the principal amount of such Note and (ii) the excess of (A) the
present value at such time of (1) the redemption price of such
Note at April 15, 2002, determined in accordance with Paragraph
6(a) above, plus (2) all required interest payments due on such
Note through April 15, 2002, computed using a discount rate equal
to the Treasury Rate plus 1.00% per annum, over (B) the principal
amount of such Note.
"Treasury Rate" means the yield to maturity at the
time of computation of U.S. Treasury securities with a constant
maturity (as compiled and published in the most recent Federal
Reserve Release H.15 (519) which has become publicly available at
least two Business Days prior to the Change of Control Redemption
Date (or, if such Statistical Release is no longer published, any
publicly available source or similar market data)) closest to the
period from the Change of Control Redemption Date to April 15,
2002; provided, however, that if the period from the Change of
Control Redemption Date to April 15, 2002, is not equal to the
constant maturity of a U.S. Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by
linear interpolation (calculated to the nearest one-twelfth of
one year) from the weekly average yields of U.S. Treasury
securities for which such yields are given, except that if the
period from the Change of Control Redemption Date to April 15,
2002, is less than one year, the weekly average yield on actually
traded U.S. Treasury securities adjusted to a constant maturity
of one year shall be used.
7. Notice of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at such
Holder's registered address. Notes in denominations larger than
$1,000 may be redeemed in part.
Except as set forth in the Indenture, if monies for
the redemption of the Notes called for redemption shall have been
deposited with the Paying Agent for redemption on such Redemption
Date, then, unless the Company defaults in the payment of such
Redemption Price plus accrued and unpaid interest, if any, the
Notes called for redemption will cease to bear interest from and
after such Redemption Date and the only right of the Holders of
such Notes will be to receive payment of the Redemption Price
plus accrued and unpaid interest, if any.
8. Offers to Purchase. Sections 4.15 and 4.16 of the
Indenture provide that, after certain Asset Sales (as defined in
the Indenture) and upon the occurrence of a Change of Control (as
defined in the Indenture), and subject to further limitations
contained therein, the Company will make an offer to purchase
certain amounts of the Notes in accordance with the procedures
set forth in the Indenture.
9. Registration Rights. Pursuant to the Registration
Rights Agreement (as defined in the Indenture), the Company will
be obligated to consummate an exchange offer pursuant to which
the Holder of this Note shall have the right to exchange this
Note for the Company's Series B 12-1/4% Senior Subordinated Notes
due 2007 (the "Exchange Notes"),
which have been registered under the Securities Act, in like
principal amount and having terms identical in all material
respects to the Initial Notes. The Holders of the Initial Notes
shall be entitled to receive certain additional interest payments
in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with
the terms of the Registration Rights Agreement.
10. Denominations; Transfer; Exchange. The Notes are
in registered form, without coupons, in denominations of $1,000
and integral multiples of $1,000. A Holder shall register the
transfer of or exchange Notes in accordance with the Indenture.
The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to
pay certain transfer taxes or similar governmental charges
payable in connection therewith as permitted by the Indenture.
The Registrar need not register the transfer of or exchange of
any Notes or portions thereof selected for redemption.
11. Persons Deemed Owners. The registered Holder of a
Note shall be treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of
principal or interest remains unclaimed for two years, the
Trustee and the Paying Agent will pay the money back to the
Company. After that, all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity. If the
Company at any time deposits with the Trustee U.S. Legal Tender
or U.S. Government Obligations sufficient to pay the principal of
and interest on the Notes to redemption or maturity and complies
with the other provisions of the Indenture relating thereto, the
Company will be discharged from certain provisions of the
Indenture and the Notes (including certain covenants, but
excluding its obligation to pay the principal of and interest on
the Notes).
14. Amendment; Supplement; Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or
supplemented with the written consent of the Holders of at least
a majority in aggregate principal amount of the Notes then
outstanding, and any existing Default or Event of Default or
noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal
amount of the Notes then outstanding. Without notice to or
consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Notes to, among other things,
cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated
Notes, or comply with Article Five of the Indenture or make any
other change that does not adversely affect in any material
respect the rights of any Holder of a Note.
