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EXHIBIT 4.1
Execution Copy
DI GIORGIO CORPORATION
and
THE BANK OF NEW YORK, AS TRUSTEE
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INDENTURE
Dated as of June 20, 1997
$155,000,000
10% Senior Notes due 2007
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Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of June 20, 1997
Trust Indenture Indenture
Act Section Section
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Sections 310 (a)(1) ......................................... 6.9
(a)(2) ......................................... 6.9
(a)(5) ......................................... 6.9
(b) ............................................ 6.7, 6.10
Sections 311 (a) ............................................ 6.13
(b) ............................................ 6.13
Sections 312 (a) ............................................ 7.1
(b) ............................................ 7.2
(c) ............................................ 7.2
Sections 313 (a) ............................................ 7.3
(b) ............................................ 7.3
(c) ............................................ 7.3
(d) ............................................ 7.3
Sections 314 (a)(1) ......................................... 7.4
(a)(2) ......................................... 7.4
(a)(3) ......................................... 7.4
(a)(4) ......................................... 10.20
(c)(1) ......................................... 1.3
(c)(2) ......................................... 1.3
(e) ............................................ 1.3
Sections 315 (a) ............................................ 6.1
(b) ............................................ 6.2
(c) ............................................ 6.1
(d) ............................................ 6.1, 6.3
(e) ............................................ 5.14
Sections 316 (a)(last sentence) ............................. 1.1 ("Outstanding")
(a)(1)(A) ...................................... 5.12
(a)(2)(B) ...................................... 5.13
(b) ............................................ 5.8
(c) ............................................ 1.5
Sections 317 (a)(1) ......................................... 5.3
(a)(2) ......................................... 5.4
(b) ............................................ 10.3
Sections 318 (a) ............................................ 1.8
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Indenture.
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TABLE OF CONTENTS
PAGE
Parties................................................................... 1
Recitals.................................................................. 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.1. Definitions........................................................ 1
1.2. Other Definitions.................................................. 23
1.3. Compliance Certificates and Opinions............................... 24
1.4. Form of Documents Delivered to Trustee............................. 24
1.5. Acts of Holders.................................................... 25
1.6. Notices, etc., to Trustee and the Company.......................... 26
1.7. Notice to Holders; Waiver.......................................... 26
1.8. Conflict with Trust Indenture Act.................................. 27
1.9. Effect of Headings and Table of Contents........................... 27
1.10. Successors and Assigns............................................. 27
1.11. Separability Clause................................................ 27
1.12. Benefits of Indenture.............................................. 28
1.13. GOVERNING LAW...................................................... 28
1.14. Legal Holidays..................................................... 28
1.15. Schedules.......................................................... 28
1.16. Counterparts....................................................... 28
ARTICLE II
SECURITY FORMS
2.1. Forms Generally.................................................... 28
2.2. Form of Face of Security........................................... 30
2.3. Form of Reverse of Securities...................................... 41
ARTICLE III
THE SECURITIES
3.1. Title and Terms.................................................... 48
3.2. Denominations...................................................... 49
3.3. Execution, Authentication, Delivery and Dating..................... 49
3.4. Temporary Securities............................................... 51
3.5. Registration, Registration of Transfer and Exchange................ 51
3.6. Book-Entry Provisions for Global Securities........................ 53
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3.7. Special Transfer Provisions................................................. 55
3.8. Mutilated, Destroyed, Lost and Stolen Securities............................ 58
3.9. Payment of Interest; Interest Rights Preserved.............................. 59
3.10. CUSIP Numbers............................................................... 60
3.11. Persons Deemed Owners....................................................... 61
3.12. Cancellation................................................................ 61
3.13. Computation of Interest..................................................... 61
ARTICLE IV
DEFEASANCE AND COVENANT DEFEASANCE
4.1. Company's Option to Effect Defeasance or Covenant Defeasance................ 61
4.2. Defeasance and Discharge.................................................... 62
4.3. Covenant Defeasance......................................................... 62
4.4. Conditions to Defeasance or Covenant Defeasance............................. 63
4.5. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions........................................... 65
4.6. Reinstatement............................................................... 65
ARTICLE V
REMEDIES
5.1. Events of Default........................................................... 66
5.2. Acceleration of Maturity; Rescission and Annulment.......................... 68
5.3. Collection of Indebtedness and Suits for Enforcement by Trustee............. 69
5.4. Trustee May File Proofs of Claim............................................ 70
5.5. Trustee May Enforce Claims without Possession of Securities................. 70
5.6. Application of Money Collected.............................................. 71
5.7. Limitation on Suits......................................................... 71
5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest... 72
5.9. Restoration of Rights and Remedies.......................................... 72
5.10. Rights and Remedies Cumulative.............................................. 72
5.11. Delay or Omission Not Waiver................................................ 72
5.12. Control by Holders.......................................................... 73
5.13. Waiver of Past Defaults..................................................... 73
5.14. Undertaking for Costs....................................................... 73
5.15. Waiver of Stay, Extension or Usury Laws..................................... 74
5.16. Remedies Subject to Applicable Law.......................................... 74
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ARTICLE VI
THE TRUSTEE
6.1. Duties of Trustee.............................................................. 74
6.2. Notice of Defaults............................................................. 76
6.3. Certain Rights of Trustee...................................................... 76
6.4. Trustee Not Responsible for Recitals, Dispositions of Securities or Application
of Proceeds Thereof......................................................... 77
6.5. Trustee and Agents May Hold Securities; Collections; etc....................... 78
6.6. Money Held in Trust............................................................ 78
6.7. Compensation and Indemnification of Trustee and Its Prior Claim................ 78
6.8. Conflicting Interests.......................................................... 79
6.9. Trustee Eligibility............................................................ 79
6.10. Resignation and Removal; Appointment of Successor Trustee...................... 79
6.11. Acceptance of Appointment by Successor......................................... 81
6.12. Merger, Conversion, Consolidation or Succession to Business.................... 81
6.13. Preferential Collection of Claims Against Company.............................. 82
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
7.1. Company to Furnish Trustee Names and Addresses of Holders...................... 82
7.2. Disclosure of Names and Addresses of Holders................................... 83
7.3. Reports by Trustee............................................................. 83
7.4. Reports by Company............................................................. 83
ARTICLE VIII
CONSOLIDATION, MERGER, SALE OF ASSETS
8.1. Company May Merge, Consolidate, etc., Only on Certain Terms.................... 84
8.2. Successor Substituted.......................................................... 85
ARTICLE IX
SUPPLEMENTAL INDENTURES
9.1. Supplemental Indentures and Agreements without Consent of Holders.............. 86
9.2. Supplemental Indentures and Agreements with Consent of Holders................. 86
9.3. Execution of Supplemental Indentures and Agreements............................ 88
9.4. Effect of Supplemental Indentures.............................................. 88
9.5. Conformity with Trust Indenture Act............................................ 88
9.6. Reference in Securities to Supplemental Indentures............................. 88
9.7. Notice of Supplemental Indentures.............................................. 89
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ARTICLE X
COVENANTS
10.1. Payment of Principal, Premium and Interest....................................... 89
10.2. Maintenance of Office or Agency.................................................. 89
10.3. Money for Security Payments to Be Held in Trust.................................. 90
10.4. Corporate Existence.............................................................. 91
10.5. Payment of Taxes and Other Claims................................................ 91
10.6. Maintenance of Properties........................................................ 92
10.7. Insurance........................................................................ 92
10.8. Limitation on Indebtedness....................................................... 92
10.9. Limitation on Restricted Payments................................................ 93
10.10. Limitation on Transactions with Affiliates....................................... 96
10.11. Limitation on Liens.............................................................. 97
10.12. Limitation on Sale of Assets..................................................... 99
10.13. Purchase of Securities upon a Change of Control.................................. 100
10.14. Limitation on Capital Stock of Subsidiaries...................................... 104
10.15. Limitation on Dividends and Other Payment Restrictions Affecting Subsidiaries.... 104
10.16. Limitations on Unrestricted Subsidiaries......................................... 105
10.17. Provision of Financial Statements................................................ 105
10.18. Statement by Officers as to Default.............................................. 105
10.19. Waiver of Certain Covenants...................................................... 106
ARTICLE XI
REDEMPTION OF SECURITIES
11.1. Rights of Redemption............................................................. 106
11.2. Applicability of Article......................................................... 107
11.3. Election to Redeem; Notice to Trustee............................................ 107
11.4. Selection by Trustee of Securities to Be Redeemed................................ 107
11.5. Notice of Redemption............................................................. 107
11.6. Deposit of Redemption Price...................................................... 109
11.7. Securities Payable on Redemption Date............................................ 109
11.8. Securities Redeemed or Purchased in Part......................................... 109
ARTICLE XII
SATISFACTION AND DISCHARGE
12.1. Satisfaction and Discharge of Indenture.......................................... 110
12.2. Application of Trust Money....................................................... 111
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INDENTURE, dated as of June 20, 1997, between DI GIORGIO CORPORATION, a
Delaware corporation (as more fully defined below, the "Company"), and THE BANK
OF NEW YORK, a national banking association, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 10% Senior
Notes due 2007, Series A (the "Series A Securities" or the "Initial
Securities"), and an issue of 10% Senior Notes due 2007, Series B (the "Series B
Securities" or the "Exchange Securities" and, together with the Series A
Securities, the "Securities"), of substantially the tenor and amount hereinafter
set forth, and to provide therefor, the Company has duly authorized the
execution and delivery of this Indenture and the Securities;
Upon the effectiveness of the Exchange Offer Registration Statement or
the Shelf Registration Statement (as defined herein), this Indenture will be
subject to, and shall be governed by, the provisions of the Trust Indenture Act
that are required to be part of and to govern indentures qualified under the
Trust Indenture Act; and
All acts and things necessary have been done to make (i) the
Securities, when duly issued and executed by the Company and authenticated and
delivered hereunder, the valid obligations of the Company and (ii) this
Indenture a valid agreement of the Company in accordance with the terms of this
Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
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(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(e) all references to $, US$, dollars or United States dollars
shall refer to the lawful currency of the United States of America; and
(f) all references herein to particular Sections or Articles
refer to this Indenture unless otherwise so indicated.
The following terms shall have the meanings set forth in this Section.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at
the time such Person becomes a Subsidiary or merges with or into the Company or
any Subsidiary or (ii) assumed in connection with the acquisition of assets from
such Person, in each case, other than Indebtedness incurred in connection with,
or in contemplation of, such Person becoming a Subsidiary or such acquisition,
as the case may be. Acquired Indebtedness shall be deemed to be incurred on the
date of the related acquisition of assets from any Person or the date the
acquired Person becomes a Subsidiary, as the case may be.
"Adjusted Consolidated Interest Expense" of any Person means, without
duplication, for any period, as applied to any Person, the sum of (a) the
interest expense of such Person and its Consolidated Subsidiaries (exclusive of
deferred financing fees and any premiums or penalties paid in connection with
redeeming or retiring any Indebtedness prior to its stated maturity) for such
period, on a Consolidated basis, including without limitation, (i) amortization
of debt discount, (ii) the net cost under interest rate contracts (including
amortization of discounts), (iii) the interest portion of any deferred payment
obligation and (iv) accrued interest, plus (b) (i) the interest component of the
Capital Lease Obligations paid, accrued and/or scheduled to be paid, or accrued
by such Person during such period, and (ii) all capitalized interest of such
Person and its Consolidated Subsidiaries, in each case as determined in
accordance with GAAP consistently applied.
"Affiliate" means, with respect to any specified Person: (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person; (ii) any other Person that
owns, directly or indirectly, 5% or more of such specified Person's Capital
Stock or any executive officer or director of any such specified Person or other
Person or, with respect to any natural Person, any person having a relationship
with such Person by blood, marriage or adoption not more remote than first
cousin; or (iii) any other Person 5% or more of the Voting Stock of which is
beneficially owned or held directly or indirectly by such specified Person. For
the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of
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such Person, directly or indirectly, whether through ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
other disposition (including, without limitation, by way of merger,
consolidation or Sale and Leaseback Transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of (a) any
Capital Stock of any Subsidiary; (b) all or substantially all of the properties
and assets of any division or line of business of the Company or its
Subsidiaries; or (c) any other properties or assets of the Company or any
Subsidiary, other than in the ordinary course of business. For the purposes of
this definition, the term "Asset Sale" shall not include any transfer of
properties and assets (A) that is governed by Article VIII, (B) that is by any
Subsidiary to the Company or any Wholly-Owned Subsidiary in accordance with the
terms of the Indenture, (C) that is of obsolete equipment or other obsolete
assets in the ordinary course of business, (D) that is of the Farmingdale
Facility, the Farmingdale Lease or the Farmingdale Option or all of the
outstanding Capital Stock of the Farmingdale Subsidiary or owned by the Company
or any Subsidiary, (E) that constitutes the making of a Permitted Investment
(other than pursuant to clause (v) of the definition of "Permitted Investment"),
or (F) the Fair Market Value of which in the aggregate does not exceed $500,000
in any transaction or series of related transactions.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years from the date of
determination to the date or dates of each successive scheduled principal
payment of such Indebtedness multiplied by (b) the amount of each such principal
payment; by (ii) the sum of all such principal payments.
"Bank Credit Facility" means the amended and restated Credit Agreement,
dated as of February 10, 1993, among the Company, various financial
institutions, BT Commercial Corporation, as agent and Bankers Trust Company, as
Issuing Bank, as such agreement, in whole or in part, may be amended, renewed,
extended, substituted, refinanced, restructured, replaced, supplemented or
otherwise modified from time to time (including, without limitation, any
successive renewals, extensions, substitutions, refinancings, restructurings,
replacements, supplementations or other modifications of the foregoing).
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Bankruptcy Code of 1978,
as amended, or any similar United States Federal or State law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"Banks" means the lenders under the Bank Credit Facility.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of such board.
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"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means any Security bearing the legend specified
in Section 2.2 evidencing all or part of a series of Securities, authenticated
and delivered to the Depositary for such series or its nominee, and registered
in the name of such depositary or nominee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of New York
or the city in which the principal office of the Trustee is located are
authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means any obligation of such
Person and its Subsidiaries on a Consolidated basis under any capital lease of
real or personal property which, in accordance with GAAP, has been recorded as a
capitalized lease obligation.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock or other equity interests whether now outstanding or issued after
the date of the Indenture.
"Cash Equivalents" means (A) any security, maturing not more than one
year after the date of acquisition, issued by the United States of America, or
an instrumentality or agency thereof and guaranteed fully as to principal,
premium, if any, and interest by the United States of America, (B) any
certificate of deposit, time deposit, money market account or bankers'
acceptance, maturing not more than six months after the date of acquisition,
issued by any commercial banking institution that is a member of the Federal
Reserve System and that has combined capital and surplus and undivided profits
of not less than $500,000,000 or (C) commercial paper, maturing not more than
six months after the date of acquisition, issued by any corporation (other than
an Affiliate or Subsidiary of the Company) with a rating, at the time as of
which any investment therein is made, of "P-1" (or higher) according to Xxxxx'x,
or "A-1" (or higher) according to S&P, or carrying an equivalent rating by a
nationally-recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper generally.
"Change of Control" means the occurrence of any of the following
events: (i) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have "beneficial ownership" of all
shares that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than a majority of the total outstanding Voting Stock of the
Company (provided, however that, for so long as the Permitted Holders retain the
right to elect at least 50% of the entire Board of Directors of the Company, the
shares beneficially held by a group shall not include any shares
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beneficially owned by a Permitted Holder who is a member of such group); (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with any
new directors whose election to such Board or whose nomination for election by
the stockholders of the Company was approved by the Permitted Holders or by a
vote of 66 2/3% of the directors 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 such
Board of Directors then in office; (iii) the Company consolidates with, or
merges with or into, any Person or conveys, transfers or leases all or
substantially all of its assets to any Person, or any corporation consolidates
with, or merges with or into, the Company, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Company is changed into
or exchanged for cash, securities or other property, other than any such
transaction where the outstanding Voting Stock of the Company is not changed or
exchanged at all (except to the extent necessary to reflect a change in the
jurisdiction of incorporation of the Company) or where (A) the outstanding
Voting Stock of the Company is changed into or exchanged for (1) Voting Stock of
the surviving corporation which is not Redeemable Capital Stock or (2) cash,
securities and other property (other than Capital Stock of the surviving
corporation) in an amount which could be paid by the Company as a Restricted
Payment as described under Section 10.9 (and such amount shall be treated as a
Restricted Payment as described under Section 10.9) and (B) no "person" or
"group" (as such terms are used in Section 13(d) and 14(d) of the Exchange Act),
other than Permitted Holders, owns immediately after such transaction, directly
or indirectly, more than a majority of the total outstanding Voting Stock of the
surviving corporation; or (iv) the Company is liquidated or dissolved or adopts
a plan of liquidation or dissolution other than in a transaction which complies
with the provisions described under Article VIII.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means the common stock, par value $.01 per share, of the
Company.
"Company" means Di Giorgio Corporation, a corporation incorporated
under the laws of Delaware, until a successor Person shall have become such
pursuant to the applicable provisions of the Indenture, and thereafter "Company"
shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one if its Chairman of the Board, its
Vice Chairman, its President or a Vice President (regardless of Vice
Presidential designation), and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Fixed Charge Coverage Ratio" of any Person means, for any
period, the ratio of EBITDA to the sum of Adjusted Consolidated Interest Expense
for such period and cash dividends paid on any Preferred Stock of such Person
during such period; provided that (i) in
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making such computation, the Adjusted Consolidated Interest Expense attributable
to interest on any Indebtedness shall be computed on a pro forma basis and (A)
where such Indebtedness was outstanding during the period and bore a floating
interest rate, interest shall be computed as if the rate in effect on the date
of computation had been the applicable rate for the entire period and (B) where
such Indebtedness was not outstanding during the period for which the
computation is being made but which bears, at the option of the Company, a fixed
or floating rate of interest, shall be computed by applying at the option of the
Company, either the fixed or floating rate and (ii) in making such computation,
the Adjusted Consolidated Interest Expense of such Person attributable to
interest on any Indebtedness under a revolving credit facility computed on a pro
forma basis shall be computed based upon the average daily balance of such
Indebtedness during the applicable period.
"Consolidated Income Tax Expense"of any Person means, for any period,
the provision for federal, state, local and foreign income taxes of such Person
and its Consolidated Subsidiaries for such period as determined in accordance
with GAAP.
"Consolidated Net Income (Loss)" of any Person means, for any period,
the Consolidated net income (or loss) of such Person and its subsidiaries for
such period on a Consolidated basis as determined in accordance with GAAP,
adjusted, to the extent included in calculating such net income (or loss), by
excluding, without duplication, (i) all extraordinary gains or losses (exclusive
of all fees and expenses relating thereto), (ii) the portion of net income (or
loss) of such Person and its subsidiaries on a Consolidated basis allocable to
minority interests in unconsolidated Persons to the extent that cash dividends
or distributions have not actually been received by such Person or one of its
subsidiaries, (iii) net income (or loss) of any Person combined with such Person
or any of its subsidiaries on a "pooling of interests" basis attributable to any
period prior to the date of combination, (iv) any gain or loss, net of taxes,
realized upon the termination of any employee pension benefit plan, (v) net
gains (or losses) (except for all fees and expenses relating thereto) in respect
of dispositions of assets other than in the ordinary course of business, (vi)
the net income of any Subsidiary to the extent that the declaration of dividends
or similar distributions by that Subsidiary of that income is not at the time
permitted, directly or indirectly, by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary or its stockholders, (vii)
any gain arising from the acquisition of any securities, or the extinguishment,
under GAAP, of any Indebtedness of such Person or (viii) transaction costs
charged in connection with the Refinancing.
"Consolidated Non-Cash Charges" of any Person means, for any period,
the aggregate depreciation, amortization and other non-cash charges of such
Person and its subsidiaries on a Consolidated basis for such period, as
determined in accordance with GAAP (excluding any non-cash charge which requires
an accrual or reserve for cash charges for any future period).
"Consolidation" means, with respect to any Person, the consolidation of
the accounts of such Person and each of its subsidiaries if and to the extent
the accounts of such Person and each
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of its subsidiaries would normally be consolidated with those of such Person,
all in accordance with GAAP. The term "Consolidated" shall have a similar
meaning.
"Corporate Trust Office" means the office of the Trustee or an
affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of this Indenture shall be principally administered,
which office at the date of execution of this Indenture is located at 000
Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Customer Loan" means any advance, loan guarantee or other extension of
credit (other than any advance, loan or other extension of credit to a customer
in the ordinary course of business that is recorded as an account receivable on
the consolidated balance sheet of the Company and its Subsidiaries) (a "loan")
provided to a customer of the Company or any Subsidiary in the ordinary course
of business of the Company and its Subsidiaries and having a maturity not in
excess of five years from the incurrence thereof, provided that any such loan
made after the date of this Indenture is evidenced by a note made payable to the
Company or its Subsidiaries and is approved by a credit committee or authorized
officer of the Company.
"Default" means any event which is, or after notice or passage of any
time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities issued in the form
of one or more Book-Entry Securities, The Depository Trust Company ("DTC"), its
nominees and successors, or another Person designated as Depositary by the
Company, which must be a clearing agency registered under the Exchange Act.
"Disinterested Director" means, with respect to any transaction or
series of related transactions, a member of the Board of Directors who does not
have any material direct or indirect financial interest in or with respect to
such transaction or series of related transactions.
"EBITDA" means the sum of Consolidated Net Income, Adjusted
Consolidated Interest Expense, Consolidated Income Tax Expense and Consolidated
Non-Cash Charges deducted in computing Consolidated Net Income, in each case,
for such period, of the Company and its Subsidiaries on a Consolidated basis,
all determined in accordance with GAAP consistently applied.
"Event of Default" has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor statute.
"Exchange Offer" means the exchange offer by the Company of Series B
Securities for Series A Securities to be effected pursuant to Section 2.1 of the
Registration Rights Agreement.
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"Exchange Offer Registration Statement" means the registration
statement under the Securities Act contemplated by Section 2.1 of the
Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy. Fair Market Value shall be determined
by the Board of Directors acting in good faith and shall be evidenced by a
resolution of the Board of Directors.
"Farmingdale Facility" means the premises located at 000 Xxxxx Xxxxxxx,
Xxxxxxxxxxx, Xxx Xxxx that are leased pursuant to the Farmingdale Lease.
"Farmingdale Lease" means the lease, dated as of August 1, 1992,
between MF Corp., a Wholly Owned Subsidiary of the Company and Gede Realty,
Inc., as successor to Marley Properties, Inc., providing for the lease by the
Farmingdale Subsidiary of the Farmingdale Facility, as the same may at any time
be amended, amended and restated, supplemented or otherwise modified.
"Farmingdale Option" means the option to purchase the Farmingdale
Facility granted pursuant to the Farmingdale Option Agreement.
"Farmingdale Option Agreement" means the option agreement dated March
26, 1993 providing for the grant to the Company of an option to purchase the
Farmingdale Facility, as the same may at any time be amended, amended and
restated, supplemented or otherwise modified.
"Farmingdale Proceeds" means the net cash proceeds received by the
Company upon the closing of the sale of the Farmingdale Facility or the
Farmingdale Option to a third party that is not an Affiliate of the Company.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, which
are in effect on the date of this Indenture.
