(Exhibit 4 xviii)
Draft--January 25, 0000
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXXXXX XXXXXXXXXXX,
xx Xxxxxx,
xxx
XXXXXX XXXXXX TRUST COMPANY OF NEW YORK,
as Trustee
-------------------------
INDENTURE
Dated as of , 1996
---------
-------------------------
% Senior Subordinated Notes, Due 2008
---
AMERICOLD CORPORATION
% New Subordinated Notes, Due 2008
---
CROSS-REFERENCE TABLE
Between the Indenture and the Trust Indenture Act of 1939
TIA
Section Indenture Section
------- -----------------
310(a)(1) ................. 7.10
(a)(2) ................. 7.10
(a)(3) ................. Not Applicable
(a)(4) ................. Not Applicable
(b) ................. 7.08; 7.10
(c) ................. Not Applicable
311(a) ................. 7.11
(b) ................. 7.11
(c) ................. Not Applicable
312(a) ................. 4.15
(b) ................. 11.02
(c) ................. 11.02
313(a) ................. 7.06
(b)(1) ................. Not Applicable
(b)(2) ................. 7.06
(c) ................. 7.06; 11.03
(d) ................. 7.06
314(a) ................. 4.03; 4.16; 11.03
(b)(1) ................. Not Applicable
(b)(2) ................. 4.19
(c)(1) ................. 4.19
(c)(2) ................. 4.19
(c)(3) ................. Not Applicable
(d) ................. Not Applicable
(e) ................. 4.20
(f) ................. Not Applicable
315(a) ................. 7.01
(b) ................. 7.05; 11.03
(c) ................. 7.01
(d) ................. 7.01
(e) ................. 5.11
316(a)
(last sen-
tence) ................. 11.04
(a)(1)(A) ................. 5.05
(a)(1)(B) ................. 5.04
(a)(2) ................. Not Applicable
(b) ................. 5.07
317(a)(1) ................. 5.08
(a)(2) ................. 5.09
(b) ................. 4.13
318(a) ................. 11.01
--------------------------------
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS/1/
Page
ARTICLE ONE Definitions................................................... 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act............. 20
SECTION 1.03. Rules of Construction......................................... 21
ARTICLE TWO Issuance, Description, Execution and Exchange of Securities... 21
SECTION 2.01. Designation, Amount and Issue of Securities................... 21
SECTION 2.02. Authentication and Delivery of Securities..................... 22
SECTION 2.03. Form of Securities and Trustee's Certificate of
Authentication Generally...................................... 22
SECTION 2.04. Denomination and Date of Securities; Payment of Principal
and Interest.................................................. 22
SECTION 2.05. Execution of Securities....................................... 23
SECTION 2.06. Exchange and Registration of Transfer of Securities........... 24
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Securities............... 25
SECTION 2.08. Cancellation of Surrendered Securities........................ 26
SECTION 2.09. Temporary Securities.......................................... 27
SECTION 2.10. Foreign Holder Certification.................................. 27
SECTION 2.11. CUSIP Numbers................................................. 28
ARTICLE THREE Redemption of Securities...................................... 28
SECTION 3.01. Optional Redemption........................................... 28
SECTION 3.02. Notice of Redemption.......................................... 29
SECTION 3.03. Procedures for Redemption..................................... 30
SECTION 3.04. Selection of Securities To Be Redeemed........................ 31
SECTION 3.05. When Securities Called for Redemption Become Due
and Payable................................................... 31
ARTICLE FOUR Particular Covenants, Representations and Warranties of
the Issuer.................................................... 32
SECTION 4.01. Validity of Securities........................................ 32
SECTION 4.02. Payment of Principal of, and Interest on Securities........... 32
SECTION 4.03. SEC Reports................................................... 32
SECTION 4.04. Limitation on Restricted Payments............................. 33
SECTION 4.05. Limitation on Senior Subordinated Debt........................ 36
SECTION 4.06. Limitation on Debt............................................ 37
---------------------
1. This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture.
i
SECTION 4.07. Limitation on Subsidiary Debt and Preferred Stock............ 39
SECTION 4.08. Limitation on Restrictions on Distributions from
Subsidiaries................................................. 40
SECTION 4.09. Limitation on Sales of Assets and Subsidiary Stock........... 41
SECTION 4.10. Limitation on Transactions with Affiliates................... 45
SECTION 4.11. Change of Control............................................ 46
SECTION 4.12. Appointment of Agents........................................ 47
SECTION 4.13. Paying Agents to Hold Funds in Trust......................... 48
SECTION 4.14. Appointment of Trustee by Issuer............................. 48
SECTION 4.15. Availability of Information.................................. 48
SECTION 4.16. Books of Account; Inspection by the Trustee; Notices;
Statements as to Compliance.................................. 49
SECTION 4.17. Payment of Taxes and Other Claims............................ 50
SECTION 4.18. Corporate Existence and Rights............................... 50
SECTION 4.19. Maintenance of Properties.................................... 51
SECTION 4.20. Maintenance of Insurance..................................... 51
SECTION 4.21. Certificate and Opinion as to Conditions Precedent........... 52
SECTION 4.22. Statements Required in Certificate or Opinion................ 52
SECTION 4.23. Further Instruments and Acts................................. 53
ARTICLE FIVE Events of Default and Remedies............................... 53
SECTION 5.01. Events of Default............................................ 53
SECTION 5.02. Acceleration................................................. 55
SECTION 5.03. Other Remedies............................................... 56
SECTION 5.04. Waiver of Past Defaults...................................... 56
SECTION 5.05. Control by Majority.......................................... 56
SECTION 5.06. Limitation on Suits.......................................... 57
SECTION 5.07. Rights of Holders To Receive Payment......................... 57
SECTION 5.08. Collection Suit by Trustee................................... 57
SECTION 5.09. Trustee May File Proofs of Claim............................. 58
SECTION 5.10. Priorities .................................................. 58
SECTION 5.11. Undertaking for Costs........................................ 59
SECTION 5.12. Waiver of Stay or Extension Laws............................. 59
ARTICLE SIX Discharge of Indenture; Defeasance........................... 59
SECTION 6.01. Discharge of Liability on Securities; Defeasance............. 59
SECTION 6.02. Conditions to Defeasance..................................... 61
SECTION 6.03. Application of Trust Money................................... 62
SECTION 6.04. Repayment to Issuer.......................................... 62
SECTION 6.05. Indemnity for Government Obligations......................... 63
SECTION 6.06. Reinstatement................................................ 63
ARTICLE SEVEN Concerning the Trustee....................................... 63
SECTION 7.01. Duties of Trustee............................................ 63
SECTION 7.02. Rights of Trustee............................................ 64
ii
SECTION 7.03. Individual Rights of Trustee................................ 65
SECTION 7.04. Trustee's Disclaimer........................................ 65
SECTION 7.05. Notice of Defaults.......................................... 65
SECTION 7.06. Reports by Trustee to Holders............................... 66
SECTION 7.07. Compensation and Indemnity.................................. 66
SECTION 7.08. Replacement of Trustee...................................... 67
SECTION 7.09. Successor Trustee by Merger................................. 69
SECTION 7.10. Eligibility; Disqualification............................... 69
SECTION 7.11. Preferential Collection of Claims Against Corporation....... 69
ARTICLE EIGHT Amendments, Supplements and Waivers......................... 69
SECTION 8.01. Without Consent of Holders.................................. 69
SECTION 8.02. With Consent of Holders..................................... 70
SECTION 8.03. Compliance with Trust Indenture Act......................... 71
SECTION 8.04. Revocation and Effect of Consents........................... 71
SECTION 8.05. Notation on or Exchange of Securities....................... 72
SECTION 8.06. Trustee To Sign Amendments.................................. 72
SECTION 8.07. Waiver of Compliance by Holders............................. 72
ARTICLE NINE Successor Company........................................... 73
SECTION 9.01. When Issuer May Merge or Transfer Assets.................... 73
ARTICLE TEN Subordination............................................... 74
SECTION 10.01. Securities Subordinated to Senior Debt...................... 74
SECTION 10.02. No Payment on Securities in Certain Circumstances........... 74
SECTION 10.03. Payment Over of Proceeds Upon Dissolution, etc.............. 76
SECTION 10.04. Subrogation................................................. 78
SECTION 10.05. Obligations of Issuer Unconditional......................... 79
SECTION 10.06. Notice to Trustee........................................... 80
SECTION 10.07. Reliance on Judicial Order or Certificate of Liquidating
Agent....................................................... 81
SECTION 10.08. Trustee's Relation to Senior Debt........................... 81
SECTION 10.09. Subordination Rights Not Impaired by Acts or Omissions
of the Issuer or Holders of Senior Debt..................... 82
SECTION 10.10. Holders Authorize Trustee to Effectuate Subordination
of Securities............................................... 82
SECTION 10.11. Not to Prevent Events of Default............................ 82
SECTION 10.12. Trustee's Compensation Not Prejudiced....................... 83
SECTION 10.13. No Waiver of Subordinated Provisions........................ 83
SECTION 10.14. Payments May Be Paid Prior to Dissolution................... 83
SECTION 10.15. Consent of Holders of Senior Debt Under the Credit
Agreement and First Mortgage Bonds.......................... 83
ARTICLE ELEVEN Miscellaneous Provisions.................................... 84
SECTION 11.01. Trust Indenture Act Controls................................ 84
SECTION 11.02. Communication by Holders with Other Holders................. 84
iii
SECTION 11.03. Notices.................................................... 84
SECTION 11.04. When Treasury Securities Disregarded....................... 85
SECTION 11.05. Rules by Trustee, Paying Agent and Security Registrar...... 85
SECTION 11.06. Legal Holidays............................................. 85
SECTION 11.07. Successors................................................. 86
SECTION 11.08. Multiple Originals......................................... 86
SECTION 11.09. Separability Clause........................................ 86
SECTION 11.10. Governing Law.............................................. 86
SECTION 11.11. Table of Contents; Headings................................ 86
ACKNOWLEDGMENTS
EXHIBIT A - Form of Security
iv
INDENTURE, dated as of ________, 1996, by and between AMERICOLD
CORPORATION, an Oregon corporation (the "Issuer"), and UNITED STATES TRUST
COMPANY OF NEW YORK, a New York banking corporation, as Trustee hereunder (the
"Trustee").
R E C I T A L S
- - - - - - - -
WHEREAS, the Issuer has duly authorized the creation of an issue of __%
Senior Subordinated Notes, due 2008 (the "Securities") of substantially the
tenor and amount hereinafter set forth, and to provide therefor the Issuer has
duly authorized the execution and delivery of this Indenture. All things
necessary to make the Securities, when executed by the Issuer and authenticated
and delivered hereunder and duly issued by the Issuer, the valid obligations of
the Issuer, and to make this Indenture a valid agreement of the Issuer, in
accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the
premises and the purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders, as follows:
ARTICLE ONE
Definitions
-----------
SECTION 1.01. Definitions. The terms defined in this Section (except as
-----------
herein otherwise expressly provided or unless the context otherwise requires),
for all purposes of this Indenture and of any indenture supplemental hereto,
shall have the respective meanings specified in this Section.
Affiliate: The term "Affiliate" means with respect to any Person, (i)
--------- -
any other Person (or group of Persons acting in concert in respect of such
specified Person) which, directly or indirectly, is in control of, is controlled
by or is under common control with such specified Person or (ii) any other
--
Person who is a director, executive officer or general partner (a) of such
-
specified Person, (b) of any Subsidiary of such specified Person or (c) of any
- -
Person described in clause (i) above. For purposes of this definition, control
-
of a Person means the power, direct or
indirect, to direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise; and the terms "control" and
"controlled" have meanings correlative to the foregoing; provided, however, that
-------- -------
a Person shall not be deemed to be an Affiliate of another Person solely as a
result of a warehouse management contract entered into between such Persons in
the ordinary course of business.
Asset Disposition: The term "Asset Disposition" means any sale, lease,
-----------------
transfer or other disposition (or series of related sales, leases, transfers or
dispositions) of shares of Capital Stock of a Subsidiary (other than directors'
qualifying shares), property or other assets (each referred to for the purposes
of this definition as a "disposition") by the Issuer or any of its Subsidiaries,
other than (i) a disposition by a Subsidiary to the Issuer or by the Issuer or a
-
Subsidiary to a Wholly Owned Subsidiary, (ii) a disposition of property or
--
assets at fair market value in the ordinary course of business, (iii) a
---
disposition of obsolete or worn out assets in the ordinary course of business,
(iv) a disposition subject to and made in accordance with Section 3.01 of the
---
First Mortgage Bonds Indenture, (v) a disposition subject to Section 4.04, or
-
(vi) a sale-and-leaseback transaction pursuant to which either (x) the lease in
--- -
such sale-and-leaseback transaction is for a period, including renewal rights,
of not in excess of three years or (y) the Issuer could incur Attributable Debt
-
subject to Section 4.06.
Attributable Debt: The term "Attributable Debt" in respect of a sale-and-
-----------------
leaseback transaction means, as at the time of determination, the present value
(discounted at the interest rate borne by the Series B Bonds compounded
annually) of the total obligations of the lessee for rental payments during the
remaining term of the lease included in such arrangement (including any period
for which such lease has been extended).
Average Life: The term "Average Life" means, as of the date of
------------
determination, with respect to any Debt or Preferred Stock, the quotient
obtained by dividing (i) the sum of the products of the numbers of years from
-
the date of determination to the dates of each successive scheduled principal
payment of such Debt or redemption payment on such Preferred Stock multiplied by
the amount of such payment by (ii) the sum of all such payments.
--
2
Bankruptcy Law: The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx
--------------
Code, or any similar federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
Board of Directors: The term "Board of Directors" means the Board of
------------------
Directors of the Issuer or any committee thereof duly authorized to act on
behalf of such Board.
Board Resolution: The term "Board Resolution" means a copy of a resolution
----------------
certified by the Secretary or an Assistant Secretary of the Issuer to have been
duly adopted by the Board of Directors of the Issuer and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
Bond Trustee: The term "Bond Trustee" means the trustee under the First
------------
Mortgage Bonds Indenture.
Business Day: The term "Business Day" means each day which is not a Legal
------------
Holiday.
Capital Lease Obligation: The term "Capital Lease Obligation" of a Person
------------------------
means any obligation which is required to be classified and accounted for as a
capital lease on the face of a balance sheet of such Person prepared in
accordance with generally accepted accounting principles; the amount of such
obligation shall be the capitalized amount thereof, determined in accordance
with generally accepted accounting principles; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
Capital Stock: The term "Capital Stock" means any and all shares,
-------------
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) corporate stock, including
any Preferred Stock.
Cash: The term "Cash" means coin or currency of the United States
----
government.
Change of Control: The term "Change of Control" means the occurrence of
-----------------
any of the following events:
3
(i) prior to the earlier to occur of (A) the first public offering (which,
-
for purposes of this definition, shall mean the sale of shares of common stock
of the relevant entity pursuant to an effective registration statement under the
Securities Act that covers (together with any such prior effective registra-
tions) not less than 25% of the outstanding shares of common stock of such
entity on a fully diluted basis after giving effect to all such registrations)
of common stock of Parent or (B) the first public offering of common stock of
-
the Issuer, the Permitted Holders cease to be the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be
deemed to have beneficial ownership of all shares that any such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of a majority in the aggregate of
the total voting power of the Voting Stock of the Issuer, whether as a result of
issuance of securities of the Issuer, any merger, consolidation, liquidation or
dissolution of the Issuer, any direct or indirect transfer of securities by
Parent or otherwise (for purposes of this clause (i) and clause (ii) below, the
Permitted Holders shall be deemed to beneficially own any Voting Stock of a
corporation (the "specified corporation") held by any other corporation (the
"parent corporation") so long as the Permitted Holders beneficially own (as so
defined), directly or indirectly, in the aggregate a majority of the voting
power of the Voting Stock of the parent corporation);
(ii) any "Person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than one or more Permitted Holders, is or becomes the
beneficial owner (as defined in clause (i) above), directly or indirectly, of
more than 30% of the total voting power of the Voting Stock of the Issuer;
provided, however, that the Permitted Holders beneficially own (as so defined),
-------- -------
directly or indirectly, in the aggregate a lesser percentage of the total
voting power of the Voting Stock of the Issuer than such other Person and do not
have the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the Issuer (for
the purposes of this clause (ii), such other Person shall be deemed to
beneficially own any Voting Stock of a specified corporation held by a parent
corporation, if such other Person "beneficially owns"
4
(as so defined), directly or indirectly, more than 30% of the voting power
of the Voting Stock of such parent corporation and the Permitted Holders
"beneficially own" (as so defined), directly or indirectly, in the
aggregate a lesser percentage of the voting power of the Voting Stock of
such parent corporation and do not have the right or ability by voting
power, contract or otherwise to elect or designate for election a majority
of the Board of Directors of such parent corporation);
(iii) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors of the
Issuer (together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the
Issuer was approved by a vote of 66 2/3% of the directors of the Issuer
then still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of the Issuer then in office; or
(iv) the Issuer consolidates with or merges with or into any other
Person or conveys, transfers or leases all or substantially all of its
assets to any Person or any Person consolidates with or merges into the
Issuer, in either event pursuant to a transaction in which either (A) the
-
outstanding Voting Stock of the Issuer is changed into or exchanged for
Cash, securities or other property (excluding, however, any such
transaction where the outstanding Voting Stock of the Issuer is changed
into or exchanged for Voting Stock of the surviving or transferee
corporation which is neither Redeemable Stock nor Exchangeable Stock) or
(B) the holders of the Voting Stock of the Issuer immediately prior to such
-
transaction, together with Xxxxx & Company and Affiliates of Xxxxx &
Company which are either controlled by or under common control with Xxxxx &
Company, own, directly or indirectly, in the aggregate, less than 50.01% of
the Voting Stock of the surviving Person immediately after such
transaction.
Consolidated EBITDA Coverage Ratio: The term "Consolidated EBITDA Coverage
----------------------------------
Ratio" as determined on any date means the ratio of (i) the aggregate amount of
-
Consolidated Net Income plus (to the extent deducted in calculating Consolidated
Net Income) Consolidated Interest Expense, income taxes, depreciation expense,
amortization expense,
5
non-cash write-offs of deferred financing costs, non-cash deductions for
contributions to the ESOP and any loss realized upon the sale or other
disposition of any property, plant or equipment of the Issuer or a Subsidiary,
including pursuant to any sale or leaseback arrangement (but without giving any
effect to any extraordinary gain or loss) for the Reference Period to (ii) the
--
aggregate amount of Consolidated Interest Expense for the Reference Period.
Consolidated Interest Expense: The term "Consolidated Interest Expense"
-----------------------------
means, for any period, the total interest expense of the Issuer and its
consolidated Subsidiaries, including (i) interest expense attributable to
-
capital leases, (ii) amortization of debt discount and debt issuance cost, (iii)
-- ---
capitalized interest, (iv) noncash interest payments, (v) commissions, discounts
-- -
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, (vi) net costs under Interest Rate Protection Agreements
--
(including amortization of fees), (vii) Preferred Stock dividends in respect of
---
all Preferred Stock held by Persons other than the Issuer or a Wholly Owned
Subsidiary, (viii) interest incurred in connection with investments in
----
discontinued operations and (ix) interest actually paid by the Issuer or any of
--
its consolidated Subsidiaries under any guarantee of Debt or any other
obligation of any other Person.