15. Restrictive Covenants. The Indenture imposes
certain limitations on the ability of the Company and its
Restricted Subsidiaries to, among other things, incur additional
Indebtedness, make payments in respect of its Capital Stock or
certain Indebtedness, enter into transactions with Affiliates,
create dividend or other payment restrictions affecting
Subsidiaries, merge or consolidate with any other Person, sell,
assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets or adopt a plan of liquidation.
Such limitations are
subject to a number of important qualifications and exceptions.
The Company and Holdings must annually report to the Trustee on
compliance with such limitations.
16. Successors. When a successor assumes, in accordance
with the Indenture, all the obligations of its predecessor under
the Notes and the Indenture, the predecessor will be released
from those obligations.
17. Defaults and Remedies. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of Notes then outstanding may
declare all the Notes to be due and payable in the manner, at the
time and with the effect provided in the Indenture. Holders of
Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Notes unless it has received
indemnity reasonably satisfactory to it. The Indenture permits,
subject to certain limitations therein provided, Holders of a
majority in aggregate principal amount of the Notes then
outstanding to direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of Notes notice of
any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that
withholding notice is in their interest.
18. Trustee Dealings with Company. The Trustee under
the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with
the Company, its Subsidiaries or their respective Affiliates as
if it were not the Trustee.
19. No Recourse Against Others. No stockholder,
director, officer, employee or incorporator, as such, of the
Company shall have any liability for any obligation of the
Company under the Notes or the Indenture or for any claim based
on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Note by accepting a Note waives and
releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes.
20. Authentication. This Note shall not be valid until
the Trustee or an Authenticating Agent manually signs the
certificate of authentication on this Note.
21. Governing Law. The Laws of the State of New York
shall govern this Note and the Indenture, without regard to
principles of conflict of laws.
22. Abbreviations and Defined Terms. Customary
abbreviations may be used in the name of a Holder of a Note or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian),
and U/G/M/A (= Uniform Gifts to Minors Act).
23. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on
the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as
printed on the Notes and reliance may be placed only on the other
identification numbers printed hereon.
24. Indenture. Each Holder, by accepting a Note, agrees
to be bound by all of the terms and provisions of the Indenture,
as the same may be amended from time to time.
The Company will furnish to any Holder of a Note upon
written request and without charge a copy of the Indenture, which
has the text of this Note in larger type. Requests may be made
to: Vice President, Legal Affairs and Secretary, Del Monte
Corporation, Xxx Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
GUARANTEE
Del Monte Foods Company ("Holdings") has
unconditionally guaranteed on a senior subordinated basis (such
guarantee by Holdings being referred to herein as the
"Guarantee") (i) the due and punctual payment of the principal of
and interest on the Notes, whether at maturity, by acceleration
or otherwise, the due and punctual payment of interest on the
overdue principal and interest, if any, on the Notes, to the
extent lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in
accordance with the terms set forth in Article Eleven of the
Indenture and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the
same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
The obligations of Holdings to the Holders of Notes
and to the Trustee pursuant to the Guarantee and the Indenture
are expressly subordinated in right of payment to the prior
payment in full of all Guarantor Senior Debt (as defined in the
Indenture) of Holdings, to the extent and in the manner provided,
in Articles Eleven and Twelve of the Indenture, and reference is
hereby made to such Indenture for the precise terms of the
Guarantee therein made.
No stockholder, officer, director or incorporator, as
such, past, present or future, of Holdings shall have any
liability under the Guarantee by reason of his or its status as
such stockholder, officer, director or incorporator.
The Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Notes upon
which the Guarantee is noted shall have been executed by the
Trustee or an Authenticating Agent under the Indenture by the
manual signature of one of its authorized officers.
DEL MONTE FOODS COMPANY
By:
Name:
By:
Name:
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in
the form below and have your signature guaranteed:
I or we assign and transfer this Note to:
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint , agent to transfer this Note
on the books of the Company. The agent may substitute another to
act for him.