"Global Securities" means a security evidencing all or a part of the
Securities to be issued as Book-Entry Securities issued to the Depositary in
accordance with this Indenture.
"Guaranteed Debt" of any Person means, without duplication, all
Indebtedness of any other Person referred to in the definition of "Indebtedness"
contained in this Section guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such Indebtedness, (ii) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss, (iii) to
supply funds to, or in any other manner invest in, the debtor (including any
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15
agreement to pay for property or services without requiring that such property
be received or such services be rendered), (iv) to maintain working capital or
equity capital of the debtor, or otherwise to maintain the net worth, solvency
or other financial condition of the debtor or (v) otherwise to assure a creditor
against loss; provided that the term "guarantee" shall not include endorsements
for collection or deposit, in either case in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means, with respect to any Person, without duplication,
(i) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and other
accrued current liabilities arising in the ordinary course of business, but
including, without limitation, all obligations, contingent or otherwise, of such
Person in connection with any letters of credit issued under letter of credit
facilities, acceptance facilities or other similar facilities and in connection
with any agreement to purchase, redeem, exchange, convert or otherwise acquire
for value any Capital Stock of such Person, or any warrants, rights or options
to acquire such Capital Stock, now or hereafter outstanding, (ii) all
obligations of such Person evidenced by bonds, notes, debentures or other
similar instruments, (iii) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even if the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale
of such property), but excluding trade payables arising in the ordinary course
of business, (iv) all obligations under Interest Rate Agreements of such Person,
(v) all Capital Lease Obligations of such Person, (vi) all Indebtedness referred
to in clauses (i) through (v) above of other Persons and all dividends of other
Persons, the payment of which is secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien, upon or with respect to property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness, (vii) all
Guaranteed Debt of such Person, (viii) all Redeemable Capital Stock issued by
such Person valued at the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued and unpaid dividends, and (ix) any amendment,
supplement, modification, deferral, renewal, extension, refunding or refinancing
of any liability which constitutes Indebtedness of the types referred to in
clauses (i) through (viii) above. For purposes hereof, the "maximum fixed
repurchase price" of any Redeemable Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Redeemable Capital Stock as if such Redeemable Capital Stock were purchased on
any date on which Indebtedness shall be required to be determined pursuant to
the Indenture, and if such price is based upon, or measured by, the Fair Market
Value of such Redeemable Capital Stock, such Fair Market Value to be determined
in good faith by the board of directors of the issuer of such Redeemable Capital
Stock.
"Indenture" means this instrument as originally executed (including all
exhibits and schedules thereto) and 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.
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16
"Indenture Obligations" means the obligations of the Company and any
other obligor on the Indenture or under the Securities to pay principal of,
premium, if any, and interest when due and payable, and all other amounts due or
to become due under or in connection with the Indenture, the Securities and the
performance of all other obligations to the Trustee and the holders under the
Indenture and the Securities, according to the terms thereof.
"Independent Financial Advisor" means a nationally recognized
investment banking firm (i) which does not, and whose directors, officers and
employees or Affiliates do not, have a direct or indirect financial interest in
the Company and (ii) which, in the judgment of the Board of Directors, is
otherwise independent and qualified to perform the task for which it is to be
engaged.
"Initial Purchasers" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and BT Securities Corporation.
"Initial Securities" has the meaning stated in the first recital of
this Indenture.
"Interest Payment Date" means the Stated Maturity of a regular
installment of interest on the Securities.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
interest rate protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar agreements) and/or other types of
interest rate hedging agreements from time to time.
"Investment Grade" means BBB- or higher by S&P or Baa3 or higher by
Moody's or the equivalent of such ratings by S&P or Moody's or in the event
Moody's or S&P shall cease rating the Securities and the Company shall select
any rating agency, the equivalent of such ratings by another rating agency.
"Investment" means, with respect to any Person, directly or indirectly,
any advance, loan (including guarantees), or other extension of credit or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase, acquisition or ownership (other than ownership
obtained without making, or becoming liable, directly or indirectly, contingent
or otherwise, for the making of, any advance, loan (or the forgiveness thereof),
payment, extension of credit or capital contribution in connection therewith),
by such Person of any Capital Stock, bonds, notes, debentures or other
securities issued or owned by any other Person and all other items that would be
classified as investments on a balance sheet prepared in accordance with GAAP.
"Issue Date" means the date on which the Securities are originally
issued under this Indenture.
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"Las Plumas" means Las Plumas Lumber Corporation, a California
corporation, or any successors thereto.
"Las Plumas Management Agreement" means the management agreement dated
as of May 31, 1992 between the Company and Las Plumas as in effect on the date
of this Indenture.
"Lien" means any mortgage or deed of trust, charge, pledge, lien
(statutory or otherwise), privilege, security interest, assignment, deposit,
arrangement, easement, hypothecation, claim, preference, priority or other
encumbrance upon or with respect to any property of any kind (including any
conditional sale, capital lease or other title retention agreement, any leases
in the nature thereof, and any agreement to give any security interest), real or
personal, movable or immovable, now owned or hereafter acquired.
"Maturity" means, when used with respect to any Security, the date on
which the principal of such Security becomes due and payable as therein provided
or as provided in the Indenture, whether at Stated Maturity, the Offer Date, the
Change of Control Purchase Date or the redemption date and whether by
declaration of acceleration, Offer in respect of Excess Proceeds, Change of
Control Offer in respect of a Change of Control, call for redemption or
otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor rating
agency.
"Net Cash Proceeds" means (a) with respect to any Asset Sale by any
Person, the proceeds thereof (without duplication in respect of all Asset Sales)
in the form of cash or Temporary Cash Investments including payments in respect
of deferred payment obligations when received in the form of, or stock or other
assets when disposed of for, cash or Temporary Cash Investments (except to the
extent that such obligations are financed or sold with recourse to the Company
or any Subsidiary) net of (i) brokerage commissions and other reasonable fees
and expenses (including fees and expenses of counsel and investment bankers)
related to such Asset Sale, (ii) provisions for all taxes payable as a result of
such Asset Sale, (iii) payments made to retire Indebtedness where payment of
such Indebtedness is secured by the assets or properties the subject of such
Asset Sale, (iv) amounts required to be paid to any Person (other than the
Company or any Subsidiary) owning a beneficial interest in the assets subject to
the Asset Sale and (v) appropriate amounts to be provided by the Company or any
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against
any liabilities associated with such Asset Sale and retained by the Company or
any Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as reflected in an officers'
certificate delivered to the Trustee and (b) with respect to any issuance or
sale of Capital Stock or options, warrants or rights to purchase Capital Stock,
or debt securities or Capital Stock that have been converted into or exchanged
for Capital Stock, as referred to under Section 10.9 the proceeds of such
issuance or sale in the form of cash or Temporary Cash Investments, including
payments in respect of deferred payment obligations when received in the form
of, or stock or other assets when disposed of for, cash or
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18
Temporary Cash Investments (except to the extent that such obligations are
financed or sold with recourse to the Company or any Subsidiary), net of
attorney's fees, accountant's fees and brokerage, consultation, underwriting and
other fees and expenses actually incurred in connection with such issuance or
sale and net of taxes paid or payable as a result thereof.
"Non-U.S. Person" means a Person that is not a "U.S. person" as defined
in Regulation S under the Securities Act.
"Non-U.S. Subsidiaries" means Subsidiaries organized under the laws of
jurisdictions other than the United States and the states and territories
thereof.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, Vice Chairman, President or a Vice President (regardless of Vice
Presidential designation), and by the Treasurer, Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of qualified legal
counsel, who may be counsel for the Company or the Trustee, and who shall be
reasonably acceptable to the Trustee, including but not limited to an Opinion of
Independent Counsel.
"Opinion of Independent Counsel" means a written opinion by qualified
legal counsel who is not an employee or consultant of the Company and who shall
be reasonably acceptable to the Trustee.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities;
provided, that if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor reasonably satisfactory to the Trustee has been made;
(c) Securities, except to the extent provided in Sections 4.2 and
4.3, with respect to which the Company has effected defeasance or
covenant defeasance as provided in Article IV; and
(d) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee and Company proof
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19
reasonably satisfactory to each of them that such Securities are held
by a bona fide purchaser in whose hands the Securities are valid
obligations of the Company; provided, however, that in determining
whether the Holders of the requisite principal amount of Outstanding
Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or
any other obligor on the Securities or any Affiliate of the Company or
such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the reasonable satisfaction of the Trustee the
pledgee's right so as to act with respect to such Securities and that
the pledgee is not the Company or any other obligor on the Securities
or any Affiliate of the Company or such other obligor.
"Pari Passu Indebtedness" means any Indebtedness of the Company that is
pari passu in right of payment to the Securities.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company.
"Permitted Holders" means Rose Partners, any of the partners of Rose
Partners on the Issue Date, and any of their trusts, estates, executors, heirs,
successors or assigns, and each of their respective Affiliates.
"Permitted Indebtedness" means:
(i) Indebtedness of the Company equal to the greater of, without
duplication, (a) Indebtedness under the Bank Credit Facility in an
aggregate principal amount at any one time outstanding not to exceed
$90 million, minus all principal payments made in respect of any term
loans thereunder and minus the amount by which any commitments under
any revolving credit facility thereunder are permanently reduced, or
(b) Indebtedness in an aggregate amount not to exceed the sum of 75% of
the net book value of the consolidated inventory of the Company and its
Subsidiaries and 85% of the net book value of the consolidated accounts
receivable of the Company and its Subsidiaries, in each case calculated
in accordance with GAAP;
(ii) Indebtedness of the Company (a) represented by the
Securities or (b) that is incurred, in any amount, and in whole or in
part, to (1) redeem all of the Securities outstanding as described in
Article XI, or (2) effect a complete defeasance or a covenant
defeasance thereof as described in Article IV, provided that, in either
case, Indebtedness incurred under this subclause (b) is actually
applied in accordance with the applicable redemption or defeasance
provision of the Indenture;
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(iii) Indebtedness of the Company outstanding on the date of the
Indenture and listed on Schedule I hereto;
(iv) Indebtedness of the Company owing to a Subsidiary; provided
that any Indebtedness of the Company owing to a Subsidiary is made
pursuant to an intercompany note and is expressly subordinated in right
of payment to the payment and performance of the Company's obligations
under the Securities, and, upon an Event of Default, such Indebtedness
shall not be due and payable until such Event of Default is cured,
waived or rescinded; provided, further, that any disposition, pledge or
transfer of any such Indebtedness to a Person (other than a
disposition, pledge or transfer to a Subsidiary) shall be deemed to be
an incurrence of such Indebtedness by the Company not permitted by this
clause (iv);
(v) obligations of the Company entered into in the ordinary
course of business pursuant to Interest Rate Agreements designed to
protect the Company against fluctuations in interest rates in respect
of Indebtedness of the Company as long as such obligations do not
exceed the aggregate principal amount of such Indebtedness then
outstanding;
(vi) Indebtedness of the Company represented by Capital Lease
Obligations or Purchase Money Obligations or other Indebtedness
incurred or assumed in connection with the acquisition, improvement or
development of real or personal, movable or immovable, property in each
case incurred for the purpose of financing or refinancing all or any
part of the purchase price or cost of construction or improvement of
property used in the business of the Company and any refinancings of
such Indebtedness made in accordance with subclauses (a), (b) and (c)
of clause (xi) below, in an aggregate principal amount pursuant to this
clause (vi) not to exceed $40 million outstanding at any time; provided
that (a) the principal amount of any Indebtedness permitted under this
clause (vi) did not in each case at the time of incurrence exceed the
cost of the acquired or constructed asset or improvement so financed,
and (b) such Indebtedness permitted under this clause (vi) was incurred
directly in connection with the addition of new customers to the
Company's business or the addition of incremental new business from
existing customers;
(vii) Indebtedness of the Company in respect of performance
bonds, surety bonds and replevin bonds provided by the Company in the
ordinary course of business;
(viii) guarantees by the Company of obligations of customers of
the primary business of the Company, not to exceed at any given time
$7.5 million outstanding in the aggregate; for purposes of this clause
(viii), the term "guarantee" means, as applied to any obligation, (a) a
guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in
any manner, of any part or all of such obligation and (b) an agreement,
direct or indirect, contingent or otherwise, the practical effect of
which is to assure in any way the payment or
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performance (or payment of damages in the event of non-performance) of
all or any part of such obligation, including, without limiting the
foregoing, the payment of amounts drawn down by letters of credit;
(ix) Indebtedness in an amount not in excess of $20 million,
incurred to finance the relocation of one of the Company's warehouse
facilities in existence on the Issue Date;
(x) other Indebtedness of the Company that does not exceed $5
million in the aggregate at any one time outstanding; and
(xi) any renewals, extensions, substitutions, refundings,
refinancings or replacements (collectively, a "refinancing") of any
Indebtedness described in clauses (iii) and (iv) of this definition of
"Permitted Indebtedness," including any successive refinancings (a) so
long as the borrower under such refinancing is the Company or, if not
the Company, the same as the borrower of the Indebtedness being
refinanced, (b) the aggregate principal amount of Indebtedness
represented thereby is not increased by such refinancing by an amount
greater than the lesser of (I) the stated amount of any premium or
other payment required to be paid in connection with such a refinancing
pursuant to the terms of the Indebtedness being refinanced or (II) the
amount of premium or other payment actually paid at such time to
refinance the Indebtedness, plus, in either case, the amount of
expenses of the Company incurred in connection with such refinancing
and (c) (A) in the case of any refinancing of Indebtedness that is
Subordinated Indebtedness, such new Indebtedness is made subordinated
to the Securities at least to the same extent as the Indebtedness being
refinanced and (B) in the case of Pari Passu Indebtedness or
Subordinated Indebtedness, as the case may be, such refinancing does
not reduce the Average Life to Stated Maturity or the Stated Maturity
of such Indebtedness.
"Permitted Investment" means (i) Investments in any Subsidiary or any
Person which, as a result of such Investment, (a) becomes a Subsidiary or (b) is
merged or consolidated with or into, or transfers or conveys substantially all
of its assets to, or is liquidated into, the Company or any Subsidiary; (ii)
Indebtedness of the Company described under clause (iv) of the definition of
"Permitted Indebtedness"; (iii) Investments in any of the Securities; (iv)
Temporary Cash Investments; (v) Investments acquired by the Company or any
Subsidiary in connection with an Asset Sale permitted under Section 10.12 to the
extent such Investments are non-cash proceeds as permitted under such covenant;
(vi) Investments in existence on the date of the Indenture; (vii) Investments
consisting of Customer Loans, provided that the aggregate principal amount of
such Investments described in this clause (vii) shall not exceed $10 million at
any given time outstanding to any single customer and its Affiliates, and shall
not exceed $35 million at any given time in the aggregate, provided that such
$35 million amount shall be reduced by the amount of any SBIC Capital
Contribution; (viii) Investments by the Company in any Unrestricted Subsidiary,
provided that the aggregate amount of all such Investments described in this
clause (viii) shall not exceed $1 million in the aggregate from and after the
Issue Date; (ix) an SBIC Capital Contribution; (x) an intercompany loan from the
Company to Xxxxx Xxxx in the
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22
amount of up to $60 million on the Issue Date for the purpose of paying the
purchase price payable by Xxxxx Xxxx in connection with the Xxxxx Xxxx Tender
Offer; provided that the amount loaned is so applied; and (xi) any other
Investments in the aggregate amount of $5 million at any one time outstanding.
In connection with any assets or property contributed or transferred to any
Person as an Investment, such property and assets shall be equal to the Fair
Market Value (as determined by the Company's Board of Directors) at the time of
Investment.
"Permitted Subsidiary Indebtedness" means:
(i) Indebtedness of a Wholly Owned Subsidiary owing to the
Company or another Wholly Owned Subsidiary; provided that such
Indebtedness is made pursuant to an intercompany note, and, upon an
Event of Default, all amounts owing pursuant to such Indebtedness are
immediately due and payable; and provided, further, that (a) any
disposition, pledge or transfer of any such Indebtedness to a Person
(other than the Company or a Wholly Owned Subsidiary) shall be an
incurrence of such Indebtedness by the obligor not within the
definition of "Permitted Subsidiary Indebtedness" pursuant to this
clause (i), and (b) any transaction pursuant to which any Wholly Owned
Subsidiary ceases to be a Wholly Owned Subsidiary shall be deemed to be
the incurrence of Indebtedness by such Wholly Owned Subsidiary that is
not within the definition of "Permitted Subsidiary Indebtedness"
pursuant to this clause (i);
(ii) Indebtedness of a Wholly Owned Subsidiary represented by
Purchase Money Obligations if such Indebtedness would be permitted by
clause (vi) of the definition of Permitted Indebtedness if incurred by
the Company; and
(iii) Acquired Indebtedness of a Subsidiary that would be
permitted to be incurred by the Company if such Acquired Indebtedness
were being incurred by the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.8 in exchange for a mutilated
Security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed, or stolen Security.
"Preferred Stock" means, with respect to any Person, any Capital Stock
of any class or classes (however designated) which is preferred as to the
payment of dividends or distributions, or as to the distribution of assets upon
any voluntary or involuntary liquidation or dissolution of such Person, over the
Capital Stock of any other class in such Person.
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"Prospectus" means the prospectus included in a Registration Statement,
including any preliminary prospectus, and any such prospectus as amended or
supplemented by any prospectus supplement, including any such prospectus
supplement with respect to the terms of the offering of any portion of the
Series A Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference therein.
"Public Equity Offering" means any underwritten public offering of
Capital Stock (other than Redeemable Capital Stock) pursuant to a registration
statement that has been declared effective by the Commission (other than a
registration statement on Form S-8 or any successor form or otherwise relating
to equity securities issuable under any employee benefit plan of the Company).
"Purchase Money Obligation" means any Indebtedness secured by a Lien on
assets related to the business of the Company and its Subsidiaries, and any
additions and accessions thereto, which are purchased at any time after the
Securities are issued; provided that (i) the security agreement or conditional
sales or other title retention contract pursuant to which the Lien on such
assets described above is created (collectively a "Purchase Money Security
Agreement") shall be entered into within 90 days after the purchase or
substantial completion of the construction of such assets and shall at all times
be confined solely to the assets so purchased or acquired, any additions and
accessions thereto and any proceeds therefrom, (ii) at no time shall the
aggregate principal amount of the outstanding Indebtedness secured thereby be
increased, except in connection with the purchase of additions and accessions
thereto and except in respect of fees and other obligations in respect of such
Indebtedness and (iii) (A) the aggregate outstanding principal amount of
Indebtedness secured thereby (determined on a per asset basis in the case of any
additions and accessions) shall not at the time such Purchase Money Security
Agreement is entered into exceed 100% of the purchase price to the Company and
its Subsidiaries of the assets subject thereto or (B) the Indebtedness secured
thereby shall be with recourse solely to the assets so purchased or acquired,
any additions and accessions thereto and any proceeds therefrom.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A of the
Securities Act.
"Qualified Capital Stock" of any Person means any and all Capital Stock
of such Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any Capital Stock that, either by its
terms or by the terms of any security into which it is convertible or
exchangeable or otherwise, is or upon the happening of any event or passage of
time would be, required to be redeemed prior to any Stated Maturity of the
principal of the Securities or is redeemable at the option of the holder thereof
at any time prior to any such Stated Maturity, or is convertible into or
exchangeable for debt securities at any time prior to any such Stated Maturity
at the option of the holder thereof.
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"Redemption Date" when used with respect to any Security to be redeemed
pursuant to any provision in this Indenture means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to be
redeemed pursuant to any provision in this Indenture means the price at which it
is to be redeemed pursuant to this Indenture.
"Refinancing" means (i) the offering and sale of the Notes pursuant to
the Indenture, (ii) the modification of the Bank Credit Facility, (iii) the
repayment of the Rose Partners Note, (iv) the consummation of the tender offer
by the Company for its 12% Notes outstanding prior to the Issue Date, and the
tender offer by Xxxxx Xxxx for its 12 3/4% Discount Notes outstanding prior to
the Issue Date, (v) the dividend by the Company to Xxxxx Xxxx of certain
non-cash assets which are unrelated to the Company's primary business and the
subsequent dividend of those assets to White Rose's stockholders and (vi)
immediately following consummation of the tender offers and the payment of such
dividends, the merger of Xxxxx Xxxx with and into the Company with the Company
surviving the merger.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of June 20, 1997, among the Company and the Initial
Purchasers.
"Registration Statement" means any registration statement of the
Company which covers any of the Series A Securities or Series B Securities
pursuant to the provisions of the Registration Rights Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Regular Record Date" for the interest payable on any Interest Payment
Date means June 1 or December 1, as the case may be (whether or not a Business
Day), next preceding such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee means any
officer assigned to the Corporate Trust Office of the Trustee or any agent of
the Trustee appointed hereunder, including the chairman or vice chairman of the
board of directors or the executive committee of the board of directors, the
president, any vice president, any assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers or any other officer
appointed hereunder to whom any corporate trust matter is referred because of
his or her knowledge of and familiarity with the particular subject.
"Rose Partners" means Rose Partners, L.P., a New York limited
partnership, of which Xxxxxx X. Xxxxxxxx is the general partner.
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"S&P" means Standard and Poor's Corporation or any successor rating
agency.
"Sale and Leaseback Transaction" means any transaction or series of
related transactions pursuant to which the Company or a Subsidiary sells or
transfers any property or asset in connection with the leasing, or the resale
against installment payments, of such property or asset to the seller or
transferor.
"SBIC" means a wholly owned Unrestricted Subsidiary that meets the
requirements of a Small Business Investment Company, as that term is defined in
Rule 602 of the Securities Act, as the same may be amended from time to time.
"SBIC Capital Contribution" means a single capital contribution by the
Company to an SBIC in an amount not in excess of $5 million, which may consist
of cash, property or both.
"Securities" has the meaning specified in the first recital of this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute.
"Senior Indebtedness" means Indebtedness of the Company other than
Subordinated Indebtedness.
"Series A Security" has the meaning stated in the first recital of this
Indenture.
"Series B Security" has the meaning stated in the first recital of this
Indenture.
"Shareholder Stock Repurchases" means (A) the repurchase by the Company
and retirement into treasury, for the payment of not greater than $5 million in
the aggregate, of the Company's common stock after (but in no event more than 18
months after) the Issue Date, which repurchase may only be made if the Company
has first (i) irrevocably converted the $27.5 million Capital Lease Obligation
relating to its Carteret, New Jersey distribution facility, existing on the
Issue Date, to an operating lease, and (ii) delivered an Officers' Certificate
to the Trustee to the effect that such conversion has occurred, and (B) the
repurchase by the Company and retirement into treasury, for the payment of an
amount not greater than the Farmingdale Proceeds, of the Company's common stock
after (but in no event more than 12 months after) the Issue Date, which
repurchase may only be made if the Company has first (i) sold the Farmingdale
Facility or the Farmingdale Option, as the Farmingdale Facility or the
Farmingdale Option exist on the Issue Date, for cash and (ii) delivered an
Officers' Certificate to the Trustee to the effect that such sale has occurred.
"Shelf Registration Statement" means a "shelf" registration statement
of the Company pursuant to Section 2.2 of the Registration Rights Agreement,
which covers all of the Registrable Securities (as defined in the Registration
Rights Agreement) on an appropriate form under Rule 415 under the Securities
Act, or any similar rule that may be adopted by the Commission, and all
amendments and supplements to such registration statement, including
post-effective
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amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Significant Subsidiary" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.9.
"Stated Maturity" when used with respect to any Indebtedness or any
installment of interest thereon means the dates specified in such Indebtedness
as the fixed date on which the principal of such Indebtedness or such
installment of interest, as the case may be, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company which is
by its terms expressly subordinated in right of payment to the Securities.
"Subsidiary" means any Person, a majority of the equity ownership or
the Voting Stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries; provided that any Unrestricted Subsidiary shall not be
deemed a Subsidiary under the Indenture.
"Tax Sharing Agreement" means the agreement effective as of January 1,
1992, among the Company, Xxxxx Xxxx and certain other affiliates of the Company,
as in effect on the date of this Indenture.
"Temporary Cash Investments" means (i) any evidence of Indebtedness,
maturing not more than one year after the date of acquisition, issued by the
United States of America, or an instrumentality or agency thereof and guaranteed
fully as to principal, premium, if any, and interest by the United States of
America; (ii) any certificate of deposit (or, with respect to non- U.S. banking
institutions, similar instruments), maturing not more than one year after the
date of acquisition, issued by, or time deposit of, a commercial banking
institution that is a member of the Federal Reserve System or a commercial
banking institution organized and located in a country recognized by the United
States of America, in each case, that has combined capital and surplus and
undivided profits of not less than $500,000,000 (or the foreign currency
equivalent thereof), whose debt has a rating, at the time as of which any
investment therein is made, of "P-1" (or higher) according to Xxxxx'x or "A-1"
(or higher) according to S&P; (iii) commercial paper, maturing not more than one
year after the date of acquisition, issued by a corporation (other than an
Affiliate or Subsidiary of the Company) organized and existing under the laws of
the United States of America with a rating, at the time as of which any
investment therein is made, of "P-1" (or higher) according to Xxxxx'x or "A-1"
(or higher) according to S&P; (iv) any money market deposit accounts or demand
deposit accounts issued or offered by a domestic commercial bank or a commercial
banking institution organized and located in a country
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recognized by the United States of America, in each case having capital and
surplus in excess of $500,000,000 (or the foreign currency equivalent thereof);
provided that the short-term debt of such commercial bank has a rating, at the
time of Investment, of "P-1" (or higher) according to Xxxxx'x or "A-1" (or
higher) according to S&P; and (v) any other Investments, that at any one time do
not exceed $100,000 in the aggregate, issued or offered by any domestic
commercial bank or any commercial banking institution organized and located in a
country recognized by the United States of America.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, or any successor statute.
"12% Notes" means the Senior Notes Due 2003 of the Company.
"12 3/4% Discount Notes" means the Senior Discount Notes Due 1998 of
Xxxxx Xxxx.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that
exists on the Issue Date and is so designed as an Unrestricted Subsidiary on a
schedule attached to the Indenture, (ii) any subsidiary of the Company that at
the time of determination shall be an Unrestricted Subsidiary (as designated by
the Board of Directors, as provided below) and (iii) any subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any subsidiary of
the Company (including any newly acquired or newly formed subsidiary) to be an
Unrestricted Subsidiary if all of the following conditions apply: (a) neither
the Company nor any of its Subsidiaries provides credit support for Indebtedness
of such Unrestricted Subsidiary (including any undertaking, agreement or
instrument evidencing such Indebtedness), (b) such Unrestricted Subsidiary is
not liable, directly or indirectly, with respect to any Indebtedness other than
Unrestricted Subsidiary Indebtedness, (c) any Investment by the Company (other
than Investments described in clauses (viii) and (ix) of the definition
"Permitted Investments") in such Unrestricted Subsidiary made as a result of
designating such subsidiary an Unrestricted Subsidiary shall not violate the
provisions described under Section 10.16 hereunder and such Unrestricted
Subsidiary is not party to any agreement, contract, arrangement or understanding
at such time with the Company or any other subsidiary of the Company unless the
terms of any such agreement, contract, arrangement or understanding are no less
favorable to the Company or such other subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Company or, in
the event such condition is not satisfied, the value of such agreement,
contract, arrangement or understanding to such Unrestricted Subsidiary shall be
deemed an Investment, and (d) such Unrestricted Subsidiary does not own any
Capital Stock in any subsidiary of the Company which is not simultaneously being
designated an Unrestricted Subsidiary. Any such designation by the Board of
Directors shall be evidenced to the Trustee by filing with the Trustee a Board
Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complies with the foregoing conditions and any
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Investment by the Company (other than Investments described in clause (viii) and
(ix) of the definition of "Permitted Investments") in such Unrestricted
Subsidiary shall be deemed a Restricted Payment on the date of designation in an
amount equal to the greater of (1) the net book value of such Investment or (2)
the Fair Market Value of such Investment as determined in good faith by the
Board of Directors. The Board of Directors may designate any Unrestricted
Subsidiary as a Subsidiary; provided that (i) if such Unrestricted Subsidiary
has any Indebtedness, that immediately after giving effect to such designation,
the Company could incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness or Permitted Subsidiary Indebtedness) pursuant to the restrictions
under Section 10.8 and (ii) all Indebtedness of such Subsidiary shall be deemed
to be incurred on the date such Unrestricted Subsidiary becomes a Subsidiary.
"Unrestricted Subsidiary Indebtedness" of any Unrestricted Subsidiary
means Indebtedness of such Unrestricted Subsidiary (a) as to which neither the
Company nor any subsidiary is directly or indirectly liable (by virtue of the
Company or any such subsidiary being the primary obligor on, guarantor of, or
otherwise liable in any respect to, such Indebtedness), and (b) which, upon the
occurrence of a default with respect thereto, does not result in, or permit any
holder of any Indebtedness of the Company or any subsidiary to declare, a
default on such Indebtedness of the Company or any subsidiary or cause the
payment thereof to be accelerated or payable prior to its Stated Maturity.
"Voting Stock" means Capital Stock of the class or classes pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of a corporation (irrespective of whether or not at the time Capital
Stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency).
"Xxxxx Xxxx" means Xxxxx Xxxx Foods, Inc., a Delaware corporation.
"Xxxxx Xxxx Dividend" means the dividend by the Company of certain
non-cash assets with a book value of approximately $4.2 million to Xxxxx Xxxx,
which Xxxxx Xxxx will in turn dividend to its shareholders pursuant to the
Refinancing.
"Xxxxx Xxxx Tender Offer" means the tender offer by Xxxxx Xxxx for its
12 3/4% Discount Notes.
"Wholly-Owned Subsidiary" means a Subsidiary all the Capital Stock of
which is owned by the Company or another Wholly-Owned Subsidiary.
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Section 1.2. Other Definitions.
Defined in
Term Section
---- ----------
"Act" 1.5
"Agent Members" 3.6
"Change of Control Offer" 10.13
"Change of Control Purchase Date" 10.13
"Change of Control Purchase Notice" 10.13
"Change of Control Purchase Price" 10.13
"covenant defeasance" 4.3
"Defaulted Interest" 3.9
"defeasance" 4.2
"Defeasance Redemption Date" 4.4
"Defeased Securities" 4.1
"Deficiency" 10.12
"Excess Proceeds" 10.12
"Global Securities" 2.1
"incur" 10.8
"Institutional Accredited Investors 2.1
"Non-Global Purchasers 2.1
"Offer" 10.12
"Offer Date" 10.12
"Offered Price" 10.12
"Offshore Global Security" 2.1
"Offshore Securities Exchange Date" 2.1
"Pari Passu Debt Amount" 10.12
"Pari Passu Offer" 10.12
"Permanent Offshore Physical Securities" 2.1
"Permitted Payment" 10.9
"Physical Securities" 3.6
"Private Placement Legend" 2.2
"refinancing" 10.9
"Regulation S" 2.1
"Required Filing Dates" 10.17
"Restricted Payments" 10.9
"Rule 144A" 2.1
"Security Amount" 10.12
"Security Register" 3.5
"Security Registrar" 3.5
"Special Payment Date" 3.9
"Surviving Entity" 8.1
"Treasury Rate" 10.14
"U.S. Global Security" 2.1
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"U.S. Government Obligations" 4.4
"U.S. Physical Securities 2.1
Section 1.3. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company and each other
obligor on the Securities shall furnish to the Trustee an Officers' Certificate
in a form and substance reasonably acceptable to the Trustee stating that all
conditions precedent, if any, provided for in this Indenture (including any
covenant compliance which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel in a form and
substance reasonably acceptable to the Trustee stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
except that, in the case of any such application or request as to which the
furnishing of any certificates and/or opinions is specifically required by any
provision of this Indenture, relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or Opinion of Counsel with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(a) a statement to the effect that each individual or firm
signing such certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(b) 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;
(c) a statement to the effect that, in the opinion of each such
individual or such firm, he has made such examination or investigation
as is necessary to enable him or them to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(d) a statement as to whether, in the opinion of each such
individual or such firm, such condition or covenant has been complied
with.
Section 1.4. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to such matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an officer of the Company or other
obligor on the Securities may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any certificate or opinion of
such an officer or of counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company or other obligor on the Securities with respect to such
factual matters and which contains a statement to the effect that the
information with respect to such factual matters is in the possession of the
Company or other obligor on the Securities, unless such officer or counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Opinions of Counsel required to be delivered to the Trustee may have
qualifications customary for opinions of the type required, and counsel
delivering such Opinions of Counsel may rely on certificates of the Company or
government or other officials customary for opinions of the type required,
including certificates certifying as to matters of fact, including that various
financial covenants have been complied with.
Any certificate or opinion of an officer of the Company or other
obligor on the Securities may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of, or representations by, an accountant
or firm of accountants in the employ of the Company, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the accounting matters upon which his
certificate or opinion may be based are erroneous. Any certificate or opinion of
any independent firm of public accountants filed with the Trustee shall contain
a statement that such firm is independent with respect to the Company.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.5. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
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(b) The ownership of Securities shall be proved by the Security
Register.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security or the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof, in respect of anything done,
suffered or omitted to be done by the Trustee, any Paying Agent or the Company
or any other obligor on the Securities in reliance thereon, whether or not
notation of such action is made upon such Security.
(d) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
Section 1.6. Notices, etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company or any other
obligor on the Securities shall be sufficient for every purpose
hereunder if made, given, furnished or filed, in writing, by
first-class mail postage prepaid (return receipt requested) or
delivered in person or by recognized overnight courier to or with the
Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration or at any other address furnished in writing prior
thereto to the Holders, the Company or any other obligor on the
Securities by the Trustee; or
(b) the Company shall be sufficient for every purpose (except as
provided in Section 5.1(c)) hereunder if in writing and mailed,
first-class postage prepaid or delivered by recognized overnight
courier, to the Company addressed to it at 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000, Attention: Chief Financial Officer, or at
any other address previously furnished in writing to the Trustee by the
Company.
Section 1.7. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest
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date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice when mailed
to a Holder in the aforesaid manner shall be conclusively deemed to have been
received by such Holder whether or not actually received by such Holder. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be reasonably satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.
Section 1.8. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, such provision
of the Trust Indenture Act shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
Section 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and any
other obligor on the Securities shall bind their successors and assigns, whether
so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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Section 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person (other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 1.13. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAWS PRINCIPLES THEREOF).
Section 1.14. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Maturity
or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or premium, if any, need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at
Maturity or the Stated Maturity, and no interest shall accrue with respect to
such payment for the period from and after such Interest Payment Date,
Redemption Date, Maturity or Stated Maturity, as the case may be, to the next
succeeding Business Day.
Section 1.15. Schedules.
All schedules attached hereto are by this reference made a part with
the same effect as if herein set forth in full.
Section 1.16. Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute but
one and the same instrument.
ARTICLE II
SECURITY FORMS
Section 2.1. Forms Generally.
The Securities and the Trustee's certificate of authentication thereon
shall be in substantially the forms set forth in this Article II, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted hereby and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as
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may be required to comply with the rules of any securities exchange, any
organizational document or governing instrument or applicable law or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Securities
may be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Initial Securities offered and sold in reliance on Rule 144A under the
Securities Act ("Rule 144A") shall be issued initially in the form of one or
more permanent global Securities substantially in the form set forth in Section
2.2 (the "U.S. Global Security") deposited with the Trustee, as custodian for
the Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the U.S. Global Security
may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary or its nominee, as
hereinafter provided.
Initial Securities (i) originally purchased by or transferred to
institutional "accredited investors" (as defined in Rule 501(a)(l),(2),(3) and
(7) under the Securities Act) ("Institutional Accredited Investors") who are not
QIBs or (ii) held by QIBs who elect to take physical delivery of their
certificates instead of holding their interest through the U.S. Global Security
(collectively, the "Non-Global Purchasers"), will be in registered form without
interest coupons (the "U.S. Physical Securities"). Upon the transfer of U.S.
Physical Securities, which were initially issued to a Non-Global Purchaser, to a
QIB, such U.S. Physical Securities will, unless the transferee requests
otherwise or the U.S. Global Security has previously been exchanged in whole for
U.S. Physical Securities, be exchanged for an interest in the U.S. Global
Security.
Initial Securities offered and sold in reliance on Regulation S under
the Securities Act ("Regulation S") shall be issued initially in the form of a
global note certificate substantially in the form set forth in Section 2.2 (the
"Offshore Global Security" and, together with the U.S. Global Security, the
"Global Securities"). The Offshore Global Security will be deposited with the
Trustee as custodian for the Depositary and will be registered in the name of
the Depositary until the later of the completion of the distribution of the
Initial Securities and the termination of the "restricted period" (as defined in
Regulation S) with respect to the offer and sale of the Initial Securities (the
"Offshore Securities Exchange Date"). Prior to the Offshore Securities Exchange
Date, transfers of beneficial interests in the Offshore Global Security can only
be effected through the Depositary in accordance with the requirements of
Section 3.7 hereof. At any time following the Offshore Securities Exchange Date
(but in no event before such date), upon receipt by the Trustee and the Company
of a certificate substantially in the form of Exhibit A hereto, the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
permanent certificated Securities in registered form substantially in the form
set forth in Section 2.2 (the
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"Permanent Offshore Physical Securities"), in exchange for the surrender of a
Holder's beneficial ownership interest in the Offshore Global Security of like
tenor and amount.
Section 2.2. Form of Face of Security.
(a) The form of the face of any Series A Securities authenticated and
delivered hereunder shall be substantially as follows:
Unless and until (i) an Initial Security is sold under an effective
Registration Statement or (ii) an Initial Security is exchanged for a Series B
Security in connection with an effective Registration Statement, in each case
pursuant to the Registration Rights Agreement, then (A) the U.S. Global Security
and each U.S. Physical Security shall bear the legend set forth below (the
"Private Placement Legend") on the face thereof and (B) the Offshore Global
Security and each Permanent Offshore Physical Security shall bear the Private
Placement Legend on the face thereof until at least 41 days after the Issue
Date:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION AS SET
FORTH BELOW.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A")) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION
PURSUANT TO RULE 903 OR 904 OF REGULATION S, (2) AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 000X XXXXXX XXX
-00-
00
XXXXXX XXXXXX, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) INSIDE THE UNITED STATES TO
AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPHS (A)(1), (A)(2), (A)(3) OR (A)(7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT
TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
AS USED HEREIN, THE TERMS "UNITED STATES," "OFFSHORE TRANSACTION," AND
"U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION
S UNDER THE SECURITIES ACT.
[Each global security, whether or not an initial security, shall also
bear the following legend on the face thereof:]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
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RESTRICTIONS SET FORTH IN SECTIONS 3.6 AND 3.7 OF THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT
AND ANY SUCH CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
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39
DI GIORGIO CORPORATION
10% SENIOR NOTES DUE 2007, SERIES A
CUSIP NO. __________
No._______________ $__________________
Di Giorgio Corporation, a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
___________ or registered assigns, the principal sum of __________ United States
dollars on June 15, 2007, at the office or agency of the Company referred to
below, and to pay interest thereon from June 20, 1997, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semiannually on June 15 and December 15 in each year, commencing December 15,
1997 at the rate of 10% per annum, subject to adjustments as described in the
second following paragraph, in United States dollars, until the principal hereof
is paid or duly provided for. Interest shall be computed on the basis of a
360-day year comprised of twelve 30-day months.
The Holder of this Series A Security is entitled to the benefits of the
Registration Rights Agreement (the "Registration Rights Agreement") among the
Company and the Initial Purchasers, dated June 20, 1997, pursuant to which,
subject to the terms and conditions thereof, the Company is obligated to
consummate the Exchange Offer pursuant to which the Holder of this Security
shall have the right to exchange this Security for 10% Senior Notes due 2007,
Series B (herein called the "Series B Securities") in like principal amount as
provided therein. The Series A Securities and the Series B Securities are
together referred to as the "Securities." The Series A Securities rank pari
passu in right of payment with the Series B Securities.
In the event that (a) the Exchange Offer Registration Statement is not
filed with the Commission on or prior to the 60th calendar day following the
date of original issue of the Series A Securities, (b) the Exchange Offer
Registration Statement has not been declared effective on or prior to the 120th
calendar day following the date of original issue of the Series A Securities,
(c) the Exchange Offer is not consummated on or prior to the 150th calendar day
following the date of original issue of the Series A Securities or a Shelf
Registration Statement is not declared effective on or prior to the 150th
calendar day following the date of original issue of the Series A Securities
(or, if a Shelf Registration Statement is required to be filed because of the
request by any Initial Purchaser, 30 days following the request by any such
Initial Purchaser that the Company file the Shelf Registration Statement) or (d)
the Exchange Offer Registration Statement or Shelf Registration Statement is
declared effective but thereafter ceases to be effective or usable within the
applicable period, as provided in the Registration Rights Agreement (each such
event referred to in clauses (a) through (d) above, a "Registration Default"),
the interest rate borne by the Series A Securities (except in the case of clause
(c), in which case only the Series A Securities which have not been exchanged in
the Exchange Offer)
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shall be increased by an amount equal to one-quarter of one percent per annum
upon the occurrence of any Registration Default, which rate (as increased as
aforesaid) will increase by an additional one quarter of one percent each 90-day
period that such additional interest continues to accrue under any such
circumstance, with an aggregate maximum increase in the interest rate equal to
one percent (1%) per annum. Following the cure of all Registration Defaults the
accrual of additional interest will cease and the interest rate will revert to
the original rate.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or any Predecessor Security) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the June 1 or December 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the interest rate borne by the Series A Securities, to the extent lawful,
shall forthwith cease to be payable to the Holder on such Regular Record Date,
and may either be paid to the Person in whose name this Security (or any
Predecessor Security) is registered at the close of business on a Special Record
Date for the payment of such defaulted interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Securities not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in this Indenture.
Payment of the principal of, premium, if any, and interest on, this
Security, and exchange or transfer of the Security, will be made at the office
or agency of the Company in The City of New York maintained for that purpose
(which initially will be the Corporate Trust Office of the Trustee), or at such
other office or agency as may be maintained for such purpose, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature of an authorized
signer, this Security shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
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41
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers and its
corporate seal to be affixed or reproduced hereon.
DI GIORGIO CORPORATION
By:______________________________________
Title:___________________________________
Attest:
__________________________________
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 10% Senior Notes due 2007, Series A referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:______________________________________
Authorized Signer
Dated:
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42
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 10.12 or Section 10.13, as applicable, of the Indenture, check the Box:
[ ].
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 10.12 or Section 10.13 as applicable, of the Indenture,
state the amount (in original principal amount):
$____________________
Date:__________ Your Signature:_______________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:______________________________________
[Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Securities Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Securities Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Exchange Act.]
(b) The form of the face of any Series B Securities authenticated and
delivered hereunder shall be substantially as follows:
[Each global security, whether or not an initial security, shall also
bear the following legend on the face thereof:]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTIONS 3.6 AND 3.7 OF THE INDENTURE.
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43
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT
AND ANY SUCH CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
-37-
44
DI GIORGIO CORPORATION
10% SENIOR NOTES DUE 2007, SERIES B
CUSIP NO.____________
No.________________ $________________
Di Giorgio Corporation, a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
__________ or registered assigns, the principal sum of ___________ United States
dollars on June 15, 2007, at the office or agency of the Company referred to
below, and to pay interest thereon from June 20, 1997, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semiannually on June 15 and December 15 in each year, commencing December 15,
1997 at the rate of 10% per annum, in United States dollars, until the principal
hereof is paid or duly provided for; provided that to the extent interest has
not been paid or duly provided for with respect to the Series A Security
exchanged for this Series B Security, interest on this Series B Security shall
accrue from the most recent Interest Payment Date to which interest on the
Series A Security which was exchanged for this Series B Security has been paid
or duly provided for. Interest shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
This Series B Security was issued pursuant to the Exchange Offer
pursuant to which the 10% Senior Notes due 2007, Series A (herein called the
"Series A Securities") in like principal amount were exchanged for the Series B
Securities. The Series B Securities rank pari passu in right of payment with the
Series A Securities.
In addition, for any period in which the Series A Security exchanged
for this Series B Security was outstanding, in the event that (a) the Exchange
Offer Registration Statement was not filed with the Commission on or prior to
the 60th calendar day following the date of original issue of the Series A
Security, (b) the Exchange Offer Registration Statement was not declared
effective on or prior to the 120th calendar day following the date of original
issue of the Series A Security, (c) the Exchange Offer was not consummated on or
prior to the 150th calendar day following the date of original issue of the
Series A Security or a Shelf Registration Statement was not declared effective
on or prior to the 150th calendar day following the date of original issue of
the Series A Security (or, a Shelf Registration Statement was required to be
filed 30 days following a request by an Initial Purchaser) or (d) the Exchange
Offer Registration Statement or Shelf Registration Statement was declared
effective but thereafter ceased to be effective or usable within the applicable
period (each such event referred to in clauses (a) through (d) above, a
"Registration Default"), the interest rate borne by the Series A Securities
(except in the case of clause (c), in which case only the Series A Securities
which have not been exchanged in the Exchange Offer) was increased by
one-quarter of one percent per annum upon the occurrence of the Registration
Default, which rate (as increased as aforesaid) will increase by an additional
one
-38-
45
quarter of one percent each 90-day period that such additional interest
continues to accrue under any such circumstance, with an aggregate maximum
increase in the interest rate equal to one percent (1%) per annum. Following the
cure of all Registration Defaults the accrual of additional interest will cease
and the interest rate will revert to the original rate; provided that, to the
extent interest at such increased interest rate has been paid or duly provided
for with respect to the Series A Security, interest at such increased interest
rate, if any, on this Series B Security shall accrue from the most recent
Interest Payment Date to which such interest on the Series A Security has been
paid or duly provided for; provided, however, that, if after any such reduction
in interest rate, a different event specified in clause (a), (b), (c) or (d)
above occurs, the interest rate shall again be increased pursuant to the
foregoing provisions.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or any Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the June 1 or December 1(whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the interest rate borne by the Series B Securities, to the extent lawful,
shall forthwith cease to be payable to the Holder on such Regular Record Date,
and may either be paid to the Person in whose name this Security (or any
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such defaulted interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in this Indenture.
Payment of the principal of, premium, if any, and interest on, this
Security, and exchange or transfer of the Security, will be made at the office
or agency of the Company in The City of New York maintained for such purpose
(which initially will be the Corporate Trust Office of the Trustee), or at such
other office or agency as may be maintained for such purpose, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature of an authorized
signer, this Security shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
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46
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers and its
corporate seal to be affixed or reproduced hereon.
DI GIORGIO CORPORATION
By:______________________________________
Title:___________________________________
Attest:
__________________________________
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 10% Senior Notes due 2007, Series B referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:______________________________________
Authorized Signer
Dated:
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 10.12 or Section 10.13, as applicable, of the Indenture, check the Box:
[ ]
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 10.12 or Section 10.13 as applicable, of the Indenture,
state the amount (in original principal amount):
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47
$_____________________.
Date:__________ Your Signature:_______________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:_______________________________________
[Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Securities Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Securities Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Exchange Act.]
Section 2.3. Form of Reverse of Securities.
(a) The form of the reverse of the Series A Securities shall be
substantially as follows:
DI GIORGIO CORPORATION
10% Senior Notes due 2007, Series A
This Security is one of a duly authorized issue of Securities of the
Company designated as its 10% Senior Notes due 2007, Series A (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $155,000,000, issued under and
subject to the terms of an indenture (herein called the "Indenture") dated as of
June 20, 1997, between the Company and The Bank of New York, as trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Company, the Trustee and
the Holders of the Securities, and of the terms upon which the Securities are,
and are to be, authenticated and delivered.
The Indenture contains provisions for defeasance at any time of (a) the
entire Indebtedness on the Securities and (b) certain restrictive covenants and
related defaults and Events of Default, in each case upon compliance with
certain conditions set forth therein.
The Securities are subject to redemption at any time on or after June
15, 2002, at the option of the Company, in whole or in part, on not less than 30
nor more than 60 days' prior notice to the Holders by first-class mail, in
amounts of $1,000 or an integral multiple thereof, at
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48
the following redemption prices (expressed as percentages of the principal
amount), if redeemed during the 12-month period beginning on June 15 of the
years indicated below:
Redemption
Year Price
---- ----------
2002........................................ 105.00%
2003........................................ 103.33%
2004........................................ 101.67%
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest, if any, to the Redemption Date (subject to the
rights of Holders of record on relevant Regular Record Dates or Special Record
Dates to receive interest due on an Interest Payment Date).
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities or portions thereof to be redeemed pro rata, by lot
or by any other method the Trustee shall deem fair and reasonable
Upon the occurrence of a Change of Control, each Holder may require the
Company to purchase such Holder's Securities in whole or in part in integral
multiples of $1,000, at a purchase price in cash in an amount equal to 101% of
the principal amount thereof, plus accrued and unpaid interest, if any, to the
date of purchase, pursuant to a Change of Control Offer in accordance with the
procedures set forth in the Indenture.
In addition, at any time on or prior to June 15, 2000, the Company may,
at its option, use the net proceeds of one or more Public Equity Offerings to
redeem up to an aggregate of 35% of the aggregate principal amount of Securities
originally issued under the Indenture at a redemption price equal to 110% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon, if
any, to the Redemption Date; provided that at least $100,750,000 aggregate
principal amount of Securities remains outstanding immediately after the
occurrence of such redemption. In order to effect the foregoing redemption, the
Company must mail a notice of redemption no later than 60 days after the related
Public Equity Offering and must consummate such redemption within 90 days of the
closing of the Public Equity Offering.
Under certain circumstances, in the event the Net Cash Proceeds
received by the Company from any Asset Sale (which proceeds are not used to
repay Senior Indebtedness or invested in properties or other assets that replace
the properties and assets that were the subject of the Asset Sale or which will
be used in the businesses of the Company or its Subsidiaries existing on the
date of the Indenture or in businesses reasonably related thereto) exceeds a
specified amount, the Company will be required to set aside such proceeds in a
separate account pending an offer by the Company to apply such proceeds to the
repayment of the Securities and certain Indebtedness ranking pari passu in right
of payment to the Securities.
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49
In the case of any redemption or repurchase of Securities in accordance
with the Indenture, interest installments whose Stated Maturity is on or prior
to the Redemption Date will be payable to the Holders of such Securities of
record as of the close of business on the relevant Regular Record Date or
Special Record Date referred to on the face hereof. Securities (or portions
thereof) for whose redemption and payment provision is made in accordance with
the Indenture shall cease to bear interest from and after the Redemption Date.
In the event of redemption or repurchase of this Security in accordance
with the Indenture in part only, a new Security or Securities for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture and the Securities at
any time by the Company and the Trustee with the consent of the Holders of a
specified percentage in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and the
Securities and certain past Defaults under the Indenture and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof whether or not notation of such consent or
wavier is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company or any
other obligor on the Securities (in the event such other obligor is obligated to
make payments in respect of the Securities), which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on, this
Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
If this Series A Security is in certificated form, then as provided in
the Indenture and subject to certain limitations therein set forth, the transfer
of this Security is registrable on the Security Register of the Company, upon
surrender of this Security for registration of transfer at the office or agency
of the Company maintained for such purpose in The City of New York or at such
other office or agency of the Company as may be maintained for such purpose,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or its attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations
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50
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
If this Series A Security is in certificated form, then as provided in
the Indenture and subject to certain limitations therein set forth, the Holder,
provided it is a Qualified Institutional Buyer, may exchange this Series A
Security for a Book-Entry Security by instructing the Trustee (by completing the
Transferee Certificate in the form in Appendix I) to arrange for such Series A
Security to be represented by a beneficial interest in a Global Security in
accordance with the customary procedures of the Depository unless the Company
has elected not to issue a Global Security.
If this Series A Security is a Global Security, it is exchangeable for
a Series A Security in certificated form as provided in the Indenture and in
accordance with the rules and procedures of the Trustee and the Depositary. In
addition, certificated securities shall be transferred to all beneficial holders
in exchange for their beneficial interests in a Global Security if (x) the
Depository notifies the Company that it is unwilling or unable to continue as
depository for a Global Security and a successor depositary is not appointed by
the Company within 90 days or (y) there shall have occurred and be continuing an
Event of Default and the Security Registrar has received a request from the
Depositary. Upon any such issuance, the Trustee is required to register such
certificated Series A Securities in the name of, and cause the same to be
delivered to, such Person or Persons (or the nominee of any thereof). All such
certificated Series A Securities would be required to include the Private
Placement Legend.
Series A Securities in certificated form are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Series A Securities are exchangeable for a
like aggregate principal amount of Securities of a differing authorized
denomination, as requested by the Holder surrendering the same.
At any time when the Company is not subject to Sections 13 or 15(d) of
the Exchange Act, upon the written request of a Holder of a Series A Security,
the Company will promptly furnish or cause to be furnished such information as
is specified pursuant to Rule 144A(d)(4) under the Securities Act (or any
successor provision thereto) to such Holder or to a prospective purchaser of
such Series A Security who such Holder informs the Company is reasonably
believed to be a "Qualified Institutional Buyer" within the meaning of Rule 144A
under the Securities Act, as the case may be, in order to permit compliance by
such Holder with Rule 144A under the Securities Act.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this
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Security is registered as the owner hereof for all purposes, whether or not this
Security is overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF).
All terms used in this Security which are defined in the Indenture and
not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
[The Transferee Certificate, in the form of Appendix I hereto, will be
attached to the Series A Security.]
(b) The form of the reverse of the Series B Securities shall be
substantially as follows:
DI GIORGIO CORPORATION
10% Senior Notes due 2007, Series B
This Security is one of a duly authorized issue of Securities of the
Company designated as its 10% Senior Notes due 2007, Series B (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $155,000,000, issued under and
subject to the terms of an indenture (herein called the "Indenture") dated as of
June 20, 1997, between the Company and The Bank of New York, as trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Company, the Trustee and
the Holders of the Securities, and of the terms upon which the Securities are,
and are to be, authenticated and delivered.
The Indenture contains provisions for defeasance at any time of (a) the
entire Indebtedness on the Securities and (b) certain restrictive covenants and
related Defaults and Events of Default, in each case upon compliance with
certain conditions set forth therein.
The Securities are subject to redemption at any time on or after June
15, 2002, at the option of the Company, in whole or in part, on not less than 30
nor more than 60 days' prior notice to the Holders by first-class mail, in
amounts of $1,000 or an integral multiple thereof, at the following redemption
prices (expressed as percentages of the principal amount), if redeemed during
the 12-month period beginning June 15 of the years indicated below:
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Redemption
Year Price
---- ----------
2002..................................... 105.00%
2003..................................... 103.33%
2004..................................... 101.67%
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest, if any, to the Redemption Date (subject to the
rights of Holders of record on relevant Regular Record Dates or Special Record
Dates to receive interest due on an Interest Payment Date).
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities or portions thereof to be redeemed pro rata, by lot
or by any other method the Trustee shall deem fair and reasonable.
Upon the occurrence of a Change of Control, each Holder may require the
Company to purchase such Holder's Securities in whole or in part in integral
multiples of $1,000, at a purchase price in cash in an amount equal to 101% of
the principal amount thereof, plus accrued and unpaid interest, if any, to the
date of purchase, pursuant to a Change of Control Offer and in accordance with
the procedures set forth in the Indenture.
In addition, at any time on or prior to June 15, 2000, the Company may,
at its option, use the net proceeds of one or more Public Equity Offerings to
redeem up to an aggregate of 35% of the aggregate principal amount of Securities
originally issued under the Indenture at a redemption price equal to 110% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon, if
any, to the Redemption Date; provided that at least $100,750,000 aggregate
principal amount of Securities remains outstanding immediately after the
occurrence of such redemption. In order to effect the foregoing redemption, the
Company must mail a notice of redemption no later than 60 days after the related
Public Equity Offering and must consummate such redemption within 90 days of the
closing of the Public Equity Offering.
Under certain circumstances, in the event the Net Cash Proceeds
received by the Company from any Asset Sale (which proceeds are not used to
repay Senior Indebtedness or invested in properties or other assets that replace
the properties and assets that were the subject of the Asset Sale or which will
be used in the businesses of the Company or its Subsidiaries existing on the
date of the Indenture or in businesses reasonably related thereto) exceeds a
specified amount, the Company will be required to set aside such proceeds in a
separate account pending an offer by the Company to apply such proceeds to the
repayment of the Securities and certain Indebtedness ranking pari passu in right
of payment to the Securities.
In the case of any redemption or repurchase of Securities in accordance
with the Indenture, interest installments whose Stated Maturity is on or prior
to the Redemption Date will be payable to the Holders of such Securities of
record as of the close of business on the relevant Regular Record Date or
Special Record Date referred to on the face hereof. Securities (or
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portions thereof) for whose redemption and payment provision is made in
accordance with the Indenture shall cease to bear interest from and after the
Redemption Date.
In the event of redemption or repurchase of this Security in accordance
with the Indenture in part only, a new Security or Securities for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture and the Securities at
any time by the Company and the Trustee with the consent of the Holders of a
specified percentage in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and the
Securities and certain past Defaults under the Indenture and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company or any
other obligor on the Securities (in the event such other obligor is obligated to
make payments in respect of the Securities), which is absolute and
unconditional, to pay the principal of, and premium, if any, and interest on,
this Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
If this Series B Security is in certificated form, then as provided in
the Indenture and subject to certain limitations therein set forth, the transfer
of this Series B Security is registrable on the Security Register of the
Company, upon surrender of this Series B Security for registration of transfer
at the office or agency of the Company maintained for such purpose in The City
of New York or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or its attorney duly authorized in
writing, and thereupon one or more new Series B Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
If this Series B Security is a U.S. Global Security, it is exchangeable
for a Series B Security in certificated form as provided in the Indenture and in
accordance with the rules and
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procedures of the Trustee and the Depositary. In addition, certificated
securities shall be transferred to all beneficial holders in exchange for their
beneficial interests in the U.S. Global Security if (x) the Depository notifies
the Company that it is unwilling or unable to continue as depository for the
U.S. Global Security and a successor depositary is not appointed by the Company
within 90 days or (y) there shall have occurred and be continuing an Event of
Default and the Security Registrar has received a request from the Depositary.
Upon any such issuance, the Trustee is required to register such certificated
Series B Securities in the name of, and cause the same to be delivered to, such
Person or Persons (or the nominee of any thereof).
Series B Securities in certificated form are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Series B Securities are exchangeable for a
like aggregate principal amount of Securities of a differing authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF).
All terms used in this Security which are defined in the Indenture and
not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
[The Transferee Certificate, in the form of Appendix II hereto, will be
attached to the Series B Security.]
ARTICLE III
THE SECURITIES
Section 3.1. Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $155,000,000 in principal
amount of Securities, except for
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Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Section 3.3, 3.4, 3.5,
3.6, 3.7, 3.8, 9.6, 10.12, 10.13 or 11.8.
The Securities shall be known and designated as the "10% Senior Notes
due 2007" of the Company. The Stated Maturity of the Securities shall be June
15, 2007, and the Securities shall each bear interest at the rate of 10% per
annum, as such interest rate may be adjusted as set forth in the Securities,
from June 20, 1997, or from the most recent Interest Payment Date to which
interest has been paid, payable semiannually on June 15 and December 15 in each
year, commencing December 15, 1997, until the principal thereof is paid or duly
provided for. Interest on any overdue principal, interest (to the extent lawful)
or premium, if any, shall be payable on demand.
The principal of, premium, if any, and interest on, the Securities
shall be payable and the Securities will be exchangeable and transferable at an
office or agency of the Company in The City of New York maintained for such
purposes (which initially will be the Corporate Trust Office of the Trustee);
provided, however, that payment of interest may be made at the option of the
Company by check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Security Register.
For all purposes hereunder, the Series A Securities and the Series B
Securities will be treated as one class and are together referred to as the
"Securities." The Series A Securities rank pari passu in right of payment with
the Series B Securities.
The Securities shall be subject to repurchase by the Company pursuant
to an Offer as provided in Section 10.12.
Holders shall have the right to require the Company to purchase their
Securities, in whole or in part, in the event of a Change of Control pursuant to
Section 10.13.
The Securities shall be redeemable as provided in Article XI and in the
Securities.
At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article IV.
Section 3.2. Denominations.
The Securities shall be issuable only in fully registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
Section 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by one of its
Chairman of the Board, its President, its Chief Executive Officer, its Chief
Financial Officer or one of its Vice
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Presidents attested by its Secretary or one of its Assistant Secretaries. The
signatures of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and make available for delivery such
Securities as provided in this Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
In case the Company or any of its Subsidiaries, pursuant to Article
VIII, shall, in a single transaction or through a series of related
transactions, be consolidated or merged with or into any other Person or shall
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person, and the successor
Person resulting from such consolidation or surviving such merger, or into which
the Company shall have been merged, or the successor Person which shall have
participated in the sale, assignment, conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article VIII, any of the Securities authenticated
or delivered prior to such consolidation, merger, sale, assignment, conveyance,
transfer, lease or other disposition may, from time to time, at the request of
the successor Person, be exchanged for other Securities executed in the name of
the successor Person with such changes in phraseology and form as may be
appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section 3.3 in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
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The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities on behalf of the Trustee. Unless limited by
the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Security Registrar or Paying
Agent to deal with the Company and its Affiliates.
If an officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates such Security such Security shall
be valid nevertheless.
Section 3.4. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities which are printed, lithographed,
typewritten or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 10.2,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until so
exchanged the temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities.
Section 3.5. Registration, Registration of Transfer and Exchange.
The Company shall cause the Trustee to keep, so long as it is the
Security Registrar, at the Corporate Trust Office of the Trustee, or such other
office as the Trustee may designate, a register (the register maintained in such
office or in any other office or agency designated pursuant to Section 10.2
being herein sometimes referred to as the "Security Register") in which, subject
to such reasonable regulations as the Security Registrar may prescribe, the
Company shall provide for the registration of Securities and of transfers of
Securities. The Trustee shall initially be the "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided. The Company may change the Security Registrar or appoint one or more
co-Security Registrars without notice.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated pursuant to Section 10.2, the Company
shall execute, and the Trustee shall
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authenticate and make available for delivery, in the name of the designated
transferee or transferees, one or more new Securities of the same series of any
authorized denomination or denominations, of a like aggregate principal amount.
Furthermore, any Holder of the U.S. Global Security or the Offshore
Global Security shall, by acceptance of either such Global Security, agree that
transfers of beneficial interests in such Global Security may be effected only
through a book-entry system maintained by the Holder of such Global Security (or
its agent), and that ownership of a beneficial interest in a Security shall be
required to be reflected in a book entry.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make available for
delivery, Securities of the same series which the Holder making the exchange is
entitled to receive: provided that no exchange of Series A Securities for Series
B Securities shall occur until an Exchange Offer Registration Statement shall
have been declared effective by the Commission and that the Series A Securities
exchanged for the Series B Securities shall be canceled.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer,
or for exchange, repurchase or redemption, shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer, exchange or redemption of Securities, except for any tax or other
governmental charge that may be imposed in connection therewith, other than
exchanges pursuant to Sections 3.3, 3.4, 3.5, 9.6, 10.12, 10.13 or 11.8 not
involving any transfer.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the mailing of a notice of redemption of the Securities selected
for redemption under Section 11.4 and ending at the close of business on the day
of such mailing or (b) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
Securities being redeemed in part.
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Every Security shall be subject to the restrictions on transfer
provided in the legend required to be set forth on the face of each Security
pursuant to Section 2.2, and the restrictions set forth in this Section 3.5, and
the Holder of each Security, by such Holder's acceptance thereof (or interest
therein), agrees to be bound by such restrictions on transfer.
The restrictions imposed by this Section 3.5 upon the transferability
of any particular Security shall cease and terminate on (a) the later of June
20, 1999 or two years after the last date on which the Company or any Affiliate
of the Company was the owner of such Security (or any predecessor of such
Security) or (b) (if earlier) if and when such Security has been sold pursuant
to an effective registration statement under the Securities Act or transferred
pursuant to Rule 144 or Rule 904 under the Securities Act (or any successor
provision), unless the Holder thereof is an affiliate of the Company, within the
meaning of Rule 144 (or such successor provisions). Any Security as to which
such restrictions on transfer shall have expired in accordance with their terms
or shall have terminated may, upon surrender of such Security for exchange to
the Security Registrar in accordance with the provision of this Section 3.5
(accompanied, in the event that such restrictions on transfer have terminated
pursuant to Rule 144 or Rule 904 (or any successor provision), by an Opinion of
Counsel satisfactory to the Company and the Trustee, to the effect that the
transfer of such Security has been made in compliance with Rule 144 or Rule 904
(or any such successor provision)), be exchanged for a new Security, of like
tenor and aggregate principal amount, which shall not bear the Private Placement
Legend. The Company shall inform the Trustee of the effective date of any
Registration Statement registering the Securities under the Securities Act no
later than two Business Days after such effective date.
Except as provided in the preceding paragraph, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any U.S. Global Security or Offshore Global Security,
whether pursuant to this Section 3.5, Section 3.4, 3.8, 9.6 or 11.8 or
otherwise, shall also be a U.S. Global Security or Offshore Global Security, as
the case may be, and shall bear the legend specified in Section 2.2.
Section 3.6. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the name
of the Depositary, (ii) be deposited with, or on behalf of, the Depositary or
with the Trustee as custodian for the Depositary and (iii) bear legends as set
forth in Section 2.2.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary or the Trustee as its custodian, or under the
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary, or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a holder of any Security.
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(b) Transfers of a Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 3.7. Beneficial owners may
obtain U.S. Physical Securities in exchange for their beneficial interests in
the U.S. Global Security upon request in accordance with the Depositary's and
the Security Registrar's procedures. In addition, at any time following the
Offshore Securities Exchange Date, upon receipt by the Trustee and the Company
of a certificate substantially in the Form of Exhibit A hereto, the Company
shall execute, and the Trustee shall authenticate and deliver to beneficial
owners, in exchange for their beneficial interest in the Offshore Global
Security, Permanent Offshore Physical Securities (together with the U.S.
Physical Securities, the "Physical Securities"). In connection with the
execution, authentication and delivery of either of such Physical Securities,
the Security Registrar shall reflect on its books and records a decrease in the
principal amount of the relevant Global Security equal to the principal amount
of such Physical Securities and the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Securities having an equal
aggregate principal amount.
In addition, Physical Securities shall be issued to all beneficial
owners in exchange for their beneficial interests in a Global Security if (i)
the Depositary notifies the Company that it is unwilling or unable to continue
as a depositary for a Global Security and a successor depositary is not
appointed by the Company within 90 days of such notice or (ii) an Event of
Default has occurred and is continuing and the Security Registrar has received a
request from the Depositary.
(c) In connection with any transfer of a portion of the beneficial
interest in a Global Security pursuant to subsection (b) of this Section to
beneficial owners who are required to hold Physical Securities, the Security
Registrar shall reflect on its books and records the date and a decrease in the
principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Physical Securities of like tenor and amount.
(d) In connection with the transfer of an entire Global Security to
beneficial owners pursuant to subsection (b) of this Section, such Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depositary, in exchange for its
beneficial interest in the U.S. Global Security or Offshore Global Security, as
the case may be, an equal aggregate principal amount of U.S. Physical Securities
or Permanent Offshore Physical Securities, as the case may be, of authorized
denominations.
(e) Any Physical Security delivered in exchange for an interest in
Global Securities pursuant to subsection (c) or subsection (d) of this Section
shall, except as otherwise provided by paragraph (a)(i)(x) and paragraph (f) of
Section 3.7, bear the Xxxxxxx Xxxxxxxxx Xxxxxx.
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00
(x) The registered holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
Section 3.7. Special Transfer Provisions.
Unless and until (i) an Initial Security is sold under an effective
Registration Statement, or (ii) an Initial Security is exchanged for a Series B
Security in connection with the Exchange Offer, in each case pursuant to the
Registration Rights Agreement, the following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of an Initial Security to an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act) which is not a QIB (excluding Non-U.S. Persons):
(i) The Security Registrar shall register the transfer of any
Initial Security whether or not such Initial Security bears the Private
Placement Legend, if (x) the requested transfer is at least two years
after the Issue Date of the Initial Securities or (y) the proposed
transferee has delivered to the Security Registrar a certificate
substantially in the form of Exhibit B hereto.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in a Global Security, upon receipt by the Security
Registrar of (x) the documents, if any, required by paragraph (i) and
(y) instructions given in accordance with the Depositary's and the
Security Registrar's procedures therefor, the Security Registrar shall
reflect on its books and records the date and a decrease in the
principal amount of the applicable Global Security in an amount equal
to the principal amount of the beneficial interest in the Global
Security transferred, and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more U.S. Physical Securities of
like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of an Initial Security to a
QIB (excluding Non-U.S. Persons):
(i) If the Security to be transferred consists of Physical
Securities, the Security Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Initial Security stating, or has otherwise
advised the Company and the Security Registrar in writing, that the
sale has been made in compliance with the provisions of Rule 144A to
the transferee who has signed the certification provided for on the
form of Initial Security, stating, or has otherwise advised the Company
and the Security Registrar in writing, that it is
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purchasing the Initial Security for its own account or an account with
respect to which it exercises sole investment discretion and that it,
or the person on whose behalf it is acting with respect to any such
account, is a QIB within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, and the
Initial Security to be transferred consists of Physical Securities
which after transfer are to be evidenced by an interest in the U.S.
Global Security, upon receipt by the Security Registrar of instructions
given in accordance with the Depositary's and the Security Registrar's
procedures therefor, the Security Registrar shall reflect on its books
and records the date and an increase in the principal amount of the
U.S. Global Security in an amount equal to the principal amount of the
Physical Securities to be transferred, and the Trustee shall cancel the
Physical Security so transferred.
(iii) If the Security to be transferred consists of an interest
in the U.S. Global Security, and the proposed transferee is a Agent
Member, the Security Registrar shall reflect such transfer on its books
and records.
(c) Transfers by Non-U.S. Persons on or Prior to July 31, 1997. The
following provisions shall apply with respect to registration of any proposed
transfer of an Initial Security by a Non-U.S. Person on or prior to July 31,
1997:
(i) If the proposed transferee is (x) a Non-U.S. Person and the
proposed transferor has delivered to the Security Registrar a
certificate substantially in the form of Exhibit C hereto or (y) a QIB
and the proposed transferor has advised the Company and the Security
Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has advised the Company
and the Security Registrar in writing, that it is purchasing the
Initial Security for its own account or an account with respect to
which it exercises sole investment discretion and that it, or the
person on whose behalf it is acting with respect to any such account,
is a QIB within the meaning of Rule 144A, and is aware that the sale to
it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A, upon instructions given in accordance with the
Depositary's procedures, the Security Registrar shall register the
transfer of any Initial Security by reflecting on its books and records
a decrease in the principal amount at maturity of the Offshore Global
Security in an amount equal to the beneficial interest in such Global
Security so transferred.
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(ii) If the proposed transferee is a Agent Member, upon receipt
by the Security Registrar of instructions given in accordance with the
Depositary's and the Security Registrar's procedures therefor, the
Security Registrar shall reflect on its books and records the date and
an increase in the principal amount at maturity of the U.S. Global
Security in an amount equal to the principal amount of the beneficial
interest in the Offshore Global Security to be transferred, and the
Trustee shall decrease the principal amount at maturity of the Offshore
Global Security represented by the beneficial interest therein so
transferred.
(d) Transfers by Non-U.S. Persons on or after July 31, 1997. The
following provisions shall apply with respect to any transfer of an Initial
Security by a Non-U.S. Person on or after July 31, 1997:
(i) If the Initial Security to be transferred is a Permanent
Offshore Physical Security, the Security Registrar shall register such
transfer.
(ii) If the proposed transferee is an Agent Member, upon receipt
by the Security Registrar of instructions given in accordance with the
Depositary's and the Security Registrar's procedures therefor, the
Security Registrar shall reflect on its books and records the date and
an increase in the principal amount of the U.S. Global Security in an
amount equal to the principal amount of the Permanent Offshore Physical
Security to be transferred, and the Trustee shall cancel the Permanent
Offshore Physical Security so transferred.
(e) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of an Initial Security to a
Non-U.S. Person:
(i) Prior to July 31, 1997, and subject to (ii) below, the
Security Registrar shall register any proposed transfer of an Initial
Security to a Non-U.S. Person upon receipt of a certificate
substantially in the form of Exhibit C hereto from the proposed
transferor, by reflecting on its books and records an increase in the
principal amount at maturity of the Offshore Global Security in an
amount equal to the principal amount of the Securities transferred.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by the
Security Registrar of (x) the document, if any, required by paragraph
(i), and (y) instructions in accordance with the Depositary's and the
Security Registrar's procedures thereof, the Security Registrar shall
reflect on its books and records the date and a decrease in the
principal amount of the U.S. Global Security in an amount equal to the
principal amount of the beneficial interest in the U.S. Global Security
transferred, and an increase in the same amount to the principal amount
at maturity of the Offshore Global Security.
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(iii) On and after July 31, 1997, and subject to paragraph (iv)
below, the Security Registrar shall register any proposed transfer to
any Non-U.S. Person (x) if the Initial Security to be transferred is a
Permanent Offshore Physical Security, or (y) if the Initial Security to
be transferred is a U.S. Physical Security or an interest in the U.S.
Global Security, upon receipt of a certificate substantially in the
form of Exhibit C from the proposed transferor and (z) in the case of
any of clause (x) or (y), the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Permanent Offshore Physical
Securities of like tenor and amount.
(iv) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by the
Security Registrar of (x) the document, if any, required by paragraph
(iii), and (y) instructions in accordance with the Depositary's and the
Security Registrar's procedures therefor, the Security Registrar shall
reflect on its books and records the date and a decrease in the
principal amount of the U.S. Global Security in an amount equal to the
principal amount of the beneficial interest in the U.S. Global Security
to be transferred and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Permanent Offshore Physical
Securities of like tenor and amount.
(f) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Securities not bearing the Private Placement Legend,
the Security Registrar shall deliver Securities that do not bear the Private
Placement Legend. Upon the registration of transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Security Registrar shall
deliver only Securities that bear the Private Placement Legend unless either (i)
the circumstances contemplated by paragraphs (a)(i)(x), (d)(i) or (e)(iii) of
this Section 3.7 exist or (ii) there is delivered to the Security Registrar an
Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the
effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act.
(g) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 3.6 or this Section
3.7. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Security Registrar.
Section 3.8. Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee, or (b) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and
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there is delivered to the Company, any other obligor on the Securities and the
Trustee, such security or indemnity, in each case, as may be required by them to
save each of them harmless, then, in the absence of notice to the Company, any
other obligor on the Securities or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon a Company
Request the Trustee shall authenticate and make available for delivery, in
exchange for any such mutilated Security or in lieu of any such destroyed, lost
or stolen Security, a replacement Security of like tenor and principal amount,
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this Section, the
Company may require the payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental charges that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company and any other obligor on the Securities,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this Indenture
equally and proportionately with any and all other Securities duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 3.9. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on the Stated Maturity of such interest shall be paid to the
Person in whose name the Security (or any Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest payment.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on the Stated Maturity of such interest, and interest
on such defaulted interest at the then applicable interest rate borne by the
Securities, to the extent lawful (such defaulted interest and interest thereon
herein collectively called "Defaulted Interest"), shall forthwith cease to be
payable to the Holder on the Regular Record Date, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in
Subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or any relevant
Predecessor Securities) are
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registered at the close of business on a Special Record Date for the
Payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
and the date (not less than 30 days after such notice) of the proposed
payment (the "Special Payment Date"), and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the Special Payment Date, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as provided in this Subsection. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the Special Payment Date and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company in
writing of such Special Record Date. In the name and at the expense of
the Company, the Trustee shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at its address as
it appears in the Security Register, not less than 10 days prior to
such Special Record Date, Notice of the proposed payment of such
Defaulted Interest and the Special Record Date and Special Payment Date
therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities are registered on such
Special Record Date and shall no longer be payable pursuant to the
following Subsection (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after written
notice given by the Company to the Trustee of the proposed payment
pursuant to this Subsection, such payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section 3.9, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.10. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and the Company, or the Trustee on behalf of the Company,
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
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provided further, however, that failure to use CUSIP numbers in any notice of
redemption or exchange shall not affect the validity or sufficiency of such
notice.
Section 3.11. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of, premium, if any
and (subject to Section 3.9) interest on, such Security and for all other
purposes whatsoever, whether or not such Security is overdue, and none of the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 3.12. Cancellation.
All Securities surrendered for payment, purchase, redemption,
registration of transfer or exchange shall be delivered to the Trustee and, if
not already canceled, shall be promptly canceled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as in this Section 3.12, except as expressly permitted
by this Indenture. All canceled Securities held by the Trustee shall be returned
to the Company. The Trustee shall provide the Company a list of all Securities
that have been canceled from time to time as requested by the Company.
Section 3.13. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
ARTICLE IV
DEFEASANCE AND COVENANT DEFEASANCE
Section 4.1. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution, at any time, with
respect to the Securities, elect to have either Section 4.2 or Section 4.3 be
applied to all of the Outstanding Securities (the "Defeased Securities"), upon
compliance with the conditions set forth below in this Article IV.
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Section 4.2. Defeasance and Discharge.
Upon the Company's exercise under Section 4.1 of the option applicable
to this Section 4.2, the Company and any other obligor on the Securities, if
any, shall be deemed to have been discharged from its obligations with respect
to the Defeased Securities on the date the conditions set forth in Section 4.4
below are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company and any other obligor on the Securities shall
be deemed to have paid and discharged the entire Indebtedness represented by the
Defeased Securities, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 4.5 and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company and upon Company
Request, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of Defeased Securities to receive, solely
from the trust fund described in Section 4.4 and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest
on, such Securities, when such payments are due, (b) the Company's obligations
with respect to such Defeased Securities under Sections 3.4, 3.5, 3.8, 10.2 and
10.3, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, including, without limitation, the Trustee's rights under Section
6.7, and (d) this Article IV. Subject to compliance with this Article IV, the
Company may exercise its option under this Section 4.2 notwithstanding the prior
exercise of its option under Section 4.3 with respect to the Securities.
Section 4.3. Covenant Defeasance.
Upon the Company's exercise under Section 4.1 of the option applicable
to this Section 4.3, the Company and any other obligor on the Securities shall
be released from its obligations under any covenant or provision contained or
referred to in Sections 10.5 through 10.18, inclusive, and the provisions of
clauses (iii) and (v) of Section 8.1(a), with respect to the Defeased Securities
on and after the date the conditions set forth in Section 4.4 below are
satisfied (hereinafter, "covenant defeasance"), and the Defeased Securities
shall thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Defeased
Securities, the Company and any other obligor on the Securities may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or Article, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
Article or by reason of any reference in any such Section or Article to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Sections 5.1(c), (d)
or (e), but, except as specified above, the remainder of this Indenture and such
Defeased Securities shall be unaffected thereby. In the event covenant
defeasance occurs, the Events of Default specified in Sections 5.1(e) and (f)
will no longer constitute Events of Default with respect to the Securities.
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Section 4.4. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
4.2 or Section 4.3 to the Defeased Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (a) United States dollars in
an amount, (b) U.S. Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms and
with no further reinvestment will provide, not later than one day before the due
date of any payment, money in an amount, or (c) a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants or a nationally recognized investment banking
firm expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee to pay and
discharge, the principal of, premium, if any, and interest on, the Defeased
Securities, on the Stated Maturity of such principal or interest (or on any date
after June 15, 2002 (such date being referred to as the "Defeasance Redemption
Date") if at or prior to electing to exercise either its option applicable to
Section 4.2 or its option applicable to Section 4.3, the Company has delivered
to the Trustee an irrevocable notice to redeem all of the Outstanding Securities
on the Defeasance Redemption Date). For this purpose, "U.S. Government
Obligations" means securities that are (i) direct obligations of the United
States of America for the timely payment of which its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act), as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
of or interest on the U.S. Government Obligation evidenced by such depository
receipt;
(2) In the case of an election under Section 4.2, the Company shall
have delivered to the Trustee an Opinion of Independent Counsel in the United
States stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date
hereof, there has been a change in the applicable federal income tax law, in
either case to the effect that, and based thereon such Opinion of Independent
Counsel in the United States shall confirm that, the Holders of the Outstanding
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred;
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(3) In the case of an election under Section 4.3, the Company shall
have delivered to the Trustee an Opinion of Independent Counsel in the United
States to the effect that the Holders of the Outstanding Securities will not
recognize income, gain or loss for federal income tax purposes as a result of
such covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred;
(4) No Default or Event of Default (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such deposit)
shall have occurred and be continuing on the date of such deposit or insofar as
Section 5.1(g) or (h) is concerned, at any time during the period ending on the
91st day after the date of deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period);
(5) Such defeasance or covenant defeasance shall not cause the Trustee
for the Securities to have a conflicting interest for purposes of the Trust
Indenture Act with respect to any other securities of the Company;
(6) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a Default under, (A) this Indenture or (B) any
other agreement or instrument to which the Company or any Significant Subsidiary
is a party or by which the Company or any Significant Subsidiary is bound, if
such breach, violation, or default thereof would have a material adverse effect
on the Company and its Subsidiaries taken as a whole;
(7) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be registered under such Act or exempt from registration thereunder;
(8) The Company shall have delivered to the Trustee an Opinion of
Independent Counsel in the United States to the effect that after the 91st day
following the deposit, the trust funds will not be subject to avoidance under
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code (or any successor provision
thereto) and related judicial decisions;
(9) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the holders of the Securities over the other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others;
(10) No event or condition shall exist that would prevent the Company
from making payments of the principal of, premium, if any, and interest on the
Securities on the date of such deposit or at any time ending on the 91st day
after the date of such deposit; and
(11) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel, each stating that all
conditions precedent provided for relating
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to either the defeasance under Section 4.2 or the covenant defeasance under
Section 4.3 (as the case may be) have been complied with.
Opinions of Counsel or Opinions of Independent Counsel required to be
delivered under this Section shall be in form and substance reasonably
satisfactory to the Trustee and may have qualifications customary for opinions
of the type required and counsel delivering such opinions may rely on
certificates of the Company or government or other officials customary for
opinions of the type required, which certificates shall be limited as to matters
of fact, including that various financial covenants have been complied with.
Section 4.5. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.3, all
United States dollars and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 4.4 in respect of the
Defeased Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (excluding the Company or
any of its Affiliates acting as Paying Agent), as the Trustee may determine, to
the Holders of such Securities of all sums due and to become due thereon in
respect of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 4.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
imposed, assessed or for the account of the Holders of the Defeased Securities.
Anything in this Article IV to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any United States dollars or U.S. Government Obligations held by it as
provided in Section 4.4 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect defeasance or covenant defeasance.
Section 4.6. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or U.S. Government Obligations in accordance with Section 4.2 or 4.3, as
the case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated, with present and prospective effect, as though no
deposit had occurred pursuant to Section 4.2 or 4.3, as the case may be, until
such time as the
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Trustee or Paying Agent is permitted to apply all such United States dollars or
U.S. Government Obligations in accordance with Section 4.2 or 4.3, as the case
may be; provided, however, that if the Company makes any payment to the Trustee
or Paying Agent of principal of, premium, if any, or interest on any Security
following the reinstatement of its obligations, the Trustee or Paying Agent
shall promptly pay any such amount to the Holders of the Securities and the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the United States dollars and U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE V
REMEDIES
Section 5.1. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) there shall be a default in the payment of any interest on
any Security when it becomes due and payable, and such default shall
continue for a period of 30 days;
(b) there shall be a default in the payment of the principal of
(or premium, if any, on) any Security at its Maturity (upon
acceleration, optional or mandatory redemption, required repurchase or
otherwise);
(c) there shall be a default in the performance, or breach, of
any covenant or agreement of the Company under this Indenture (other
than a default in the performance, or breach, of a covenant or
agreement which is specifically dealt with in clauses (a), (b) or (d)
of this Section 5.1) and such default or breach shall continue for a
period of 30 days after written notice has been given, by certified
mail, (x) to the Company by the Trustee or (y) to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities, which notice shall specify that it is a
"notice of default" and shall demand that such a default be remedied;
(d) (i) there shall be a default in the performance or breach of
the provisions of Article VIII; (ii) the Company shall have failed to
make or consummate an Offer required in accordance with the provisions
of Section 10.12; or (iii) the Company shall have failed to make or
consummate a Change of Control Offer required in accordance with the
provisions of Section 10.13;
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(e) one or more defaults shall have occurred under any of the
agreements, indentures or instruments under which the Company or any
Subsidiary then has outstanding Indebtedness in excess of $6,500,000,
individually or in the aggregate, and either (a) such default results
from the failure to pay such Indebtedness at its stated final maturity
or (b) such default or defaults have resulted in the acceleration of
the maturity of such Indebtedness;
(f) one or more judgments, orders or decrees for the payment of
money in excess of $6,500,000, either individually or in the aggregate,
shall be rendered against the Company or any Subsidiary or any of their
respective properties (except with respect to the Farmingdale Facility)
and shall not be discharged and either (a) any creditor shall have
commenced an enforcement proceeding upon such judgment, order or decree
or (b) there shall have been a period of 60 consecutive days during
which a stay of enforcement of such judgment, order or decree, by
reason of an appeal or otherwise, shall not be in effect; provided that
the amount of such money judgment, order or decree shall be calculated
net of any insurance coverage that the Company has determined in good
faith is available in whole or in part with respect to such money
judgment, order or decree;
(g) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the
Company or any Significant Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law or (ii) a decree or
order adjudging the Company or any Significant Subsidiary bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Significant
Subsidiary under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or any Significant Subsidiary or
of any substantial part of their respective properties, or ordering the
winding up or liquidation of their respective affairs, and any such
decree or order for relief shall continue to be in effect, or any such
other decree or order shall be unstayed and in effect, for a period of
60 consecutive days; or
(h) (1) the Company or any Significant Subsidiary commences a
voluntary case or proceeding under any applicable Bankruptcy Law or any
other case or proceeding to be adjudicated bankrupt or insolvent, (2)
the Company or any Significant Subsidiary consents to the entry of a
decree or order for relief in respect of the Company or such
Significant Subsidiary in an involuntary case or proceeding under any
applicable Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, (3) the Company or any
Significant Subsidiary files a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, (4)
the Company or any Significant Subsidiary (A) consents to the filing of
such petition or the appointment of, or taking possession by, a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or such Significant Subsidiary or of
any substantial part of their respective properties, (B) makes an
assignment for the benefit of creditors or (C) admits in writing its
inability to pay its
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debts generally as they become due, or (5) the Company or any
Significant Subsidiary takes any corporate action in furtherance of any
such actions in this paragraph (h).
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Sections 5.1(g) and (h) with respect to the Company) shall occur and be
continuing with respect to this Indenture, the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Securities then Outstanding
may, and the Trustee at the request of such Holders shall, declare all unpaid
principal of, premium, if any, and accrued interest on all Securities to be due
and payable, by a notice in writing to the Company (and to the Trustee if given
by the Holders of the Securities) and upon any such declaration, such principal,
premium, if any, and interest shall become due and payable immediately. If an
Event of Default specified in clause (g) or (h) of Section 5.1 occurs with
respect to the Company and is continuing, then all the Securities shall ipso
facto become and be due and payable immediately in an amount equal to the
principal amount of the Securities, together with accrued and unpaid interest,
if any, to the date the Securities become due and payable, without any
declaration or other act on the part of the Trustee or any Holder. Thereupon,
the Trustee may, at its discretion, proceed to protect and enforce the rights of
the Holders of the Securities by appropriate judicial proceedings.
After such declaration of acceleration with respect to the Securities,
but before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in aggregate principal amount of the Securities Outstanding, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel,
(ii) all overdue interest on all Outstanding Securities,
(iii) the principal of and premium, if any, on any
Outstanding Securities which have become due otherwise than by
such declaration of acceleration and interest thereon at a rate
borne by the Securities, and
(iv) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the
Securities; and
(b) all Events of Default, other than the non-payment of
principal of the Securities which have become due solely by such
declaration of acceleration, have been
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cured or waived as provided in Section 5.13. No such rescission shall
affect any subsequent Default or impair any right consequent thereon.
If payment of the Securities is accelerated because of an Event of
Default, the Company or the Trustee shall promptly notify the agent under the
Bank Credit Facility of the acceleration. If any indebtedness under the Bank
Credit Facility is outstanding, the Company may not pay the Securities until
five Business Days after the agent under the Bank Credit Facility receives
notice of such acceleration, and, thereafter, may pay the Securities only if
this Indenture otherwise permits payments at that time.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of, premium,
if any, on any Security at the Stated Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and premium, if any, and interest, with interest upon
the overdue principal and premium, if any, and, to the extent that payment of
such interest shall be legally enforceable, upon overdue installments of
interest, at the rate borne by the Securities; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor on the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor on the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture by such appropriate private or judicial proceedings
as the Trustee shall deem most effectual to protect and enforce such rights,
subject however to Section 5.12. No recovery of any such judgment upon any
property of the Company shall affect or impair any rights, powers or remedies of
the Trustee or the Holders.
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Section 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor on the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
and premium, if any, and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 5.5. Trustee May Enforce Claims without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
and as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
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Section 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or any arrangement or restructuring in anticipation or in
lieu of any proceeding contemplated by this Article shall be applied, subject to
applicable law, in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities for principal, premium, if any, and interest, in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal, premium, if
any, and interest; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto, including the Company, provided that all sums due and owing to
the Holders and the Trustee have been paid in full as required by this
Indenture.
Section 5.7. Limitation on Suits.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as trustee hereunder;
(c) such Holder or Holders have offered to the Trustee an
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 15 days after its receipt of such notice,
request and offer (and if requested, provision) of indemnity has failed
to institute any such proceeding; and
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(e) no direction inconsistent with such written request has been
given to the Trustee during such 15-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner provided in
this Indenture and for the equal and ratable benefit of all the Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right based on the terms stated herein, which is
absolute and unconditional, to receive payment of the principal of, premium, if
any, and (subject to Section 3.9) interest on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption or
repurchase, on the Redemption Date or the repurchase date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, any
other obligor on the Securities, the Trustee and the Holders shall, subject to
any determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.10. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and
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remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities shall have the right to direct the time, method
and place of conducting any proceeding for exercising any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, provided
that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture (including, without limitation, Section 5.7) or
expose the Trustee to personal liability, or be unduly prejudicial to
Holders not joining therein; and
(b) subject to the provisions of Section 315 of the Trust
Indenture Act, the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities may on behalf of the Holders of all Outstanding
Securities waive any past Default hereunder and its consequences, except a
Default
(a) in the payment of the principal of, premium, if any, or
interest on any Security; or
(b) in respect of a covenant or a provision hereof which under
this Indenture cannot be modified or amended without the consent of the
Holder of each Security Outstanding affected by such modification or
amendment.
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant
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in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant, but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of, premium, if any, or
interest on, any Security on or after the respective Stated Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
Section 5.15. Waiver of Stay, Extension or Usury Laws.
Each of the Company and any other obligor on the Securities covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury or other law wherever
enacted, now or at any time hereafter in force, which would prohibit or forgive
the Company from paying all or any portion of the principal of, premium, if any,
or interest on the Securities contemplated herein or in the Securities or which
may affect the covenants or the performance of this Indenture; and each of the
Company and any other obligor on the Securities (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 5.16. Remedies Subject to Applicable Law.
All rights, remedies and powers provided by this Article V may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law in the premises, and all the provisions of this
Indenture are intended to be subject to all applicable mandatory provisions of
law which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Indenture invalid, unenforceable or
not entitled to be recorded, registered or filed under the provisions of any
applicable law.
ARTICLE VI
THE TRUSTEE
Section 6.1. Duties of Trustee.
Subject to the provisions of Trust Indenture Act Sections 315(a)
through 315(d):
(a) if a Default or an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise thereof as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs;
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(b) except during the continuance of a Default or an Event of Default:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse to the
Trustee; and
(2) in the absence of bad faith or willful misconduct 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 Subsection (c) does not limit the effect of Subsection
(b) of this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible 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 of
the Holders of a majority in principal amount of Outstanding Securities
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
confirmed upon the Trustee under this Indenture;
(d) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it;
(e) whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to Subsections
(a), (b), (c) and (d) of this Section 6.1; and
(f) the Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree with the Company. Assets held in
trust by the Trustee need not be segregated from other assets except to the
extent required by law.
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Section 6.2. Notice of Defaults.
Within 90 days after a Responsible Officer of the Trustee receives
notice of the occurrence of any Default, the Trustee shall transmit by mail to
all Holders and any other Persons entitled to receive reports pursuant to
Section 313(c) of the Trust Indenture Act, as their names and addresses appear
in the Security Register, notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of, premium, if
any, or interest on any Security, the Trustee shall be protected in withholding
such notice if and so long as a trust committee of Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders.
Section 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1 hereof and Trust Indenture Act
Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of Indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) the Trustee may consult with counsel of its selection and any
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred therein or thereby in compliance with such
request or direction;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture other than any liabilities arising out of the negligence, bad
faith or willful misconduct of the Trustee;
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(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, approval, appraisal, bond, debenture, note, coupon, security or
other paper or document unless requested in writing to do so by the
Holders of not less than a majority in aggregate principal amount of
the Securities then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such expenses or liabilities
as a condition to proceeding; the reasonable expenses of every such
investigation so requested by the Holders of not less than 25% in
aggregate principal amount of the Securities Outstanding shall be paid
by the Company or, if paid by the Trustee or any predecessor Trustee,
shall be repaid by the Company upon demand; provided, further, the
Trustee in its discretion may make such further inquiry or
investigation into such facts or matters as it may deem fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate; and
(h) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
Section 6.4. Trustee Not Responsible for Recitals, Dispositions of
Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in any Statement of Eligibility and Qualification on Form T-1 supplied to the
Company are true and accurate subject to the qualifications set forth therein.
The Trustee shall not be accountable for the use or application by the Company
of Securities or the proceeds thereof nor shall the Trustee be responsible for
any statement in any registration statement for the Securities under the
Securities Act or responsible for the determination as to which beneficial
owners are entitled to receive notices hereunder.
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Section 6.5. Trustee and Agents May Hold Securities; Collections; etc.
The Trustee, any Paying Agent, Security Registrar or any other agent of
the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities, with the same rights it would have if it were not the
Trustee, Paying Agent, Security Registrar or such other agent and, subject to
Sections 6.8 and 6.13 hereof and Trust Indenture Act Sections 310 and 311, may
otherwise deal with the Company and receive, collect, hold and retain
collections from the Company with the same rights it would have if it were not
the Trustee, Paying Agent, Security Registrar or such other agent.
Section 6.6. Money Held in Trust.
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Except for funds or securities deposited with the
Trustee pursuant to Article IV, the Trustee shall be required to invest all
moneys received by the Trustee, until used or applied as herein provided, in
Temporary Cash Investments in accordance with the directions of the Company. The
Trustee shall be under no liability to the Company for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
Section 6.7. Compensation and Indemnification of Trustee and Its Prior
Claim.
The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, such compensation as the parties
shall agree in writing from time to time for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and the Company
covenants and agrees to pay or reimburse the Trustee and each predecessor
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence, bad faith or willful misconduct. The Company also
covenants and agrees to indemnify the Trustee and each predecessor Trustee for,
and to hold it harmless against, any claim, loss, liability, tax, assessment or
other governmental charge (other than taxes applicable to the Trustee's
compensation hereunder) or expense incurred without negligence, bad faith or
willful misconduct on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including enforcement of this Section 6.7 and also including
any liability which the Trustee may incur as a result of failure to withhold,
pay or report any tax, assessment or other governmental charge, and the costs
and expenses of defending itself against or investigating any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligations of the Company under this Section 6.7 to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for
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reasonable expenses, disbursements and advances shall constitute an additional
obligation hereunder and shall survive the satisfaction and discharge of this
Indenture and the resignation or removal of the Trustee and each predecessor
Trustee.
Section 6.8. Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b) of the
Trust Indenture Act.
Section 6.9. Trustee Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible
to act as trustee under Trust Indenture Act Section 310(a)(5) and which shall
have a combined capital and surplus of at least $100,000,000, to the extent
there is an institution eligible and willing to serve. If the Trustee does not
have a Corporate Trust Office in The City of New York, the Trustee may appoint
an agent in The City of New York reasonably acceptable to the Company to conduct
any activities which the Trustee may be required under this Indenture to conduct
in The City of New York. If such Trustee publishes reports of condition at least
annually, pursuant to law or to the requirements of federal, state, territorial
or District of Columbia supervising or examining authority, then for the
purposes of this Section 6.9, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
6.9, the Trustee shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of Successor
Trustee.
(a) No resignation or removal of the Trustee and no appointment of a
successor trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor trustee under Section 6.11.
(b) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign by giving written notice thereof to the Company. Upon receiving
such notice or resignation, the Company shall promptly appoint a successor
trustee by written instrument executed by authority of the Board of Directors of
the Company, a copy of which shall be delivered to the resigning Trustee and a
copy to the successor trustee. If an instrument of acceptance by a successor
trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may, or any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper, appoint and
prescribe a successor trustee.
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(c) The Trustee may be removed at any time for any cause or for no
cause by an Act of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of Trust
Indenture Act Section 310(b) after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security
for at least six months,
(2) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security for at
least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation.
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 5.14, the Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor trustee and
shall comply with the applicable requirements of Section 6.11. If, within 60
days after such resignation, removal or incapability, or the occurrence of such
vacancy, the Company has not appointed a successor Trustee, a successor trustee
shall be appointed by the Act of the Holders of a majority in principal amount
of the Outstanding Securities delivered to the Company and the retiring Trustee.
Such successor trustee so appointed shall forthwith upon its acceptance of such
appointment become the successor trustee and supersede the successor trustee
appointed by the Company. If no successor trustee shall have been so appointed
by the Company or the Holders of the Securities and accepted appointment in the
manner hereinafter provided, the Trustee or the Holder of any Security who has
been a bona fide Holder for at least six months may, subject to Section 5.14, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities as their names and addresses appear
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in the Security Register. Each notice shall include the name of the successor
trustee and the address of its Corporate Trust Office or agent hereunder.
Section 6.11. Acceptance of Appointment by Successor.
Every successor trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee as if originally named as Trustee hereunder;
but, nevertheless, on the written request of the Company or the successor
trustee, upon payment of its charges pursuant to Section 6.7 then unpaid, such
retiring Trustee shall pay over to the successor trustee all moneys at the time
held by it hereunder and shall execute and deliver an instrument transferring to
such successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers.
No successor trustee with respect to the Securities shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under the
provisions of Trust Indenture Act Section 310(a) and this Article VI and shall
have a combined capital and surplus of at least $100,000,000 and have a
Corporate Trust Office or an agent selected in accordance with Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Company shall give notice thereof to the Holders of the
Securities, by mailing such notice to such Holders at their addresses as they
shall appear on the Security Register. If the acceptance of appointment is
substantially contemporaneous with the appointment, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.10. If the Company fails to give such notice within 10 days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Company.
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee (including the trust created by this Indenture) shall be
the successor of the Trustee hereunder, provided that such corporation shall be
eligible under Trust Indenture Act Section 310(a) and this Article VI and shall
have a combined capital and surplus of at least $100,000,000 and have a
Corporate Trust Office or an agent selected in accordance with Section 6.9,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
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In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such
Securities so authenticated; and, in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor trustee; and in all such cases such certificate shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided that the right to adopt
the certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
Section 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or other obligor on the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor). A Trustee who has resigned or been
removed shall be subject to Trust Indenture Act Section 311(a) to the extent
indicated therein.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of such Regular Record Date;
and
(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content to that in Subsection (a)
hereof as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
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Section 7.2. Disclosure of Names and Addresses of Holders.
Holders may communicate pursuant to Trust Indenture Act Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Securities, and the Trustee shall comply with Trust Indenture Act Section
312(b). The Company, the Trustee, the Registrar and any other Person shall have
the protection of Trust Indenture Act Section 312(c). Further, every Holder of
Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of them
shall be held accountable by reason of the disclosure of any information as to
the names and addresses of the Holders in accordance with Trust Indenture Act
Section 312, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Trust Indenture Action Section 312.
Section 7.3. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first
May 15 after the issuance of Securities, the Trustee, if so required under the
Trust Indenture Act shall transmit by mail to all Holders in the manner and to
the extent provided in Trust Indenture Act Section 313(c), a brief report dated
as of such May 15 in accordance with and with respect to the matters required by
Trust Indenture Act Section 313(a). The Trustee shall also transmit by mail to
the Holders, in the manner and to the extent provided in Trust Indenture Act
Section 313(c), a brief report in accordance with and with respect to the
matters required by Trust Indenture Act Sections 313(a) and 313(b)(2).
(b) A copy of each report transmitted to Holders pursuant to this
Section 7.3 shall, at the time of such transmission, be mailed to the Company
and filed with each stock exchange, if any, upon which the Securities are listed
and also with the Commission. The Company will notify the Trustee promptly if
the Securities are listed on any stock exchange.
Section 7.4. Reports by Company.
The Company shall:
(a) file with the Trustee, in accordance with Section 10.17 hereof, and
in any event within 15 days after the Company is required to file the same with
the Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company is required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then it
shall (i) deliver to the Trustee annual audited financial statements of the
Company and its Subsidiaries, prepared on a consolidated basis in conformity
with GAAP, within 120 days after the end of each fiscal year of the Company, and
(ii) file with the Trustee and, to the extent permitted by law, the Commission,
in accordance with rules and regulations prescribed from time to time by the
Commission, such
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of the supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants for this Indenture as are required
from time to time by such rules and regulations (including such information,
documents and reports referred to in Trust Indenture Act Section 314(a)); and
(c) within 15 days after the filing thereof with the Trustee,
transmit by mail to all Holders in the manner and to the extent provided in
Trust Indenture Act Section 313(c), such summaries of any information, documents
and reports required to be filed by the Company pursuant to Section 10.17
hereunder and subsections (a) and (b) of this Section as is required and not
prohibited by rules and regulations prescribed from time to time by the
Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, SALE OF ASSETS
Section 8.1. Company May Merge, Consolidate, etc., Only on Certain
Terms.
The Company will not, in a single transaction or through a series of
related transactions, consolidate with or merge with or into any other Person or
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person or group of
affiliated Persons, or permit any of its Subsidiaries to enter into any such
transaction or series of related transactions if such transaction or series of
related transactions, in the aggregate, would result in a sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Company and its Subsidiaries on a Consolidated
basis to any other Person or group of affiliated Persons, unless at the time and
after giving effect thereto:
(i) either (a) the Company will be the continuing corporation or
(b) the Person (if other than the Company) formed by such consolidation
or into which the Company is merged or the Person which acquires by
sale, assignment, conveyance, transfer, lease or disposition all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a Consolidated basis (the "Surviving Entity") will be a
corporation duly organized and validly existing under the laws of the
United States of America, any state thereof or the District of Columbia
and such Person expressly assumes, by a supplemental indenture, in a
form satisfactory to the Trustee, all the obligations of the Company
under the Securities and hereunder, as the case may be, and the
Securities and this Indenture will remain in full force and effect as
so supplemented;
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(ii) immediately before and immediately after giving effect to
such transaction on a pro forma basis (and treating any Indebtedness
not previously an obligation of the Company or any of its Subsidiaries
which becomes the obligation of the Company or any of its Subsidiaries
as a result of such transaction as having been incurred at the time of
such transaction), no Default or Event of Default will have occurred
and be continuing;
(iii) immediately before and immediately after giving effect to
such transaction on a pro forma basis (on the assumption that the
transaction occurred on the first day of the four-quarter period for
which financial results are available ending immediately prior to the
consummation of such transaction with the appropriate adjustments with
respect to the transaction being included in such pro forma
calculation), the Company (or the Surviving Entity if the Company is
not the continuing obligor hereunder) could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness or Permitted Subsidiary
Indebtedness) under Section 10.8; and
(iv) at the time of the transaction the Company or the Surviving
Entity will have delivered, or caused to be delivered, to the Trustee,
in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each to the effect
that such consolidation, merger, transfer, sale, assignment,
conveyance, transfer, lease or other transaction and the supplemental
indenture in respect thereof comply with this Indenture and that all
conditions precedent herein provided for relating to such transaction
have been complied with;
provided, however, that clauses (i) through (iv) of this Section 8.1 shall not
prohibit (a) the merger of Xxxxx Xxxx into the Company on the Issue Date, and
(b) any merger between or among Subsidiaries of the Company.
Section 8.2. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Company in accordance with Section 8.1, the successor Person
formed by such consolidation or into which the Company is merged or the
successor Person to which such sale, assignment, conveyance, transfer, lease or
disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture, with the same effect
as if such successor had been named as the Company herein. When a successor
assumes all the obligations of its predecessor under this Indenture or the
Securities, the predecessor shall be released from such assumed obligations and
covenants under the indenture and the Securities, as the case may be; provided
that in the case of a transfer by lease, the predecessor shall not be released
from the payment of principal and interest on the Securities.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures and Agreements without Consent of
Holders.
Without the consent of any Holders, the Company and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto in form and substance satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the Company
or any other obligor on the Securities, and the assumption by any such
successor of the covenants of the Company or obligor herein and in the
Securities in accordance with Article VIII;
(b) to add to the covenants of the Company or any other obligor
on the Securities for the benefit of the Holders, or to surrender any
right or power conferred on the Company or any other obligor on the
Securities, as applicable, herein or in the Securities;
(c) to cure any ambiguity, or to correct or supplement any
provision herein or in any supplemental indenture or the Securities
which may be defective or inconsistent with any other provision herein
or in the Securities or to make any other provisions with respect to
matters or questions arising under this Indenture or the Securities;
provided that, in each case, such provisions shall not adversely affect
the interest of the Holders;
(d) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 9.5 or otherwise;
(e) to evidence and provide the acceptance of the appointment of
a successor trustee hereunder; or
(f) to mortgage, pledge, hypothecate or grant a security interest
in favor of the Trustee for the benefit of the Holders as additional
security for the payment and performance of the Company's Indenture
Obligations, in any property, or assets, including any of which are
required to be mortgaged, pledged or hypothecated, or in which a
security interest is required to be granted to the Trustee pursuant to
this Indenture or otherwise.
Section 9.2. Supplemental Indentures and Agreements with Consent of
Holders.
Except as permitted by Section 9.1, with the consent of the Holders of
at least a majority in aggregate principal amount of the Outstanding Securities,
by Act of said Holders delivered to the Company and the Trustee, the Company
when authorized by Board Resolutions, and the
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Trustee may (i) enter into an indenture or indentures supplemental hereto in
form and substance satisfactory to the Trustee, for the purpose of adding any
provisions to or amending, modifying or changing in any manner or eliminating
any of the provisions of this Indenture or the Securities (including, but not
limited to, for the purpose of modifying in any manner the rights of the Holders
under this Indenture or the Securities) or (ii) waive compliance with any
provision in this Indenture or the Securities (other than waivers of past
Defaults covered by Section 5.13 and waivers of covenants which are covered by
Section 10.19); provided, however, that no such supplemental indenture,
agreement or instrument shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, or change to an earlier date any redemption
date of, or waive a default in the payment of the principal or interest
on, any such Security or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the redemption
thereof, or change the coin or currency in which the principal of any
Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date);
(b) amend, change or modify the obligation of the Company to make
and consummate an Offer with respect to any Asset Sale or Asset Sales
in accordance with Section 10.12 or the obligation of the Company to
make and consummate a Change of Control Offer in the event of a Change
of Control in accordance with Section 10.13, including, in each case,
amending, changing or modifying any definitions relating thereto;
(c) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver or compliance with certain provisions of this Indenture;
(d) modify any of the provisions of this Section 9.2 or Section
5.13 or 10.19, except to increase the percentage of such Outstanding
Securities required for any such actions or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each such Security affected thereby;
(e) except as otherwise permitted under Article VIII, consent to
the assignment or transfer by the Company of any of its rights and
obligations hereunder; or
(f) amend or modify any of the provisions of this Indenture in
any manner which subordinates the Securities in right of payment to
other Indebtedness of the Company.
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Upon the written request of the Company accompanied by a copy of Board
Resolutions authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture.
It shall not be necessary for any Act of Holders under this Section 9.2
to approve the particular form of any proposed supplemental indenture but it
shall be sufficient if such Act shall approve the substance thereof.
Section 9.3. Execution of Supplemental Indentures and Agreements.
In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement, instrument or waiver permitted by this
Article IX or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Trust Indenture Act
Sections 315(a) through 315(d) and Section 6.2 hereof) shall be fully protected
in relying upon, an Opinion of Counsel and an Officers' Certificate stating that
the execution of such supplemental indenture, agreement or instrument is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture, agreement or
instrument which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article IX shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article IX may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
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Section 9.7. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 9.2, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 1.6, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Company to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
ARTICLE X
COVENANTS
Section 10.1. Payment of Principal, Premium and Interest.
The Company shall duly and punctually pay the principal of, premium, if
any, and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
Section 10.2. Maintenance of Office or Agency.
The Company shall maintain an office or agency where Securities may be
presented or surrendered for payment. The Company also will maintain in The City
of New York an office or agency where Securities may be surrendered for
registration of transfer, redemption or exchange and where notices and demands
to or upon the Company in respect of the Securities and this Indenture may be
served. The office of the Trustee, at its Corporate Trust Office, will be such
office or agency of the Company, unless the Company shall designate and maintain
some other office or agency for one or more of such purposes. The Company will
give prompt written notice to the Trustee of the location and any change in the
location of any such offices or agencies. If at any time the Company shall fail
to maintain any such required offices or agencies or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the office of the Trustee and the Company
hereby appoints the Trustee such agent as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other offices
or agencies (in or outside of The City of New York) where the Securities may be
presented or surrendered for any or all such purposes, and may from time to time
rescind such designation. The Company will give prompt written notice to the
Trustee of any such designation or rescission and any change in the location of
any such office or agency.
The Trustee shall initially act as Paying Agent for the Securities.
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Section 10.3. Money for Security Payments to Be Held in Trust.
If the Company or any of its Affiliates shall at any time act as Paying
Agent, it will, on or before each due date of the principal of, premium, if any,
or interest on any of the Securities, segregate and hold in trust for the
benefit of the Holders entitled thereto a sum sufficient to pay the principal,
premium, if any, or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
If the Company or any of its Affiliates is not acting as Paying Agent,
the Company will, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities, deposit with a Paying Agent a sum in
same day funds sufficient to pay the principal, premium, if any, or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of such action or
any failure so to act.
If the Company is not acting as Paying Agent, the Company will cause
each Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on the Securities in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal, premium, if any, or interest on the Securities;
(c) at any time during the continuance of any such Default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects with
the provisions of this Indenture relating to the duties, rights and
disabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the
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Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and payable shall
promptly be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), and mail to each such Holder, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such notification,
publication and mailing, any unclaimed balance of such money then remaining will
promptly be repaid to the Company.
Section 10.4. Corporate Existence.
Subject to Article VIII, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence and related rights and franchises (charter and statutory) of the
Company and each Subsidiary; provided, however, that the Company shall not be
required to preserve any such right or franchise or the corporate existence of
any such Subsidiary if the Board of Directors of the Company shall determine
that the preservation thereof is no longer necessary or desirable in the conduct
of the business of the Company and its Subsidiaries as a whole; and provided,
further, however, that the foregoing shall not prohibit a sale, transfer or
conveyance of a Subsidiary or any of its assets in compliance with the terms of
this Indenture.
Section 10.5. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
on or before the date the same shall become due and payable, (a) all taxes,
assessments and governmental charges levied or imposed upon the Company or any
of its Subsidiaries shown to be due on any return of the Company or any of its
Subsidiaries or otherwise assessed or upon the income, profits or property of
the Company or any of its Subsidiaries if failure to pay or discharge the same
could reasonably be expected to have a material adverse effect on the ability of
the Company to perform its obligations hereunder and (b) all lawful claims for
labor, materials and supplies, which, if unpaid, would by law become a Lien upon
the property of the Company or any of its Subsidiaries, except for any Lien
permitted to be incurred under Section 10.11, if failure to pay or discharge the
same could reasonably be expected to have a material adverse effect on the
ability of the Company to perform its obligations hereunder; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such
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tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings properly instituted and
diligently conducted and in respect of which appropriate reserves (in the good
faith judgment of management of the Company) are being maintained in accordance
with GAAP.
Section 10.6. Maintenance of Properties.
The Company shall cause all material properties owned by the Company or
any of its Subsidiaries or used or held for use in the conduct of its business
or the business of any of its Subsidiaries to be maintained and kept in good
condition, repair and working order (ordinary wear and tear excepted) and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the reasonable judgment of the Company may be consistent with sound business
practice and 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 Company from discontinuing the maintenance of any of
such properties if such discontinuance is, in the reasonable judgment of the
Company, desirable in the conduct of its business or the business of any of its
Subsidiaries; and provided, further, however, that the foregoing shall not
prohibit a sale, transfer or conveyance of a Subsidiary or any of its properties
or assets in compliance with the terms of this Indenture.
Section 10.7. Insurance.
The Company shall at all times keep all of its and its Subsidiaries'
properties which are of an insurable nature insured with insurers, believed by
the Company in good faith to be financially sound and responsible, against loss
or damage to the extent that property of similar character is usually so insured
by corporations similarly situated and owning like properties in the same
general geographic areas in which the Company and its Subsidiaries operate,
except where the failure to do so could not reasonably be expected to have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs or prospects of the Company and its Subsidiaries, taken as a
whole.
Section 10.8. Limitation on Indebtedness.
The Company will not create, issue, incur, assume, guarantee or
otherwise in any manner become directly or indirectly liable for the payment of
or otherwise suffer to exist (collectively, "incur"), any Indebtedness
(including any Acquired Indebtedness), other than Permitted Indebtedness, unless
such Indebtedness is incurred by the Company and the Company's Consolidated
Fixed Charge Coverage Ratio for the four full fiscal quarters for which
financial results are available immediately preceding the date of incurrence of
such Indebtedness (the "Incurrence Date"), taken as one period (and after giving
pro forma effect to (i) the incurrence of such Indebtedness and (if applicable)
the application of the net proceeds therefrom, including to refinance other
Indebtedness, as if such Indebtedness was incurred, and the application of such
proceeds occurred, at the beginning of such four-quarter period; (ii) the
incurrence, repayment or
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retirement of any other Indebtedness by the Company since the first day of such
four-quarter period as if such Indebtedness was incurred, repaid or retired at
the beginning of such four-quarter period (except that, in making such
computation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average daily balance of such Indebtedness
during such four-quarter period); (iii) in the case of Acquired Indebtedness,
the related acquisition; and (iv) any acquisition or disposition by the Company
and its Subsidiaries of any company or any business or any assets out of the
ordinary course of business, or any related repayment of Indebtedness, in each
case since the first day of such four-quarter period, assuming such acquisition
or disposition and any such related payments had been consummated on the first
day of such four-quarter period) would be at least 1.8:1 if the Incurrence Date
is on or before December 31, 1998, or at least 2.0:1 if the Incurrence Date is
after December 31, 1998. The Company will not permit any of its Subsidiaries to
incur any Indebtedness (other than Permitted Subsidiary Indebtedness).
Section 10.9. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any Subsidiary to,
directly or indirectly:
(i) declare or pay any dividend on, or make any distribution to
holders of, any shares of the Company's Capital Stock (other than
dividends or distributions payable solely in shares of its Qualified
Capital Stock or in options, warrants or other rights to acquire shares
of such Qualified Capital Stock);
(ii) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, the Company's Capital Stock or any Capital
Stock of any Affiliate of the Company (other than (A) Capital Stock of
any Wholly-Owned Subsidiary of the Company, (B) the Capital Stock of
Xxxxx Xxxx upon the merger of Xxxxx Xxxx into the Company on the Issue
Date, or options, warrants or other rights to acquire such Capital
Stock or (C) the Shareholder Stock Repurchases);
(iii) prior to any scheduled principal payment, sinking fund
payment or maturity of any Subordinated Indebtedness, make any
principal payment on, or repurchase, redeem, defease, retire or
otherwise acquire for value, such Subordinated Indebtedness (other than
any such Indebtedness owed to the Company or a Wholly- Owned
Subsidiary);
(iv) declare or pay any dividend or distribution on any Capital
Stock of any Subsidiary to any Person (other than to the Company or any
of its Wholly-Owned Subsidiaries) or purchase, redeem or otherwise
acquire or retire for value any Capital Stock of any Subsidiary held by
any person (other than the Company or any of its Wholly-Owned
Subsidiaries);
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(v) incur, create or assume any guarantee of Indebtedness of any
Affiliate of the Company (other than a Wholly-Owned Subsidiary of the
Company); or
(vi) make any Investment in any Person (other than Permitted
Investments)
(any of the foregoing actions described in clauses (i) through (vi), other than
any such action that is a Permitted Payment (as defined below), collectively, a
"Restricted Payment") (the amount of any such Restricted Payment, if other than
cash, being determined by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution); unless (1) immediately before
and immediately after giving effect to such proposed Restricted Payment on a pro
forma basis, no Default or Event of Default shall have occurred and be
continuing and such Restricted Payment shall not be an event which is, or after
notice or lapse of time or both, would be, an "event of default" under the terms
of any Indebtedness of the Company or its Subsidiaries; (2) immediately before
and immediately after giving effect to such Restricted Payment on a pro forma
basis, the Company could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness or Permitted Subsidiary Indebtedness) under the
provisions described in Section 10.8; and (3) after giving effect to the
proposed Restricted Payment, the aggregate amount of all such Restricted
Payments declared or made after the date of the Indenture plus the Permitted
Payments made under clause (b)(vi), do not exceed $3.0 million plus the sum of:
(A) 50% of the aggregate Consolidated Net Income of the Company
accrued on a cumulative basis during the period beginning on the first
day of the fiscal quarter beginning after the date of the Indenture and
ending on the last day of the Company's last fiscal quarter ending
prior to the date of the Restricted Payment (or, if such aggregate
cumulative Consolidated Net Income shall be a loss, minus 100% of such
loss); plus
(B) the aggregate Net Cash Proceeds received after the date of
the Indenture by the Company either (x) as capital contributions in the
form of common equity to the Company or (y) from the issuance or sale
(other than to any of its Subsidiaries) of Qualified Capital Stock of
the Company or any options, warrants or rights to purchase such
Qualified Capital Stock of the Company (except, in each case, to the
extent such proceeds are used to purchase, redeem or otherwise retire
Capital Stock or Subordinated Indebtedness as set forth below in clause
(ii) or (iii) of paragraph (b) below), in each case, other than Net
Cash Proceeds received from the issuance or sale of Qualified Capital
Stock or options, warrants or rights to purchase Qualified Capital
Stock in, or otherwise received in connection with, the Refinancing;
plus
(C) the aggregate Net Cash Proceeds received after the date of
the Indenture by the Company (other than from any of its Subsidiaries)
upon the exercise of any options, warrants or rights to purchase
Qualified Capital Stock of the Company; plus
(D) the aggregate Net Cash Proceeds received after the date of
the Indenture by the Company from the conversion or exchange, if any,
of debt securities or Redeemable Capital Stock of the Company or its
Subsidiaries into or for Qualified
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Capital Stock of the Company plus, to the extent such debt securities
or Redeemable Capital Stock were issued after the date of the
Indenture, the aggregate of Net Cash Proceeds from their original
issuance; plus
(E) in the case of the disposition or repayment of any
Investment constituting a Restricted Payment made after the date of the
Indenture, an amount equal to the lesser of the return of capital with
respect to such Investment and the initial amount of such Investment,
in either case, less the cost of the disposition of such Investment.
(b) Notwithstanding the foregoing, and in the case of clauses (ii)
through (vii) below, so long as there is no Default or Event of Default
continuing, the foregoing provisions shall not prohibit the following actions
(each of clauses (i) through (vii) being referred to as a "Permitted Payment"):
(i) the payment of (1) the Xxxxx Xxxx Dividend and (2) any
other dividend within 60 days after the date of declaration thereof, if
at the date of declaration thereof such other dividend (A) would be
permitted by the provisions of paragraph (a) of this Section and (B)
shall be deemed to have been paid on such date of declaration for
purposes of the calculation required by paragraph (a) of this Section;
(ii) the repurchase, redemption, or other acquisition or
retirement for value of any shares of any class of Capital Stock of the
Company in exchange for (including any such exchange pursuant to the
exercise of a conversion right or privilege in connection with which
cash is paid in lieu of the issuance of fractional shares or scrip), or
out of the Net Cash Proceeds of a substantially concurrent issue and
sale for cash (other than to a Subsidiary) of, other shares of
Qualified Capital Stock of the Company; provided that the Net Cash
Proceeds from the issuance of such shares of Qualified Capital Stock
are, to the extent so used, excluded from clause (3)(B) of paragraph
(a) of this Section;
(iii) the repurchase, redemption, defeasance, retirement or
acquisition for value or payment of principal of any Subordinated
Indebtedness or Redeemable Capital Stock in exchange for, or in an
amount not in excess of the Net Cash Proceeds of, a substantially
concurrent issuance and sale for cash (other than to any Subsidiary) of
any Qualified Capital Stock of the Company, provided that the Net Cash
Proceeds from the issuance of such shares of Qualified Capital Stock
are, to the extent so used, excluded from clause (3)(B) of paragraph
(a) of this Section;
(iv) the repurchase, redemption, defeasance, retirement,
refinancing, acquisition for value or payment of principal of any
Subordinated Indebtedness (other than Redeemable Capital Stock) (a
"refinancing") through the substantially concurrent issuance of new
Subordinated Indebtedness of the Company, provided that any such new
Subordinated Indebtedness (1) shall be in a principal amount that does
not exceed the principal amount so refinanced (or, if such Subordinated
Indebtedness provides for an amount less than the principal amount
thereof to be due and payable upon a declaration
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of acceleration thereof, then such lesser amount as of the date of
determination), plus the lesser of (I) the stated amount of any premium
or other payment required to be paid in connection with such a
refinancing pursuant to the terms of the Indebtedness being refinanced
or (II) the amount of premium or other payment actually paid at such
time to refinance the Indebtedness, plus, in either case, the amount of
expenses of the Company incurred in connection with such refinancing;
(2) has an Average Life to Stated Maturity greater than the remaining
Average Life to Stated Maturity of the Securities; (3) has a Stated
Maturity for its final scheduled principal payment later than the
Stated Maturity for the final scheduled principal payment of the
Securities; and (4) is expressly subordinated in right of payment to
the Securities at least to the same extent as the Subordinated
Indebtedness to be refinanced;
(v) the repurchase, redemption, defeasance, retirement,
refinancing, acquisition for value or payment of any Redeemable Capital
Stock through the substantially concurrent issuance of new Redeemable
Capital Stock of the Company, provided that any such new Redeemable
Capital Stock (1) shall have an aggregate liquidation preference that
does not exceed the aggregate liquidation preference of the amount so
refinanced; (2) has an Average Life to Stated Maturity greater than the
remaining Average Life to Stated Maturity of the Securities; and (3)
has a Stated Maturity later than the Stated Maturity for the final
scheduled principal payment of the Securities;
(vi) the repurchase of shares of, or options to purchase shares
of, common stock of the Company or any of its Subsidiaries from
employees, former employees, directors or former directors of the
Company or any of its Subsidiaries (or permitted transferees of such
employees, former employees, directors or former directors), pursuant
to the terms of the agreements (including employment agreements) or
plans (or amendments thereto) approved by the Board of Directors under
which such individuals purchase or sell or are granted the option to
purchase or sell, shares of such common stock; and
(vii) the repurchase, redemption, defeasance, retirement or
acquisition for value of the 12 3/4% Discount Notes and the 12% Notes
on or prior to their scheduled maturity.
Section 10.10. Limitation on Transactions with Affiliates.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into any transaction or series of related
transactions (including, without limitation, the sale, purchase, exchange or
lease of assets, property or services) with or for the benefit of any Affiliate
of the Company (other than the Company or a Subsidiary) unless such transaction
or series of related transactions is entered into in good faith and (a) such
transaction or series of related transactions is on terms that are no less
favorable to the Company or such Subsidiary, as the case may be, than those that
would be available in a comparable transaction in arm's-length dealings with an
unrelated third party, (b) with respect to any transaction or series
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of related transactions involving aggregate value in excess of $1,000,000, the
Company delivers an Officers' Certificate to the Trustee certifying that such
transaction or series of related transactions complies with clause (a) above,
and (c) with respect to any transaction or series of related transactions
involving aggregate value in excess of $5,000,000, either (A) such transaction
or series of related transactions has been approved by a majority of the
Disinterested Directors of the Company, or in the event there is only one
Disinterested Director, by such Disinterested Director, or (B) the Company
delivers to the Trustee a written opinion of an investment banking firm of
national standing or other recognized independent expert with experience
appraising the terms and conditions of the type of transaction or series of
related transactions for which an opinion is required stating that the
transactions or series of related transactions are fair to the Company or such
Subsidiary from a financial point of view; provided, however, that clauses (a)
through (c) above shall not apply to (i) any transaction with an employee or
director of the Company or any of its Subsidiaries entered into in the ordinary
course of business (including compensation and employee benefit arrangements
with any officer, director or employee of the Company or any Subsidiary,
including under any stock option or stock incentive plans), (ii) any
transactions of payments pursuant to the Tax Sharing Agreement or the Las Plumas
Management Agreement, (iii) the merger of Xxxxx Xxxx into the Company on the
Issue Date and (iv) Restricted Payments made in accordance with the provisions
in Section 10.9 or Permitted Payments.
Section 10.11. Limitation on Liens.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create or incur any Lien of any kind upon any of its
property or assets (including any intercompany notes, but excluding any
inventory held on consignment), now owned or acquired after the date of the
Indenture, or any income or profits therefrom, except if the Securities are
directly secured equally and ratably with (or prior to in the case of Liens with
respect to Subordinated Indebtedness) the obligation or liability secured by
such Lien, excluding, however, from the operation of the foregoing any of the
following:
(a) Any Lien existing as of the date of the Indenture, as set
forth on a schedule to the Indenture.
(b) Any Lien arising by reason of (1) any judgment, decree or
order of any court, so long as such Lien is adequately bonded and any
appropriate legal proceedings which may have been duly initiated for
the review of such judgment, decree or order shall not have been
finally terminated or the period within which such proceedings may be
initiated shall not have expired; (2) taxes not yet delinquent or which
are being contested in good faith; (3) good faith deposits in
connection with tenders, leases, contracts (other than contracts for
the payment of money); (4) zoning restrictions, easements, licenses,
reservations, title defects, rights of others for rights of way,
utilities, sewers, electric lines, telephone or telegraph lines, and
other similar purposes, provisions, covenants, conditions, waivers,
restrictions on the use of property or minor irregularities of title
(and with respect to leasehold interest, mortgages, obligations, liens
and other
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encumbrances incurred, created, assumed or permitted to exist and
arising by, through or under a landlord or owner of the leased
property, with or without consent of the lessee), none of which
materially impairs the use of any parcel of property material to the
operation of the business of the Company or any Subsidiary or the value
of such property for the purpose of such business; (5) deposits to
secure public or statutory obligations, or in lieu of surety or appeal
bonds; or (6) operation of law in favor of landlords, mechanics,
materialmen, warehousemen, carriers, laborers, employees or suppliers,
incurred in the ordinary course of business for sums which are not yet
delinquent or are being contested in good faith or negotiations or by
appropriate proceedings which suspend the collection thereof.
(c) Any Lien on property of the Company or any Subsidiary
securing Indebtedness incurred by the Company under subclause (i) of
the definition of Permitted Indebtedness.
(d) Any Lien securing Acquired Indebtedness created prior to (and
not created in connection with, or in contemplation of) the incurrence
of such Indebtedness by the Company or any Subsidiary.
(e) Any Lien to secure the performance of bids, trade contracts,
leases (including without limitation, statutory and common law
landlord's liens), statutory obligations, surety and appeal bonds,
letters of credit and other obligations of a like nature and incurred
in the ordinary course of business of the Company and any Subsidiary.
(f) Any Lien securing Indebtedness permitted to be incurred
pursuant to clauses (vi) and (ix) of the definition of "Permitted
Indebtedness" and which is not prohibited to be incurred under the
provisions described in Section 10.8.
(g) Any Lien on trucks owned or leased by the Company, or
incurred by the Company in connection with the purchase or lease
thereof.
(h) Any Lien securing Indebtedness incurred to effect a
defeasance of the Securities pursuant to the defeasance provisions of
the Indenture.
(i) Any Lien securing Indebtedness permitted to be incurred under
Interest Rate Agreements or otherwise incurred to hedge interest rate
risk.
(j) Any extension, renewal, refinancing or replacement, in whole
or in part, of any lien described in the foregoing clauses (a) through
(i) so long as no additional collateral is granted as security thereby.
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Section 10.12. Limitation on Sale of Assets.
(a) The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, consummate an Asset Sale unless (i) at least 75% of
the consideration from such Asset Sale is received in cash or Cash Equivalents
and (ii) the Company or such Subsidiary receives consideration at the time of
such Asset Sale at least equal to the Fair Market Value of the shares or assets
subject to such Asset Sale (as determined by the board of directors of the
Company and evidenced in a board resolution). For the purposes of this covenant,
"Cash Equivalents" means (x) the assumption of Indebtedness of the Company or
any Subsidiary and the release of the Company or such Subsidiary from all
liability on such Indebtedness in connection with such Asset Sale, (y) Temporary
Cash Investments, and (z) securities received by the Company or any Subsidiary
from the transferee that are promptly converted by the Company or such
Subsidiary into cash.
(b) If all or a portion of the Net Cash Proceeds of any Asset Sale are
not required to be applied to repay permanently any Senior Indebtedness then
outstanding as required by the terms thereof, or the Company determines not to
apply such Net Cash Proceeds to the permanent prepayment of such Senior
Indebtedness, or if no such Senior Indebtedness is then outstanding, then the
Company or a Subsidiary may, within 360 days of the Asset Sale invest the Net
Cash Proceeds in properties and other assets that (as determined by the Board of
Directors) replace the properties and assets that were the subject of the Asset
Sale or in properties and assets that will be used in the businesses of the
Company or its Subsidiaries existing on the date of the Indenture or in
businesses reasonably related thereto. The amount of such Net Cash Proceeds not
applied to repay Senior Indebtedness or used or invested within 360 days of the
Asset Sale as set forth in this paragraph constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10 million,
the Company will apply the Excess Proceeds to the repayment of the Securities
and any other Pari Passu Indebtedness outstanding with provisions requiring the
Company to make an offer to purchase or to purchase or redeem such Indebtedness
with the proceeds from any Asset Sale as follows: (A) the Company will make an
offer to purchase (an "Offer") from all holders of the Securities in accordance
with the procedures set forth in the Indenture in the maximum principal amount
(expressed as a multiple of $1,000) of Securities that may be purchased out of
an amount (the "Securities Amount") equal to the product of such Excess Proceeds
multiplied by a fraction, the numerator of which is the outstanding principal
amount of the Securities, and the denominator of which is the sum of the
outstanding principal amount of the Securities and such Pari Passu Indebtedness
(subject to proration in the event such amount is less than the aggregate
Offered Price (as defined herein) of all Securities tendered) and (B) to the
extent required by such Pari Passu Indebtedness to permanently reduce the
principal amount of such Pari Passu Indebtedness, the Company will make an offer
to purchase or otherwise repurchase or redeem Pari Passu Indebtedness (a "Pari
Passu Offer") in an amount (the "Pari Passu Debt Amount") equal to the excess of
the Excess Proceeds over the Securities Amount; provided that in no event will
the Company be required to make a Pari Passu Offer in a Pari Passu Debt Amount
exceeding the principal amount of such Pari Passu Indebtedness plus the amount
of any premium
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required to be paid to repurchase such Pari Passu Indebtedness. The offer price
for the Securities will be payable in cash in an amount equal to 100% of the
principal amount of the Securities plus accrued and unpaid interest, if any, to
the date (the "Offer Date") such Offer is consummated (the "Offered Price"), in
accordance with the procedures set forth in the Indenture. To the extent that
the aggregate Offered Price of the Securities tendered pursuant to the Offer is
less than the Securities Amount relating thereto or the aggregate amount of Pari
Passu Indebtedness that is purchased in a Pari Passu Offer is less than the Pari
Passu Debt Amount, the Company will use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Securities and
Pari Passu Indebtedness surrendered by holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Securities to be purchased on a
pro rata basis. Upon the completion of the purchase of all the Securities
tendered pursuant to an Offer and the completion of a Pari Passu Offer, the
amount of Excess Proceeds, if any, shall be reset at zero.
(d) Whenever the Excess Proceeds received by the Company exceed $5
million, such Excess Proceeds shall, prior to the purchase of the Securities or
any Pari Passu Indebtedness described in paragraph (c) above, be set aside by
the Company in a separate account pending (i) deposit with the depository or a
paying agent of the amount required to purchase the Securities of Pari Passu
Indebtedness tendered in an Offer of a Pari Passu Offer, (ii) delivery by the
Company of the Offered Price to the holders of the Securities or Pari Passu
Indebtedness tendered in an Offer or a Pari Passu Offer and (iii) application,
as set forth above, of Excess Proceeds in the business of the Company and its
Subsidiaries. Such Excess Proceeds may be invested in Temporary Cash
Investments, provided that the maturity date of any such investment made after
the amount of the Excess Proceeds exceeds $5.0 million shall not be later than
the Offer Date. The Company shall be entitled to any interest or dividends
accrued, earned or paid on such Temporary Cash Investments, provided that the
Company shall not withdraw such interest from the separate account if an Event
of Default has occurred or is continuing.
(e) The Indenture will provide that, if the Company becomes obligated
to make an Offer pursuant to clause (c) above, the Securities and the Pari Passu
Indebtedness shall be purchased by the Company, at the option of the holders
thereof, in whole or in part in integral multiples of $1,000, on a date that is
not earlier than 30 days and not later than 60 days from the date the notice of
the Offer is given to holders, or such later date as may be necessary for the
Company to comply with the requirements under the Exchange Act.
(f) The Indenture will provide that the Company will comply with the
applicable tender offer rules, including Rule 14e-1 under the Exchange Act, and
any other applicable securities laws or regulations in connection with an Offer.
Section 10.13. Purchase of Securities upon a Change of Control.
(a) If a Change of Control shall occur at any time, then each Holder
shall have the right to require that the Company purchase such Holder's
Securities in whole or in part in integral multiples of $1,000 at a purchase
price (the "Change of Control Purchase Price") in cash
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in an amount equal to 101% of the principal amount of such Securities, plus
accrued and unpaid interest, if any, to the date of purchase (the "Change of
Control Purchase Date"), pursuant to the offer described below in this Section
10.13 (the "Change of Control Offer") and in accordance with the other
procedures set forth in subsections (b), (c), (d) and (e) of this Section 10.13.
(b) Within 30 days following any Change of Control, the Company shall
notify the Trustee thereof and give written notice (a "Change of Control
Purchase Notice") of such Change of Control to each Holder by first-class mail,
postage prepaid, at his address appearing in the Security Register, stating
among other things:
(1) that a Change of Control has occurred, the date of such
event, and that such Holder has the right to require the Company to
repurchase such Holder's Securities at the Change of Control Purchase
Price;
(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) (i) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the Company,
the most recent subsequently filed Quarterly Report on Form 10-Q, as
applicable, and any Current Report on Form 8-K of the Company filed
subsequent to such Quarterly Report (or in the event the Company is not
required to prepare any of the foregoing Forms, the comparable
information required to be prepared by the Company pursuant to Section
10.17), (ii) a description of material developments, if any, in the
Company's business subsequent to the date of the latest of such reports
and (iii) such other information, if any, concerning the business of
the Company which the Company in good faith believes will enable such
Holders to make an informed investment decision regarding the Change of
Control Offer;
(4) that the Change of Control Offer is being made pursuant to
this Section 10.13 and that all Securities properly tendered pursuant
to the Change of Control Offer will be accepted for payment at the
Change of Control Purchase Price;
(5) the Change of Control Purchase Date, which shall be a
Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed, or such later date as is necessary to
comply with requirements under the Exchange Act;
(6) the Change of Control Purchase Price;
(7) the names and addresses of the Paying Agent and the offices
or agencies referred to in Section 10.2;
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(8) that Securities must be surrendered on or prior to the Change
of Control Purchase Date to the Paying Agent at the office of the
Paying Agent or to an office or agency referred to in Section 10.2 to
collect payment;
(9) that the Change of Control Purchase Price for any Security
which has been properly tendered and not withdrawn will be paid
promptly following the Change of Control Offer Purchase Date;
(10) the procedures that a Holder must follow to accept a Change
of Control Offer or to withdraw such acceptance;
(11) that any Security not tendered will continue to accrue
interest; and
(12) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Securities accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Purchase Date.
(c) Upon receipt by the Company of the proper tender of Securities,
the Holder of the Security in respect of which such proper tender was made shall
(unless the tender of such Security is properly withdrawn) thereafter be
entitled to receive solely the Change of Control Purchase Price with respect to
such Security. Upon surrender of any such Security for purchase in accordance
with the foregoing provisions, such Security shall be paid by the Company at the
Change of Control Purchase Price; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Change of Control Purchase
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such on the relevant Regular Record Dates
according to the terms and the provisions of Section 3.9. If any Security
tendered for purchase in accordance with the provisions of this Section 10.13
shall not be so paid upon surrender thereof, the principal thereof (and premium,
if any, thereon) shall, until paid, bear interest from the Change of Control
Purchase Date at the rate borne by such Security. Holders electing to have
Securities purchased will be required to surrender such Securities to the Paying
Agent at the address specified in the Change of Control Purchase Notice at least
one Business Day prior to the Change of Control Purchase Date. Any Security that
is to be purchased only in part shall be surrendered to a Paying Agent at the
office of such Paying Agent (with, if the Company, the Security Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Security Registrar or the Trustee, as
the case may be, duly executed by, the Holder thereof or such Holder's attorneys
duly authorized in writing), and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
one or more new Securities of any authorized denomination as requested by such
Holder in an aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Security so surrendered that is not
purchased.