Consolidated Net Income: The term "Consolidated Net Income" means, for any
-----------------------
period, the net income of the Issuer and its consolidated Subsidiaries
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided, however, that there shall not be included in
-------- -------
such Consolidated Net Income:
(i) any net income of any Person if such Person is not a Subsidiary,
except that (A) the Issuer's equity in the net income of any such Person
-
for such period shall be included in such Consolidated Net Income up to the
aggregate amount of Cash actually distributed by such Person during such
period to the Issuer or a Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution to a Subsidiary,
to the limitations contained in clause (iii) below) and (B) the Issuer's
-
equity in a net loss of any such Person for such period shall be included
in determining such Consolidated Net Income;
6
(ii) any net income of any Person acquired by the Issuer or a
Subsidiary in a pooling of interests transaction for any period prior to
the date of such acquisition;
(iii) any net income of any Subsidiary if such Subsidiary is subject
to restrictions, directly or indirectly, on the payment of dividends or the
making of distributions by such Subsidiary, directly or indirectly, to the
Issuer, except that (A) the Issuer's equity in the net income of any such
-
Subsidiary for such period shall be included in such Consolidated Net
Income up to the aggregate amount of Cash actually distributed by such
Subsidiary during such period to the Issuer or another Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or other
distribution to another Subsidiary, to the limitation contained in this
clause) and (B) the Issuer's equity in a net loss of any such Subsidiary
-
for such period shall be included in determining such Xxxxxxx dated Net
Income;
(iv) any gain (but not loss) realized upon the sale or other
disposition of any property, plant or equipment of the Issuer or its
consolidated Subsidiar ies (including pursuant to any sale and leaseback
arrangement) which is not sold or otherwise disposed of in the ordinary
course of business and any gain (but not loss) realized upon the sale or
other disposition of any Capital Stock of any Person; or
(v) the cumulative non-cash effect of a change in accounting
principles, including (A) the cumulative or one-time non-cash charges
-
associated with the implementation of SFAS 106 by the Issuer with respect
to services rendered by employees in periods prior to its implementation,
but excluding any effects of such implementation with respect to services
rendered in periods following such implementation and (B) any cumulative or
-
one-time non-cash charges associated with the implementation of SFAS 109.
Consolidated Net Tangible Assets: The term "Consolidated Net Tangible
--------------------------------
Assets" means the total assets shown on the balance sheet of the Issuer and its
consolidated Subsidiaries, determined on a consolidated basis using generally
accepted accounting principles, as of any date selected by the Issuer not more
than 90 days prior to the taking of any action for the purpose of which the
determina-
7
tion is being made, less (i) all current liabilities and minority interests and
-
(ii) goodwill and other intangibles.
--
Consolidated Net Worth: The term "Consolidated Net Worth" of any Person
----------------------
means the total amounts shown on the balance sheet of such Person and its
consolidated Subsidiaries, determined on a consolidated basis in accordance
with generally accepted accounting principles, as of the end of the most recent
fiscal quarter of such Person ending at least 45 days 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 such Person 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, (B) any
- -
amounts attributable to Redeemable Stock and (C) any amounts attributable to
-
Exchangeable Stock, and excluding amounts attributable to cumulative or one-time
non-cash charges associated with the implementation of SFAS 106 and 109.
Corporate Trust Office: The term "Corporate Trust Office" means the office
----------------------
of the Trustee at which at any particular time its corporate trust business
shall be principally administered.
Credit Agreement: The term "Credit Agreement" means the Second Amended and
----------------
Restated Credit Agreement, dated June 19, 1995, between the Issuer and United
States National Bank of Oregon.
Debt: The term "Debt" of any Person means, without duplication,
----
(i) all obligations of such Person in respect of (A) indebtedness for
-
money borrowed and (B) indebtedness evidenced by the Securities, or the
-
First Mortgage Bonds, notes, debentures, bonds or other similar instruments
for the payment of which such Person is responsible or liable including,
without limitation (x) all Obligations (as defined in the First Mortgage
-
Bonds Indenture) in respect of money owed under the First Mortgage Bonds
Indenture, (y) interest accruing subsequent to an event of bankruptcy or
-
reorganization relating to the Issuer, whether or not such interest is an
allowed claim enforceable against the debtor under the United States
Bankruptcy Code, and (z) the fees and expenses of the Institutional
-
Investor payable under the Investment Agreement;
8
(ii) all Capital Lease Obligations of such Person;
(iii) all obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such Person and
all obligations of such Person under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of business);
(iv) all obligations of such Person for the reimbursement of any obligor on
any letter of credit, banker's acceptance or similar credit transaction (other
than obligations with respect to letters of credit securing obligations (other
than obligations described in clauses (i) through (iii) above) entered into in
the ordinary course of business of such Person to the extent such letters of
credit are not drawn upon or, if and to the extent drawn upon, such drawing is
reimbursed no later than the third business day following receipt by such Person
of a demand for reimbursement following payment on the letter of credit);
(v) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Redeemable Stock or
Exchangeable Stock;
(vi) all obligations of the type referred to in clauses (i) through (v)
above of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable as obligor,
guarantor or otherwise; provided, however, that to the extent such Person is
-------- -------
responsible or liable only for the obligation of another Person to pay interest
on Debt, then a designated percentage of such interest or the amount of the
underlying Debt, as the case may be, shall be deemed Debt of the referent Person
and the amount of such deemed Debt of the referent Person shall be equal to the
lesser of (A) the aggregate principal amount of the underlying Debt and (B) the
- -
aggregate amount of interest due or payable over the term of such Debt (or the
term of the Securities, if shorter) determined based upon the rate of interest
in effect as of the date of such determination, together with the maximum
prepayment premium or penalty which could become due or payable with respect to
such Debt if such Debt was prepaid prior to the maturity of the Securities;
9
(vii) all obligations of the type referred to in clauses (i) through
(vi) above of other Persons secured by any Lien on any property or asset of
such Person (whether or not such obligation is assumed by such Person), the
amount of such obligations being deemed to be the lesser of the value of
such property or assets and the amount of the obligation so secured; and
(viii) all obligations of such Person consisting of modifications,
renewals, extensions, replacements and refundings of any obligations
described in any of clauses (i) through (vii) above.
Default: The term "Default" means any condition or event which constitutes
-------
or which, after notice or lapse of time or both, would constitute an Event of
Default here under.
Default Rate: The term "Default Rate" has the respective meanings
------------
specified in the forms of Securities included in this Indenture.
ESOP: The term "ESOP" means the Issuer's Employee Stock Ownership Plan.
----
ESOP Preferred Stock: The term "ESOP Preferred Stock" means shares of
--------------------
Preferred Stock of the Issuer held by the ESOP.
Event of Default: The term "Event of Default" means any event specified as
----------------
such in Section 5.01, continued for the period of time, if any, and after the
giving of notice, if any, therein designated.
Exchange Act: The term "Exchange Act" means the Securities Exchange Act of
------------
1934, as amended.
Exchangeable Stock: The term "Exchangeable Stock" means any Capital Stock
------------------
which is exchangeable or convertible into another security (other than Capital
Stock of the Issuer which is neither Exchangeable Stock nor Redeemable Stock).
First Mortgage Bonds: The term "First Mortgage Bonds" means the Issuer's
--------------------
First Mortgage Bonds issued under the First Mortgage Bonds Indenture.
First Mortgage Bonds Indenture: The term "First Mortgage Bonds Indenture"
------------------------------
means the Amended and Restated
10
Indenture, dated as of March 9, 1993, as amended, between the Issuer and Shawmut
Bank Connecticut, National Association.
Holder; Securityholder: The term "Holder" of a Security and the term
----------------------
"Securityholder" means the Person in whose name at the time such Security is
registered on the Security Register kept for that purpose in accordance with the
terms hereof.
Indenture: The term "Indenture" means this Indenture as originally
---------
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
Independent Accountants: The term "Independent Accountants" means a firm
-----------------------
of independent public accountants meeting the requirements therefor under the
Securities Act and rules and regulations of the SEC, which shall be KPMG Peat
Marwick or another firm of independent certified public accountants of
nationally recognized standing selected by the Issuer and reasonably
satisfactory to the Trustee.
Interest Payment: The term "Interest Payment" has the respective meanings
----------------
specified in the forms of Securities included in this Indenture.
Interest Period: The term "Interest Period" has the respective meanings
---------------
specified in the forms of Securities included in this Indenture.
Interest Rate Protection Agreement: The term "Interest Rate Protection
----------------------------------
Agreement" means any interest rate swap agreement, interest rate cap agreement
or other financial agreement or arrangement designed to protect the Issuer or
any Subsidiary against fluctuations in interest rates.
Institutional Investor: The term "Institutional Investor" means
----------------------
Metropolitan Life Insurance Company.
Investment: The term "Investment" in any Person means any loan or advance
----------
to, any acquisition of Capital Stock, equity interest, obligation or other
security of, or capital contribution or other investment in, such Person.
Investment Agreement: The term "Investment Agreement" means the Second
--------------------
Amended and Restated Investment Agreement, dated as of May 9, 1995, between the
Issuer and the Institutional Investor.
11
issue: The term "issue" means issue, assume, guarantee, incur or otherwise
-----
become liable for; provided, however, that any Debt or Capital Stock of a Person
-------- -------
existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be issued by such
Subsidiary at the time it becomes a Subsidiary.
Issue Date: The term "Issue Date" means, ________, 1996.
----------
Issuer: The term "Issuer" means the party named as such in this Indenture
------
until a successor replaces it, and thereafter, means the successor, and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the Securities.
Issuer Order: The term "Issuer Order" means a written order signed in the
------------
name of the Issuer by the Chairman of the Board, the President or any Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Issuer, and delivered to the Trustee.
Legal Holiday: The term "Legal Holiday" has the meaning set forth in
-------------
Section 11.06.
Lien: The term "Lien" means any mortgage, pledge, security interest,
----
conditional sale or other title retention agreement, constructive trust or other
similar lien.
Maturity Date: The term "Maturity Date" means, May 1, 2008.
-------------
Net Available Cash: The term "Net Available Cash" from an Asset
------------------
Disposition means Cash payments received (including any Cash payments received
by way of deferred payment of principal pursuant to a note or installment
receivable or otherwise, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of Debt
or other obligations relating to such properties or assets or received in any
other non-Cash form) therefrom, in each case net of all legal, title and
recording tax expenses, commissions and other fees and expenses incurred, and
all federal, state, provincial, foreign and local taxes required to be accrued
as a liability under generally accepted accounting principles, as a consequence
of such Asset Disposition, and in each case net of all payments made on any Debt
which is
12
secured by any assets subject to such Asset Disposition, in accordance with the
terms of any Lien upon or other security agreement of any kind with respect to
such assets, or which must by its terms, or in order to obtain a necessary
consent to such Asset Disposition, or by applicable law be repaid out of the
proceeds from such Asset Disposition, and net of all distributions and other
payments required to be made and actually made to minority interest holders in
Subsidiaries or joint ventures as a result of such Asset Disposition.
Net Cash Proceeds: The term "Net Cash Proceeds", with respect to any
-----------------
issuance or sale of Capital Stock, means the Cash proceeds of such issuance or
sale net of attorneys' fees, accountants' fees, underwriters' or placement
agents' fees, discounts or commissions and brokerage, consultant and other fees
actually incurred in connection with such issuance or sale and net of taxes
paid or payable as a result thereof.
Non-Convertible Capital Stock: The term "Non-Convertible Capital Stock"
-----------------------------
means, with respect to any corporation, any non-convertible Capital Stock of
such corporation and any Capital Stock of such corporation convertible solely
into non-convertible common stock of such corporation; provided, however, that
-------- -------
Non-Convertible Capital Stock shall not include any Redeemable Stock or
Exchangeable Stock.
Non-Recourse Debt: The term "Non-Recourse Debt" means Debt or that portion
-----------------
of Debt of a Subsidiary as to which (i) neither the Issuer nor any Subsidiary
-
(other than a Non-Recourse Subsidiary) (A) provides credit support, (B) is
- -
directly or indirectly liable or (C) constitutes the lender and (ii) no default
- --
with respect to such Debt (including any right which the holders thereof may
have to take enforcement action against such Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Debt of the Issuer or any
other Subsidiary to declare a default on such other Debt or cause the payment
thereof to be accelerated or payable prior to its Stated Maturity.
Non-Recourse Subsidiary: The term "Non-Recourse Subsidiary" means a
-----------------------
Subsidiary (i) which has been organized or acquired after the date of this
-
Indenture, (ii) which has not acquired any assets (other than (x) cash and (y)
-- - -
any receivables purchased by such Subsidiary for fair market value) directly or
indirectly from the Issuer or any Subsidiary, (iii) which has no Debt other than
---
Non-Recourse Debt and (iv) which has been designated as a Non-Recourse
--
13
Subsidiary by the Board of Directors of the Issuer, as provided below. The
Board of Directors of the Issuer may designate any Subsidiary organized or
acquired after the date of this Indenture as a Non-Recourse Subsidiary,
provided, however, that, notwithstanding the foregoing, no Subsidiary as of the
-------- -------
date of this Indenture shall be reclassified as a Non-Recourse Subsidiary or
become a Subsidiary of a Non-Recourse Subsidiary. The Trustee shall be given
prompt notice by the Issuer of each resolution adopted by the Board of Directors
under this provision, together with a certified copy of each such resolution
adopted and an Officers' Certificate certifying that such designation complies
with the foregoing conditions.
Obligations: The term "Obligations" means (a) the due and punctual payment
----------- -
of principal of, and interest on the Securities, (b) the due and punctual
-
payment by the Issuer of all other sums due or to become due under the
Securities or this Indenture, and (c) the performance of all covenants,
-
agreements, obligations and liabilities of the Issuer under or pursuant to the
Securities and this Indenture.
Offer: The term "Offer" has the meaning set forth in Section 4.09(b).
-----
Offer Amount: The term "Offer Amount" has the meaning set forth in Section
------------
4.09(c)(2).
Offer Period: The term "Offer Period" has the meaning set forth in Section
------------
4.09(c)(2).
Officer: The term "Officer" means the Chairman of the Board, the
-------
President, any Vice President, the Treasurer or the Secretary of the Issuer.
Officers' Certificate: The term "Officers' Certificate" means a
---------------------
certificate signed by two Officers.
Opinion of Counsel: The term "Opinion of Counsel" means a written opinion
------------------
from legal counsel who is acceptable to the Trustee. The counsel may be an
employee of or counsel to the Issuer or the Trustee.
Outstanding: The term "Outstanding", when used with reference to
-----------
Securities means, subject to the provisions of Section 11.04, as of any
particular time, all Securities authenticated by the Trustee and delivered under
this Indenture, except:
14
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities for the payment or redemption in whole of which Cash in the
necessary amount (including interest, if any) shall have been deposited in trust
with the Trustee or any paying agents (other than in the case of defeasance
pursuant to Article Six), provided that if such Securities are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been given
as in Article Three provided, or provision satisfactory to the Trustee shall
have been made for giving such notice; and
(c) Securities in lieu of or in substitution or exchange for which other
Securities shall have been authenticated and delivered, or which have been paid,
pursuant to the terms of Section 2.07, unless proof satisfactory to the Issuer
and the Trustee is presented that any such Securities are held by Persons in
whose hands any of such Securities is a valid, binding and legal obligation of
the Issuer.
Parent: The term "Parent" means any Person of which the Issuer is a
------
Subsidiary at the relevant time.
Payment Blockage Period: The term "Payment Blockage Period" has the
-----------------------
meaning set forth in Section 10.02(b).
Payment Date: The term "Payment Date" has the respective meanings
------------
specified in the forms of Securities included in this Indenture.
Permitted Holders: The term "Permitted Holders" means Xxxxx & Company and
-----------------
its Affiliates, the Co-Investors and the Management Shareholders. The terms Co-
Investors and Management Shareholders have the respective meanings specified in
the Stockholders' Agreement, as in effect on the date hereof.
Permitted Investments: The term "Permitted Investments" means (i) U.S.
--------------------- -
Government Obligations maturing within 90 days of the date of acquisition
thereof, (ii) investments in certificates of deposit maturing within 90 days of
--
the date of acquisition thereof issued by a bank or trust company which is
organized under the laws of the United States or any state thereof having
capital, surplus and undivided profits aggregating in excess of $500,000,000 or
15
issued in an amount not to exceed $1 million at any time by United States
National Bank of Oregon (or, if United States National Bank of Oregon ceases to
be the bank with which the Issuer has its principal banking relationship, the
bank with which the Issuer then has its principal banking relationship), (iii)
---
investments in commercial paper given the highest rating (i.e., A-1/P-1 or
- -
better) by two established national credit rating agencies and maturing not more
than 90 days from the date of acquisition thereof and (iv) solely with respect
--
to Investments by the Trustee, in the absence of any direction by the Issuer or
during the continuance of a Default or an Event of Default, shares in any money
market fund registered under the Investment Company Act of 1940, as amended, the
portfolio of which is limited to U.S. Government Obligations and U.S. agency
obligations.
Person: The term "Person" means any individual, corporation, partnership,
------
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Preferred Stock: The term "Preferred Stock", as applied to the Capital
---------------
Stock of any corporation, means Capital Stock of any class or classes (however
designated) which is preferred as to the payment of dividends, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such corporation, over shares of Capital Stock of any other class
of such corporation.
principal: The term "principal" of a Security means the principal of the
---------
Security which is due or overdue or is to become due at the relevant time.
Public Equity Offering: The term "Public Equity Offering" means an
----------------------
underwritten primary public offering of common stock of the Issuer pursuant to
an effective registration statement under the Securities Act.
Purchase Money Debt: The term "Purchase Money Debt" means Debt (i)
-------------------
consisting of the deferred purchase price of property, conditional sale
obligations, obligations under any title retention agreement and other purchase
money obligations, in each case where the maturity of such Debt does not exceed
the anticipated useful life of the asset being financed, and (ii) incurred to
finance the acquisition or construction by any Subsidiary of such asset,
including additions and improvements; provided, however, that (i) any Lien
-------- -------
arising in connection with any such Debt shall be limited to the specified asset
being financed or, in the
16
case of real property or fixtures, including additions and improvements, the
real property on which such asset is attached, and (ii) the principal amount of
such Debt does not exceed the lesser of 80% of the cost or 80% of the fair
market value of the asset being financed (such fair market value as determined
in good faith by the Board of Directors, as evidenced by a resolution).
Purchase Date: The term "Purchase Date" has the meaning set forth in
-------------
Section 4.09(c)(1).
Record Date: The term "Record Date" has the respective meanings
-----------
provided in the forms of Securities included in this Indenture.
Redeemable Stock: The term "Redeemable Stock" means any Capital Stock
----------------
that by its terms or otherwise is required to be redeemed on or prior to the
first anniversary of the Stated Maturity of the Securities or is redeemable at
the option of the holder thereof at any time on or prior to the first
anniversary of the Stated Maturity of the Securities.
Reference Period: The term "Reference Period", with respect to any
----------------
computation of the Consolidated EBITDA Coverage Ratio, means the most recent
four consecutive fiscal quarters ending at least 45 days prior to the date of
determination of the Consolidated EBITDA Coverage Ratio.
Restricted Payment: The term "Restricted Payment" has the meaning set
------------------
forth in Section 4.04.
SEC: The term "SEC" means the Securities and Exchange Commission.
---
Securities Act: The term "Securities Act" means the Securities Act of
--------------
1933, as amended.
Security: The term "Security" means any Security authenticated by the
--------
Trustee and delivered under this Indenture.
Security Register: The term "Security Register" has the meaning set
-----------------
forth in Section 2.06.
Security Registrar; Security Co-Registrar: The terms "Security
-----------------------------------------
Registrar" and "Security Co-Registrar" have the meanings set forth in Section
2.06.