Date: Signed:
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
In connection with any transfer of this Note occurring
prior to the date which is the earlier of (i) the date of the
declaration by the SEC of the effectiveness of a registration
statement under the Securities Act of 1933, as amended (the
"Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the
date of the transfer) and (ii) April 18, 2000 (or such earlier
date as shall be specified in an Officers' Certificate to the
effect that the Notes are no longer Restricted Securities
delivered to the Trustee and the Registrar), the undersigned
confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and that this
Note is being transferred:
[Check One]
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A
under the Securities Act; or
(3) __ to an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) that has furnished to the Trustee a signed letter
containing certain representations and agreements (the
form of which letter can be obtained from the Trustee); or
(4) __ outside the United states to a "foreign person" in
compliance with Rule 904 of Regulation S under the
Securities Act; or
(5) __ pursuant to the exemption from registration provided
by Rule 144 under the Securities Act; or
(6) __ pursuant to an effective registration statement under the
Securities Act; or
(7) __ pursuant to another available exemption from the
registration requirements of the Securities Act.
Unless one of the boxes is checked, the Registrar will refuse to
register any of the Notes evidenced by this certificate in the
name of any Person other than the registered Holder thereof;
provided that if box (3), (4), (5) or (7) is checked, the Company
or the Registrar may require, prior to registering any such
transfer of the Notes, in its sole discretion, such legal
opinions, certifications (including an investment letter in the
case of box (3) or (4)) and other information as the Registrar or
the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act.
If none of the foregoing boxes is checked, the Trustee or
Registrar shall not be obligated to register this Note in the
name of any Person other than the Holder hereof unless and until
the conditions to any such transfer of registration set forth
herein and in Section 2.17 of the Indenture shall have been
satisfied.
Dated: Signed:
(Sign exactly as name
appears on the other side
of this Security)
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is
purchasing this Note for its own account or an account with
respect to which it exercises sole investment discretion and that
it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act and is
aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule
144A or has determined not to request such information and that
it is aware that the transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
NOTICE: To be executed by
an executive officer
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by
the Company pursuant to Section 4.15 or Section 4.16 of the
Indenture, check the appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note
purchased by the Company pursuant to Section 4.15 or Section 4.16
of the Indenture, state the amount you elect to have purchased:
$_____________________
Dated: __________________ ____________________________________
NOTICE: The signature on this
assignment must correspond with
the name as it appears upon the
face of the within Note in
every particular without alteration
or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
Signature Guarantee:______________________
EXHIBIT B
CUSIP No.:
DEL MONTE CORPORATION
SERIES B 12-1/4% SENIOR SUBORDINATED NOTE DUE 2007
No. $
DEL MONTE CORPORATION, a New York corporation (the
"Company," which term includes any successor entity), for value
received promises to pay to or registered assigns,
the principal sum of Dollars, on April 15, 2007.
Interest Payment Dates: April 15 and October 15,
Record Dates: April 1 and October 1
Reference is made to the further provisions of this
Note contained herein, which will for all purposes have the same
effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note
to be signed manually or by facsimile by its duly authorized
officers and a facsimile of its corporate seal to be affixed
hereto or imprinted hereon.
DEL MONTE CORPORATION
By:
Name:
Title:
By:
Name:
Dated: Title:
Certificate of Authentication
This is one of the Series B 12-1/4% Senior
Subordinated Notes due 2007 referred to in the within-mentioned
Indenture.
MARINE MIDLAND BANK, or MARINE MIDLAND BANK,
as Trustee as Trustee
By:
Authorized Signatory By: BANKERS TRUST COMPANY,
as Authenticating Agent
By:
Authorized Signatory
(REVERSE OF SECURITY)
SERIES B 12-1/4% SENIOR SUBORDINATED NOTE DUE 2007
1. Interest. DEL MONTE CORPORATION, a New York
corporation (the "Company"), promises to pay interest on the
principal amount of this Note at the rate per annum
shown above. Interest on the Notes will accrue from the most
recent date on which interest has been paid or, if no interest
has been paid, from April 18, 1997. The Company will pay interest
semi-annually in arrears on each Interest Payment Date,
commencing October 15, 1997. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal
and on overdue installments of interest from time to time on
demand at the rate borne by the Notes plus 2% per annum and on
overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful.