(d) The Company shall (i) not later than the Change of Control
Purchase Date, accept for payment Securities or portions thereof tendered
pursuant to the Change of Control Offer, (ii)
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not later than 10:00 a.m. (New York time) on the Change of Control Purchase
Date, deposit with the Trustee or with a Paying Agent an amount of money in same
day funds (or New York Clearing House funds if such deposit is made prior to the
Change of Control Purchase Date) sufficient to pay the aggregate Change of
Control Purchase Price of all the Securities or portions thereof which are to be
purchased as of the Change of Control Purchase Date and (iii) not later than
10:00 a.m. (New York time) on the Change of Control Purchase Date, deliver to
the Paying Agent an Officers' Certificate stating the Securities or portions
thereof accepted for payment by the Company. The Paying Agent shall promptly
mail or deliver to Holders of Securities so accepted payment in an amount equal
to the Change of Control Purchase Price of the Securities purchased from each
such Holder, and the Company shall execute and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted shall be promptly mailed or delivered by the Paying
Agent at the Company's expense to the Holder thereof. The Company will publicly
announce the results of the Change of Control Offer on the Change of Control
Purchase Date. For purposes of this Section 10.13, the Company shall choose a
Paying Agent which shall not be the Company.
(e) A tender made in response to a Change of Control Purchase Notice
may be withdrawn if the Company receives, not later than one Business Day prior
to the Change of Control Purchase Date, a telegram, telex, facsimile
transmission or letter, specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Security in respect of which
such notice of withdrawal is being submitted;
(3) the principal amount of the Security (which shall be $1,000
or an integral multiple thereof) delivered for purchase by the Holder
as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to
have such principal amount of such Security purchased; and
(5) the principal amount, if any, of such Security (which shall
be $1,000 or an integral multiple thereof) that remains subject to the
original Change of Control Purchase Notice and that has been or will be
delivered for purchase by the Company.
(f) Subject to applicable escheat laws, the Trustee and the Paying
Agent shall return to the Company any cash that remains unclaimed, together with
interest or dividends, if any, thereon, held by them for the payment of the
Change of Control Purchase Price; provided, however, that, (x) to the extent
that the aggregate amount of cash deposited by the Company pursuant to clause
(ii) of paragraph (d) above exceeds the aggregate Change of Control Purchase
Price of the Securities or portions thereof to be purchased, then the Trustee
shall hold such
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excess for the Company and (y) unless otherwise directed by the Company in
writing, promptly after the Business Day following the Change of Control
Purchase Date the Trustee shall return any such excess to the Company together
with interest, if any, thereon.
(g) The Company shall comply, to the extent applicable, with the
applicable tender offer rules, including Rule 14e-1 under the Exchange Act, and
any other applicable securities laws or regulations in connection with a Change
of Control Offer.
Section 10.14. Limitation on Capital Stock of Subsidiaries.
The Company will not permit (a) any Subsidiary of the Company to issue
any Capital Stock, except for (i) Capital Stock issued to the Company or a
Wholly-Owned Subsidiary and (ii) Capital Stock issued by a Person prior to the
time (A) such Person becomes a Subsidiary, (B) such Person merges with or into a
Subsidiary or (C) a Subsidiary merges with or into such Person; provided that
such Capital Stock was not issued or incurred by such Person in anticipation of
the type of transaction contemplated by subclause (A), (B) or (C), or (b) any
Person (other than the Company, or a Wholly-Owned Subsidiary) to acquire Capital
Stock of any Subsidiary from the Company or any Subsidiary, except, in the case
of clause (a) or (b), upon the acquisition of all the outstanding Capital Stock
of such Subsidiary in accordance with the terms hereof.
Section 10.15. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create or suffer to exist any consensual encumbrance or
restriction on the ability of any Subsidiary to (i) pay dividends or make any
other distribution on its Capital Stock, (ii) pay any Indebtedness owed to the
Company or any other Subsidiary, (iii) make any Investment in the Company or any
other Subsidiary or (iv) transfer any of its properties or assets to the Company
or any other Subsidiary, except for: (a) any encumbrance or restriction pursuant
to any agreement in effect on the date hereof and listed on Schedule II hereto;
(b) any encumbrance or restriction, with respect to a Subsidiary that is not a
Subsidiary of the Company on the date hereof, in existence at the time such
Person becomes a Subsidiary of the Company and not incurred in connection with,
or in contemplation of, such Person becoming a Subsidiary; (c) customary
non-assignment or subletting provisions of any lease, license or other contract;
(d) any restriction entered into in the ordinary course of business contained in
any lease of any Subsidiary or any security agreement or mortgage securing
Indebtedness of any Subsidiary to the extent such restriction restricts the
transfer of property subject to such security agreement, mortgage or lease; and
(e) any encumbrance or restriction existing under any agreement that extends,
renews, refinances or replaces the agreements containing the encumbrances or
restrictions in the foregoing clauses (a), (b), (c) or (d), or in this clause
(e); provided that the terms and conditions of any such encumbrances or
restrictions are no more restrictive in any material respect than those under or
pursuant to the agreement evidencing the Indebtedness so extended, renewed,
refinanced or replaced.
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Section 10.16. Limitations on Unrestricted Subsidiaries.
Except for Investments made pursuant to clause (viii) or (ix) of the
definition of Permitted Investments, the Company will not make, and will not
permit its Subsidiaries to make, an Investment in Unrestricted Subsidiaries if,
at the time thereof, the aggregate amount of such Investments would exceed the
amount of Restricted Payments then permitted to be made pursuant to Section
10.9. Except for Investments made pursuant to clause (viii) or (ix) of the
definition of Permitted Investments, any Investment in Unrestricted Subsidiaries
permitted to be made pursuant to this covenant (i) must be permitted to be made
pursuant to Section 10.9 and will be treated as a Restricted Payment in
calculating the amount of Restricted Payments made by the Company under such
Section, and (ii) may be made in cash or property.
Section 10.17. Provision of Financial Statements.
After the earlier to occur of the consummation of the Exchange Offer
and the 150th calendar day following the date of original issue of the
Securities, whether or not the Company is subject to Section 13(a) or 15(d) of
the Exchange Act, the Company will, to the extent permitted under the Exchange
Act, file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the Commission
pursuant to Sections 13(a) or 15(d) of the Exchange Act if the Company were so
subject, such documents to be filed with the Commission on or prior to the date
(a "Required Filing Date") by which the Company would have been required so to
file such documents if the Company were so subject. The Company will also in any
event (x) within 15 days of each Required Filing Date occurring after the
issuance of the Securities (i) transmit by mail to all Holders, as their names
and addresses appear in the Security Register, without cost to such holders and
(ii) file with the Trustee copies of the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to Sections 13(a) or 15(d) of the Exchange Act if the
Company were subject to either of such Sections and (y) if filing such documents
by the Company with the Commission is not permitted under the Exchange Act,
promptly upon written request and payment of the reasonable cost of duplication
and delivery, supply copies of such documents to any prospective Holder at the
Company's cost. So long as any of the Securities remain Outstanding, the Company
will make available to any prospective purchaser of Securities or beneficial
owner of Securities in connection with any sale thereof the information required
by Rule 144A(d)(4) under the Securities Act, until such time as the Company has
either exchanged the Securities for securities identical in all material
respects which have been registered under the Securities Act or until such time
as the Holders thereof have disposed of such Securities pursuant to an effective
registration statement under the Securities Act.
Section 10.18. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, on or before a date not
more than 120 days after the end of each fiscal year of the Company ending after
the date hereof, a written statement signed by two executive officers of the
Company, one of whom shall be the principal
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executive officer, principal financial officer or principal accounting officer
of the Company, as to compliance herewith, including whether or not, after a
review of the activities of the Company during such year and of the Company's
performance under this Indenture, to the best knowledge, based on such review,
of the signers thereof, the Company has fulfilled all of its respective
obligations and is in compliance with all conditions and covenants under this
Indenture throughout such year and, if there has been a Default specifying each
Default and the nature and status thereof and any actions being taken by the
Company with respect thereto.
(b) When any Default or Event of Default has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or the holder of
any other evidence of Indebtedness of the Company or any Subsidiary gives any
notice or takes any other action with respect to a claimed default the Company
shall deliver to the Trustee by registered or certified mail or facsimile
transmission followed by hard copy of an Officers' Certificate specifying such
Default, Event of Default, notice or other action, the status thereof and what
actions the Company is taking or proposes to take with respect thereto, within
ten Business Days of becoming aware of its occurrence.
Section 10.19. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 10.6 through 10.11 and 10.14 through
10.18, if, before or after the time for such compliance, the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding shall, by Act of such Holders, waive such compliance in such
instance with such covenant or provision, but no such waiver shall extend to or
affect such covenant or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall remain
in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1. Rights of Redemption.
(a) The Securities are subject to redemption at any time on or after
June 15, 2002, at the option of the Company, in whole or in part, subject to the
conditions, and at the Redemption Prices, specified in the form of Security,
together with accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders of record on relevant Regular Record Dates and
Special Record Dates to receive interest due on relevant Interest Payment Dates
and Special Payment Dates).
(b) In addition, at any time on or prior to June 15, 2000, the Company
may, at its option, use the net proceeds of one or more Public Equity Offerings
to redeem up to an aggregate
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of 35% of the aggregate principal amount of Securities originally issued under
this Indenture at a redemption price equal to 110% of the aggregate principal
amount thereof, plus accrued and unpaid interest thereon, if any, to the
Redemption Date; provided that at least $100,750,000 aggregate principal amount
of Securities remains outstanding immediately after the occurrence of such
redemption. In order to effect the foregoing redemption, the Company must mail a
notice of redemption no later than 60 days after the related Public Equity
Offering and must consummate such redemption within 90 days of the closing of
the Public Equity Offering.
Section 11.2. Applicability of Article.
Redemption of Securities at the election of the Company or otherwise,
as permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article XI.
Section 11.3. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 11.1 shall be evidenced by a Company Order and an Officers' Certificate.
In case of any redemption at the election of the Company, the Company shall, not
less than 45 nor more than 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice period shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the principal
amount of Securities to be redeemed.
Section 11.4. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities or portions thereof to be redeemed shall be selected not more than 30
days prior to the Redemption Date. The Trustee shall select the Securities or
portions thereof to be redeemed pro rata, by lot or by any other method the
Trustee shall deem fair and reasonable. The amounts to be redeemed shall be
equal to $1,000 or any integral multiple thereof.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
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Section 11.5. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 days nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at its address
appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be redeemed,
the identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the
principal amount of such Security to be redeemed and that after the
Redemption Date upon surrender of such Security, new Security or
Securities in the aggregate principal amount equal to the unredeemed
portion thereof will be issued;
(e) that Securities called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security or portion thereof to be
redeemed, and that (unless the Company shall default in payment of the
Redemption Price) interest thereon shall cease to accrue on and after
said date;
(g) the names and addresses of the Paying Agent and the offices
or agencies referred to in Section 10.2 where such Securities are to be
surrendered for payment of the Redemption Price;
(h) the CUSIP number, if any, relating to such Securities; and
(i) the procedures that a Holder must follow to surrender the
Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's written request,
by the Trustee in the name and at the expense of the Company. If the Company
elects to give notice of redemption, it shall provide the Trustee with a
certificate stating that such notice has been given in compliance with the
requirements of this Section 11.5.
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The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
Section 11.6. Deposit of Redemption Price.
On or prior to 10:00 a.m., New York time, on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company or any of its Affiliates is acting as Paying Agent, segregate and hold
in trust as provided in Section 10.3) an amount of money in same day funds
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date or Special Payment Date) accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date.
The Paying Agent shall promptly mail or deliver to Holders of Securities so
redeemed payment in an amount equal to the Redemption Price of the Securities
purchased from each such Holder. All money, if any, earned on funds held in
trust by the Trustee or any Paying Agent shall be remitted to the Company. For
purposes of this Section 11.6, the Company shall choose a Paying Agent which
shall not be the Company.
Section 11.7. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Holders will be required
to surrender the Securities to be redeemed to the Paying Agent at the address
specified in the notice of redemption at least one Business Day prior to the
Redemption Date. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the
Redemption Price together with accrued interest to the Redemption Date;
provided, however, that installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such on the relevant
Regular Record Dates and Special Record Dates according to the terms and the
provisions of Section 3.9.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate borne by such
Security.
Section 11.8. Securities Redeemed or Purchased in Part.
Any Security which is to be redeemed or purchased only in part shall be
surrendered to the Paying Agent at the office or agency maintained for such
purpose pursuant to Section 10.2 (with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or
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a written instrument of transfer in form satisfactory to the Company, the
Security Registrar or the Trustee, as the case may be, duly executed by, the
Holder thereof or such Holder's attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities, of
any authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the unredeemed portion of the principal of
the Security so surrendered that is not redeemed or purchased.
ARTICLE XII
SATISFACTION AND DISCHARGE
Section 12.1. Satisfaction and Discharge of Indenture.
This Indenture shall be discharged and shall cease to be of further
effect (except as to surviving rights of registration of transfer or exchange of
Securities as expressly provided for herein) as to all Outstanding Securities
hereunder, and the Trustee, upon Company Request and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(1) all the Securities theretofore authenticated and
delivered (other than (i) lost, stolen or destroyed Securities
which have been replaced or paid as provided in Section 3.8 or
(ii) all Securities for whose payment United States dollars have
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the
Trustee for cancellation (i) have become due and payable, (ii)
will become due and payable at their Stated Maturity within one
year or (iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company; and the Company has irrevocably
deposited or caused to be deposited with the Trustee as trust
funds in trust an amount in United States dollars sufficient to
pay and discharge the entire Indebtedness on the Securities not
theretofore delivered to the Trustee for cancellation, including
the principal of, premium, if any, and accrued interest on, such
Securities at such Maturity, Stated Maturity or Redemption Date;
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(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel, in form and
substance reasonably satisfactory to the Trustee, each stating that (i)
all conditions precedent herein relating to the satisfaction and
discharge hereof have been complied with and (ii) such satisfaction and
discharge will not result in a breach or violation of, or constitute a
default under, this Indenture or any other material agreement or
instrument to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary is bound.
Notwithstanding the satisfaction and discharge hereof, the obligations
of the Company to the Trustee under Section 6.6 and, if United States dollars
shall have been deposited with the Trustee pursuant to subclause (2) of
subsection (a) of this Section 12.1, the obligations of the Trustee under
Section 12.2 and the last paragraph of Section 10.3 shall survive.
Section 12.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
United States dollars deposited with the Trustee pursuant to Section 12.1 shall
be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal of,
premium, if any, and interest on, the Securities for whose payment such United
States dollars have been deposited with the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
DI GIORGIO CORPORATION
By: /s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
Title: Executive Vice President
and Chief Financial Officer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxx Xxxx
----------------------------------
Name: Xxx Xxxx
Title: Assistant Treasurer
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STATE OF _______________ )
) ss:
COUNTY OF ______________ )
On the ___ day of ____ 1997, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that he resides at _________________ ________________________________; that he
is _______________ of Di Giorgio Corporation, one of the corporations described
in and which executed the foregoing instrument; that he knows the corporate seal
of such corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed pursuant to authority of the Board of Directors of
such corporation; and that he signed his name thereto pursuant to like
authority.
(NOTARIAL SEAL)
____________________________________
120
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
On the ___ day of ____ 1997, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that he resides at _________________ ___________________________________; that
he is an authorized officer of The Bank of New York, one of the corporations
described in and which executed the foregoing instrument; that he knows the
corporate seal of such corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed pursuant to authority of the Board
of Directors of such corporation; and that he signed his name thereto pursuant
to like authority.
(NOTARIAL SEAL)
____________________________________
121
SCHEDULE I
Existing Indebtedness
122
SCHEDULE II
Restrictions on Dividends of Subsidiaries
None.
123
SCHEDULE III
Existing Liens
124
SCHEDULE IV
Existing Unrestricted Subsidiaries
125
Exhibit A
Form of Certificate
to be Delivered upon
Termination of Restricted Period
On or after July 31, 0000
Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xx., Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Di Giorgio Corporation (the "Company") 10% Senior Notes due 2007
(the "Securities")
Ladies and Gentlemen:
This letter relates to U.S. $_________ principal amount of Securities
represented by the global note certificate (the "Offshore Global Security").
Pursuant to Section 3.6 of the Indenture dated as of June 20, 1997 relating to
the Securities (the "Indenture"), we hereby certify that (1) we are the
beneficial owner of such principal amount of Securities represented by the
Offshore Global Security and (2) we are a person outside the United States to
whom the Securities could be transferred in accordance with Rule 904 of
Regulation S promulgated under the U.S. Securities Act of 1933, as amended.
Accordingly, you are hereby requested to issue a certificated Security
representing the undersigned's interest in the principal amount of Securities
represented by the Global Security, all in the manner provided by the Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:_________________________________
Authorized Signature
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126
Exhibit B
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors
____________, _______
Di Giorgio Corporation
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Corporate Trust Division
Re: Di Giorgio Corporation (the "Company") 10% Senior Notes due 2007
(the "Securities")
Ladies and Gentlemen:
In connection with our proposed purchase of $_______ aggregate
principal amount of the Securities:
1. We understand that the Securities have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), and may not be
sold within the United States or to, or for the benefit of, U.S. Persons except
as permitted in the following sentence. We agree on our own behalf and on behalf
of any investor account for which we are purchasing the Securities to offer,
resell, pledge or otherwise transfer such Securities prior to the date which is
two years after the later of the date of original issue and the last date on
which the Company or any affiliate of the Company was the owner of such
Securities, or any predecessor thereto (the "Resale Restriction Termination
Date") only (a) to the Company, (b) pursuant to a registration statement which
has been declared effective under the Securities Act, (c) for so long as the
Securities are eligible for resale pursuant to Rule 144A under the Securities
Act, inside the United States to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that purchases for its own account
or for the account of a QIB to whom notice is given that the transfer is being
made in reliance on Rule 144A, (d) outside the United States pursuant to offers
and sales to non-U.S. Persons in an Offshore Transaction within the meaning of
Regulation S under the Securities Act, (e) inside the United States to an
institutional "accredited investor" within the meaning of subparagraph (a)(1),
(2), (3) or (7) of Rule 501 under the Securities Act that is acquiring the
Securities for its own account or for the account of such an institutional
"accredited investor" for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution thereof in violation of the
Securities Act or (f) pursuant to any
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other available exemption from the registration requirements of the Securities
Act, subject in each of the foregoing cases to any requirement of law that the
disposition of our property and the property of such investor account or
accounts be at all times within our or their control and to compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Securities is proposed to be made pursuant to clause (e)
above prior to the Resale Restriction Termination Date, the transferor shall
deliver a letter from the transferee substantially in the form of this letter to
the Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of subparagraph (a)(1),
(2), (3) or (7) of Rule 501 under the Securities Act and that it is acquiring
such Securities for investment purposes and not for distribution in violation of
the Securities Act. We acknowledge that the Company and the Trustee reserve the
right prior to any offer, sale or other transfer prior to the Resale Restriction
Termination Date of the Securities pursuant to clauses (d), (e) and (f) above to
require the delivery of an opinion of counsel, certifications and/or other
information satisfactory to the Company and the Trustee. As used herein, the
terms "United States", "Offshore Transaction", and "U.S. Person" have the
respective meanings given to them by Regulation S under the Securities Act.
2. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) purchasing
for our own account or for the account of such an institutional "accredited
investor," and we are acquiring the Securities for investment purposes and not
with a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act or the securities laws of any state of the
United States or any other applicable jurisdiction, provided that the
disposition of our property and the property of any accounts for which we are
acting as fiduciary shall remain at all times within our and their control; and
we have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
3. We are acquiring the Securities purchased by us for our own account
or for one or more accounts as to each of which we exercise sole investment
discretion.
4. We understand that the Trustee will not be required to accept for
registration of transfer any Securities acquired by us, except upon presentation
of evidence satisfactory to the Company and the Trustee that the foregoing
restrictions on transfer have been complied with. We further understand that the
Securities purchased by us will be in the form of definitive physical
certificates and that such certificates will bear a legend reflecting the
substance of this paragraph. We further agree to provide to any person acquiring
any of the Securities from us a notice advising such person that resales of the
Securities are restricted as stated herein and that certificates representing
the Notes will bear a legend to that effect.
5. We acknowledge that you, the Company, the Trustee and others will
rely upon our acknowledgments, representations and agreements set forth herein,
and we agree to notify
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you promptly in writing if any of our acknowledgments, representations or
agreements herein cease to be accurate and complete.
6. We represent to you that we have full power to make the foregoing
acknowledgments, representations and agreements on our own behalf and on behalf
of any investor account for which we are acting as a fiduciary or agent.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
Very truly yours,
By:______________________________________
(Name of Purchaser)
Date:____________________________________
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Upon transfer, the Securities should be registered in the name of the
new beneficial owner as follows:
Name:___________________________________________________________________________
Address:________________________________________________________________________
Taxpayer ID Number:_____________________________________________________________
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Exhibit C
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
____________________, ______
The Bank of New York
000 Xxxxxxx Xx., Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Di Giorgio Corporation (the "Company") 10% Senior Notes due 2007
(the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the Securities Act of 1933, as
amended, and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we
nor any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933, as
amended.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that such sale has
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been made in accordance with the applicable provisions of Rule 903(c)(2) or Rule
904(c)(1), as the case may be.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:______________________________________
Authorized Signature
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APPENDIX I
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
___________________________________
___________________________________________________________________________
___________________________________________________________________________
(Please print or typewrite name and address including zip code of assignee)
___________________________________________________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
___________________________________________________________________________
attorney to transfer such Security on the books of the Company with full power
of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES FOR SERIES A SECURITIES
EXCEPT PERMANENT OFFSHORE PHYSICAL
CERTIFICATES]
In connection with any transfer of this Security occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
June 20, 1999, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended,
provided by Rule 144A thereunder.
or
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[ ] (b) this Security is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Security and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Security
Registrar shall not be obligated to register this Security in the name of any
Person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 3.7 of the Indenture
shall have been satisfied.
Date:____________________
____________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or
any change whatsoever.
Signature Guarantee:____________________
[Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Securities Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Securities Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Exchange Act.]
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:______________ _______________________________________________________
NOTICE: To be executed by an authorized signatory
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APPENDIX II
FORM OF TRANSFEREE CERTIFICATE
I or we assign and transfer this Security to:
Please insert social security or other identifying number of assignee
________________________________________________________________________________
________________________________________________________________________________
Print or type name, address and zip code of assignee and irrevocably appoint
________________________________________________________________________________
[Agent], to transfer this Security on the books of the Company. The Agent may
substitute another to act for him.
Dated_______________ Signed________________________________________
(Sign exactly as name appears on the other side of this Security)
[Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Securities Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Securities Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Exchange Act.]