17
Senior Debt: The term "Senior Debt" means Debt unless, in the
-----------
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such obligations are pari passu or junior or
---- -----
subordinate in right of payment to the Securities: provided, however, that
-------- -------
Senior Debt shall not be deemed to include (1) any obligation of the Issuer to
-
any Subsidiary, (2) any liability for federal, state, local or other taxes owned
-
or owing by the Issuer other than reimbursement obligations of the Issuer in
respect of such taxes that are paid on behalf of the Issuer pursuant to the
provisions in the Mortgages (as defined in the First Mortgage Bonds Indenture)
that permit the mortgage to make such payment, (3) any accounts payable or other
-
liability to trade creditors arising in the ordinary course of business
(including guarantees thereof or instruments evidencing such liabilities), (4)
-
any indebtedness, guarantee or obligation of the Issuer which is subordinate or
junior in any respect to any other indebtedness, guarantee or obligation of the
Issuer (including, without limitation, the Securities), (5) the portion of any
-
Debt issued in violation of Section 4.05 or 4.06 of this Indenture or (6) any
-
obligations of the Issuer or any Subsidiary with respect to the redemption,
repayment or other repurchase of any Redeemable Stock or Exchangeable Stock.
Senior Subordinated Debt: The term "Senior Subordinated Debt" means
------------------------
the Securities and any other Debt that specifically provides that such Debt is
to rank pari passu with the Securities in right of payment and is not
---- -----
subordinated by its terms in right of payment to any Debt or other obligation of
the Issuer which is not Senior Debt of the Issuer.
Series B Bonds: The term "Series B Bonds" means the 11 1/2% First
--------------
Mortgage Bonds, Series B, Due 2005 of the Issuer issued pursuant to the First
Mortgage Bonds Indenture.
Stated Maturity: The term "Stated Maturity" means, with respect to any
---------------
security, the date specified in such security as the fixed date on which the
final payment of principal of such security is due and payable, including
pursuant to any mandatory redemption provision.
Stockholders' Agreement: The term Stockholders' Agreement means the
-----------------------
Stockholders' Agreement, dated as of December 24, 1986, as amended or restated,
among the Issuer and the parties listed on the signature pages thereof.
18
Subordinated Obligation: The term "Subordinated Obligation" means any
-----------------------
Debt of the Issuer (whether outstanding on the date hereof or hereafter
incurred) which is subordinate or junior in right of payment to the Securities.
Subsidiary: The term "Subsidiary" means any corporation, association,
----------
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) the Issuer, (ii) the Issuer
- --
and one or more Subsidiaries or (iii) one or more Subsidiaries.
---
Tangible Property: The term "Tangible Property" means all land,
-----------------
buildings, machinery and equipment and leasehold interests and improvements
which would be reflected on a consolidated balance sheet of the Issuer and its
consolidated Subsidiaries, prepared in accordance with generally accepted
accounting principles, excluding (i) all such tangible property located outside
-
the United States, including the Commonwealth of Puerto Rico and each territory
and possession of the United States and all areas subject to its jurisdiction,
(ii) all rights, contracts and other intangible assets of any nature whatsoever
--
and (iii) all inventories and other current assets.
---
TIA: The term "TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
---
(S)(S) 77aaa--77bbbb) as in effect on the date of this Indenture; provided,
--------
however, that in the event that the Trust Indenture Act of 1939 is amended after
-------
such date, "TIA" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
Trustee: The term "Trustee" means the corporation or trust company or
-------
national banking association named as Trustee in this Indenture until any
successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean such successor Trustee.
Trust Officer: The term "Trust Officer" means any vice president,
-------------
trust officer or corporate trust officer of the Trustee, in each case employed
by the Corporate Trust Xxxxxxxxxxxxxx xxxxxxxxxx xx xxx Xxxxxxx.
00
Xxxxxx Xxxxxx: The term "United States" means the United States of
-------------
America, including the states and the District of Columbia.
United States Person: The term "United States Person" means a Person
--------------------
who, for United States federal income tax purposes, is (a) a citizen or resident
-
of the United States, (b) an estate or trust the income of which is subject to
-
United States federal income taxation regardless of its source, or (c) a
-
corporation, partnership or other entity created or organized in or under the
laws of the United States or any state or the District of Columbia.
U.S. Government Obligations: The term "U.S. Government Obligations"
---------------------------
means direct obligation (or certificates evidencing an ownership interest in
such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of
the United States of America is pledged and which are not callable at the
issuer's option.
Voting Stock: The term "Voting Stock" of a corporation means all
------------
classes of Capital Stock of such corporation then outstanding and normally
entitled to vote in the election of directors.
Wholly Owned Subsidiary: The term "Wholly Owned Subsidiary" means a
-----------------------
Subsidiary all the Capital Stock of which (other than directors' qualifying
shares) is owned by the Issuer or another Wholly Owned Subsidiary.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the 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:
"Commission" means the SEC.
----------
"indenture securities" means the Securities.
--------------------
"indenture security holder" means a Securityholder.
-------------------------
"indenture to be qualified" means this Indenture.
-------------------------
"indenture trustee" or "institutional trustee" means the Trustee.
----------------- ---------------------
20
"obligor" on the indenture securities means the Issuer.
-------
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 have the
meanings assigned to them by such definitions.
SECTION 1.03. Rules of Construction. Unless the context otherwise
---------------------
requires:
(1) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles as in
effect from time to time;
(2) "or" is not exclusive;
(3) "including" means including, without limitation;
(4) words in the singular include the plural and words in the plural
include the singular;
(5) the principal amount of any non-interest bearing or other discount
security at any time shall be the principal amount thereof that would be
shown on a balance sheet of the Issuer dated such date prepared in
accordance with generally accepted accounting principles and accretion of
principal on such security shall be deemed to be the issuance of Debt; and
(6) the principal amount of any Redeemable Stock shall be the greater
of (i) the maximum liquidation value of such Redeemable Stock or (ii) the
- --
maximum mandatory redemption or mandatory repurchase price with respect to
such Redeemable Stock, whichever is greater.
ARTICLE TWO
Issuance, Description, Execution
--------------------------------
and Exchange of Securities
--------------------------
SECTION 2.01. Designation, Amount and Issue of Securities. The
-------------------------------------------
Securities shall be designated as the Issuer's "__ % Senior Subordinated Notes,
Due 2008." The Securities will be limited to $120,000,000 in aggregate
principal amount, except as provided in Section 2.07.
21
SECTION 2.02. Authentication and Delivery of Securities. Upon the execution
-----------------------------------------
and delivery of this Indenture, and from time to time thereafter, the Securities
shall be executed by the Issuer and such Securities may thereupon be delivered
to the Trustee for authentication, and the Trustee shall thereupon authenticate
and deliver said Securities upon an Issuer Order.
SECTION 2.03. Form of Securities and Trustee's Certificate of
-----------------------------------------------
Authentication Generally. The Securities and the Trustee's certificate of
------------------------
authentication to be borne by the Securities shall be in substantially the form
annexed hereto as Exhibit A, with such appropriate insertions, omissions,
substitutions and other warranties as are required or permitted under this
Indenture, in temporary or definitive form, and may have such letters, numbers
or other marks of identification or designation and such legends or endorsements
as the Issuer may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any securities exchange on which the Securities may be listed, or to conform
to usage. The terms and provisions contained in the form of the Securities
annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a
part of this Indenture. To the extent applicable, the Issuer and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
SECTION 2.04. Denomination and Date of Securities; Payment of Principal and
-------------------------------------------------------------
Interest. The Securities shall be issuable in registered form without coupons.
--------
The Securities shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plan as the officers of the Issuer executing
the same may determine with the approval of the Trustee.
The Securities shall be issuable in denominations of $50,000 and such
greater denominations as are whole multiples of $100,000. Each Security shall be
dated the date of its authentication and shall bear interest on the unpaid
principal amount thereof from and after the most recent Payment Date to which
interest has been paid or, if no interest has been paid, from and after the
Issue Date. Each Security authenticated between the Record Date for any Payment
Date and such Payment Date shall be dated the date of its authentication but
shall bear interest from such Payment Date, unless the Issuer shall default in
the payment
22
of interest due on such Payment Date, in which case any such Security shall bear
interest from the Payment Date next preceding the date of such Security to which
interest has been paid or, if no interest has been paid on the Securities, from
the Issue Date.
The Person in whose name any Security is registered at 5:00 p.m., New York
City time on any Record Date with respect to any Payment Date for such Security
shall be entitled to receive the Interest Payment payable on such Payment Date
notwithstanding any transfer or exchange of such Security subsequent to the
Record Date and prior to such Payment Date, except that, if and to the extent
the Issuer shall default in the payment of the Interest Payment due on such
Payment Date or shall not have duly provided for the payment thereof, such
defaulted payment shall be paid to the Persons in whose names Securities then
Outstanding are registered on a subsequent date of record established by notice
given by mail by or on behalf of the Issuer to the Holders of Securities not
less than 10 days preceding such subsequent date of record and payment of such
defaulted Interest Payment shall be made not less than five days after such date
of record.
The principal of the Securities at maturity or upon redemption in whole or
in part shall be payable, together with accrued interest, upon surrender of the
Securities at the offices of the paying agent of the Issuer designated for that
purpose, as provided in Section 4.12. Interest Payments on Securities will be
made in U.S. dollars, at the office of the Trustee, but, at the option of the
Issuer, such payments may be made by check drawn on a bank in New York, New York
mailed to the address of the Holder as such address shall appear on the
Security Register.
Interest on the Securities will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
SECTION 2.05. Execution of Securities. Each Security shall be signed in the
-----------------------
name and on behalf of the Issuer manually or by facsimile by its President or
any Vice President under its corporate seal (which may be printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise) attested by the manual
or facsimile signature of its Secretary or an Assistant Secretary, prior to the
authentication of the Security, and the delivery of such Security by the Trustee
upon an Issuer Order, after the authentication thereof hereunder, shall
constitute due delivery of such Security on behalf of the Issuer. In case
23
any officer of the Issuer who shall have signed, or whose facsimile signature
appears on any of the Securities shall cease to be such officer before the
Securities shall have been authenticated and delivered by the Trustee or
disposed of, such Security nevertheless may be authenticated and delivered or
disposed of as though the Person who signed such Security had not ceased to be
such officer. Any Security may be signed on behalf of the Issuer by such officer
as, at the actual date of the execution of such Security shall be the proper
officer of the Issuer, although at the date of the execution of this Indenture
any such Person was not such an officer.
Only such Securities as shall bear thereon a certificate or authentication
substantially in the form herein recited, executed by the Trustee by manual
signature of one of its authorized officers, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee upon any Security executed by the Issuer shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.
SECTION 2.06. Exchange and Registration of Transfer of Securities. The
---------------------------------------------------
Issuer shall keep, at the office or agency to be maintained by the Trustee for
such purpose (herein referred to as the "Security Registrar" or the "Security
Co-Registrar") in the Borough of Manhattan, The City of New York, as provided in
Section 4.12, a register (herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Issuer shall provide for the registration of the Securities and the
registration of transfers thereof as in this Article Two provided. Upon written
notice to the Trustee and any acting Security Registrar, the Issuer may appoint
a successor Security Registrar for such purposes. The Issuer may appoint one or
more Security Co-Registrars for such purposes. At all reasonable times, any
Security Register shall be open for inspection by the Trustee. Upon due
presentment for registration of transfer of any Security at the office or agency
of any Security Registrar or any Security Co-Registrar, the Issuer shall
execute, and the Trustee shall authenticate and deliver, in the name of the
transferee or transferees, one or more new Securities of like tenor of any
authorized denominations for an aggregate principal amount equal to the then
current principal balance of the Security presented for registration of
transfer.
24
All Securities presented for registration of transfer or for exchange,
redemption or payment, as the case may be, shall (if so required by the Issuer
or the Trustee or the Security Registrar or any Security Co-Registrar) be duly
endorsed by, or be accompanied by a written instrument or instruments of
assignment and transfer in form satisfactory to the Person imposing such
requirement duly executed by, the Holder or his attorney duly authorized in
writing.
No service charge shall be made for any exchange or registration of
transfer of Securities (except the costs of mailing), but the Issuer may require
payment of a sum sufficient to cover any tax, assessment or other governmental
charge that may be imposed in connection therewith.
The Issuer shall not be required to exchange or register the transfer of
any Securities called for redemption or any Securities for a period of fifteen
days before a selection of Securities to be redeemed.
Upon delivery by any Security Registrar or Security Co-Registrar of a
Security in exchange for a Security surrendered to it in accordance with the
provisions of this Indenture, the Security so delivered shall, for all purposes
of this Indenture, be deemed to be fully registered in the Security Register;
provided, however, that in making any determination as to the identity of
-------- -------
Persons who are Ho1ders of Securities, the Trustee shall, subject to the
provisions of Section 7.01, be fully protected in relying on the Security
Register.
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In case any
-----------------------------------------------
Security shall become mutilated, destroyed, lost or stolen, the Issuer shall
execute, and the Trustee shall authenticate and deliver, a new Security or
Securities of 1ike series and tenor, bearing a number not contemporaneously
outstanding in an aggregate principal amount equal to the current principal
balance of, and in substitution for, the Security so mutilated, destroyed, lost
or stolen. In every such case, the applicant for a substitute Security shall, at
the expense of the applicant, furnish to the Issuer, the Trustee, the Security
Registrar and any Security Co-Registrar such security or indemnity as may be
required by them to save each of them harmless. Also, in every case of
destruction, loss or theft, the applicant shall furnish to the Issuer, the
Trustee, the Security Registrar and any Security Co-Registrar evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof. In
25
every case of mutilation, the applicant shall surrender to the Trustee the
Security so mutilated. The Trustee shall authenticate any such substitute
Security and deliver the same. Upon the issuance of any substitute Security, the
Issuer may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. If required by the Trustee or the Issuer, such
applicant shall furnish an indemnity bond sufficient in the judgment of the
Issuer and the Trustee to protect the Issuer, the Trustee, the paying agent, the
Security Registrar and any Security Co-Registrar from any loss which any of them
may suffer if a Security is replaced. In case any Security shall have become
mutilated, destroyed, lost or stolen and has become or is about to become due or
payable, the Issuer may pay or authorize the payment of the same instead of
issuing a substitute Security as permitted by this Section 2.07.
Every substitute Security issued pursuant to the provisions of this Section
2.07 by virtue of the fact that any Security is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Issuer, whether or not
the destroyed, lost or stolen Security shall at any time be found by anyone, and
shall be entitled to all the benefits and be subject to all the terms and
conditions of this Indenture equally and proportionately with any and all other
Securities duly issued and outstanding hereunder. All Securities shall be held
and owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities and shall preclude any and all
other rights or remedies, notwithstanding any law or statute now existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.08. Cancellation of Surrendered Securities. All Securities
--------------------------------------
surrendered for redemption in whole or in part pursuant to the provisions of
Article Three and all Securities surrendered for payment or for substitution or
exchange or registration of transfer hereunder shall be delivered to the Trustee
for cancellation and shall be canceled by the Trustee, and no Securities shall
be issued in lieu thereof, except as otherwise provided in this Indenture. The
Trustee shall destroy all canceled Securities held by it and shall deliver to
the Issuer a certificate in respect of such destruction. If the Issuer shall
acquire
26
any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for cancellation. Any
Securities acquired by the Issuer and delivered to the Trustee shall be canceled
by the Trustee upon receipt of written instructions from the Issuer.
SECTION 2.09. Temporary Securities. Until definitive Securities are ready
--------------------
for delivery, the Issuer may prepare and, upon written request signed by two
Officers of the Issuer, the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive
Securities, but may have variations that the Issuer considers appropriate for
temporary Securities, as conclusively evidenced by the execution of such
Securities. Without unreasonable delay, the Issuer shall prepare and the Trustee
shall authenticate definitive Securities and deliver them in exchange for
temporary Securities.
SECTION 2.10. Foreign Holder Certification. Each Holder that is not a
----------------------------
United States Person shall provide the Issuer and the Trustee on or prior to
the date of the acquisition of a Security with two copies of a properly
completed United States Internal Revenue Service Form 4224 or Form 1001 (or, if
a Holder is not described in Section 871(h)(3) or Section 881(c)(3) of the Code,
Form W-8), as appropriate, or any successor forms thereto, in each case together
with such other information or necessary certification establishing to the
satisfaction of the Issuer that such Holder is not subject to United States
federal withholding tax on interest paid by the Issuer under the Securities (or
subject to such tax at a reduced rate of withholding), in each case based on
applicable United States law or the provisions of an applicable United States
treaty as in effect at the time of delivery by such Holder of the appropriate
forms. Further, each such Holder shall provide the Issuer and the Trustee with a
new Form 4224 or Form 1001 (or Form W-8), as appropriate, or applicable
successor forms, together with such other information or necessary certification
as described in the preceding sentence, on or before the date the previously
delivered forms (or such other information or certification) become obsolete or
expire or promptly after the occurrence of any event requiring a change to the
most recent forms (or such other information or certification) previously
delivered. In the case of any payment of interest under the Securities to a
Holder that is not a United States Person, unless the Issuer and the
27
Trustee shall have received such forms (together with such information or
certification), satisfactory to them, indicating that such payment to such
Holder by the Issuer is not subject to United States federal withholding tax,
the Issuer or the Trustee shall withhold taxes from such payment at the
applicable rate. If such forms indicate that such Holder is subject to United
States federal withholding tax at a reduced rate under an applicable income tax
treaty, the Issuer or the Trustee shall withhold at the applicable reduced
treaty rate. The Trustee may assume that any Holder is a United States Person
unless the Trustee has actual knowledge to the contrary or has received such
forms. Any amounts required to be withheld for taxes under the laws of the
United States shall be so withheld and remitted to the appropriate tax
authorities by the Issuer or the Trustee. The Issuer or the Trustee shall
promptly forward to such Holder an original or certified copy of a tax receipt
evidencing the payment of such taxes.
SECTION 2.11. CUSIP Numbers. The Issuer, in issuing the Securities, may use
-------------
"CUSIP" numbers (if then genera1ly in use), and the Trustee shall use CUSIP
numbers in notices of redemption or exchange as a convenience to Holders;
provided, however, that any such notice shall state that no representation is
-------- -------
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of redemption or exchange and that reliance may be
placed only on the other identification numbers printed on the Securities and
any redemption shall not be affected by any defect in or omission of such
numbers. The Issuer will promptly notify the Trustee of the receipt of or any
change in CUSIP numbers.
ARTICLE THREE
Redemption of Securities
------------------------
SECTION 3.01. Optional Redemption. (a) The Securities may not be redeemed
-------------------
or amortized prior to maturity except under the circumstances specified in this
Section 3.01. No redemption of Securities under this Section 3.01 shall be
permitted if a Default or Event of Default shall have occurred and be
continuing.
(b) Except as provided in Section 3.01(c), no redemptions of the Securities
may be made prior to May 1, 2001. On or after May 1, 2001, the Securities may be
redeemed, in whole or in part, upon notice given pursuant to
28
Section 3.01, at the following optional redemption prices (expressed in
percentages of principal amount), plus accrued and unpaid interest to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant Payment Date), if redeemed
during the 12-month period commencing on or after May 1 of the years set
forth below:
Redemption
Period Price
-------------------------------------------------- ------------------
2001 .......................................... %
2002 ..........................................
2003 and thereafter ........................... 100.000
(c) At any time and from time to time prior to May 1, 1999, the Issuer may
redeem in the aggregate up to 35% of the original principal amount of the Notes
with the proceeds of one or more Public Equity Offerings, at a redemption price
(expressed as a percentage of principal amount) of __% plus accrued and unpaid
interest, if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
Payment Date).
SECTION 3.02. Notice of Redemption. In the event that the Issuer elects to
--------------------
redeem the Securities pursuant to Section 3.01 hereof, the Issuer shall deliver
to the Trustee, at least 30 days prior to the date fixed for redemption, an
Officers' Certificate of the Issuer (i) stating that the Issuer is entitled to
-
effect such redemption and (ii) specifying the date fixed for redemption and
--
the principal amount of the Securities to be redeemed. The Trustee will be
entitled to rely conclusively upon such Officers' Certificate. At least 30 but
not more than 60 days prior to any date fixed for redemption, the Trustee shall
mail by first-class mail, postage prepaid, to the Holders of the Securities at
their addresses as the same appear on the Security Register, a notice of such
redemption containing the following information:
(1) the date fixed for redemption;
(2) the redemption price;
(3) the name and address of the paying agent;
29
(4) that Securities called for redemption must be surrendered to the
paying agent to collect the redemption price;
(5) if fewer than all the Outstanding Securities are to be redeemed,
the identification and principal amounts of the particular Securities to be
redeemed and, if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(6) that, unless the Issuer defaults in making such redemption
payment, interest will cease to accrue on Securities called for redemption
on and after the redemption date; and
(7) the paragraph of the Securities pursuant to which the Securities
called for redemption are being redeemed.