2. Method of Payment. The Company shall pay interest
on the Notes (except defaulted interest) to the Persons who are
the registered Holders at the close of business on the Record
Date immediately preceding the Interest Payment Date even if the
Notes are cancelled on registration of transfer or registration
of exchange after such Record Date. Holders must surrender Notes
to a Paying Agent to collect principal payments. The Company
shall pay principal and interest in money of the United States
that at the time of payment is legal tender for payment of public
and private debts ("U.S. Legal Tender"). However, the Company may
pay principal and interest by its check payable in such U.S.
Legal Tender. The Company may deliver any such interest payment
to the Paying Agent or to a Holder at the Holder's registered
address.
3. Paying Agent and Registrar. Initially, Bankers Trust
Company, 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 0000, will act as
Paying Agent and Registrar. The Company may change any Paying
Agent, Registrar or co-Registrar without notice to the Holders.
4. Indenture and Guarantee. The Company issued the
Notes under an Indenture, dated as of April 18, 1997 (the
"Indenture"), among the Company, Del Monte Foods Company
("Holdings"), and Marine Midland Bank, as Trustee (the
"Trustee"). This Note is one of a duly authorized issue of
Exchange Notes of the Company designated as its Series B 12-1/4%
Senior Subordinated Notes due 2007 (the "Exchange Notes"). The
Notes are limited in aggregate principal amount to $150,000,000.
The Notes include the Initial Notes (the 12-1/4% Senior
Subordinated Notes due 2007) and the Exchange Notes, issued in
exchange for the Initial Notes pursuant to the Indenture. The
Initial Notes and the Exchange Notes are treated as a single
class of securities under the Indenture. Capitalized terms herein
are used as defined in the Indenture unless otherwise defined
herein. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the
Notes are subject to all such terms, and Holders of Notes are
referred to the Indenture and said Act for a statement of them.
The Notes are general unsecured obligations of the Company.
Payment of each Note is guaranteed on a senior subordinated basis
by Holdings pursuant to Article Eleven of the Indenture.
5. Subordination. The Notes are subordinated in right
of payment, in the manner and to the extent set forth in the
Indenture, to the prior payment in full in cash or Cash
Equivalents of all Senior Debt of the Company, whether
outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed. Each Holder by his acceptance
hereof agrees to be bound by such provisions and authorizes and
expressly directs the Trustee and the Paying Agent, on his
behalf, to take such action as may be necessary or appropriate to
effectuate the subordination provided for in the Indenture and
appoints the Trustee his attorney-in-fact for such purposes.
6. Redemption.
(a) Optional Redemption. The Notes will be redeemable,
at the Company's option, in whole at any time or in part from
time to time, on and after April 15, 2002, upon not less than 30
nor more than 60 days' notice, at the following redemption prices
(expressed as percentages of the principal amount thereof) if
redeemed during the twelve-month period commencing on April 15 of
the year set forth below, plus, in each case, accrued and unpaid
interest to the date of redemption:
Year Percentage
2002.............................................. 106.313%
2003.............................................. 104.734%
2004.............................................. 103.156%
2005.............................................. 101.578%
2006 and thereafter .............................. 100.000%
(b) Optional Redemption Upon Public Equity Offerings.
At any time, or from time to time, on or prior to April 15, 2000,
the Company may, at its option, use the net cash proceeds of one
or more Public Equity Offerings (as defined in the Indenture) to
redeem up to 35% of the aggregate principal amount of Notes
originally issued at a redemption price equal to 112.625% of the
principal amount thereof plus, in each case, accrued interest to
the date of redemption; provided that at least 65% of the
principal amount of Notes originally issued remains outstanding
immediately after any such redemption.
In order to effect the foregoing redemption with the
proceeds of any Public Equity Offering, the Company shall make
such redemption not more than 120 days after the consummation of
any such Public Equity Offering.
(c) Optional Redemption Upon Change of Control. At any
time, on or prior to April 15, 2002, the Company may, at its
option, redeem the Notes, in whole, upon the occurrence of a
Change of Control (as defined in the Indenture), upon not less
than 30 or more than 60 days prior notice (but in no event more
than 90 days after the occurrence of such Change of Control) at a
redemption price equal to 100% of the principal amount thereof
plus the Applicable Premium (as defined below) as of, and accrued
and unpaid interest, if any, to the date of redemption (the
"Change of Control Redemption Date").
"Applicable Premium" means, with respect to a Note at
any Change of Control Redemption Date, the greater of (i) 1.0% of
the principal amount of such Note and (ii) the excess of (A) the
present value at such time of (1) the redemption price of such
Note at April 15, 2002, determined in accordance with Paragraph
6(a), above, plus (2) all required interest payments due on such
Note through April 15, 2002, computed using a discount rate equal
to the Treasury Rate plus 1.0)% per annum, over (B) the principal
amount of such Note.
"Treasury Rate" means the yield to maturity at the
time of computation of U.S. Treasury securities with a constant
maturity (as compiled and published in the most recent Federal
Reserve Release H.15 (519) which has become publicly available at
least two Business Days prior to the Change of Control Redemption
Date (or, if such Statistical Release is no longer published, any
publicly available source or similar market data)) closest to the
period from the Change of Control Redemption Date to April 15,
2002; provided, however, that if the period from the Change of
Control Redemption Date to April 15, 2002, is not equal to the
constant maturity of a U.S. Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by
linear interpolation (calculated to the nearest one-twelfth of
one year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that
if the period from the Change of Control Redemption Date to April
15, 2002, is less than one year, the weekly average yield on
actually traded U.S. Treasury securities adjusted to a constant
maturity of one year shall be used.
7. Notice of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at such
Holder's registered address. Notes in denominations larger than
$1,000 may be redeemed in part.
Except as set forth in the Indenture, if monies for
the redemption of the Notes called for redemption shall have been
deposited with the Paying Agent for redemption on such Redemption
Date, then, unless the Company defaults in the payment of such
Redemption Price plus accrued and unpaid interest, if any, the
Notes called for redemption will cease to bear interest from and
after such Redemption Date and the only right of the Holders of
such Notes will be to receive payment of the Redemption Price
plus accrued and unpaid interest, if any.
8. Offers to Purchase. Sections 4.15 and 4.16 of the
Indenture provide that, after certain Asset Sales (as defined in
the Indenture) and upon the occurrence of a Change of Control (as
defined in the Indenture), and subject to further limitations
contained therein, the Company will make an offer to purchase
certain amounts of the Notes in accordance with the procedures
set forth in the Indenture.
9. Denominations; Transfer; Exchange. The Notes are in
registered form, without coupons, in denominations of $1,000 and
integral multiples of $1,000. A Holder shall register the
transfer of or exchange Notes in accordance with the Indenture.
The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to
pay certain transfer taxes or similar governmental charges
payable in connection therewith as permitted by the Indenture.
The Registrar need not register the transfer of or exchange of
any Notes or portions thereof selected for redemption.
10. Persons Deemed Owners. The registered Holder of a
Note shall be treated as the owner of it for all purposes.
11. Unclaimed Money. If money for the payment of principal
or interest remains unclaimed for two years, the Trustee and the
Paying Agent will pay the money back to the Company. After that,
all liability of the Trustee and such Paying Agent with respect
to such money shall cease.
12. Discharge Prior to Redemption or Maturity. If the
Company at any time deposits with the Trustee U.S. Legal Tender
or U.S. Government Obligations sufficient to pay the principal of
and interest on the Notes to redemption or maturity and complies
with the other provisions of the Indenture relating thereto, the
Company will be discharged from certain provisions of the
Indenture and the Notes (including certain covenants, but
excluding its obligation to pay the principal of and interest on
the Notes).
13. Amendment; Supplement; Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or
supplemented with the written consent of the Holders of at least
a majority in aggregate principal amount of the Notes then
outstanding, and any existing Default or Event of Default or
noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal
amount of the Notes then outstanding. Without notice to or
consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Notes to, among other things,
cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated
Notes, or comply with Article Five of the Indenture or make any
other change that does not adversely affect in any material
respect the rights of any Holder of a Note.
14. Restrictive Covenants. The Indenture imposes
certain limitations on the ability of the Company and its
Restricted Subsidiaries to, among other things, incur additional
Indebtedness, make payments in respect of its Capital Stock or
certain Indebtedness, enter into transactions with Affiliates,
create dividend or other payment restrictions affecting
Subsidiaries, merge or consolidate with any other Person, sell,
assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets or adopt a plan of liquidation.