The notice, if mailed as herein provided, shall be conclusively presumed to
have been duly given to the Holder of a Security to whom such notice is mailed
whether or not any Holder receives such notice. Neither any failure to give
notice by mail nor any defect in the notice to the Holder of any Security to be
redeemed shall affect the validity of the proceedings for the redemption of any
other Security.
SECTION 3.03. Procedures for Redemption. On or before 3 p.m. New York time
-------------------------
on the Business Day next preceding the date fixed for the redemption of
Securities, the Issuer shall deposit with the Trustee or with the paying agents
an amount of money sufficient to redeem on the date fixed for redemption, the
principal amount of and premium (if any) on the Securities to be redeemed (at
the applicable redemption price thereof, together with any interest accrued
thereon to the date of redemption in the case of redemptions).
The Trustee shall not in any event be liable for the payment of principal
of, or interest on, any Securities called for redemption as herein provided,
except to the extent that money shall have been deposited with it for such
purpose.
30
Upon any redemption of Securities pursuant to Section 3.01, the Issuer
shall deliver to the Trustee an Officers' Certificate of the Issuer stating
that such Securities have been redeemed.
SECTION 3.04. Selection of Securities To Be Redeemed. In the case of the
--------------------------------------
partial redemption of Securities pursuant to the terms of this Indenture,
selection of the Securities for redemption will be made by the Trustee on a pro
rata basis, by lot or by such other method that complies with applicable legal
and securities exchange requirements, if any, and that the Trustee in its sole
discretion shall deem to be fair and appropriate. Securities and portions
thereof selected by the Trustee for redemption shall be in amounts of $1,000 or
integral multiples thereof (with such adjustments as may be deemed appropriate
by the Trustee so that only Securities in denominations of $1,000 or integral
multiples thereof shall be redeemed). Provisions of this Indenture that apply
to Securities called for redemption also apply to portions of Securities called
for redemption.
SECTION 3.05. When Securities Called for Redemption Become Due and Payable.
------------------------------------------------------------
If notice of redemption has been mailed as provided in Section 3.02, the
Securities called for redemption specified therein shall become due and payable
on the date and at the place or places stated in such notice, at the applicable
redemption price, and on and after said date (unless the Issuer shall default in
the payment of such principal at the applicable redemption price) interest on
such principal so to be redeemed shall cease to accrue.
Upon surrender to the Trustee or a paying agent of a Security to be
redeemed in whole or in part in accordance with the terms of this Indenture, a
payment of principal with respect to such Security shall be made in accordance
with the terms of this Indenture at the redemption price, plus accrued interest
thereon to the redemption date, provided that any Interest Payment the maturity
--------
of which is on or prior to such redemption date will be payable on the relevant
Payment Date to the Holders of record at the close of business on the relevant
record dates referred to in the Securities.
Upon presentation of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities,
31
of authorized denominations, in principal amount equal to the current principal
balance of the unredeemed portion of the Security so presented.
ARTICLE FOUR
Particular Covenants, Representations
-------------------------------------
and Warranties of the Issuer
----------------------------
The Issuer represents, warrants, covenants and agrees, as follows:
SECTION 4.01. Validity of Securities. The Issuer is duly authorized
----------------------
under applicable law and its charter documents to create and issue the
Securities and to execute and deliver this Indenture; all corporate action and
governmental consents, authorizations and approvals necessary or required
therefor have been duly and effectively taken or obtained. The Securities are
legal, valid and binding obligations of the Issuer.
SECTION 4.02. Payment of Principal of, and Interest on Securities. The
---------------------------------------------------
Issuer will duly and punctually pay or cause to be paid the principal of,
premium (if any) and interest (without deduction or withholding for or on
account of any taxes except as required by law) on each of the Securities at the
places, at the respective times and in the manner provided in the Securities
and this Indenture.
SECTION 4.03. SEC Reports. The Issuer shall file with the Trustee and
-----------
provide Securityholders, within 15 days after it files them with the SEC, copies
of its annual report 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) which the Issuer is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. Notwithstanding that the
Issuer may not be required to remain subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Issuer shall continue to file with
the SEC so long as any Securities remain Outstanding and provide the Trustee and
Securityholders with such annual reports and such information, documents and
other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which are specified in Sections 13 and 15(d)
of the Exchange Act. The Issuer also shall comply with the other provisions of
TIA (S) 314(a).
32
SECTION 4.04. Limitation on Restricted Payments. (a) The Issuer shall not,
---------------------------------
and shall not permit any Subsidiary, directly or indirectly, to (i) declare or
-
pay any dividend or make any distribution on or in respect of its Capital Stock
(including any distribution in connection with any merger or consolidation
involving the Issuer) or to the direct or indirect holders of its Capital Stock
(except dividends or distributions payable solely in its Non-Convertible Capital
Stock or in options, warrants or other rights to purchase its Non-Convertible
Capital Stock and except dividends or distributions payable to the Issuer or a
Subsidiary), (ii) purchase, redeem or otherwise acquire or retire for value any
--
Capital Stock of the Issuer or of any direct or indirect Parent of the Issuer,
(iii) purchase, repurchase, redeem, defease or otherwise acquire or retire for
---
value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment any Subordinated Obligations (other than the purchase, repurchase
or other acquisition of Subordinated Obligations purchased in anticipation of
and used for satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of acquisition) or
(iv) make any Investment in any Affiliate of the Issuer, other than a Subsidiary
--
that is not a Non-Recourse Subsidiary or a Person which will become a Subsidiary
that is not a Non-Recourse Subsidiary as a result of any such Investment (any
such dividend, distribution, purchase, redemption, repurchase, defeasance, other
acquisition, retirement or Investment being hereinafter referred to as a
"Restricted Payment") if at the time the Issuer or such Subsidiary makes such
Restricted Payment:
(1) a Default shall have occurred and be continuing (or would result
therefrom);
(2) the Issuer is not able to issue $1.00 of additional Debt in accordance
with the provisions of Section 4.06(a); or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments since the date of issuance of the Securities would exceed
the sum of:
(A) 50% of the Consolidated Net Income accrued during the period
(treated as one accounting period) from the date of issuance of the
Securities, to the end of the most recent fiscal quarter ending at least 45
days prior to the date
33
of such Restricted Payment (or, in case such Consolidated Net Income shall
be a deficit, minus 100% of such deficit) minus 100% of the amount of any
write-downs, write-offs, other negative revaluations and other negative
extraordinary charges not otherwise reflected in Consolidated Net Income
during such period;
(B) the aggregate Net Cash Proceeds received by the Issuer from the
issuance or sale of its Capital Stock (other than Redeemable Stock or
Exchangeable Stock) subsequent to the date of issuance of the Securities
(other than an issuance or sale to a Subsidiary or an employee stock
ownership plan);
(C) the aggregate Net Cash Proceeds received by the Issuer from the
issuance or sale of its Capital Stock (other than Redeemable Stock or
Exchangeable Stock) to an employee stock ownership plan subsequent to the
date of issuance of the Securities, but (if such employee stock ownership
plan incurs any Debt) only to the extent that any such proceeds are equal
to any increase in the Consolidated Net Worth of the Issuer resulting from
principal repayments made by such employee stock ownership plan with
respect to Debt incurred by it to finance the purchase of such Capital
Stock; and
(D) the amount by which Debt of the Issuer is reduced on the Issuer's
balance sheet upon the conversion or exchange (other than by a Subsidiary)
subsequent to the date of issuance of the Securities of any Debt of the
Issuer convertible or exchangeable or Capital Stock (other than Redeemable
Stock or Exchangeable Stock) of the Issuer (less the amount of any Cash, or
other property, distributed by the Issuer upon such conversion or
exchange).
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any purchase or redemption of Capital Stock or Subordinated Obligations
of the Issuer made by exchange for, or out of the proceeds of the substantially
concurrent sale of, Capital Stock of the Issuer (other than Redeemable
Stock or Exchangeable Stock and
34
other than Capital Stock issued or sold to a Subsidiary or an employee stock
ownership plan); provided, however, that (A) such purchase or redemption shall
-------- -------- -
be excluded in the calculation of the amount of Restricted Payments made since
the date of issuance of the Securities and (B) the Net Cash Proceeds from such
-
sale shall be excluded from clauses (3)(B) and (3)(C) of Section 4.04(a);
(ii) any purchase or redemption of Subordinated Obligations of the Issuer
made by exchange for, or out of the proceeds of the substantially concurrent
sale of, Subordinated Obligations of the Issuer; provided, however, that such
-------- --------
purchase or redemption shall be excluded in the calculation of the amount of
Restricted Payments made since the date of issuance of the Securities;
(iii) any purchase or redemption of Subordinated Obligations from Net
Available Cash to the extent permitted by Section 4.09; provided, however, that
-------- -------
such purchase or redemption shall be excluded in the calculation of the amount
of Restricted Payments made since the date of issuance of the Securities;
(iv) dividends paid within 60 days after the date of declaration thereof if
at such date of declaration such dividends would have complied with this
Section; provided, however, that at the time of payment of such dividends, no
-------- -------
other Default shall have occurred and be continuing (or result therefrom);
provided further, however, that such dividends shall be included in the
-------- ------- -------
calculation of the amount of Restricted Payments made since the date of issuance
of the Securities;
(v) any repurchase of Capital Stock of the Issuer after the date of
issuance of the Securities pursuant to the terms of the Stockholders' Agreement
from officers and employees (or their estates) of the Issuer or its Subsidiaries
upon death, disability or termination of employment of such officers and
employees; provided, however, that (A) the aggregate amount of all such
-------- ------- -
repurchases (excluding repurchases made with proceeds of life insurance policies
maintained by the Issuer on such employees or officers) in any fiscal year shall
not exceed $500,000; (B) to the extent that the aggregate amount of such
-
repurchases (excluding repurchases made with proceeds of life insurance policies
maintained by the Issuer on such employees or
35
officers) in any fiscal year is less than $500,000, the difference between
$500,000 and such amount may be carried forward and applied to repurchases in
subsequent fiscal years; and (C) all such repurchases (other than
-
repurchases made with proceeds of life insurance policies maintained by the
Issuer on such employees or officers) shall be included in the calculation of
the amount of Restricted Payments made since the date of issuance of the
Securities;
(vi) Cash dividends paid after the date of issuance of the Securities with
respect to the ESOP Preferred Stock; provided, however, that (A) the aggregate
-------- ------- -
amount of all such dividends paid in any fiscal year shall not exceed
$500,000; (B) to the extent that the aggregate amount of such dividends paid
-
in any fiscal year is less than $500,000, the difference between $500,000 and
such amount may be carried forward and applied to the payment of such
dividends in subsequent fiscal years; and (C) all such dividends shall be
-
included in the calculation of the amount of Restricted Payments made since
the date of issuance of the Securities;
(vii) Investments in Non-Recourse Subsidiaries, not to exceed $5,000,000
in the aggregate during the term of this Indenture; provided, however, that
-------- -------
all such Investments shall be excluded in the calculation of the amount of
Restricted Payments made since the date of issuance of the Securities; or
(viii) Restricted Payments not to exceed $5,000,000 in the aggregate during
the term of this Indenture; provided, however, that all such Restricted
-------- -------
Payments shall be included in the calculation of the amount of Restricted
Payments made since the date of issuance of the Securities.
SECTION 4.05. Limitation on Senior Subordinated Debt. The Issuer shall not,
--------------------------------------
and shall not permit any Subsidiary to, issue, directly or indirectly, any Debt
that is expressly subordinate in right of payment to any Senior Debt unless such
Debt, by its terms or by the terms of any agreement or instrument pursuant to
which such Debt is outstanding, is expressly made pari passu with, or
---- -----
subordinate in right of payment to, the Securities, pursuant to provisions
substantially similar to those contained in Article Ten of this Indenture;
provided, that the foregoing limitation shall not apply to distinctions between
--------
categories of Senior
36
Debt of the Issuer that exist by reason of any Liens arising or created in
respect of some but not all of such Senior Debt.
SECTION 4.06. Limitation on Debt. (a) The Issuer shall not issue, directly
------------------
or indirectly, any Debt unless the Consolidated EBITDA Coverage Ratio (as shown
by a consolidated pro forma income statement of the Issuer and its consolidated
Subsidiaries for the Reference Period after giving effect to (i) the issuance of
-
such Debt and (if applicable) the application of the net proceeds thereof to
refinance other Debt as if such Debt was issued and the application of such
proceeds occurred at the beginning of the Reference Period, (ii) the issuance
--
and retirement of any other Debt since the last day of the most recent fiscal
quarter covered by such income statement as if such Debt was issued or retired
at the beginning of the Reference Period and (iii) the acquisition or
---
disposition of any company or business acquired or disposed of by the Issuer
since the first day of the Reference Period, including any acquisition or
disposition which will be consummated substantially contemporaneously with the
issuance of such Debt, as if such acquisition or disposition occurred at the
beginning of the Reference Period), exceeds 1.75 to 1.0 for the Reference
Period.
(b) Notwithstanding Section 4.06(a), the Issuer may issue the following
Debt:
(1) Debt issued as working capital and letter of credit financing in an
aggregate principal amount outstanding at any time not to exceed the greater
of (i) the sum of (A) 85% of the book value of the net trade receivables of
- -
the Issuer and its Subsidiaries and (B) $7.5 million or (ii) up to $27.5
- --
million of Debt incurred pursuant to the terms of the Credit Agreement and
Debt issued in exchange for, or the proceeds of which are used to refund or
refinance, the Debt permitted by this clause (ii);
(2) Debt owed to and held by a Wholly Owned Subsidiary; provided, however,
-------- -------
that any subsequent issuance or transfer of any Capital Stock which results in
any such Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary or
any transfer of such Debt (other than to a Wholly Owned Subsidiary) shall be
deemed, in each case, to constitute the issuance of such Debt by the Issuer;
37
(3) the Securities and Debt issued in exchange for, or the proceeds of
which are used to refund or refinance, any Debt permitted by this clause (3),
including reasonable fees, expenses, premiums and defeasance costs incurred in
connection with such refunding or refinancing; provided, however, that (i) the
-------- ------- -
principal amount of the Debt so issued shall not exceed the sum of the
principal amount of the Debt so exchanged, refunded or refinanced and the
amount of such fees, expenses, premiums and defeasance costs, and (ii) the
--
Debt so issued (A) shall not mature prior to the Stated Maturity of the Debt
so exchanged, refunded or refinanced and (B) shall have an Average Life equal
to or greater than the remaining Average Life of the Debt so exchanged,
refunded or refinanced; and
(4) Debt (other than Debt described in clause (1), (2) or (3) of this
Section) outstanding on the date of issuance of the Securities and Debt
issued in exchange for, or the proceeds of which are used to refund or
refinance, any Debt permitted by this clause (4), including reasonable fees,
expenses, premiums and defeasance costs incurred in connection with such
exchange, refunding or refinancing; provided, however, that (i) the principal
-------- ------- -
amount of the Debt so issued shall not exceed the sum of the principal amount
of the Debt so exchanged, refunded or refinanced and the amount of such fees,
expenses, premiums and defeasance costs, and (ii) the Debt so issued (A) shall
--
not mature prior to the Stated Maturity of the Debt so exchanged, refunded or
refinanced, (B) shall have an Average Life equal to or greater than the
remaining Average Life of the Debt so exchanged, refunded or refinanced and
(C) shall be subordinated in right of payment to the Securities if the Debt so
exchanged, refunded or refinanced is so subordinated;
(5) Purchase Money Debt, provided, however, that the aggregate amount of
-------- -------
Purchase Money Debt may not exceed $25 million;
(6) Non-Recourse Debt of a Non-Recourse Subsidiary issued after the date of
original issuance of the Notes to finance the acquisition of assets by such
Non-Recourse Subsidiary or to provide working capital for such Non-Recourse
Subsidiary and any Non-Recourse Debt of a Non-Recourse Subsidiary issued in
exchange for, or the proceeds of which are used to refund or refinance, any
Non-Recourse Debt permitted by
38
this clause (6), including reasonable fees, expenses, premiums and defeasance
costs incurred in connection with such exchange refunding or refinancing;
provided, however, that (i) the principal amount of the Non-Recourse Debt
-------- ------- -
issued in exchange for, or the proceeds of which are used to refund or
refinance, any Non-Recourse Debt shall not exceed the principal amount of the
Debt so exchanged, refunded or refinanced (plus reasonable fees, expenses,
premiums and defeasance costs incurred in connection with such refunding or
refinancing), and (ii) if any such Debt thereafter ceases to be Non-Recourse
Debt of a Non-Recourse Subsidiary, then such event will be deemed to
constitute the issuance of such Debt by the issuer thereof; and
(7) Debt in an aggregate principal amount which, together with a1l other
Debt of the Issuer then outstanding (other than Debt permitted by clauses (1)
through (4) of this paragraph) does not exceed the greater of: (i) $25,000,000
-
and (ii) 5% of Consolidated Net Tangible Assets as of the end of the most
--
recent fiscal quarter of the Issuer ending not less than 45 days from the date
of determination.
The Issuer may issue Debt to finance the reasonable underwriting fees and
other transaction fees incurred by the Issuer in connection with the issuance of
the Debt referred to in clauses (3) and (4) so long as the issuance of such Debt
complies with Section 4.06.
SECTION 4.07. Limitation on Subsidiary Debt and Preferred Stock. The Issuer
-------------------------------------------------
shall not permit any Subsidiary to issue, directly or indirectly, any Debt or
Preferred Stock except:
(1) Debt or Preferred Stock issued to and held by the Issuer or a Wholly
Owned Subsidiary; provided, however, that (i) any subsequent issuance or
-------- ------- -
transfer of any Capital Stock which results in any such Wholly Owned
Subsidiary ceasing to be a Wholly Owned Subsidiary or (ii) any subsequent
--
transfer of such Debt or Preferred Stock (other than to the Issuer or a Wholly
Owned Subsidiary) shall be deemed, in each case, to constitute the issuance of
such Debt or Preferred Stock by the issuer thereof;
(2) Debt or Preferred Stock of a Subsidiary issued and outstanding on or
prior to the date on which
39
such Subsidiary was acquired by the Issuer (other than Debt or Preferred Stock
issued as consideration in, or to provide all or any portion of the funds
utilized to consummate, the transaction or series of related transactions
pursuant to which such Subsidiary became a Subsidiary or was acquired by the
Issuer);
(3) Debt or Preferred Stock issued and outstanding on or prior to the date
on which the Securities were originally issued, other than Debt or Preferred
Stock described in clause (1) or (2) of this Section;
(4) Non-Recourse Debt of a Non-Recourse Subsidiary issued after the date of
this Indenture to finance the acquisition of assets acquired after the date
hereof; and
(5) Debt or Preferred Stock issued in exchange for, or the proceeds of
which are used to refund or refinance, Debt or Preferred Stock referred to in
the foregoing clause (2) or (3), including reasonable fees, expenses, premiums
and defeasance costs incurred in connection with such exchange, refunding or
refinancing; provided, however, that (i) the principal amount of such Debt or
-------- ------- -
the liquidation value of such Preferred Stock so issued shall not exceed the
sum of the principal amount or liquidation value of the Debt or Preferred
Stock so exchanged, refunded or refinanced and the amount of such fees,
expenses, premiums and defeasance costs; (ii) the Debt or Preferred Stock so
--
issued (A) shall have a Stated Maturity later than the Stated Maturity of the
-
Debt or final redemption date (if any) of the Preferred Stock being exchanged,
refunded or refinanced and (B) shall have an Average Life equal to or greater
-
than the remaining Average Life of the Debt or Preferred Stock being
exchanged, refunded or refinanced; (iii) the Debt so issued shall be
---
subordinate in right of payment to the Securities if the Debt so exchanged,
refunded or refinanced is so subordinate; and (iv) Debt may not be issued in
--
exchange for, and the proceeds of such Debt may not be used to refund or
refinance, Preferred Stock.
SECTION 4.08. Limitation on Restrictions on Distributions from
------------------------------------------------
Subsidiaries. The Issuer shall not, and shall not permit any Subsidiary to,
------------
create or otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Subsidiary to (i) pay
-
dividends or make any other distributions on its
40
Capital Stock or pay any Debt or other obligation owed to the Issuer or any
Subsidiary, (ii) make any loans or advances to the Issuer or any Subsidiary or
--
(iii) transfer any of its property or assets to the Issuer or any Subsidiary,
---
except:
(1) any encumbrance or restriction pursuant to an agreement in effect on
the date hereof;
(2) any encumbrance or restriction with respect to a Subsidiary pursuant to
an agreement relating to any Debt issued by such Subsidiary on or prior to the
date on which such Subsidiary became a Subsidiary or was acquired by the
Issuer (other than Debt issued as consideration in, or to provide all or any
portion of the funds utilized to consummate, the transaction or series of
related transactions pursuant to which such Subsidiary became a Subsidiary or
was acquired by the Issuer) and outstanding on such date;
(3) any encumbrance or restriction pursuant to an agreement effecting a
refinancing of Debt issued pursuant to an agreement referred to in clause (1)
or (2) of this Section; provided, however, that the encumbrances and
-------- -------
restrictions contained in any such refinancing agreement are no less favorable
to the Securityholders than the encumbrances and restrictions contained in the
agreements being refinanced;
(4) any such encumbrance or restriction consisting of customary
nonassignment provisions in leases governing leasehold interests to the extent
such provisions restrict the transfer of the lease;
(5) restrictions contained in security agreements securing Debt of a
Subsidiary to the extent such restrictions restrict the transfer of the
property subject to such security agreements; and
(6) any such encumbrance or restriction relating to a Non-Recourse
Subsidiary.
SECTION 4.09. Limitation on Sales of Assets and Subsidiary Stock. (a) The
---------------------------------------------------
Issuer shall not, and shall not permit any Subsidiary to, make any Asset
Disposition unless (i) the Issuer or such Subsidiary receives consideration at
-
the time of such Asset Disposition at least equal to the fair market value, as
determined in good faith by the Board of Directors (including a determination as
to the value of
41
all non-Cash consideration), of the shares and assets subject to such Asset
Disposition, and at Least 90% of the consideration therefor received by the
Issuer or such Subsidiary is in the form of Cash or Cash equivalents and (ii) an
--
amount equal to 100% of the Net Available Cash from such Asset Disposition is
applied by the Issuer (or such Subsidiary, as the case may be) either (A) to the
-
extent the Issuer elects (or is required by the terms of any Senior Debt), to
redeem, prepay, repay or purchase Senior Debt or Debt of a Wholly Owned
Subsidiary to the extent the asset disposed of was previously held by such
Wholly Owned Subsidiary (in each case other than Debt owed to the Issuer or an
Affiliate of the Issuer) within 60 days (or such other period as may be required
for compliance with Section 4.12 of the First Mortgage Bonds Indenture) from the
later of the date such Asset Disposition or the receipt of such Net Available
Cash; or (B) to the extent of Net Available Cash not so applied in accordance
-
with clause (A), to the acquisition by the Issuer or any Wholly Owned
-
Subsidiary of Tangible Property of a nature or type or that is used in a
business (or in a company having property and assets of a nature or type, or
engaged in a business) similar or related to the nature or type of the Tangible
Property of, or the business of, the Issuer and its Subsidiaries existing on the
date of such acquisition (as determined by the Board of Directors, whose
determination shall be conclusive and evidenced by a Board Resolution); and (C)
to the extent there is Net Available Cash after application in accordance with
clauses (A) and (B), to make an Offer (as defined below) to purchase Securities
pursuant to and subject to the conditions of the following paragraph and to
effect any Offer accepted, in each case within one year from the later of the
receipt of such Net Available Cash and the date the Offer described in Section
4.09(b) is consummated; provided, however, that in connection with any
redemption, prepayment, repayment or purchase of Debt pursuant to clause (A)
above, the Issuer shall cause the related loan commitment (if any) to be
permanently reduced in an amount equal to the principal amount so redeemed,
prepaid, repaid or purchased. Not withstanding the foregoing provisions of this
Section, the Issuer and its Subsidiaries shall only be required to apply Net
Available Cash in accordance with this Section to the extent that the aggregate
Net Available Cash from all Asset Dispositions exceeds $20,000,000. Pending
application of Net Available Cash pursuant to this Section, such Net Available
Cash shall be invested in Permitted Investments.
(b) To the extent that there is Net Available Cash from an Asset
Disposition remaining after (i) any elec-
42
xxx or required payment of Senior Debt or Debt of a Wholly Owned Subsidiary as
described in Section 4.09(a)(ii)(A) and (ii) any acquisition of Tangible
--
Property as described in Section 4.09(a)(ii)(B), the Issuer will be required to
purchase Securities tendered pursuant to an offer by the Issuer for the
Securities (the "Offer") at a purchase price equal to the applicable
redemption price set forth in Section 3.01(b), plus accrued interest to the
Purchase Date (subject, in each case, to the right of Holders of record on the
relevant date to receive interest due on the relevant interest Payment Date), in
accordance with the procedures (including prorating in the event of
oversubscription) set forth in Section 4.09(c). If the aggregate purchase price
of Securities tendered pursuant to the Offer is less than the Net Available Cash
allotted to the purchase of the Securities, the Issuer shall apply the remaining
Net Available Cash in accordance with Section 4.09(a)(ii)(A) or (B). The Issuer
shall not be required to make an Offer for Securities pursuant to this Section
if the Net Available Cash available therefor (after application of proceeds as
provided in Section 4.09(a)(ii)(A) and (B)) is less than $5,000,000 for any
particular Asset Disposition (which lesser amounts shall not be carried forward
for purposes of determining whether an Offer is required with respect to the Net
Available Cash from any subsequent Asset Disposition).
(c) (1) Promptly, and in any event within 90 days (or such other period as
may be required for compliance with Section 4.12 of the First Mortgage Bonds
Indenture) after the later of the date of each Asset Disposition as to which the
Issuer must apply Net Available Cash in accordance with Section 4.09(a)(ii)(C)
or the receipt of Net Available Cash therefrom, the Issuer shall be obligated to
deliver to the Trustee and send, by first-class mail to each Holder, a written
notice stating that the Holder may elect to have his Securities purchased by the
Issuer either in whole or in part (subject to prorationing as hereinafter
described in the event the Offer is oversubscribed) in integral multiples of
$1,000 of principal amount, at the applicable purchase price specified in
Section 4.09(b). The notice containing an Offer shall specify a purchase date
not less than 30 days nor more than 60 days after the date of such notice (the
"Purchase Date") and shall contain information concerning the business of the
Issuer which the Issuer in good faith believes will enable such Holders to make
an informed decision (which at a minimum will include (i) the most recently
-
filed Annual Report on Form 10-K (including audited consolidated financial
statements) of the Issuer, the most recent subsequently filed Quarterly Report
on Form 10-Q and
43
any Current Report on Form 8-K of the Issuer filed subsequent to such Quarterly
Report, other than Current Reports describing Asset Dispositions otherwise
described in the offering materials (or corresponding successor reports), or if
the Issuer becomes no longer subject to the Exchange Act, equivalent
information, (ii) a description of material developments in the Issuer's
--
business subsequent to the date of the latest of such Reports, and (iii) if
---
material, appropriate pro forma financial information) and all instructions and
materials necessary to tender Securities pursuant to the Offer, together with
the information contained in clause (3) of this Section 4.09(C).
(2) Not later than the date upon which written notice of an Offer is
delivered to the Trustee as provided below, the Issuer shall deliver to the
Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer
-
Amount"), (ii) the allocation of the Net Available Cash from the Asset
--
Dispositions pursuant to which such Offer is being made and (iii) the compliance
---
of such allocation with the provisions of Section 4.09(a). On such date, the
Issuer shall also irrevocably deposit in trust with the Trustee or with a paying
agent (or, if the Issuer is acting as its own paying agent, segregate and hold
in trust) in immediately available funds an amount equal to the Offer Amount to
be held by the Trustee or with a paying agent in trust for payment in accordance
with the provisions of this Section. Upon the expiration of the period for which
the Offer remains open (the "Offer Period"), the Issuer shall deliver to the
Trustee the Securities or portions thereof which have been properly tendered to
and are to be accepted by the Issuer. The Trustee shall, on the Purchase Date,
to the extent it has received sufficient funds from the Issuer, mail payment to
each Holder who has surrendered Securities to the Issuer as provided in
paragraph (3) below in the amount of the purchase price. In the event that the
aggregate purchase price of the Securities delivered by the Issuer to the
Trustee is less than the Offer Amount, the Trustee shall deliver the excess to
the Issuer immediately after the expiration of the Offer Period.
(3) Holders electing to have a Security purchased will be required to
surrender the Security, with an appropriate form duly completed, to the Issuer
at the address specified in the notice at least ten Business Days prior to the
Purchase Date. Holders will be entitled to withdraw their election if the
Trustee or the Issuer receives not later than three Business Days prior to the
Purchase Date, a telegram, telex, facsimile transmission or letter setting
44
forth the name of the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such Ho1der is
withdrawing his election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities surrendered
by Holders exceeds the Offer Amount, the Issuer shall select the Securities to
be purchased on a pro rata basis in accordance with the principles set forth in
Section 3.04 (with such adjustments as may be deemed appropriate by the Issuer
so that only Securities in denominations of $1,000, or integral multiples
thereof, shall be purchased). Holders whose Securities are purchased only in
part will be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered.
(4) At the time the Issuer delivers Securities to the Trustee which are to
be accepted for purchase, the Issuer will also deliver an Officers' Certificate
stating that such Securities are to be accepted by the Issuer pursuant to and
in accordance with the terms of this Section. A Security shall be deemed to have
been accepted for purchase at the time the Trustee, directly or through an
agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Issuer shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Issuer shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.10. Limitation on Transactions with Affiliates. The Issuer shall
-------------------------------------------
not, and shall not permit any Subsidiary to, conduct any business or enter into
any transaction or series of related transactions (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
Affiliate of the Issuer or any legal or beneficial owner of five percent or more
of any class of Capital Stock of the Issuer or with any Affiliate of such owner
(other than a Wholly Owned Subsidiary of the Issuer or an employee stock
ownership plan for the benefit of the Issuer's or a Subsidiary's employees)
unless (i) the terms of such business, transaction or series of transactions are
-
(a) set forth in writing and (b) as favorable to the Issuer or such Subsidiary
- -
as terms that would be
45
obtainable at the time for a comparable transaction or series of related
transactions in arm's-length dealings with an unrelated third Person and (ii)
--
the Board of Directors has, by resolution, determined in good faith that such
business or transaction or series of related transactions meets the criteria set
forth in (i) above. This Section, however, will not prohibit any dividend or
distribution permitted under Section 4.04 hereof.
SECTION 4.11. Change of Control. (a) Upon a Change of Control, each Holder
-----------------
shall have the right to require that the Issuer repurchase such Holder's
Securities at a purchase price in Cash equal to 101% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant date to receive
interest due on the relevant interest Payment Date), in accordance with the
terms contemplated in Section 4.11(b).
(b) Within 30 days following any Change of Control, the Issuer shall mail
a notice to each Holder with a copy to the Trustee stating:
(1) that a Change of Control has occurred and that such Holder has the
right to require the Issuer to purchase all or part of such Holder's
Securities at a purchase price in Cash equal to 101% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest Payment Date);
(2) the circumstances and relevant facts regarding such Change of Control
(including, but not limited to, information with respect to pro forma
historical income, cash flow and capitalization after giving effect to such
Change of Control);
(3) the repurchase date (which shall be a Business Day no earlier than 30
days nor later than 60 days from the date such notice is mailed); and
(4) the instructions determined by the Issuer, consistent with this
Section, that a Holder must follow in order to have its Securities purchased.
(c) Holders electing to have a Security purchased will be required to
surrender the Security, with an appropriate
46
election form duly completed, to the Issuer at the address specified in the
notice at least 10 Business Days prior to the purchase date. Holders will be
entitled to withdraw their election if the Trustee or the Issuer receives not
later than three Business Days prior to the purchase date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Security which was delivered for purchase by the Holder
and a statement that such Holder is withdrawing its election to have such
Security purchased.
(d) On the purchase date, all Securities purchased by the Issuer under this
Section shall be delivered by the Trustee for cancellation, and the Issuer shall
pay the purchase price plus accrued and unpaid interest, if any, to the Holders
entitled thereto.
(e) The Issuer shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section 4.11. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Issuer shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue thereof.
SECTION 4.12. Appointment of Agents. As long as any of the Securities
---------------------
remain Outstanding, the Issuer will maintain one or more agencies where notices
and demands (other than in respect of payment on the Securities) by Holders of
Securities to or upon the Issuer in respect of the Securities or this Indenture
may be served and where the Securities may be presented for payment by the
Issuer and for registration of transfer and for exchange as in this Indenture
provided. In addition, the Issuer hereby appoints the Trustee at its Corporate
Trust Office as the paying agent of the Issuer, but the Issuer shall have the
right at any time and from time to time to vary or terminate any such
appointment as paying agent and to appoint additional and other such agents. The
Issuer will give to the Trustee notice of the location of such additional and
other offices or agencies of the Issuer and of any change in the location of any
of such offices or agencies. No agent appointed by the Issuer pursuant to this
Section 4.12 shall be liable to the Issuer or to the Holder of any Security
except in the case of its own negligent action, its own negligent failure to act
or its own willful misconduct.
47
The Issuer hereby appoints the Trustee as Security Registrar and paying
agent for the Securities. The Corporate Trust Office of the Trustee, at the date
of this Indenture, is at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Corporate Trust Division.
The Issuer agrees that at least one of the agencies where the notices and
demands referred to in this Section 4.12 may be served will, for as long as any
of the Securities remain Outstanding, be maintained in New York, New York. The
Issuer hereby initially appoints the Trustee at its Corporate Trust Office as
its agent for receipt of such notices and demands.
SECTION 4.13. Paying Agents to Hold Funds in Trust. Whenever the Issuer
------------------------------------
shall appoint a paying agent other than the Trustee, it will cause such paying
agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 4.13,
(a) that it will hold all sums held by it as such agent for the payment of
the principal of, and interest on the Securities in trust for the benefit of
the Holders of the Securities or the Trustee and will notify the Trustee of
the receipt of sums to be so held, and
(b) that it will give the Trustee notice of any failure by the Issuer to
make any payment of the principal of, or interest on, the Securities when the
same shall be due and payable.
SECTION 4.14. Appointment of Trustee by Issuer. Whenever necessary to avoid
--------------------------------
or fill a vacancy in the office of the Trustee, the Issuer will appoint, in the
manner provided in Section 7.08, a Trustee, so that there shall at all times be
a Trustee hereunder.
SECTION 4.15. Availability of Information. The Trustee shall preserve, in
---------------------------
as current a form as is reasonably practicable, the most recent list available
to it of the names and addresses of the Holders of the Securities. From time to
time, whenever reasonably requested by the Trustee, but in any event at
intervals of not more than six months, the Issuer will furnish or make available
to the Trustee such information as may be necessary to permit the Trustee to
carry out its duties hereunder. If at any time
48
the Trustee shall not be the Security Registrar, the Issuer will furnish or
cause to be furnished to the Trustee monthly not later than five Business Days
before each Payment Date, and at such other times as the Trustee may reasonably
request, a list in such form as the Trustee may reasonably require of the names
and addresses of Holders of Securities as of the Record Date for such Payment
Date.
SECTION 4.16. Books of Account; Inspection by the Trustee; Notices;
-----------------------------------------------------
Statements as to Compliance. (a) The Issuer will keep or cause to be kept proper
----------------------------
books of record and account, in which full, true and correct entries shall be
made of all dealings or transactions of or in relation to the Securities.
(b) The Issuer shal1 deliver to the Trustee within 120 days after the end
of each fiscal year of the Issuer an Officers' Certificate stating whether or
not the signers know of any Default or Event of Default that occurred during
such period, describing such Default or Event of Default, if any, and its
status.
(c) The Issuer agrees promptly to give notice to the Trustee of:
(i) the occurrence of any Default or Event of Default;
(ii) any (A) default (after any applicable grace period has expired) under
-
any material provision of any agreement, instrument or undertaking to which
the Issuer or a Subsidiary is a party or by which any of them or any of their
respective properties is bound or (B) litigation, investigation or proceeding
which may exist at any time between the Issuer or a Subsidiary and any Person,
which default or litigation, if adversely determined, could have a material
adverse effect on the business, operations or condition, financial or
otherwise, of the Issuer and its Subsidiaries, taken as a whole, or any of
their properties;
(iii) any litigation or proceeding affecting the Issuer or a Subsidiary in
which the amount involved is $500,000 or more and is either not covered by
insurance or is covered by insurance as to which the insurer has disclaimed
liability or in which injunctive or similar relief is sought; or
49
(iv) a material adverse change in the business, operations or condition,
financial or otherwise, of the Issuer and its Subsidiaries, taken as a whole.
Each notice given pursuant to this Section 4.16(c) shall be accompanied by an
Officers' Certificate setting forth details of the occurrence referred to
therein and stating what action, if any, the Issuer proposes to take with
respect thereto.
The statements and other information furnished to the Trustee under this
Section are to be retained by the Trustee in its files. Copies of such
information pursuant to this Section shall be provided by the Trustee upon
request only to the Holders of Securities at the Issuer' s expense or their
duly designated representatives or agents, and the Trustee shall be under no
other duty with respect to the same.
SECTION 4.17. Payment of Taxes and Other Claims. The Issuer will, and will
---------------------------------
cause each of its Subsidiaries to, pay or discharge or cause to be paid or
discharged, before any fines or penalties are imposed, (a) all taxes,
-
assessments and governmental charges levied or imposed upon it or upon its
income, profits or property and (b) all lawful claims for labor, materials and
-
supplies which, if unpaid, might by law become a Lien upon its property in such
amount as may be material to the Issuer; provided, however, that the Issuer
-------- -------
shall have the right, at its sole cost and expense, to contest or object in good
faith to the amount or validity of any tax, assessment, charge or claim by
appropriate legal proceedings for which appropriate provisions, if any, as
shall be required by generally accepted accounting principles, shall have been
made, but such right shall not be deemed or construed in any way as relieving,
modifying or extending the Issuer's covenant to pay such tax, assessment,
charge or claim at the time and in the manner provided in this Section, unless
the Issuer has given prior written notice to the Trustee of its intent so to
contest or object.
SECTION 4.18. Corporate Existence and Rights. The Issuer will, and will
------------------------------
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve and keep in full force and effect its existence and franchises;
provided, however, that the Issuer shall not be required to preserve any such
-------- -------
franchise if it shall determine that the preservation thereof is no longer
desirable in the conduct of its business and that the loss thereof is not
disadvanta-
50
geous in any material respect to the Holders of the Securities and shall deliver
to the Trustee an Officers' Certificate to that effect; provided, further,
-------- -------
however, that this Section 4.18 shall not prohibit the merger of a Subsidiary
-------
into another Subsidiary or the merger of a Subsidiary into the Issuer. Any
determination by the Issuer reflected in an Officers' Certificate delivered to
the Trustee pursuant to the first proviso of this Section 4.18 shall be binding
on the Trustee.
SECTION 4.19. Maintenance of Properties. The Issuer shall cause all
-------------------------
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and shall cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Issuer may be necessary so that the business
carried on in connection therewith may be properly conducted at all times;
provided, however, that nothing in this Section shall prevent the Issuer from
-------- -------
(or require the Issuer to cause any Subsidiary to avoid) discontinuing the
operation or maintenance or disposing of any of such properties if such
discontinuance or disposition is, in the judgment of the Board of Directors or
the board of directors of the Subsidiary concerned, or of any officer (or other
agent employed by the Issuer or any Subsidiary) having been delegated corporate
authority for any such property, in each case, in good faith, desirable in the
conduct of its business or the business of any Subsidiary.
SECTION 4.20. Maintenance of Insurance. The Issuer shall, and shall
------------------------
cause its Subsidiaries to, keep at all times all of their properties which are
of an insurable nature insured (including appropriate self-insurance) against
loss or damage with insurers believed by the Issuer to be responsible to the
extent that property of similar character is usually so insured by corporations
similarly situated and owning like properties in accordance with good business
practice unless such failure to provide or cause to be provided such insurance
would not have a material adverse effect on the business affairs, financial
position, stockholder's equity or results of operations of the Issuer and its
Subsidiaries, considered on a consolidated basis.
51
SECTION 4.21. Certificate and Opinion as to Conditions Precedent. Upon
--------------------------------------------------
any request or application by the Issuer to the Trustee to take any action under
this Indenture, the Issuer shall furnish to the Trustee upon the Trustee's
request:
(1) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee, stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with;
(2) an Opinion of Counsel, in form and substance reasonably
satisfactory to the Trustee, stating that, in the opinion of such counsel,
all such conditions precedent have been complied with; and
(3) if appropriate, a certificate from Independent Accountants.
SECTION 4.22. Statements Required in Certificate or Opinion. Each
---------------------------------------------
certificate or opinion with regard to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(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 has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with.
52
SECTION 4.23. Further Instruments and Acts. Upon request of the
----------------------------
Trustee, the Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE FIVE
Events of Default and Remedies
------------------------------
SECTION 5.01. Events of Default. An "Event of Default" occurs if:
-----------------
(1) the Issuer defaults in the payment of interest on any Security
when the same becomes due and payable, whether or not such payment shall be
prohibited by Article Ten, and such default continues for a period of 30
days;
(2) the Issuer (i) defaults in the payment of the principal of or
-
premium (if any) on any Security when the same becomes due and payable at
its Stated Maturity, upon redemption, upon declaration or otherwise or (ii)
--
fails to redeem or purchase Securities when required pursuant to this
Indenture or the Securities, in either case whether or not such payment
shall be prohibited by Article Ten;
(3) the Issuer fails to comply with the requirements for
consolidation, merger or conveyance, transfer or lease of all or of
substantially al1 of the Issuer's assets, as set forth in Article Nine;
(4) the Issuer fails to observe or perform any of its covenants or
agreements set forth in the Securities or in this Indenture (other than
those referred to in clauses (1), (2) or (3) above) and the Default
continues for a period of 30 days after the notice specified below;
(5) Debt of the Issuer or any of its Subsidiaries is not paid within
any applicable grace period after final maturity or is accelerated by the
holders thereof because of a default, the total amount of such Debt unpaid
or accelerated exceeds $5,000,000 or its foreign currency equivalent and
such default continues for 10 days after the notice specified below;
53
(6) the Issuer or any of its Subsidiaries pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
(C) consents to the appointment of a custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Issuer or any of its Subsidiaries in
an involuntary case;
(B) appoints a custodian of the Issuer or any of its Subsidiaries
or for any substantial part of their respective property; or
(C) orders the winding up or liquidation of the Issuer or any of
its Subsidiaries;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days;
(8) any judgment or decree for the payment of money in excess of
$5,000,000 is rendered against the Issuer or any of its Subsidiaries and is
not discharged and either (A) an enforcement proceeding has been commenced
-
by any creditor upon such judgment or decree or (B) there is a period of 60
-
days following such judgment or decree during which such judgment or decree
is not discharged, waived or the execution thereof stayed and, in the case
of (B), such default continues for 10 days after the notice specified
below.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by opera-
54
tion of law or pursuant to any judgment, decree or order of any court or other
order, rule or regulation of any administrative or governmental body.
Notwithstanding the foregoing, a Default under clause (4), (5) or
(8)(B) is not an Event of Default until the Trustee or the Holders of at least
25% in principal amount of the Securities notify the Issuer of the Default and
the Issuer does not cure such Default within the time specified after receipt of
such Notice. Such Notice must specify the Default, demand that it be remedied
and state that such Notice is a "Notice of Default".
The Issuer shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clause (4), (5) or (8) hereof, its status and what action
the Issuer is taking or proposes to take with respect thereto.
SECTION 5.02. Acceleration. If an Event of Default (other than an
------------
Event of Default specified in Section 5.01(6) or (7) with respect to the Issuer)
occurs and is continuing, the Trustee by notice to the Issuer, or the Holders of
at least 25% in principal amount of the Outstanding Securities by notice to the
Trustee and the Issuer may declare the unpaid principal of and accrued interest
on all the Securities and all other amounts due hereunder or thereunder to be
due and payable; provided that upon the occurrence of an Event of Default
--------
described in clause (6) or (7) of Section 5.01, the principal of and accrued
interest on all of the Securities shall automatically become due and payable,
without presentment, demand or other requirements of any kind, all of which are
hereby expressly waived by the Issuer. Upon such a declaration, such principal,
interest and all other amounts shall be due and payable immediately.
In the case of any Event of Default, other than an Event of Default
specified in clause (6) or (7) of Section 5.01, a premium shall also become and
be immediately due and payable upon acceleration of the Securities to the extent
permitted by law, anything else contained in this Indenture or in the Securities
to the contrary notwithstanding, (i) in the case of the occurrence of an Event
-
of Default at such time as the Issuer could redeem the Securities at its option,
at a premium equivalent to the redemption premium that would be payable upon
such optional redemption with regard to the Securities or (ii) in the case
--
55
of an Event of Default occurring prior to the date at which the Securities
first become redeemable at the option of the Issuer, at a premium equivalent to
the redemption premium applicable to the Securities when they first become
redeemable.
The Holders of a majority in principal amount of the Securities by
written notice to the Trustee may rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree, if no amounts
have been paid to the Holders as principal or interest on the Securities as a
result of such acceleration, and if all existing Events of Default have been
cured or waived pursuant to the terms of this Indenture except nonpayment of
principal or interest that has become due solely because of acceleration.
SECTION 5.03. 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 or otherwise to collect the payment of principal of or interest on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of Securities in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 5.04. Waiver of Past Defaults. Subject to Section 8.02, the
-----------------------
Holders of a majority in principal amount of the Outstanding Securities by
notice to the Trustee may waive an existing Default or Event of Default and its
consequences except (a) a Default in the payment of the principal of, or
-
interest on a Security or (b) a Default in respect of any covenant or provision
-
of this Indenture that under Section 8.02 cannot be amended or modified without
the consent of the Holder of each Security affected thereby. When a Default or
Event of Default is waived, it is deemed cured, but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any consequent
right.
SECTION 5.05. Control by Majority. The Holders of a majority in
-------------------
principal amount of the Securities may
56
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or, subject to Section 7.01, that the Trustee determines is
unduly prejudicial to the rights of other Securityholders or would involve the
Trustee in personal liability.
SECTION 5.06. Limitation on Suits. A Holder of Securities may not
-------------------
pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the Securities
make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the Securities do
not give the Trustee a direction inconsistent with the request during such
60-day period.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 5.07. 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 the Securities held by such Holder, on
or after the respective due dates expressed in the Securities, or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected adversely without the consent of such Holder.
SECTION 5.08. Collection Suit by Trustee. If an Event of Default in
--------------------------
payment of interest or principal speci-
57
fied in Section 5.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Issuer
(or any other obligor upon the Securities) for the whole amount of principal and
interest remaining unpaid and the amounts provided for in Section 7.07.
SECTION 5.09. 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 and the Securityholders
allowed in any judicial proceedings relative to the Issuer, its creditors or its
property and, unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the 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 5.10. Priorities. If the Trustee collects any money pursuant
----------
to this Article, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07, including
payment of all compensation, expenses and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of collection;
SECOND: to Securityholders for the payment of the whole amount then
owing and unpaid upon the Securities for principal, premium (if any) and
interest; and in case such moneys shall be insufficient to pay in full the
whole amount so due and unpaid upon the Securities, then to the payment of
such principal and interest, without preference or priority of principal
over interest, or interest over principal, or of any Interest Payment over
any other Interest Payment, or of any Securities over any other Securities,
ratably to the aggregate of such principal and interest;
THIRD: to the payment of any remaining Obligations; and
58
FOURTH: the balance, if any, to the Issuer, its successors or assigns
or to whomsoever may be lawfully entitled to receive the same, or as a
court of competent jurisdiction may determine.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such
record date, the Issuer shall mail to each Securityholder a notice that
states the record date, the payment date and amount to be paid.
SECTION 5.11. 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 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 5.07 or a suit by Holders of
more than 10% in aggregate principal amount of the Securities then Outstanding.
SECTION 5.12. Waiver of Stay or Extension Laws. The Issuer (to the
--------------------------------
extent it may lawfully do so) shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Issuer (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and shall not hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
Discharge of Indenture; Defeasance
----------------------------------
SECTION 6.01. Discharge of Liability on Securities; Defeasance. (a)
------------------------------------------------
When (i) the Issuer delivers to the Trustee all Outstanding Securities (other
-
than Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
--
Outstanding Securities have become due and payable
59
and the Issuer irrevocably deposits or causes to be deposited with the Trustee
funds sufficient to pay at maturity all Outstanding Securities, including
interest thereon (other than Securities replaced pursuant to Section 2.07)
solely for the benefit of the Holders for such purpose, and if in either case
the Issuer pays all other Obligations, then this Indenture shall, subject to
Sections 6.01(c) and 6.06, cease to be of further effect. The Trustee shall
acknowledge satisfaction and discharge of this Indenture on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Issuer.
(b) Subject to Sections 6.01(c), 6.02 and 6.06, the Issuer at any time
may terminate (i) all its obligations under the Securities and this Indenture
-
("legal defeasance option") or (ii) its obligations under Sections 4.01, 4.03,
--
4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.16 (with respect to clause (a)
and (c)(i) through (c)(iv)), 4.17, 4.18 (as to Subsidiaries), 9.01(iii) and
9.01(iv) and the operation of 5.01(4) (with respect to those provisions of
Article Four cited in this clause (ii)) 5.01(5), 5.01(6) (with respect to any
Subsidiary), 5.01(7) (with respect to any Subsidiary) and 5.01(8) ("covenant
defeasance option"). The Issuer may exercise its legal defeasance option
not-withstanding its prior exercise of its covenant defeasance option.
If the Issuer exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default. If the Issuer
exercises its covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in 5.01(4) (with respect to
those provisions of Article Four cited in clause (ii) above), 5.01(5), 5.01(6)
(with respect to any Subsidiary), 5.01(7) (with respect to any Subsidiary) or
5.01(8) or because of the failure of the Issuer to comply with Section 9.01(iii)
or 9.01(iv).
Upon satisfaction of the conditions set forth herein and upon request
of the Issuer, the Trustee shall acknowledge in writing the discharge of those
obligations that the Issuer terminates.
(c) Notwithstanding clauses (a) and (b) above, the Issuer's
obligations in Sections 2.06, 2.07, 2.09, 4.12, 4.13, 4.14, 4.15, 4.16 (with
respect to clauses (b) and (c)(i)), 4.19, 4.20, 6.04, 6.05, 6.06, 7.07 and 7.08,
shall survive until the Securities have been paid in full. There-
60
after, the Issuer's obligations in Sections 6.04, 6.05 and 7.07 shall survive.
SECTION 6.02. Conditions to Defeasance. The Issuer may exercise its
------------------------
legal defeasance option or its covenant defeasance option only if:
(1) the Issuer irrevocably deposits in trust with the Trustee Cash or
U.S. Government Obligations for the payment of principal of, premium (if
any) and interest on, the Securities to the date of maturity or redemption,
as the case may be;
(2) the Issuer delivers to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion that
the payments of principal and interest when due and without reinvestment on
the deposited U.S. Government Obligations plus any deposited Cash without
investment will provide Cash at such times and in such amounts (but, in the
case of the legal defeasance option only, not more than such amounts) as
will be sufficient to pay principal and interest when due on all Securities
to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Section 5.01(6) or (7) with respect to the
Issuer occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Issuer;
(6) the Issuer delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(7) in the case of the legal defeasance option, the Issuer shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer
-
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of this Indenture there has been a
--
change in the
61
applicable federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the
Securityholders will not recognize income, gain or loss for federal income
tax purposes as a result of such defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same time as
would have been the case if such defeasance had not occurred;
(8) in the case of the covenant defeasance option, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Securityholders 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
time as would have been the case if such covenant defeasance had not
occurred; and
(9) the Issuer delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities as contemplated by this Article
Six have been complied with.
Before or after a deposit, the Issuer may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article Three.
SECTION 6.03. Application of Trust Money. The Trustee shall hold in
--------------------------
trust Cash or U.S. Government Obligations deposited with it pursuant to this
Article Six. It shall apply the deposited Cash and the Cash from U.S. Government
Obligations through the paying agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities.
SECTION 6.04. Repayment to Issuer. The Trustee and the paying agent
-------------------
shall promptly turn over to the Issuer upon request any excess Cash or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
paying agent shall pay to the Issuer upon request any Cash held by them for the
payment of principal or interest that remains unclaimed for two years, and,
thereafter, Securityholders entitled to the Cash must look to the Issuer for
payment as general creditors.
62
SECTION 6.05. Indemnity for Government Obligations. The Issuer shall
------------------------------------
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the Trustee with respect to deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
SECTION 6.06. Reinstatement. If the Trustee or paying agent is unable
-------------
to apply any Cash or U.S. Government Obligations in accordance with this Article
Six 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 Issuer's obligations under this Indenture and
the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Six until such time as the Trustee or paying agent is
permitted to apply all such Cash or U.S. Government Obligations in accordance
with this Article Six; provided, however, that, if the Issuer has made any
-------- -------
payment of interest on or principal of any Securities because of the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the Cash or U.S.
Government Obligations held by the Trustee or paying agent.
ARTICLE SEVEN
Concerning the Trustee
----------------------
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in its exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture, and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
63
(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) 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; and
(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 Sections 5.02, 5.04 or 5.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Issuer. Money held by
the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any
-----------------
document believed by it to be genuine and to have been signed or presented by
the proper Person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
64
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided that the Trustee's conduct does not constitute negligence.
--------
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such work or
direction.
(f) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Issuer shall be sufficient if
signed by an Officer of the Issuer.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
----------------------------
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Issuer or its Affiliates with the same rights it
would have if it were not Trustee. Any paying agent, Security Registrar or
Security Co-Registrar 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 Trustee shall not be
--------------------
responsible for and makes no representation as to the validity, adequacy or
enforceability of this Indenture or the Securities. The Trustee shall not be
accountable for the Issuer's use of proceeds from the Securities or any money
paid to the Issuer or upon the Issuer's direction under any provision of this
Indenture, the Trustee shall not be responsible for the use or application of
any money received from any paying agent other than the Trustee, and the Trustee
shall not be responsible for any statement or recital herein or in the
Securities or any other document in connection with the sale of Securities or
pursuant to this Indenture other than its certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default or an Event of
------------------
Default occurs and is continuing and if it is
65
known to the Trustee, the Trustee shall mail to each Holder of Securities,
as their names and addresses appear on the Security Register, notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default in payment of principal of or interest on, any Security, the
Trustee may withhold such notice if and so long as a committee of its Trust
Officers in good faith determines that the withholding of such notice is in the
interests of Holders of Securities. The Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (i) any Event of Default
occurring pursuant to Section 5.01(1) or Section 5.01(2) of this Indenture, if
the Trustee is then acting as paying agent, or (ii) any Default or Event of
Default of which a Trust Officer shall have received written notification from
the Issuer or a Securityholder, and such notification shall not be deemed to
include receipt of information contained in any report or other document
furnished under Section 4.03 of this Indenture.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
-----------------------------
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, and within 12
months from the date the prior report hereunder was transmitted to the Holders
of Securities, the Trustee shall mail to each Holder of Securities in accordance
with TIA (S) 313(c), a brief report dated as of May 15 that complies with TIA
(S) 313(a) (but if no event described in TIA (S) 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with TIA (S) 313(b).
A copy of each report at the time of its mailing to Holders of
Securities shall be filed with the SEC and each stock exchange, if any, on
which, to the Trustee's actual knowledge, the Securities are listed; the Issuer
agrees to notify promptly the Trustee whenever the Securities become listed on
any stock exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Issuer shall pay to the
--------------------------
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Trustee upon the
Trustee's request, in addition to compensation for its services for all
reasonable out-of-pocket expenses, disbursements and advances incurred or made
by it, in-
66
cluding, without limitation, the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents and counsel. The Issuer
shall indemnify the Trustee against any loss, liability or expense incurred by
it without negligence or bad faith on its part in connection with the
acceptance or the administration of this trust and the performance of its
duties hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The Trustee shall notify the Issuer promptly of
any claim for which it may seek indemnity. However, failure by the Trustee to
so promptly notify the Issuer shall not relieve the Issuer of its obligations
under this paragraph except to the extent such failure shall have materially
prejudiced the Issuer. The Issuer shall defend the claim and the Trustee shall
cooperate in the defense. If the Trustee is advised by counsel that it may
have available to it defenses which are in conflict with any defenses available
to the Issuer, then the Issuer may have separate counsel and the Issuer shall
pay the reasonable fees and expenses of such counsel. The Issuer need not pay
for any settlement made without its consent, which consent shall not be
unreasonably withheld. The Issuer need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or bad
faith.
To secure the Issuer's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Securities on all Cash or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities .
The Issuer's payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in subsection 5.01(6) or (7), the
expenses and compensation for the services are intended to constitute expenses
of administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign and be
----------------------
discharged from the trust created hereby by so notifying the Issuer. The
Holders of a majority in aggregate principal amount of the Outstanding
Securities may remove the Trustee by so notifying the Trustee and the Issuer
and may appoint a successor Trustee. The Issuer may remove the Trustee if:
67
(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 otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, then, unless the Holders of Securities have
appointed a Successor Trustee as provided above, the Issuer shall promptly
appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Immediately after
receiving such acceptance, the retiring Trustee shall transfer all property held
by it as Trustee to the successor Trustee, provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.07, the resignation or removal of the retiring Trustee shall then 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 of Securities. Notwithstanding
replacement of the Trustee pursuant to this Section, the Issuer's obligations
under Section 7.07 hereof shall continue for the benefit of the retiring
Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the
Holders of a majority in aggregate principal amount of the Outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder of
Securities may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee. In determining whether
the Trustee has conflicting interests as defined in TIA Section 310 (b)(1), the
provisions contained in the proviso to Section 310(b)(1) shall be deemed
incorporated herein.
68
SECTION 7.09. Successor Trustee by Merger. If the Trustee
---------------------------
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at al1
-----------------------------
times satisfy the requirements of TIA (S)(S) 310(a)(1) and (a)(2). The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA (S) 310 (b) during the period of time required thereby.
SECTION 7.11. Preferential Collection of Claims Against Corporation.
-----------------------------------------------------
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311 (a) to the extent indicated therein.
ARTICLE EIGHT
Amendments, Supplements and Waivers
SECTION 8.01. Without Consent of Holders. The Issuer and the Trustee
--------------------------
may amend or supplement this Indenture or the Securities without notice to or
consent of any Holder of Securities:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article Nine;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to make any change that does not adversely affect the rights of
any Holder of Securities; or
(5) to comply with any requirement of the SEC in connection with the
qualification of this Indenture under the TIA.
After an amendment under this Section becomes effective, the Issuer
shall mail to Securityholders a notice
69
briefly describing such amendment. Failure to mail such notice to all
Securityholders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section.
SECTION 8.02. With Consent of Holders. The Issuer may amend or
-----------------------
supplement this Indenture or the Securities without notice to any Holder but
with the written consent of the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities. The Holders of a majority in
aggregate principal amount of the Outstanding Securities may waive any past
default or compliance by the Issuer with any provision of this Indenture or the
Securities without notice to any Holder. However, without the consent of each
Holder affected, an amendment or supplement to this Indenture or waiver may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of interest on
any Security;
(3) reduce the principal of or extend the fixed maturity of any
Security;
(4) make any Security payable in money other than that stated in the
Security;
(5) make any change in Article Ten that adversely affects the rights
of any Securityholder;
(6) reduce the premium payable upon the redemption of any Security
or change the time at which or circumstances under which any Securities
may be redeemed or repurchased;
(7) impair the right of any Securityholder to receive payment of
principal of and interest on such Securityholders' Securities on or after
the due dates thereof or to institute suit for the enforcement of any
payment on or with respect to such holders' securities;
(8) make any change in Section 5.04 or 5.07 or this Section; or
(9) waive any Default in the payment of principal of or interest on
any Security.
70
It shall not be necessary for the consent of the Holders of the
Securities under this Section 8.02 to approve the particular form of any
proposed amendment or supplement, but it shall be sufficient if such consent
shall approve the substance thereof.
An amendment under this Section may not make any change that adversely
affects the rights under Article Ten of any holder of Senior Debt then
outstanding unless the holders of the issue required pursuant to its terms
consent to such change.
After an amendment under this Section becomes effective, the Issuer
shall mail to Holders a notice briefly describing such amendment. The failure to
mail such notice to all Holders shall not affect the validity of an amendment
under this Section.
SECTION 8.03. Compliance with Trust Indenture Act. Every amendment to
-----------------------------------
or supplement of this Indenture executed pursuant to this Article Eight shall
comply with the TIA as then in effect.
SECTION 8.04. Revocation and Effect of Consents. A consent to an
---------------------------------
amendment, supplement or waiver by a Holder of a Security shall bind such Holder
and every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent is not made on the Security. However, any such Holder or subsequent
Holder may revoke the consent as to such Holder's Security or portion of the
Security if the Trustee receives the notice of revocation before the date the
amendment, supplement or waiver becomes effective. After an amendment,
supplement or waiver becomes effective, it shall bind every Holder unless it
makes a change described in clauses (1) through (6) of Section 8.02. In that
case the amendment, supplement or waiver shall bind each Holder of a Security
who has consented to it and every subsequent Holder of a Security or portion of
a Security that evidences the same Debt as the consenting Holder's Security.
The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons or Securityholders at such record
date (or their
71
duly designated proxies), and only those Persons, shall be entitled to give
such consent or to revoke any consent previously given or to take any such
action, whether or not such Persons continue to be Holders after such record
date. No such consents shall be valid or effective for more than 120 days after
such record date.
SECTION 8.05. Notation on or Exchange of Securities. If an amendment,
-------------------------------------
supplement or waiver changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Security regarding the changed terms and return
it to the Holder. Alternatively, if the Issuer or the Trustee so determines,
the Issuer in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure to make an
appropriate notation or issue a new Security shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION 8.06. Trustee To Sign Amendments. The Trustee shall sign any
--------------------------
amendment, supplement or waiver authorized pursuant to this Article if the
amendment, supplement or waiver does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but need
not sign it. In signing such amendment, supplement or waiver the Trustee shall
be entitled to receive, and (subject to Section 7.01) shall be fully protected
in relying upon, an Officers' Certificate and an Opinion of Counsel stating
that such amendment, supplement or waiver is authorized or permitted by this
Indenture and that it is not inconsistent herewith and that it will be valid
and binding on the Issuer in accordance with its terms.
SECTION 8.07. Waiver of Compliance by Holders. Anything in this
-------------------------------
Indenture to the contrary notwithstanding, any of the acts which the Issuer is
required to do or is prohibited from doing by any of the provisions of this
Indenture may, to the extent that such provisions might be changed or eliminated
by a supplemental indenture pursuant to Section 8.02 hereof upon consent of the
Holders of a majority in aggregate principal amount of the Securities at the
time Outstanding, be omitted or done by the Issuer if there is obtained the
prior written consent thereto of the Holders of a majority of the aggregate
principal amount of the Securities at the time Outstanding, or the prior written
waiver of compliance with any such provision or provisions signed by such
Holders. The Issuer agrees promptly to file
72
with the Trustee a duplicate original of each such consent or waiver.
ARTICLE NINE
Successor Company
-----------------
SECTION 9.01. When Issuer May Merge or Transfer Assets. The Issuer
----------------------------------------
shall not consolidate with or merge with or into, or convey, transfer or lease
all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (if not the Issuer)
shall be a Person organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia and such
Person shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Issuer under the Securities and this
Indenture;
(ii) immediately prior to and after giving effect to such transaction
(and treating any Debt which becomes an obligation of the resulting,
surviving or transferee Person or any Subsidiary as a result of such
transaction as having been issued by such Person or such Subsidiary at
the time of such transaction), no Default shall have occurred and be
continuing;
(iii) immediately after giving effect to such transaction, the
Consolidated EBITDA Coverage Ratio of the Successor Company is at least
1:1; provided, however, that, if the Consolidated EBITDA Coverage Ratio
-------- -------
of the Issuer before giving effect to such transaction is within the range
set forth in column (A) below, then the Consolidated EBITDA Coverage Ratio
of the Successor Company, as the case may be, shall be at least equal to
the lesser of (1) the ratio determined by multiplying the percentage set
forth in column (B) below by the Consolidated EBITDA Coverage Ratio prior
to such transaction and (2) the ratio set forth in column C below:
(A) (B) (C)
----- ----- -----
1.11:1 to 1.99:1 . . . . . . 90% 1.50:1
2.00:1 to 2.99:1 . . . . . . 80% 2.10:1
3.00:1 to 3.99:1 . . . . . . 70% 2.40:1
4.00:1 or more . . . . . . . 60% 2.50:1
73
(iv) immediately after giving effect to such transaction, the
resulting, surviving or transferee Person shall have Consolidated Net Worth
in an amount which is not less than the Consolidated Net Worth of the
Issuer prior to such transaction; and
(v) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel prior to the consummation of such
transaction, each stating that such consolidation, merger or transfer and
such supplemental indenture (if any) comply with this Indenture.
The resulting, surviving or transferee Person shall be the successor
Issuer and shall succeed to, and be substituted for, and may exercise every
right and power of, the Issuer under this Indenture, but the predecessor Issuer
in the case of a conveyance, transfer or lease shall not be released from the
obligation to pay the principal of and interest on the Securities.
ARTICLE TEN
Subordination
-------------
SECTION 10.01. Securities Subordinated to Senior Debt. The Issuer and
--------------------------------------
the Trustee each covenants and agrees and each Securityholder, by its acceptance
of a Security, likewise covenants and agrees that al1 Securities shall be issued
subject to the provisions of this Article; and each Person holding any Security,
whether upon original issue or upon transfer, assignment or exchange thereof,
accepts and agrees that this Debt shall, to the extent and in the manner set
forth in this Article, be subordinated in right of payment to the prior payment
in full, in cash or cash equivalents, of all amounts payable under Senior Debt,
including, without limitation, the Issuer's obligations under the Credit
Agreement, the First Mortgage Bonds Indenture and the Investment Agreement
(including any interest accruing subsequent to a bankruptcy event specified in
Sections 5.01 (6) or 5.01 (7) of this Indenture, whether or not such interest is
an allowed claim enforceable against the debtor under the United States
Bankruptcy Code).
SECTION 10.02. No Payment on Securities in Certain Circumstances. (a)
-------------------------------------------------
No direct or indirect payment or distribution by or on behalf of the Issuer on
account of
74
principal of, interest on and premium (if any) and penalties and fees
("Other Subordinated Obligations") with respect to this Debt, whether pursuant
to the terms of the Securities or upon acceleration or otherwise, and no
payment to acquire, repurchase, retire, redeem or defease any of the Securities
shall be made if, at the time of such payment, there exists a default in the
payment of all or any portion of the obligations on any Senior Debt, and such
default shall not have been cured or waived or the benefits of this sentence
waived by or on behalf of the holders of such Senior Debt.
(b) During the continuance of any other event of default with respect
to the Credit Agreement, the First Mortgage Bonds, the Investment Agreement or
other Senior Debt pursuant to which the maturity thereof may be accelerated and
(A) upon receipt by the Trustee of written notice from any holder or holders (or
-
representatives thereof) of such Senior Debt in the aggregate principal amount
of $10 million or (B) if such event of default under the Credit Agreement, the
-
First Mortgage Bonds, the Investment Agreement or other Senior Debt results from
the acceleration of the Securities, from and after the date of such
acceleration, no payment of principal of, interest on, and Other Subordinated
Obligations with respect to this Debt may be made by or on behalf of the Issuer
upon or in respect of the Securities for a period (a "Payment Blockage Period")
commencing on the earlier of the date of receipt of such notice or the date of
such acceleration and ending 179 days thereafter (unless such Payment Blockage
Period shall be terminated by written notice to the Trustee from the relevant
entity giving notice commencing the Payment Blockage Period or such event of
default has been cured or waived or by repayment in full of cash or cash
equivalents of such Senior Debt). Not more than one Payment Blockage Period
pursuant to this Section 10.02(b) may be commenced with respect to the
Securities during any period of 360 consecutive days. Notwithstanding anything
in this Indenture to the contrary, there must be 180 consecutive days in any
360-day period in which no Payment Blockage Period is in effect. For all
purposes of this Section 10.02(b), no event of default (other than an event of
default pursuant to the financial maintenance covenants under the Credit
Agreement, the First Mortgage Bonds Indenture or the Investment Agreement) that
existed or was continuing (it being acknowledged that any subsequent action that
would give rise to an event of default pursuant to any provision under which an
event of default previously existed or was continuing shall constitute a new
event of default
75
for this purpose) on the date of the commencement of any Payment Blockage
Period with respect to the Credit Agreement, the First Mortgage Bonds, the
Investment Agreement or other Senior Debt initiating such Payment Blockage
Period shall be, or shall be made, the basis for the commencement of a second
Payment Blockage Period by the representative for, or the holders of, such
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.
(c) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 10.02(a) or 10.02(b) of this Indenture, the Trustee shall promptly
notify the holders of Senior Debt of such prohibited payment and such payment
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Senior Debt 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, but only to
the extent that, upon notice from the Trustee to the holders of Senior Debt that
such prohibited payment has been made, the holders of the Senior Debt (or their
representative or representatives or a trustee) within 30 days of receipt of
such notice from the Trustee notify the Trustee of the amounts then due and
owing on the Senior Debt, if any, and only the amounts specified in such notice
to the Trustee shall be paid to the holders of Senior Debt and any excess above
such amounts due and owing on Senior Debt shall be paid to the Issuer.
SECTION 10.03. Payment Over of Proceeds Upon Dissolution, etc. (a)
----------------------------------------------
Upon any payment or distribution of assets or securities of the Issuer, as the
case may be, of any kind or character, whether in cash, property or securities,
upon any dissolution or winding up or total or partial liquidation or
reorganization of the Issuer, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all amounts due or to become due
upon all Senior Debt (including any interest accruing subsequent to a bankruptcy
event specified in Sections 5.01(6) or 5.01(7) of this Indenture, whether or not
such interest is an allowed claim enforceable against the debtor under the
United States Bankruptcy Code) shall first be paid in full, in cash or cash
equivalents, before the Securityholders or the Trustee on behalf of the
Securityholders shall be entitled to receive any payment by
76
or on behalf of the Issuer on account of principal of, interest on, and
Other Subordinated Obligations with respect to, this Debt, or any payment to
acquire, repurchase, retire, redeem or defease any of the Securities for cash,
property or securities, or any distribution with respect to the Securities of
any cash, property or securities. Before any payment may be made by, or on
behalf of, the Issuer on account of principal of, interest on, and Other
Subordinated Obligations with respect to this Debt upon any such dissolution,
winding up, liquidation or reorganization, any payment or distribution of
assets or securities of the Issuer of any kind or character, whether in cash,
property or securities, to which the Securityholders or the Trustee on behalf
of the Securityholders would be entitled, but for the provisions of this
Article, shall be made by the Issuer or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar Person making such payment or
distribution, or by the Securityholders or the Trustee if received by them or
it, 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
representatives, or to any trustee or trustees under any other indenture
pursuant to which any such Senior Debt may have been issued, as their
respective interests appear, to the extent necessary to pay all such Senior
Debt 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.
(b) To the extent any payment of Senior Debt (whether by or on behalf
of the Issuer, 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. To the extent the obligation to repay any Senior Debt is
declared to be fraudulent, invalid, or otherwise set aside under any bankruptcy,
insolvency, receivership, fraudulent conveyance or similar law, then the
obligation so declared fraudulent, invalid or otherwise set aside (and all other
amounts that would come due with respect thereto had such obligation not been so
affected) shall be deemed to be reinstated and
77
outstanding as Senior Debt for all purposes hereof as if such declaration,
invalidity or setting aside had not occurred.
(c) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Issuer of any kind or character, whether in cash, property
or securities, shall be received by the Trustee or any Securityholder at a time
when such payment or distribution is prohibited by Section 10.03(a) of this
Indenture and before all obligations in respect of Senior Debt are paid in full,
in cash or cash equivalents, such payment or distribution shall be received and
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Debt (pro rata to such ho1ders on the basis of the respective
amount of Senior Debt held by such holders) or their representatives, or to the
trustee or trustees under any other indenture pursuant to which any such Senior
Debt may have been issued, as their respective interests 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 Issuer with, or the merger of the Issuer
with or into, another corporation or the liquidation or dissolution of the
Issuer following the sale, conveyance, transfer, lease or other disposition of
all or substantially all of its property and assets to another corporation upon
the terms and conditions provided in Article Nine of this Indenture shall not be
deemed a dissolution, winding up, liquidation or reorganization for the
purposes of this Section 10.03 if such other corporation shall, as a part of
such consolidation, merger, sale, conveyance, transfer, lease or other
disposition, assume the obligations of the Issuer with respect to Senior Debt
and otherwise comply with the conditions stated in Article Nine of this
Indenture.
SECTION 10.04. Subrogation. (a) Upon the payment in full of all Senior
-----------
Debt, in cash or cash equivalents, the Securityholders shall be subrogated to
the rights of the holders of Senior Debt to receive payments or distributions of
cash, property or securities of the Issuer made on such Senior Debt until the
principal of and interest on the Securities shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions
78
to the holders of the Senior Debt of any cash, property or securities to
which the Securityholders or the Trustee on their behalf would be entitled
except for the provisions of this Article, and no payment pursuant to the
provisions of this Article to the holders of Senior Debt by the Securityholders
or the Trustee on their behalf shall, as between the Issuer, its creditors
other than holders of Senior Debt, and the Securityholders, be deemed to be a
payment by the Issuer to or on account of the Senior Debt. It is understood
that the provisions of this Article are intended solely for the purpose of
defining the relative rights of the Securityholders, on the one hand, and the
holders of the Senior Debt, on the other hand.
(b) If any payment or distribution to which the Securityholders would
otherwise have been entitled but for the provisions of this Article shall have
been applied pursuant to the provisions of this Article, to the payment of all
amounts payable under Senior Debt, then, and in such case, the Securityholders
shall be entitled to receive from the holders of such Senior Debt any
payments or distributions received by such holders of Senior Debt in excess of
the amount required to make payment in full, in cash or cash equivalents, of
such Senior Debt of such holders.
SECTION 10.05. Obligations of Issuer Unconditional. (a) Nothing
-----------------------------------
contained in this Article or elsewhere in this Indenture or in the Securities)
is intended to or shall impair, as among the Issuer and the Securityholders, the
obligation of the Issuer, which is absolute and unconditional, to pay to the
Securityholders the principal of, and interest on, and Other Subordinated
Obligation with respect to the Securities 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 Securityholders and creditors of the Issuer other
than the holders of the Senior Debt, nor shall anything herein or therein
prevent the Securityholders or the Trustee on their behalf from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
the Senior Debt.
(b) Without limiting the generality of the foregoing, nothing
contained in this Article will restrict the right of the Trustee or the
Securityholders to take any action to declare the Securities to be due and
payable prior to their stated maturity pursuant to the acceleration
79
provision of this Indenture or to pursue any rights or remedies hereunder;
provided, however, that all Senior Debt then due and payable or thereafter
-------- -------
declared to be due and payable shall first be paid in full, in cash or cash
equivalents, before the Securityholders or the Trustee are entitled to receive
any direct or indirect payment of principal of, interest on, and Other
Subordinated Obligation with respect to this Debt from the Issuer.
SECTION 10.06. Notice to Trustee. (a) The Issuer shall give prompt
-----------------
written notice to the Trustee of any fact known to the Issuer that would
prohibit the making of any payment to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article. The Trustee shall not 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 that would prohibit the making
of any payment to or by the Trustee unless and until the Trustee shall have
received notice in writing at its Corporate Trust office to that effect signed
by an Officer, or by a holder of Senior Debt, or trustee or agent therefor; and
prior to the receipt of any such written notice, the Trustee shall, subject to
other provisions hereof regarding the rights and obligations of the Trustee, be
entitled to assume that no such facts exist; provided that, if the Trustee shall
--------
not have received the notice provided for in this Section 10.06 at least two
Business Days prior to the date upon which, by the terms of this Indenture, any
monies shall become payable for any purpose (including, without limitation, the
payment of the principal of, interest on, and Other Subordinated Obligations
with respect to any Security), then, notwithstanding anything herein to the
contrary, the Trustee shall have full power and authority to receive any monies
from the Issuer and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it on or after such prior date except for an acceleration of the
Securities prior to such application. Nothing contained in this Section 10.06
shall limit the right of the holders of Senior Debt to recover payments as
contemplated by this Article. The foregoing shall not apply if the Paying Agent
is the Issuer. The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself or itself to be a holder of any
Senior Debt (or a trustee on behalf of, or other representative of, such
holder) to establish that such notice has been given by a holder of such Senior
Debt or a trustee or representative on behalf of any such holder.
80
(b) In the event that the Trustee 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, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount 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 and, if such evidence is not furnished to the
Trustee, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 10.07. Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent. Upon any payment or distribution of assets or securities
-----------------
referred to in this Article Ten, the Trustee and the Securityholders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which bankruptcy, dissolution, winding up, liquidation or
reorganization proceedings are pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person making
such payment or distribution, delivered to the Trustee or to the Securityholders
for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other Debt of the Issuer, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
SECTION 10.08. Trustee's Relation to Senior Debt. (a) The Trustee and
--------------------------------
any Paying Agent shall be entitled to all the rights set forth in this Article
with respect to any Senior Debt that 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 or any
Paying Agent of any of its rights as such holder.
(b) With respect to the holders of Senior Debt, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Debt (except as provided in Sections 10.02(c) and
10.03(c) of this Indenture) and shall not be liable to any
81
such holders if the Trustee shall in good faith mistakenly pay over or
distribute to Securityholders of Securities or to the Issuer or to any other
person cash, property or securities to which any holders of Senior Debt shall
be entitled by virtue of this Article or otherwise.
SECTION 10.09. Subordination Rights Not Impaired by Acts or Omissions
------------------------------------------------------
of the Issuer or Holders of Senior Debt. No right of any present or future
---------------------------------------
holders of any Senior Debt to enforce subordination as provided in this Article
will at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Issuer or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Issuer with the terms of this
Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with. The provisions of this Article Ten are intended to be
for the benefit of, and shall be enforceable directly by, the holders of Senior
Debt.
SECTION 10.10. Holders Authorize Trustee to Effectuate Subordination
-----------------------------------------------------
of Securities. Each Securityholder by his acceptance of any Securities
-------------
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Issuer (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 property and assets
of the Issuer, the filing of a claim for the unpaid balance of its Securities in
the form required in those proceedings. If the Trustee does not file a proper
claim or proof of indebtedness in the form required in such proceeding at least
10 days before the expiration of the time to file such claim or claims, each
holder of Senior Debt is hereby authorized to file an appropriate claim for and
on behalf of the Securityholders.
SECTION 10.ll. Not to Prevent Events of Default. The failure to make a
--------------------------------
payment on account of principal of, interest on or Other Subordinated
Obligations with respect to the Securities by reason of any provision of this
Article will not be construed as preventing the occurrence of an Event of
Default.
82
SECTION 10.12. Trustee's Compensation Not Prejudiced. Nothing in this
-------------------------------------
Article will apply to amounts due to the Trustee pursuant to other sections of
this Indenture.
SECTION 10.13. No Waiver of Subordinated Provisions. Without in any
------------------------------------
way limiting the generality of Section 10.09 of this Indenture, the holders of
Senior Debt may, at any time and from time to time, without the consent of or
notice to the Trustee or the Securityholders, without incurring responsibility
to the Securityholders and without impairing or releasing the subordination
provided in this Article or the obligations hereunder of the Securityholders to
the holders of Senior Debt, do any one or more of the following: (a) change
-
the manner, place or terms of payment or change the time of payment of, or renew
or alter, Senior Debt or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding or secured; (b) sell, exchange,
-
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Debt; (c) release any Person liable in any manner for the
-
collection of Senior Debt; and (d) exercise or refrain from exercising any
-
rights against the Issuer and any other Person.
SECTION 10.14. Payments May Be Paid Prior to Dissolution. Nothing
-----------------------------------------
contained in this Article or elsewhere in this Indenture shall prevent (i) the
-
Issuer, except under the conditions described in Section 10.02 or 10.03 of this
Indenture, from making payments of principal of, interest on, or Other
Subordinated Obligations with respect to the Securities, or from depositing with
the Trustee any money for such payments, or (ii) the application by the Trustee
--
of any money deposited with it for the purpose of making such payments of
principal of, interest on, or Other Subordinated Obligations with respect to the
Securities to the holders entitled thereto unless, at least two Business Days
prior to the date upon which such payment becomes due and payable, the Trustee
shall have received the written notice provided for in Section 10.02(b) of this
Indenture (or there shall have been an acceleration of the Securities prior to
such application) or in Section 10.06 of this Indenture. The Issuer shall give
prompt written notice to the Trustee of any dissolution, winding up, liquidation
or reorganization of the Issuer.
SECTION 10.15. Consent of Holders of Senior Debt Under the Credit
--------------------------------------------------
Agreement and First Mortgage Bonds. The provisions of this Article (including
----------------------------------
the definitions contained in this Article and references to this Article
83
contained in this Indenture) shall not be amended in a manner that would
adversely affect the rights of the holders of Senior Debt under the Credit
Agreement, the First Mortgage Bonds, the Investment Agreement or any other
Senior Debt, and no such amendment shall become effective unless the holders of
such Senior Debt shall have consented (in accordance with the provisions of the
Credit Agreement, the First Mortgage Bonds Indenture, the Investment Agreement
or other relevant instrument, as the case may be) to such amendment.
ARTICLE ELEVEN
Miscellaneous Provisions
------------------------
SECTION 11.01. Trust Indenture Act Controls. If any provision of this
----------------------------
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 11.02. Communication by Holders with Other Holders. Holders of
-------------------------------------------
Securities may communicate pursuant to TIA (S) 312(b) with other Holders with
respect to their rights under this Indenture or the Securities. The Issuer, the
Trustee, the Registrar and anyone else shall have the protection of TIA (S)
312(c).
SECTION 11.03. Notices. Any notice or communication shall be
-------
sufficiently given if in writing and delivered in person or mailed by first-
class mail, postage prepaid, addressed as follows:
if to the Issuer:
Americold Corporation
0000 X.X. Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxx X. Xxxxx
84
if to the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Division
The Issuer or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder of Securities shall be
mailed to such Holder at his address as it appears on the registration books of
the Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Holder of Securities or
any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.04. When Treasury Securities Disregarded. In determining
------------------------------------
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Issuer
or by any Affiliate of the Issuer shall be disregarded and deemed not to be
Outstanding, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities Outstanding at the time shall be
considered in any such determination.
SECTION 11.05. Rules by Trustee, Paying Agent and Security Registrar.
-----------------------------------------------------
The Trustee may make reasonable rules for action by or a meeting of Holders of
Securities. The Security Registrar and the paying agent may make reasonable
rules for their functions.
SECTION 11.06. Legal Holidays. A "Legal Holiday" is a Saturday, a
--------------
Sunday or a day on which banking institutions are not required to be open in the
State of New York or the State of Oregon. If a Payment Date is a Legal Holiday,
payment shall be made on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the
85
intervening period on such amounts to be paid on such Payment Date; provided
--------
that if the Maturity Date is a Legal Holiday, interest shall accrue for such
intervening period. If a regular record date is a Legal Holiday, the record
date shall not be affected.
SECTION ll.07. Successors. All agreements of the Issuer in this
----------
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION ll.08. Multiple Originals. The parties may sign any number of
------------------
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION ll.09. Separability C1ause. In case any provision in this
-------------------
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION ll.l0. Governing Law. This Indenture and each of the
-------------
Securities issued hereunder shall be deemed to be contracts made under the laws
of the State of New York and shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to applicable principles of conflicts of law to the extent that the
application of the laws of another jurisdiction would be required thereby.
SECTION ll.ll. Table of Contents; Headings. The table of contents and
---------------------------
the titles and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not being considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
86
IN WITNESS WHEREOF, AMERICOLD CORPORATION has caused this Indenture to
be signed and acknowledged by its Vice President, and its corporate seal to be
affixed hereunto, and the same to be attested by its Assistant Secretary; and
UNITED STATES TRUST COMPANY OF NEW YORK has caused this Indenture to be signed
and delivered by one of its vice Presidents and its corporate seal to be affixed
hereunto, and the same to be attested by one of its Authorized Persons, all as
of the day and year first above written.
AMERICOLD CORPORATION
By________________________________
Name: Xxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
Attest:
__________________________________
Name: Xxx X. Xxxxxx
Title: Secretary
[Seal]
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By________________________________
Name:
Title:
Attest:
__________________________________
Name:
Title:
[Seal]
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this _____ day of ______ 1996, before me persona1ly came Xxxx X.
Xxxxx, to me known, and who, being by me duly sworn, did depose and say that he
resides at ___________, that he is the Senior Vice President and Chief
Financial Officer of AMERICOLD CORPORATION, one of the corporations described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that one of the seals affixed to the said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that he signed his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
[NOTARIAL SEAL]
________________________
Name:
Commission Expires______
1
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ______ day of _______ 1996, before me personally came
____________, to me known, and who, being by me duly sworn, did depose and say
that he resides at ________________ , that he is the______________ of UNITED
STATES TRUST COMPANY OF NEW YORK, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that one of the seals affixed to the said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that he signed his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
[NOTARIAL SEAL]
_____________________________
Name:
Commission Expires __________
2
[FORM OF FACE OF SECURITY]
AMERICOLD CORPORATION
No. R- $
___% Senior Subordinated Debenture, Due 2008
AMERICOLD CORPORATION, an Oregon corporation, promises to pay
to , or registered assigns, the aggregate
principal sum of Dollars on or before May 1, 2008.
Interest Payment Dates: May 1 and
November 1
Record Dates: April 15 and October 15
Additional provisions of this Security are set forth on the other
side of this Security.
Dated:
AMERICOLD CORPORATION,
By
_____________________________
Vice President
_____________________________
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
UNITED STATES TRUST COMPANY OF NEW
YORK, as Trustee, certifies that [SEAL]
this is one of the Securities
referred to in the Indenture.
By
_______________________________
Authorized Signatory
Date of Authentication:
[FORM OF REVERSE SIDE OF SECURITY]
AMERICOLD CORPORATION
__% Senior Subordinated Debenture, Due 2008
1. Payment of Interest; Default Rate; Payment of Principal.
-------------------------------------------------------
Americold Corporation (the "Issuer", which term includes any successor
as defined in the Indenture hereinafter referred to) promises to pay interest on
the outstanding principal amount of this Security (a "Security") from the date
hereof to maturity at a rate of __% per annum, and to pay, on demand, interest,
compounded monthly, on any overdue principal, premium and (to the extent not
prohibited by applicable law) interest at a rate (the "Default Rate") equal to
the lesser of (a) the greater of (i)__% per annum and (ii) 4% per annum over the
- - --
prime rate or equivalent rate of interest from time to time in effect as
announced by United States Trust Company of New York, and (b) the maximum rate
of interest on this Security then permitted by applicable law, in each case
computed on the basis of a 360-day year of twelve 30-day months. This Security
shall bear interest on the unpaid principal amount hereof from and after the
most recent Payment Date (as hereinafter defined) to which interest has been
paid or, if no interest has been paid, from and after the date of original
issuance of the Securities.
Such principal and interest (other than any interest payable at the
Default Rate, which is payable on demand) shall be payable in the manner set
forth in Section 3 below in lawful money of the United States of America, as
follows:
(i) the full amount of all interest accrued on the outstanding
principal amount of this Security shall be due and payable on May 1 and
November 1 of each year, commencing November 1, 1996; and
(ii) payment of principal shall be due and payable on May 1, 2008.
The payments described in clause (i) above are herein called the "Interest
Payments" and the dates upon which such payments and the payment described in
clause (ii) above are due are herein called the "Payment Dates"; provided that,
--------
if any Payment Date would otherwise be on a day which is not a
Business Day, then such Payment Date shall be the next succeeding Business
Day. Capitalized terms used herein without definition shall have the meanings
specified in the Indenture (as hereinafter defined).
The Interest Payment payable on any Payment Date will, subject to
certain conditions set forth below, be paid to the Person in whose name this
Security (or one or more predecessor Securities) is registered at the close of
business on the April 15 or October 15 next preceding such Payment Date, as the
case may be; provided that any Interest Payment not punctually paid or duly
--------
provided for on such Payment Date shall cease to be so payable, but instead
shall be payable to the Person in whose name this Security is registered at the
close of business on such date as shall be determined by the Issuer in
accordance with the Indenture (as hereinafter defined).
2. Indenture.
---------
This Security is a general unsecured obligation of the Issuer and is
one of a duly authorized issue of securities of the Issuer designated as its __%
Senior Subordinated Notes, Due 2008, limited in aggregate principal amount to
$120,000,000, except as provided in the Indenture (as hereinafter defined), all
issued or to be issued, under and pursuant to the Indenture, dated as of ______,
1996 (herein, together with all supplements and amendments thereto, called the
"Indenture"). This Security has been duly executed and delivered by the
Issuer to United States Trust Company of New York (herein, together with its
successors and assigns as trustee under the Indenture, called the "Trustee"), as
Trustee for authentication. Reference is hereby made to the Indenture and all
indentures supplemental thereto for a description of the nature and extent of
the security, the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Issuer and the Holders of the
Securities, and this Security is subject in all respects to such Indenture.
3. Method of Payment; Tax Withholding.
----------------------------------
(a) Interest Payments on the Securities will be made in U.S. dollars,
at the office of the Trustee, but, at the option of the Issuer, such payments
may be made by check drawn on a bank in New York City mailed to the Holder at
such Holder's registered address, except as otherwise provided in the Indenture.
Payment of principal of or premium (if any) on this Security upon maturity or
redemption in
2
whole or in part, together with accrued interest, will, except as otherwise
provided in the Indenture, be made against surrender hereof at the office of
the paying agent or co-paying agent maintained by the Issuer in New York City,
which initially shall be at the office of the United States Trust Company of
New York, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
(b) No deduction or withholding from any payment of interest on this
Security for or on account of any taxes will be made except as required by
law. Applicable United States federal taxes will be withheld from payments on
this Security for any year in which the Trustee has not received from any
Holder hereof that is not a United States Person (as defined in the Indenture)
properly executed Form 4224 or Form 1001 (or Form W-8) (or successor thereto)
in accordance with the provisions of the Indenture, certifying to the effect
that such Holder is not subject to United States federal withholding tax on
interest payable under this Security.
4. Denominations.
-------------
Securities are issuable only in fully registered form without coupons
and may be transferred in minimum denominations of $50,000 and such greater
denominations as are whole multiples of $100,000, only in the manner and upon
payment of the charges provided in the Indenture. The Trustee will authenticate
and deliver Securities for issue in an aggregate principal amount not to exceed
$120,000,000 upon a written order of the Issuer.
5. Defaults and Remedies.
---------------------
If an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal amount of each Security may become or
be declared to be due and payable. Upon payment by the Issuer of such principal
amount, the premium (if any) specified in Section 3.01 of the Indenture and all
accrued interest, the obligations of the Issuer with respect to the payment of
principal of, premium (if any) and interest on this Security shall terminate.
The Indenture provides that a declaration that the Securities are due
and payable upon the occurrence of certain Events of Default and the
consequences of such declaration may be annulled by the Holders of a majority in
aggregate principal amount of the Securities then Outstanding,
3
considered as a single class. It is also provided in the Indenture that
under certain circumstances prior to any such declaration the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding may on behalf of the Ho1ders of all the Securities waive any past
Default or Event of Default under the Indenture and its consequences except a
default in the payment of principal of, premium (if any) or interest on any of
the Securities, or a default in respect of a covenant or provision of the
Indenture which cannot be amended or modified without the consent of the Holder
of each Security affected.
6. Amendment; Supplement; Waiver.
-----------------------------
The Indenture contains provisions permitting the Issuer and the
Trustee, without the consent of the Holders of Securities, to modify and amend
the terms and conditions of the Indenture and the Securities for certain
purposes including, without limitation, (a) adding to the covenants of the
-
Issuer for the benefit of the Holders of Securities, (b) curing any ambiguity
-
or correcting or supplementing any defective provisions contained therein, or
(c) making such other provisions in regard to matters or questions arising under
-
the Indenture as shall not adversely affect the interests of the Ho1ders of the
Securities. The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of a majority in aggregate principal
amount of the Securities then Outstanding, evidenced as in the Indenture
provided, to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
any supplemental indenture or modifying in any manner the rights of the Holders
of Securities under the Indenture; provided that no such supplemental indenture
--------
shall, without the consent in each case of the Ho1der of each Security so
affected, (a) extend the fixed maturity of any Securities, or reduce the
-
principal amount thereof or premium thereon, or change the time at which or
circumstances under which any Security may or shall be redeemed or repurchased,
or reduce the rate of or extend the time of payment of interest thereon, or make
the principal thereof or premium or interest thereon payable in any coin or
currency other than that hereinbefore provided, or impair the right to institute
suit for the enforcement of any such payment, make any changes to the
subordination provisions set forth in the Indenture that adversely affect the
rights of any Securityholder, or (b) amend certain provisions of the Indenture
-
to reduce quorum or voting requirements, or reduce the aforesaid percentage in
aggregate principal amount of
4
Securities the consent of the Holders of which is required for any such
supplemental indenture, or reduce the percentage of Securities the Holders of
which are required to give certain directions or to consent to certain waivers
or (c) modify or affect in any manner adverse to the Holders of the Securities
-
the terms and conditions of the obligations of the Issuer in respect of the due
and punctual payment of the principal of and premium (if any) and interest on
the Securities.
Any such consent or waiver by the Holder of this Security (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and any Security which may
be issued in substitution or exchange hereof, irrespective of whether any
notation of such consent or waiver is made upon this Security or such other
Security.
7. Optional Redemption.
-------------------
The Securities will be redeemable, at the Issuer's option, in whole or
in part, at any time and from time to time on or after May 1, 2001 upon not less
than 30 nor more than 60 days' prior notice mailed by first-class mail to each
Holder's registered address, at the following redemption prices (expressed in
percentages of principal amount), plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant Payment Date), if redeemed during the 12-
month period commencing on or after May 1, of the years set forth below:
Redemption
Period Price
____________________________________________ ______________________________
2001 .................................... %
2002 ....................................
2003 and thereafter ..................... 100.000
In addition, at any time and from time to time prior to May 1, 1999,
the Issuer may redeem in the aggregate up to 35% of the original principal
amount of the Notes with the proceeds of one or more Public Equity Offerings, at
a redemption price (expressed as a percentage of principal amount) of ___% plus
accrued and unpaid interest, if any, to the redemption date (subject to the
right of Holders of
5
record on the relevant record date to receive interest due on the relevant
Payment Date).
In the case of any redemption of Securities, the Issuer is required to
deliver to the Trustee an Officers' Certificate of the Issuer stating that the
Issuer is entitled to effect such redemption and setting forth in reasonable
detail a statement of facts showing that the conditions precedent, if any, to
the right of the Issuer to redeem the Securities have occurred.
8. Subordination.
-------------
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Debt and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions and
-
(b) authorizes and directs the Trustee on his behalf to take such action as may
-
be necessary or appropriate to effectuate the subordination so provided.
9. Put Provisions.
--------------
Upon a Change of Control, any Holder of Securities will have the right
to cause the Issuer to repurchase all or any part of the Securities of such
Holder at a repurchase price equal to 101% of the principal amount of the
Securities to be repurchased plus accrued interest to the date of repurchase, as
provided in, and subject to, the Indenture.
10. Asset Sales.
-----------
The Indenture provides, under certain circumstances, for the payment
of principal of the Securities from certain asset sales.
11. Defeasance.
----------
Subject to certain conditions, the Issuer at any time may terminate
some or all of its obligations under the Securities and the Indenture if the
Issuer deposits with the Trustee money or U.S. Government Obligations for the
payment of principal and interest on the Securities to redemption or maturity,
as the case may be.
6
12. Persons Deemed Owners.
---------------------
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
deem and treat the Person in whose name this Security shall be registered upon
the Security Register (as such term is defined in the Indenture) as the absolute
owner of this Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment thereof and for all other purposes, and neither the
Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall, except
to the extent required by applicable law, be affected by any notice to the
contrary. All such payments so made to any such Person shall be valid and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge all
liability for the money payable hereupon.
13. Validity; Authentication.
------------------------
The Indenture and this Security shall be deemed to be contracts made
under the laws of the State of New York and shall for all purposes be governed
by, and construed in accordance with, the laws of such State without giving
effect to applicable principles of conflicts of laws to the extent that the
application of the laws of another jurisdiction would be required thereby.
This Security shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee under the Indenture.
14. Unclaimed Money.
---------------
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or paying agent shall pay the money back to the
Issuer at its request. After any such payment, Securityholders entitled to the
money must look only to the Issuer and not to the Trustee for payment unless an
abandoned property law designates another person.
15. Abbreviations.
-------------
Customary abbreviations may be used in the name of a Securityholder 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
7
common), CUST (custodian), and U/G/M/A (Uniform Gifts to Minors Act).
16. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused CUSIP numbers to be
printed on the securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Security or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
8
-------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
-------------------------------------------------------------------------------
(insert assignee's social security or taxpayer I.D. number)
and irrevocably appoint________________________________________________________
agent to transfer this Security on the books of the Issuer. The agent may
substitute another to act for him.
Date: _____________
Signature: _____________________________________________________________________
(Sign exactly as your name appears on the other side
of this Security)
-------------------------------------------------------------------------------