Such limitations are subject to a number of important
qualifications and exceptions. The Company and Holdings must
annually report to the Trustee on compliance with such
limitations.
15. Successors. When a successor assumes, in accordance
with the Indenture, all the obligations of its predecessor under
the Notes and the Indenture, the predecessor will be released from
those obligations.
16. Defaults and Remedies. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of Notes then outstanding may
declare all the Notes to be due and payable in the manner, at the
time and with the effect provided in the Indenture. Holders of
Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Notes unless it has received
indemnity reasonably satisfactory to it. The Indenture permits,
subject to certain limitations therein provided, Holders of a
majority in aggregate principal amount of the Notes then
outstanding to direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of Notes notice of
any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that
withholding notice is in their interest.
17. Trustee Dealings with Company. The Trustee under
the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with
the Company, its Subsidiaries or their respective Affiliates as
if it were not the Trustee.
18. No Recourse Against Others. No stockholder,
director, officer, employee or incorporator, as such, of the
Company shall have any liability for any obligation of the
Company under the Notes or the Indenture or for any claim based
on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Note by accepting a Note waives and
releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes.
19. Authentication. This Note shall not be valid until
the Trustee or an Authenticating Agent manually signs the certificate
of authentication on this Note.
20. Governing Law. The Laws of the State of New York
shall govern this Note and the Indenture, without regard to
principles of conflict of laws.
21. Abbreviations and Defined Terms. Customary
abbreviations may be used in the name of a Holder of a Note or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian),
and U/G/M/A (= Uniform Gifts to Minors Act).
22. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on
the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as
printed on the Notes and reliance may be placed only on the other
identification numbers printed hereon.
23. Indenture. Each Holder, by accepting a Note, agrees
to be bound by all of the terms and provisions of the Indenture, as
the same may be amended from time to time.
The Company will furnish to any Holder of a Note upon
written request and without charge a copy of the Indenture, which
has the text of this Note in larger type. Requests may be made
to: Vice President, Legal Affairs and Secretary, Del Monte
Corporation, Xxx Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
GUARANTEE
Del Monte Foods Company ("Holdings") has
unconditionally guaranteed on a senior subordinated basis (such
guarantee by Holdings being referred to herein as the
"Guarantee") (i) the due and punctual payment of the principal of
and interest on the Notes, whether at maturity, by acceleration
or otherwise, the due and punctual payment of interest on the
overdue principal and interest, if any, on the Notes, to the
extent lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in
accordance with the terms set forth in Article Eleven of the
Indenture and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the
same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
The obligations of Holdings to the Holders of Notes
and to the Trustee pursuant to the Guarantee and the Indenture
are expressly subordinated in right of payment to the prior
payment in full of all Guarantor Senior Debt (as defined in the
Indenture) of Holdings, to the extent and in the manner provided,
in Articles Eleven and Twelve of the Indenture, and reference is
hereby made to such Indenture for the precise terms of the
Guarantee therein made.
No stockholder, officer, director or incorporator, as
such, past, present or future, of Holdings shall have any
liability under the Guarantee by reason of his or its status as
such stockholder, officer, director or incorporator.
The Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Notes upon
which the Guarantee is noted shall have been executed by the
Trustee or an Authenticating Agent under the Indenture by the
manual signature of one of its authorized officers.
DEL MONTE FOODS COMPANY
By:
Name:
By:
Name:
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in
the form below and have your signature guaranteed:
I or we assign and transfer this Note to:
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ________________________________, agent to
transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Dated:__________ Signed:
(Sign exactly as name
appears on the other side
of this Note)
Signature Guarantee:__________________
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by
the Company pursuant to Section 4.15 or Section 4.16 of the
Indenture, check the appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note
purchased by the Company pursuant to Section 4.15 or Section 4.16
of the Indenture, state the amount you elect to have purchased:
$_______________________
Dated: _________________ _____________________________________
NOTICE: The signature on this
assignment must correspond with
the name as it appears upon the
face of the within Note in
every particular without alteration
or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
Signature Guarantee:
