1
EXHIBIT 4.1
================================================================================
INDENTURE
Dated as of May 9, 1997
Among
COLORADO PRIME CORPORATION,
THE SUBSIDIARY GUARANTORS LISTED HEREIN
and
THE BANK OF NEW YORK, AS TRUSTEE
---------------------------
up to $100,000,000
12.50% Senior Notes due 2004
================================================================================
2
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions ................................................. 1
SECTION 1.02. Other Definitions ........................................... 18
SECTION 1.03. Incorporation by Reference of Trust Indenture Act ........... 19
SECTION 1.04. Rules of Construction ....................................... 19
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating ............................................. 20
SECTION 2.02. Execution and Authentication ................................ 22
SECTION 2.03. Registrar and Paying Agent .................................. 22
SECTION 2.04. Paying Agent to Hold Money in Trust ......................... 23
SECTION 2.05. Noteholder Lists ............................................ 23
SECTION 2.06. Transfer and Exchange ....................................... 23
SECTION 2.07. Replacement Notes ........................................... 33
SECTION 2.08. Outstanding Notes ........................................... 33
SECTION 2.09. Treasury Notes .............................................. 33
SECTION 2.10. Temporary Notes ............................................. 34
SECTION 2.11. Cancellation ................................................ 34
SECTION 2.12. Defaulted Interest .......................................... 34
SECTION 2.13. CUSIP or CINS Number ........................................ 34
SECTION 2.14. Payments of Interest ........................................ 35
SECTION 2.15. Ranking ..................................................... 35
ARTICLE 3
REDEMPTION
SECTION 3.01. Notices to Trustee .......................................... 35
SECTION 3.02. Selection of Notes to Be Redeemed ........................... 36
SECTION 3.03. Notice of Redemption ........................................ 36
SECTION 3.04. Effect of Notice of Redemption .............................. 37
SECTION 3.05. Deposit of Redemption Price ................................. 37
1
3
SECTION 3.06. Notes Redeemed in Part ...................................... 37
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes ............................................ 37
SECTION 4.02. Maintenance of Office or Agency ............................. 38
SECTION 4.03. Limitation on Transactions with Affiliates and Related
Persons ..................................................... 38
SECTION 4.04. Limitation on Indebtedness .................................. 39
SECTION 4.05. Limitation on Certain Asset Dispositions .................... 41
SECTION 4.06. Limitation on Restricted Payments ........................... 42
SECTION 4.07. Corporate Existence ......................................... 44
SECTION 4.08. Payment of Taxes and Other Claims ........................... 45
SECTION 4.09. Notice of Defaults .......................................... 45
SECTION 4.10. Maintenance of Properties ................................... 46
SECTION 4.11. Compliance Certificate ...................................... 46
SECTION 4.12. Provision of Financial Information .......................... 46
SECTION 4.13. Waiver of Stay, Extension or Usury Laws ..................... 47
SECTION 4.14. Change of Control ........................................... 47
SECTION 4.15. Limitations Concerning Distributions and Transfers by
Restricted Subsidiaries ..................................... 48
SECTION 4.16. Limitation on Issuance and Sale of Capital Stock of
Restricted Subsidiaries ..................................... 49
SECTION 4.17. Limitation on Liens ......................................... 49
SECTION 4.18. Future Subsidiary Guarantors ................................ 50
ARTICLE 5
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Restriction on Mergers, Consolidations and Certain Sales
of Assets ................................................... 51
SECTION 5.02. Successor Corporation Substituted ........................... 51
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default ........................................... 52
SECTION 6.02. Acceleration ................................................ 54
SECTION 6.03. Other Remedies .............................................. 54
SECTION 6.04. Waiver of Past Default ...................................... 54
2
4
SECTION 6.05. Control by Majority 55
SECTION 6.06. Limitation on Suits 55
SECTION 6.07. Rights of Holders to Receive Payment 56
SECTION 6.08. Collection Suit by Trustee 56
SECTION 6.09. Trustee May File Proofs of Claim 56
SECTION 6.10. Priorities 57
SECTION 6.11. Undertaking for Costs 57
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee 58
SECTION 7.02. Rights of Trustee 59
SECTION 7.03. Individual Rights of Trustee 59
SECTION 7.04. Trustee's Disclaimer 60
SECTION 7.05. Notice of Defaults 60
SECTION 7.06. Reports by Trustee to Holders 60
SECTION 7.07. Compensation and Indemnity 60
SECTION 7.08. Replacement of Trustee 61
SECTION 7.09. Successor Trustee by Merger, etc 62
SECTION 7.10. Eligibility; Disqualification 63
SECTION 7.11. Preferential Collection of Claims Against Company 63
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations 63
SECTION 8.02. Application of Trust Money 65
SECTION 8.03. Repayment to Company 65
SECTION 8.04. Reinstatement 65
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVER
SECTION 9.01. Without Consent of Holders 66
SECTION 9.02. With Consent of Holders 67
SECTION 9.03. Compliance with Trust Indenture Act 68
SECTION 9.04. Revocation and Effect of Consents 68
SECTION 9.05. Notation on or Exchange of Notes 69
SECTION 9.06. Trustee to Sign Amendments, etc 69
3
5
ARTICLE 10
SUBSIDIARY GUARANTEE
SECTION 10.01. Unconditional Subsidiary Guarantee 70
SECTION 10.02. Severability 71
SECTION 10.03. Release of a Subsidiary Guarantor 71
SECTION 10.04. Limitation of Subsidiary Guarantor's Liability . 71
SECTION 10.05. Contribution 72
SECTION 10.06. Execution of Subsidiary Guarantee 72
SECTION 10.07. Subordination of Subrogation and Other Rights 73
SECTION 10.08. Ranking 73
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls 73
SECTION 11.02. Notices 73
SECTION 11.03. Communications by Holders with Other Holders 74
SECTION 11.04. Certificate and Opinion as to Conditions Precedent 75
SECTION 11.05. Statements Required in Certificate or Opinion 75
SECTION 11.06. Rules by Trustee, Paying Agent, Xxxxxxxxx 00
SECTION 11.07. Governing Law 76
SECTION 11.08. No Recourse Against Others 76
SECTION 11.09. Successors 76
SECTION 11.10. Counterpart Originals 76
SECTION 11.11. Severability 76
SECTION 11.12. No Adverse Interpretation of Other Agreements 76
SECTION 11.13. Legal Holidays 76
SIGNATURES
ANNEX A - Subsidiary Guarantors
EXHIBIT A - Form of Note
EXHIBIT B - Form of Certificate of Transfer
EXHIBIT C - Form of Certificate of Exchange
---------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be part of
this Indenture.
4
6
INDENTURE dated as of May 9, 1997, among COLORADO PRIME CORPORATION, a
Delaware corporation (the "COMPANY"), the Subsidiary Guarantors listed on Annex
A hereto and The Bank of New York, a New York banking company, as trustee (the
"TRUSTEE").
Each party hereto agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's 12.50%
Senior Notes due 2004:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"ACQUIRED INDEBTEDNESS" means, with respect to any Person, Indebtedness of
such Person (i) existing at the time such Person becomes a Restricted Subsidiary
or (ii) assumed in connection with the acquisition of assets from another
Person, including Indebtedness Incurred in connection with, or in contemplation
of, such Person becoming a Restricted Subsidiary or such acquisition, as the
case may be.
"ADDITIONAL INTEREST" shall have the meaning set forth in the Registration
Rights Agreement.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with any specified Person. For purposes of this definition, "control"
when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"AGENT" means any Registrar, Paying Agent or co-Registrar. See Section
2.03.
"APPLICABLE PROCEDURES" means with respect to any transfer or exchange of
interests in a Global Note, the rules and procedures of DTC, Euroclear or Cedel
that apply to such transfer or exchange.
7
"ASSET DISPOSITION" means any sale, transfer or other disposition
(including, without limitation, by merger, consolidation or sale-and-leaseback
transaction) of (i) shares of Capital Stock of a Subsidiary of the Company
(other than directors' qualifying shares) or (ii) property or assets of the
Company or any Subsidiary of the Company; provided, however, that an Asset
Disposition shall not include (a) any sale, transfer or other disposition of
shares of Capital Stock, property or assets by a Restricted Subsidiary of the
Company to the Company or to any Wholly Owned Subsidiary of the Company, (b) any
sale, transfer or other disposition of defaulted receivables for collection or
any sale, transfer or other disposition of property or assets in the ordinary
course of business, (c) any individual isolated sale, transfer or other
disposition that does not involve aggregate consideration in excess of $250,000,
(d) the grant in the ordinary course of business of any non-exclusive license of
patents, trademarks, registrations therefor and other similar intellectual
property, (e) any Lien (or foreclosure thereon) securing Indebtedness to the
extent that such Lien is granted in compliance with Section 4.17, (f) any
Restricted Payment permitted by Section 4.06, (g) the sale, lease, conveyance or
disposition or other transfer of all or substantially all of the assets of the
Company as permitted under Section 5.01; provided, that the assets not so sold,
leased, conveyed, disposed of or otherwise transferred shall be deemed an Asset
Disposition, (h) any disposition that constitutes a Change of Control or (i) any
Permitted Receivables Financing.
"AVERAGE LIFE" means, as of the date of determination, with respect to any
Indebtedness for borrowed money or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of the number of years from the date of
determination to the dates of each successive scheduled principal or liquidation
value payments of such Indebtedness or Preferred Stock, respectively, and the
amount of such principal or liquidation value payments, by (ii) the sum of all
such principal or liquidation value payments.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or any
Subsidiary Guarantor, as the case may be, or any authorized committee of that
Board.
"BOARD RESOLUTION" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in the City of New York are
authorized or obligated by law, resolution or executive order to close.
2
8
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations to pay
rent or other amounts under a lease of (or other arrangements conveying the
right to use) real or personal property of such Person which are required to be
classified and accounted for as capital leases or liabilities on the face of a
balance sheet of such Person in accordance with GAAP. The amount of such
obligations shall be the capitalized amount thereof in accordance with GAAP and
the stated maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty.
"CAPITAL STOCK" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock of
such Person (including any Preferred Stock outstanding on the Issue Date).
"CEDEL" means Cedel Bank, societe anonyme.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" of any Person means Capital Stock of such Person that does
not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"COMPANY" means the Person named as the "Company" in the first paragraph
of this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"CONSOLIDATED EBITDA" of any Person means for any period the Consolidated
Net Income of such Person for such Period increased (to the extent Consolidated
Net Income for such period has been reduced thereby) by the sum of (without
duplication) (i) Consolidated Interest Expense of such Person for such period,
plus (ii) Consolidated Income Tax Expense of such Person for such period, plus
(iii) the consolidated depreciation and amortization expense included in the
income statement of such Person prepared in accordance with GAAP for such
period, plus (iv) any other non-cash charges to the extent deducted from or
3
9
reflected in Consolidated Net Income except for any non-cash charges that
represent accruals of, or reserves for, cash disbursements to be made in any
future accounting period.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" of any Person means for any
period the ratio of (i) Consolidated EBITDA of such Person for such period to
(ii) the sum of (A) Consolidated Interest Expense of such Person for such
period, plus (B) the annual interest expense with respect to any Indebtedness
proposed to be Incurred by such Person or its Restricted Subsidiaries, minus (C)
Consolidated Interest Expense of such Person to the extent included in clause
(ii) (A) with respect to any Indebtedness that will no longer be outstanding as
a result of the Incurrence of the Indebtedness proposed to be Incurred, plus (D)
the annual interest expense with respect to any other Indebtedness Incurred by
such Person or its Restricted Subsidiaries since the end of such period to the
extent not included in clause (ii) (A), minus (E) Consolidated Interest Expense
of such Person to the extent included in clause (ii) (A) with respect to any
Indebtedness that no longer is outstanding as a result of the Incurrence of the
Indebtedness referred to in clause (ii) (D); provided, however, that in making
such computation, the Consolidated Interest Expense of such Person attributable
to interest on any Indebtedness bearing a floating interest rate shall be
computed on a pro forma basis as if the rate in effect on the date of
computation (after giving effect to any hedge in respect of such Indebtedness
that will, by its terms, remain in effect until the earlier of the maturity of
such Indebtedness or the date one year after the date of such determination) had
been the applicable rate for the entire period; provided, further, however,
that, in the event such Person or any of its Restricted Subsidiaries has made
any Asset Dispositions or acquisitions of assets not in the ordinary course of
business (including acquisitions of other Persons by merger, consolidation or
purchase of Capital Stock) during or after such period and on or prior to the
date of computation, such computation shall be made on a pro forma basis as if
the Asset Dispositions or acquisitions had taken place on the first day of such
period. Calculations of pro forma amounts in accordance with this definition
shall be done in accordance with Article 11 of Regulation S-X under the
Securities Act of 1933, as amended, or any successor provision and may include
reasonably ascertainable cost savings.
"CONSOLIDATED INCOME TAX EXPENSE" of any Person means for any period the
consolidated provision for income taxes of such Person and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with GAAP.
"CONSOLIDATED INTEREST EXPENSE" for any Person means for any period,
without duplication, (a) the consolidated interest expense included in a
4
10
consolidated income statement (without deduction of interest or finance charge
income) of such Person and its Restricted Subsidiaries for such period
calculated on a consolidated basis in accordance with GAAP and (b) dividend
requirements of such Person and its Restricted Subsidiaries with respect to
Disqualified Stock and with respect to all other Preferred Stock of Restricted
Subsidiaries of such Person (in each case whether in cash or otherwise (except
dividends payable solely in shares of Capital Stock of such Person or such
Restricted Subsidiary)) paid, declared, accrued or accumulated during such
period times a fraction the numerator of which is one and the denominator of
which is one minus the then effective consolidated Federal, state and local tax
rate of such Person, expressed as a decimal.
"CONSOLIDATED NET INCOME" of any Person means for any period the
consolidated net income (or loss) of such Person and its Restricted Subsidiaries
for such period determined on a consolidated basis in accordance with GAAP;
provided, however, that there shall be excluded therefrom (a) the net income (or
loss) of any Person acquired by such Person or a Restricted Subsidiary of such
Person in a pooling-of-interests transaction for any period prior to the date of
such transaction, (b) the net income (but not net loss) of any Restricted
Subsidiary of such Person which is subject to restrictions which prevent or
limit the payment of dividends or the making of distributions to such Person to
the extent of such restrictions (regardless of any waiver thereof), (c) non-cash
gains and losses due solely to fluctuations in currency values, (d) the net
income of any Person that is not a Restricted Subsidiary of such Person, except
to the extent of the amount of dividends or other distributions representing
such Person's proportionate share of such other Person's net income for such
period actually paid in cash to such Person by such other Person during such
period, (e) gains but not losses on Asset Dispositions by such Person or its
Restricted Subsidiaries, (f) all gains and losses classified as extraordinary,
unusual or nonrecurring in accordance with GAAP and (g) in the case of a
successor to the referent Person by consolidation or merger or as a transferee
of the referent Person's assets, any earnings (or losses) of the successor
corporation prior to such consolidation, merger or transfer of assets.
"CONTINUING DIRECTOR" means a director who either was a member of the
Board of Directors of the Company on the Issue Date or who became a director of
the Company subsequent to the Issue Date and (i) whose election, or nomination
for election by the Company's stockholders, was duly approved by a majority of
Continuing Directors then on the Board of Directors of the Company, either by a
specific vote or by approval of the proxy statement issued by the Company on
behalf of the entire Board of Directors of the Company in which such individual
is named as nominee for director or (ii) whose election was duly approved by the
Principals at a meeting of stockholders of the Company called for such purpose.
5
11
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 11.02 or such other address as the Trustee may give
notice to the Company.
"CREDIT AGREEMENT" means, collectively, (i) that certain Credit Agreement,
dated as of May 9, 1997, between the Company and Dresdner Bank AG, New York and
Grand Cayman Branches, as agent and certain other financial institutions and
(ii) any deferrals, renewals, extensions, replacements, refinancings or
refundings of any of the foregoing, or amendments, modifications or supplements
to (including, without limitation, any amendment increasing the amount borrowed
or reimbursement obligation thereunder) whether by or with the same or any other
lender, creditor, or group of creditors and including related notes, guarantee
agreements and other instruments and agreements executed in connection
therewith.
"DEFAULT" means any event that is, or after notice or lapse of time or
both would become, an Event of Default.
"DISQUALIFIED STOCK" of any Person means any Capital Stock of such Person
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the final maturity of the Notes.
"DTC" means the Depository Trust Company or its successors.
"EUROCLEAR" means Xxxxxx Guaranty Trust Company of New York
(Brussels Office) as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Commission thereunder.
"EXCHANGE REGISTRATION STATEMENT" shall have the meaning set forth in the
Registration Rights Agreement.
"EXPIRATION DATE" has the meaning set forth in the definition of "Offer to
Purchase" below.
"GAAP" means generally accepted accounting principles, consistently
applied, as in effect on the Issue Date in the United States of America, as set
forth in the opinions and pronouncements of the Accounting Principles Board of
the
6
12
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as is approved by a significant segment of the
accounting profession in the United States. All ratios and computations based on
GAAP contained in this Indenture shall be computed in conformity with GAAP
applied on a consistent basis.
"GLOBAL NOTE" means the global note, without coupons, representing all or
a portion of the Notes deposited with DTC substantially in the form of Exhibit A
attached hereto.
"GUARANTEE" by any Person means any obligation, contingent or otherwise,
of such Person guaranteeing any Indebtedness of any other Person (the "PRIMARY
OBLIGOR") in any manner, whether directly or indirectly, and including, without
limitation, any obligation of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or to purchase
(or to advance or supply funds for the purchase of) any security for the payment
of such Indebtedness, (ii) to purchase property, securities or services for the
purpose of assuring the holder of such Indebtedness of the payment of such
Indebtedness, or (iii) to maintain working capital, equity capital or other
financial statement condition of liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness (and "guaranteed,"
"guaranteeing" and "guarantor" shall have meanings correlative to the
foregoing); provided, however, that the guarantee by any Person shall not
include endorsements by such Person for collection or deposit, in either case,
in the ordinary course of business.
"HOLDER" or "NOTEHOLDER" means the Person in whose name a Note is
registered on the books of the Registrar or any co-Registrar.
"HOLDINGS" means Colorado Prime Holdings, Inc., a Delaware corporation.
"INCUR" means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "Incurrence," "Incurred" and "Incurring" shall have meanings
correlative to the foregoing). Indebtedness of any Person or any of its
Restricted Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company (or is merged into or consolidates with the Company or
any of its Restricted Subsidiaries), whether or not such Indebtedness was
incurred in
7
13
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary of the Company (or being merged into or consolidated with the Company
or any of its Restricted Subsidiaries), shall be deemed Incurred at the time any
such Person becomes a Restricted Subsidiary of the Company or merges into or
consolidates with the Company or any of its Restricted Subsidiaries.
"INDEBTEDNESS" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent, (i) every obligation of such Person for money borrowed, (ii)
every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person, (iv)
every obligation of such Person issued or assumed as the deferred purchase price
of property or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not overdue or
which are being contested in good faith), (v) every Capital Lease Obligation of
such Person, (vi) every net obligation under interest rate swap or similar
agreements or foreign currency hedge, exchange or similar agreements of such
Person and (vii) every obligation of the type referred to in clauses (i) through
(vi) of another Person and all dividends of another Person the payment of which,
in either case, such Person has guaranteed or is responsible or liable for,
directly or indirectly, as obligor, guarantor or otherwise. Indebtedness shall
include the liquidation preference and any mandatory redemption payment
obligations in respect of any Disqualified Stock of the Company, and any
Preferred Stock of a Subsidiary of the Company. Indebtedness shall never be
calculated taking into account any cash and cash equivalents held by such
Person. Indebtedness shall not include obligations arising from agreements of
the Company or a Restricted Subsidiary of the Company to provide for
indemnification, adjustment of purchase price, earn-out, or other similar
obligations, in each case, incurred or assumed in connection with the
disposition of any business or assets of a Restricted Subsidiary of the Company.
"INDENTURE" means this Indenture as amended or supplemented from time
to time.
"INITIAL GLOBAL NOTES" means the Regulation S Global Note and the
Restricted Global Note, each of which contains a Securities Act Legend.
"INITIAL NOTES" means the Notes containing a Securities Act Legend.
8
14
"INSTITUTIONAL ACCREDITED INVESTORS" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a) (1), (2), (3) or
(7) of Regulation D promulgated under the Securities Act
"INTEREST PAYMENT DATE" means the stated maturity of an installment of
interest on the Notes.
"INVESTMENT" by any Person means any direct or indirect loan, advance,
guarantee or other extension of credit or capital contribution to (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise), or purchase or
acquisition of Capital Stock, bonds, notes, debentures or other securities or
evidences of Indebtedness issued by any other Person.
"ISSUE DATE" means the original issue date of the Notes.
"LIEN" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, security interest, lien, charge,
easement (other than any easement not materially impairing usefulness or
marketability), encumbrance, preference, priority or other security agreement
with respect to such property or assets (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"MANAGEMENT INVESTORS" means full-time members of management of the
Company who acquire stock of Holdings, on or after the Issue Date, and any of
their Permitted Transferees.
"MATURITY DATE" means the date, which is set forth on the face of the
Notes, on which the Notes will mature.
"NET AVAILABLE PROCEEDS" from any Asset Disposition by any Person means
cash or readily marketable cash equivalents received (including by way of sale
or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiror of Indebtedness or other obligations relating to such properties or
assets or received in any other non-cash form) therefrom by such Person,
including any cash received by way of deferred payment or upon the monetization
or other disposition of any non-cash consideration (including notes or other
securities) received in connection with such Asset Disposition, net of (i) all
legal, title and recording tax expenses, commissions and other fees and expenses
incurred and all federal, state, foreign and local taxes required to be accrued
as a liability as a
9
15
consequence of such Asset Disposition, (ii) all payments made by such Person or
its Restricted Subsidiaries on any Indebtedness which is secured by such assets
in accordance with the terms of any Lien upon or with respect to such assets or
which must by the terms of such Lien, or in order to obtain a necessary consent
to such Assets Disposition or by applicable law, be repaid out of the proceeds
from such Asset Disposition, (iii) all payments made with respect to liabilities
associated with the assets which are the subject of the Asset Disposition,
including, without limitation, trade payables and other accrued liabilities,
(iv) appropriate amounts to be provided by such Person or any Restricted
Subsidiary thereof, as the case may be, as a reserve in accordance with GAAP
against any liabilities associated with such assets and retained by such Person
or any Restricted Subsidiary thereof, as the case may be, after such Asset
Disposition, including, without limitation, liabilities under any
indemnification obligations and severance and other employee termination costs
associated with such Asset Disposition, until such time as such amounts are no
longer reserved or such reserve is no longer necessary (at which time any
remaining amounts will become Net Available Proceeds to be allocated in
accordance with the provisions of clause (iii) of Section 4.05) and (v) all
distributions and other payments made to minority interest holders in Restricted
Subsidiaries of such Person or joint ventures as a result of such Asset
Disposition.
"NOTEHOLDER" has the meaning set forth in the definition of "Holder"
above.
"NOTES" means the 12.50% Senior Notes due 2004 issued pursuant to the
terms of this Indenture, as amended or supplemented from time to time.
"OFFER" has the meaning set forth in the definition of "Offer to Purchase"
below.
"OFFER TO PURCHASE" means a written offer (the "OFFER") sent by the
Company by first class mail, postage prepaid, in the case of the Global Notes to
DTC and in the case of Certificated Notes to each Holder at his address
appearing in the register for the Notes, in each case, on the date of the Offer
offering to purchase up to the principal amount of Notes specified in such Offer
at the purchase price specified in such Offer (as determined pursuant to this
Indenture). Unless otherwise required by applicable law, the Offer shall specify
an expiration date (the "EXPIRATION DATE") of the Offer to Purchase which shall
be not less than 30 days nor more than 60 days after the date of such Offer and
a settlement date (the "PURCHASE DATE") for purchase of Notes within five
Business Days after the Expiration Date. The Company shall notify the Trustee at
least 15 Business Days (or such shorter period as is acceptable to the Trustee)
prior to the mailing of the
10
16
Offer of the Company's obligation to make an Offer to Purchase, and the Offer
shall be mailed by the Company or, at the Company's request, by the Trustee in
the name and at the expense of the Company. The Offer shall contain all the
information required by applicable law to be included therein. The Offer shall
contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Offer to Purchase. The Offer shall also state:
(i) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(ii) the Expiration Date and the Purchase Date;
(iii) the aggregate principal amount of the outstanding Notes
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined pursuant to the Section of this Indenture requiring the Offer
to Purchase) (the "PURCHASE AMOUNT");
(iv) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Notes accepted for payment (as specified
pursuant to this Indenture) (the "PURCHASE PRICE");
(v) that the Holder may tender all or any portion of the Notes
registered in the name of such Holder and that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(vi) the place or places where Notes are to be surrendered for
tender pursuant to the Offer to Purchase;
(vii) that interest on any Note not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue
to accrue;
(viii) that on the Purchase Date the Purchase Price will become due
and payable upon each Note being accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on and
after the Purchase Date;
(ix) that each Holder electing to tender all or any portion of a
Note pursuant to the Offer to Purchase will be required to surrender such
Note at the place or places specified in the Offer prior to the close of
11
17
business on the Expiration Date (such Note being, if the Company or the
Trustee so requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in
writing);
(x) that Holders will be entitled to withdraw all or any portion
of Notes tendered if the Company (or its Paying Agent) receives, not later
than the close of business on the fifth Business Day next preceding the
Expiration Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Note the
Holder tendered, the certificate number of the Note the Holder tendered
and a statement that such Holder is withdrawing all or a portion of his
tender;
(xi) that (a) if Notes in an aggregate principal amount less than
or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Notes and (b) if Notes in an aggregate principal amount in excess of the
Purchase Amount are tendered and not withdrawn pursuant to the Offer to
Purchase, the Company shall purchase Notes having an aggregate principal
amount equal to the Purchase Amount on a pro rata basis (with such
adjustments as may be deemed appropriate so that only Notes in
denominations of $1,000 or integral multiples thereof shall be purchased);
and
(xii) that in the case of any Holder whose Note is purchased only in
part, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Note without service charge, a new Note or
Notes, of any authorized denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange for the unpurchased
portion of the Note so tendered.
An Offer to Purchase shall be governed by and effected in accordance with
the provisions above pertaining to any Offer.
"OFFICER" means the Chairman, the President, any Vice President, the Chief
Financial Officer, the Treasurer, or the Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers (one of
whom shall be the Chief Financial Officer of the Company) or by an Officer and
an Assistant Treasurer or Assistant Secretary of the Company complying with
Sections 11.04 and 11.05.
12
18
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"PARTICIPANT" means, with respect to DTC, Euroclear or Cedel, a Person who
has an account with DTC, Euroclear or Cedel, respectively (and with respect to
DTC, shall include Euroclear and Cedel).
"PERMITTED ASSET SWAP" means any one or more transactions in which the
Company or any of its Restricted Subsidiaries exchanges assets for consideration
consisting of (i) cash, (ii) assets used or useful in the business of the
Company as conducted on the Issue Date or reasonable extensions, developments or
expansions thereof or ancillary thereto and/or (iii) other assets in an amount
less than 15% of the fair market value of such transaction or transactions.
"PERMITTED HOLDER" means any of (i) the Principals and their Related
Persons and Affiliates and (ii) the Management Investors.
"PERMITTED INVESTMENTS" means (i) Investments in marketable, direct
obligations issued or guaranteed by the United States of America, or any
governmental entity or agency or political subdivision thereof (provided, that
the full faith and credit of the United States of America is pledged in support
thereof), maturing within one year of the date of purchase; (ii) Investments in
commercial paper issued by corporations or financial institutions maturing
within 180 days from the date of the original issue thereof, and rated "P-1" or
better by Xxxxx'x Investors Service or "A-1" or better by Standard & Poor's
Corporation or an equivalent rating or better by any other nationally recognized
securities rating agency; (iii) Investments in time deposits and certificates of
deposit issued or acceptances accepted by or guaranteed by any bank or trust
company organized under the laws of the United States of America or any state
thereof or the District of Columbia or incorporated in a foreign jurisdiction
and having a branch office in the United States (each, an "APPROVED BANK"), in
each case having capital, surplus and undivided profits totaling more than
$500,000,000, maturing within one year of the date of purchase; (iv) Investments
representing Capital Stock or obligations issued to the Company or any of its
Restricted Subsidiaries in the course of the good faith settlement of claims
against any other Person or by reason of a composition or readjustment of debt
or a reorganization of any debtor of the Company or any of its Restricted
Subsidiaries; (v) deposits, including interest-bearing deposits, maintained in
the ordinary course of business in banks; (vi) repurchase obligations of an
Approved Bank for government obligations with a term of not more than seven
days; (vii) investments in money market mutual funds having assets in excess of
$2.5 billion all of whose assets are comprised of
13
19
government obligations; (viii) any acquisition of the Capital Stock of any
Person; provided, however, that after giving effect to any such acquisition such
Person shall become a Restricted Subsidiary of the Company; (ix) trade
receivables and prepaid expenses, in each case arising in the ordinary course of
business; provided, however, that such receivables and prepaid expenses would be
recorded as assets of such Person in accordance with GAAP; (x) endorsements for
collection or deposit in the ordinary course of business by such Person of bank
drafts and similar negotiable instruments of such other Person received as
payment for ordinary course of business trade receivables; (xi) any interest
swap or hedging obligation with an unaffiliated Person otherwise permitted by
this Indenture; (xii) Investments received as consideration for an Asset
Disposition in compliance with Section 4.05; (xiii) Investments in Restricted
Subsidiaries or by virtue of which a Person becomes a Restricted Subsidiary;
(xiv) loans and advances to employees made in the ordinary course of business;
(xv) Investments the sole consideration for which consists of Capital Stock of
the Company and (xvi) Investments required in connection with any Permitted
Receivables Financing to the extent such Investments are customary in respect of
transactions of such nature.
"PERMITTED RECEIVABLES FINANCING" means a transaction or series of
transactions (including amendments, supplements, extensions, renewals,
replacements, refinancings or modifications thereof) pursuant to which (a) a
Securitization Subsidiary purchases Receivables and Related Assets from the
Company or any Restricted Subsidiary and finances such Receivables and Related
Assets through the issuance of indebtedness or equity interests or through the
sale of the Receivables and Related Assets or a fractional undivided interest in
the Receivables and Related Assets or (b) the Company or a Restricted Subsidiary
finances Receivables and Related Assets through the sale of Receivables and
Related Assets or fractional undivided interests therein; provided that (i) the
Board of Directors shall have determined in good faith that such Permitted
Receivables Financing is economically fair and reasonable to the Company and the
Securitization Subsidiary, (ii) all sales of Receivables and Related Assets to
the Securitization Subsidiary are made at fair market value (as determined in
good faith by the Board of Directors), (iii) the financing terms, covenants,
termination events and other provisions thereof shall be market terms (as
determined in good faith by the Board of Directors), (iv) no portion of the
Indebtedness of a Securitization Subsidiary is guaranteed by or is recourse to
the Company or any Restricted Subsidiary (other than recourse for customary
representations, warranties, covenants and indemnities, none of which shall
relate to the collectibility of the Receivables and Related Assets) and (v)
neither the Company nor any Subsidiary has any obligation to maintain or
preserve the Securitization Subsidiary's financial condition.
14
20
"PERMITTED TRANSFEREE" means, with respect to any Management Investor (i)
any spouse or lineal descendant (including by adoption and stepchildren) of such
Management Investor and (ii) any trust, corporation or partnership, the
beneficiaries, stockholders or partners of which consist entirely of one or more
Management Investors or individuals described in clause (i) above.
"PERSON" means any individual, corporation, limited or general
partnership, limited liability company, joint venture, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"PREFERRED STOCK," as applied to the Capital Stock of any Person, means
Capital Stock of such Person of any class or classes (however designated) that
ranks prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of Capital Stock of any other class of such Person.
"PRINCIPAL" of a debt security means the principal of the security plus,
when appropriate, the premium, if any, on the security.
"PRINCIPALS" means TC Equity Partners, L.L.C. and any Person controlled
by TC Equity Partners, L.L.C., any Related Person of TC Equity Partners, L.L.C.
and certain other Persons related to TC Equity Partners, L.L.C.
"PRIVATE EXCHANGE NOTES" shall have the meaning set forth in the
Registration Rights Agreement.
"PURCHASE AMOUNT" has the meaning set forth in the definition of "Offer
to Purchase" above.
"PURCHASE DATE" has the meaning set forth in the definition of "Offer to
Purchase" above.
"PURCHASE PRICE" has the meaning set forth in the definition of "Offer to
Purchase" above.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"RECEIVABLES AND RELATED ASSETS" means accounts receivable and
instruments, chattel paper, obligations, general intangibles and other similar
assets, in each case, relating to such receivables, including interests in
merchandise or goods, the sale or lease of which gave rise to such receivable,
15
21
related contractual rights, guarantees, insurance proceeds, collections, other
related assets and proceeds of all of the foregoing.
"REDEMPTION DATE," when used with respect to any Note to be redeemed,
means the date fixed for such redemption pursuant to this Indenture.
"REDEMPTION PRICE," when used with respect to any Note to be redeemed,
means the price fixed for such redemption pursuant to this Indenture as set
forth in the form of Note annexed as Exhibit A.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated the date hereof among the Company, the Subsidiary Guarantors,
X.X. Xxxxxx Securities Inc. and Dresdner Kleinwort Xxxxxx North America LLC.
"REGULATION S" means Regulation S promulgated under the Securities Act
(including any successor regulation thereto) as it may be amended from time to
time.
"RELATED PERSON" of any Person means any other Person directly or
indirectly owning (a) 5% or more of the outstanding Common Stock of such person
(or, in the case of a Person that is not a corporation, 5% or more of the equity
interest in such Person) or (b) 5% or more of the combined voting power of the
Voting Stock of such Person.
"RESTRICTED CERTIFICATED NOTE" means a Certificated Note containing a
Securities Act Legend.
"RESTRICTED SUBSIDIARY" means (i) any Subsidiary of the Company other than
an Unrestricted Subsidiary and (ii) any successor to a substantial portion of
the assets of any Subsidiary other than an Unrestricted Subsidiary.
"RULE 144" shall have the meaning set forth in the Registration Rights
Agreement.
"RULE 144A" shall have the meaning set forth in the Registration Rights
Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission thereunder.
16
22
"SECURITIZATION SUBSIDIARY" means a Wholly Owned Subsidiary of the
Company, which is established for the limited purpose of acquiring and financing
Receivables and Related Assets and engaging in activities ancillary thereto.
"SHELF REGISTRATION STATEMENT" shall have the meaning set forth in the
Registration Rights Agreement.
"STATED MATURITY," when used with respect to any Note or any installment
of interest thereon, means the date specified in such Note as the fixed date on
which the principal of such Note or such installment of interest is due and
payable.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness (whether outstanding on
the date hereof or hereafter incurred) which is by its terms expressly
subordinate or junior in right of payment to the Notes.
"SUBSIDIARY" of any Person means (i) a corporation more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person and
one or more other Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and voting power relating to the
policies, management and affairs thereof.
"SUBSIDIARY GUARANTEE" means the guarantee of the Notes by each Subsidiary
Guarantor under this Indenture.
"SUBSIDIARY GUARANTOR" means each Restricted Subsidiary existing as of the
Issue Date and listed on Schedule I hereto and each Restricted Subsidiary, if
any, of the Company formed or acquired after the Issue Date, which pursuant to
the terms of this Indenture executes a supplement to this Indenture as a
guarantor.
"TANGIBLE ASSETS" means the total amount of assets of the Company and the
Restricted Subsidiaries after deducting therefrom all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangible assets, all as set forth on the most recent balance sheet of the
Company and its Subsidiaries and computed in accordance with GAAP.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code SectionSection
77aaa- 77bbbb) as in effect on the date of this Indenture, except as provided in
Section 9.03
17
23
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"TRUST OFFICER" means any officer within the corporate trust department
(or any successor group of the Trustee) including any vice president, assistant
vice president, assistant secretary or any other officer or assistant officer of
the Trustee customarily performing functions similar to those performed by the
persons who at that time shall be such officers, and also means, with respect to
a particular corporate trust matter, any other officer to whom such trust matter
is referred because of his knowledge of and familiarity with the particular
subject.
"UNRESTRICTED GLOBAL NOTES" means one or more Global Notes that do not and
are not required to bear the Securities Act Legend.
"UNRESTRICTED NOTES" means the Notes that do not and are not required to
bear the Securities Act Legend.
"UNRESTRICTED CERTIFICATED NOTES" means one or more Certificated Notes
that do not and are not required to bear the Securities Act Legend.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary of the Company formed
or acquired after the Issue Date that at the time of determination is designated
an Unrestricted Subsidiary by the Board of Directors in the manner provided
below and (ii) any Subsidiary of an Unrestricted Subsidiary. Any such
designation by the Board of Directors will be evidenced to the Trustee by
promptly filing with the Trustee a copy of the board resolution giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the following provisions. The Board of Directors of the Company
may not designate any Subsidiary of the Company to be an Unrestricted Subsidiary
if, after such designation, (a) the Company or any other Restricted Subsidiary
(i) provides credit support for, or a guarantee of, any Indebtedness of such
Subsidiary (including any undertaking, agreement or instrument evidencing such
Indebtedness) or (ii) is directly or indirectly liable for any Indebtedness of
such Subsidiary, (b) a default with respect to any Indebtedness of such
Subsidiary (including any right which the holders thereof may have to take
enforcement action against such Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Indebtedness of the Company or any
Restricted Subsidiary to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its final scheduled
maturity or (c) such Subsidiary owns any Capital Stock of, or owns or holds any
Lien on any
18
24
property of, any Restricted Subsidiary which is not a Subsidiary of the
Subsidiary to be so designated.
"VOTING STOCK" of any Person means the Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Restricted Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such Person.
SECTION 1.02. Other Definitions.
TERM DEFINED IN SECTION
"Bankruptcy Law" 6.01
"Certificated Note" 2.01(b)
"Change of Control" 4.14
"Custodian" 6.01
"Event of Default" 6.01
"Funding Subsidiary Guarantor" 10.05
"Paying Agent" 2.03
"Registrar" 2.03
"Regulation S Global Note" 2.01(a)
"Required Filing Dates" 4.12
"Restricted Global Note" 2.01(a)
"Securities Act Legend" 2.06(f)
"United States Government Obligations" 8.01(b)
SECTION 1.03. Incorporation by Reference of Trust Indenture Act .
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the Securities and Exchange Commission.
"INDENTURE SECURITIES" means the Notes.
19
25
"INDENTURE SECURITY HOLDER" means a Holder or Noteholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles
in effect from time to time, and any other reference in this Indenture to
"generally accepted accounting principles" refers to GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the
plural include the singular;
(v) provisions apply to successive events and transactions; and
(vi) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating.
(a) GLOBAL NOTES. Notes offered and sold to QIBs in reliance on Rule 144A
shall be issued initially in the form of one or more permanent Global Notes in
registered from substantially in the form of Exhibit A hereto in the name of
Cede & Co. as nominee of DTC, duly executed by the Company and
20
26
authenticated by the Trustee as hereinafter provided and deposited with the
Trustee, as custodian for DTC. Such Note or Notes shall be referred to herein as
the "RESTRICTED GLOBAL NOTE." Notes offered and sold in reliance on Regulation S
shall be issued initially in the form of one or more permanent Global Notes in
registered form substantially in the form of Exhibit A hereto in the name of
Cede & Co. as nominee of DTC, duly executed by the Company and authenticated by
the Trustee as hereinafter provided and deposited with the Trustee, as custodian
for DTC. Such Note or Notes shall be referred to herein as the "REGULATION S
GLOBAL NOTE." Unrestricted Global Notes shall be issued initially in accordance
with Sections 2.06(b) (iv), 2.06(c) (ii) and 2.06(e) in the name of Cede & Co.
as nominee of DTC, duly executed by the Company and authenticated by the Trustee
as hereinafter provided. The aggregate principal amount of each of the Global
Notes may from time to time be increased or decreased by adjustments made on the
records of the Trustee as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall be
specified therein and each shall provide that it shall represent the aggregate
principal amount of outstanding Notes from time to time endorsed thereon and
that the aggregate principal amount of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions and transfers of interests therein in accordance with the terms of
this Indenture. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the principal amount of outstanding Notes represented
thereby shall be made by the Trustee in accordance with instructions given by
the Holder thereof as required by Section 2.06 hereof.
Upon the issuance of the Global Note to DTC, DTC shall credit, on its
internal book-entry registration and transfer system, its Participant's accounts
with the respective interests owned by such Participants. Interests in the
Global Notes shall be limited to Participants, including Euroclear and Cedel,
and indirect participants.
The Participants shall not have any rights either under this Indenture or
under any Global Note with respect to such Global Note held on their behalf by
DTC, and DTC may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Note for the purpose
of receiving payment of or on account of the principal of and, subject to the
provisions of this Indenture, interest and Additional Interest, if any, on the
Global Notes and for all other purposes. 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 DTC or impair, as between DTC and its Participants,
21
27
the operation of customary practices of DTC governing the exercise of the rights
of an owner of a beneficial interest in any Global Note.
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel shall be applicable
to interests in the Regulation S Global Note that are held by the Participants
through Euroclear or Cedel.
(b) CERTIFICATED NOTES. Notes offered and sold to Institutional Accredited
Investors who are not also QIBs shall be issued initially substantially in the
form of Exhibit A hereto, in certificated form and issued in the names of the
purchasers thereof (or their nominees), duly executed by the Company and
authenticated by the Trustee as hereinafter provided. Such Notes, together with
any Notes subsequently issued, whether pursuant to the terms of Section 2.06
hereof or otherwise, that are not Global Notes, shall be referred to herein as
the "CERTIFICATED NOTES."
(c) NOTES. The provisions of the form of Notes contained in Exhibit A
hereto are incorporated herein by reference. The Notes and the Trustee's
Certificates of Authentication shall be substantially in the form of Exhibit A
hereto. The Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage. The Company shall approve the form of the Notes
and any notation, legend or endorsement (including notations relating to the
Subsidiary Guarantee) on them. If required, the Notes may bear the appropriate
legend regarding original issue discount for federal income tax purposes. Each
Note shall be dated the date of its authentication. The terms and provisions
contained in the Notes shall constitute, and are hereby expressly made, a part
of this Indenture.
SECTION 2.02. Execution and Authentication. Two Officers of the Company
shall sign the Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at
the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized officer of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall authenticate (i) Initial Notes for original issue in the
aggregate principal amount of $100,000,000 in one series, (ii) Private Exchange
Notes from time to time only in exchange for a like principal amount of Initial
Notes and (iii) Unrestricted Notes from time to time only in exchange for a like
22
28
principal amount of Initial Notes upon a written order signed by an Officer of
the Company. The order shall be based upon a Board Resolution of the Company to
similar effect filed with the Trustee and shall specify the amount of Notes to
be authenticated and the date on which the original issue of Notes is to be
authenticated. The order shall also provide instructions concerning
registration, amounts for each Holder and delivery. The aggregate principal
amount of Notes outstanding at any time may not exceed $100,000,000 except as
provided in Section 2.07. The Notes shall be issued only in registered form,
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 2.03. Registrar and Paying Agent. The Company shall maintain an
office or agency where Notes may be presented for registration of transfer or
for exchange ("REGISTRAR") and an office or agency where Notes may be presented
for payment ("PAYING AGENT"). The Company may have one or more co-Registrars and
one or more additional paying agents. The term "Paying Agent" includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent and shall, if required,
incorporate the provisions of the TIA. The Company shall notify the Trustee of
the name and address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation in accordance with the provisions of Section 7.07.
The Company initially appoints the Trustee as Registrar and Paying Agent.
The Company shall give written notice to the Trustee in the event that the
Company decides to act as Registrar. None of the Company, its Subsidiaries or
any of their Affiliates may act as Paying Agent.
SECTION 2.04. Paying Agent to Hold Money in Trust. The Company shall
require each Paying Agent to agree in writing to hold in trust for the benefit
of Noteholders or the Trustee all money held by the Paying Agent for the payment
of principal of or interest on the Notes (whether such money has been paid to it
by the Company or any other obligor on the Notes), and the Company and the
Paying Agent shall each notify the Trustee of any default by the Company (or any
other obligor on the Notes) in making any such payment. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and
account for any funds disbursed and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon making such payment the Paying Agent shall
have no further liability for the money delivered to the Trustee.
23
29
SECTION 2.05. Noteholder Lists. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Noteholders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least five Business Days before each
Interest Payment Date and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Noteholders.
SECTION 2.06. Transfer and Exchange.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. Transfers of a Global Note
shall be limited to transfer of such Global Note in whole, but not in part to
DTC, its successors or their respective nominees by delivery. Global Notes will
be exchanged by the Company for Certificated Notes only (i) if DTC notifies the
Company that it is unwilling or unable to continue to act as depositary with
respect to the Global Notes or ceases to be a clearing agency registered under
the Exchange Act and, in either case, a successor depositary registered as a
clearing agency under the Exchange Act is not appointed by the Company within 90
days or (ii) if the owner of an interest in the Global Notes requests such
Certificated Notes, following an Event of Default under the Indenture, in a
writing delivered through DTC to the Trustee.
Upon the occurrence of any of the events specified in the previous
paragraph, Certificated Notes shall be issued in such names as DTC shall
instruct the Trustee and the Trustee shall cause the aggregate principal amount
of the applicable Global Note to be reduced accordingly and direct DTC to make a
corresponding reduction in its book-entry system. The Company shall execute and
the Trustee shall authenticate and deliver to the Person designated in the
instructions a Certificated Note in the appropriate principal amount. The
Trustee shall deliver such Certificated Notes to the Persons in whose names such
Notes are so registered. Certificated Notes issued in exchange for an Initial
Global Note pursuant to this Section 2.06(a) shall bear the Securities Act
Legend and shall be subject to all restrictions on transfer contained therein.
Global Notes may also be exchanged or replaced, in whole or in part, as provided
in Sections 2.07 and 2.10. Every Note authenticated and delivered in exchange
for, or in lieu of, a Global Note or any portion thereof, pursuant to Section
2.07 or 2.10, shall be authenticated and delivered in the form of, and shall be,
a Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.06(a).
(b) TRANSFER AND EXCHANGE OF INTERESTS IN GLOBAL NOTES. The transfer and
exchange of interests in Global Notes shall be effected through DTC, in
accordance with this Indenture and the procedures of DTC therefor. Interests in
24
30
Initial Global Notes shall be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. The Trustee
shall have no obligation to ascertain DTC's compliance with any such
restrictions on transfer. Transfers of interests in Global Notes shall also
require compliance with subparagraph (i) below, as well as one or more of the
other following subparagraphs as applicable:
(i) All Transfers and Exchanges of Interests in Global Notes. In
connection with all transfers and exchanges of interests in Global Notes
(other than transfers of Interests in a Global Note to Persons who take
delivery thereof in the form of an interest in the same Global Note), the
transferor of such interest must deliver to the Registrar (1) instructions
given in accordance with the Applicable Procedures from a Participant or
an indirect participant directing DTC to credit or cause to be credited an
interest in the specified Global Note in an amount equal to the interest
to be transferred or exchanged, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase and (3) instructions
given by the Holder of the Global Note to effect the transfer referred to
in (1) and (2) above.
(ii) Transfer of Interests in the Same Initial Global Note.
Interests in any Initial Global Note may be transferred to Persons who
take delivery thereof in the form of an interest in the same Initial
Global Note in accordance with the transfer restrictions set forth in
Section 2.06(f) hereof.
(iii) Transfer of Interests to Another Initial Global Note.
Interests in any Initial Global Note may be transferred to Persons who
take delivery thereof in the form of an interest in another Initial Global
Note if the Registrar receives the following:
(A) if the transferee will take delivery in the form of an
interest in the Restricted Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item 1 thereof; or
(B) if the transferee will take delivery in the form of an
interest in the Regulation S Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item 2 thereof.
25
31
(iv) Transfer and Exchange of Interests in Initial Global Note for
Interests in an Unrestricted Global Note. Interests in any Initial Global
Note may be exchanged by the holder thereof for an interest in the
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of an interest in the Unrestricted Global Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
(C) the Registrar receives the following:
(1) if the Holder of such an interest in an Initial
Global Note proposes to exchange it for an interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item 1(a) thereof;
(2) if the Holder of such an interest in an Initial
Global Note proposes to transfer it to a Person who shall take
delivery thereof in the form of an interest in an Unrestricted
Global Note, a certificate in the form of Exhibit B hereto,
including the certification in item 3 thereof; and
(3) in each such case set forth in this paragraph (C),
an Opinion of Counsel in form reasonably acceptable to the
Company, to the effect that such exchange or transfer is in
compliance with the Securities Act and, that the restrictions
on transfer contained herein and in Section 2.06(f) hereof are
not required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to this paragraph (iv) at a time when
an Unrestricted Global Note has not yet been issued, the Company shall issue
and, upon receipt of an authentication order in accordance with Section 2.02,
the Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate
26
32
principal amount equal to the principal amount of interests in the Initial
Global Note transferred pursuant to this paragraph (iv).
(v) Notation by the Trustee of Transfer of Interests Among Global
Notes. Upon satisfaction of the requirements for transfer of interests in
Global Notes pursuant to clauses (iii) or (iv) above, the Trustee, as
Registrar, shall reduce or cause to be reduced the aggregate principal
amount of the relevant Global Note from which the interests are being
transferred, and increase or cause to be increased the aggregate principal
amount of the Global Note to which the interests are being transferred, in
each case, by the principal amount so transferred and shall direct DTC to
make corresponding adjustments in its book-entry system. No transfer of
interests of a Global Note shall be effected until, and any transferee
pursuant thereto shall succeed to the rights of a holder of such interests
only when, the Registrar has made appropriate adjustments to the
applicable Global Note in accordance with this paragraph.
(c) TRANSFER OR EXCHANGE OF RESTRICTED CERTIFICATED NOTES FOR INTERESTS IN
A GLOBAL NOTE.
(i) If any holder of Restricted Certificated Notes proposes to
exchange such Notes for an interest in a Global Note or to transfer such
Certificated Notes to a Person who takes delivery thereof in the form of
an interest in a Global Note, then, upon receipt by the Registrar of the
following documentation (all of which may be submitted by facsimile):
(A) if the holder of such Restricted Certificated Notes
proposes to exchange such Notes for an interest in an Initial Global
Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item 2 thereof;
(B) if such Restricted Certificated Notes are being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item 1 thereof;
(C) if such Restricted Certificated Notes are being
transferred to a Non-U.S. Person (as defined in Regulation S) in an
offshore transaction in accordance with Rule 904 under the
Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item 2 thereof,
27
33
the Trustee shall cancel the Restricted Certificated Notes, increase or
cause to be increased the aggregate principal amount of, in the case of clause
(B) above, the Restricted Global Note, and in the case of clause (C) above, the
Regulation S Global Note and direct DTC to make a corresponding increase in its
book-entry system.
(ii) A holder of Restricted Certificated Notes may exchange such
Notes for an interest in the Unrestricted Global Note or transfer such
Restricted Certificated Notes to a Person who takes delivery thereof in
the form of an interest in the Unrestricted Global Note only:
(A) if such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) upon receipt by the Registrar of the following
documentation (all of which may be submitted by facsimile):
(1) if the Holder of such Restricted Certificated Notes
proposes to exchange such Notes for an interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item 1(b) thereof;
(2) if the Holder of such Restricted Certificated Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an interest in the
Unrestricted Global Note, a certificate in the form of Exhibit
B hereto, including the certifications in item 3 thereof; and
(3) in each such case set forth in this paragraph (C),
an Opinion of Counsel in form reasonably acceptable to the
Company, to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions
on transfer contained herein and in Section 2.06(f) hereof are
not required in order to maintain compliance with the
Securities Act.
28
34
If any such transfer is effected pursuant to paragraph (ii) above at a
time when an Unrestricted Global Note has not yet been issued, the Company shall
issue and, upon receipt of an authentication order in accordance with Section
2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of Restricted
Certificated Notes transferred pursuant to paragraph (ii) above.
(d) TRANSFER AND EXCHANGE OF CERTIFICATED NOTES.
(i) Transfer of a Certificated Note to Another Certificated Note.
Following the occurrence of one or more of the events specified in Section
2.06(a), a Certificated Note may be transferred to Persons who take
delivery thereof in the form of another Certificated Note if the Registrar
receives the following:
(A) if the transfer is being effected pursuant to and in
accordance with Rule 144A, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item 1 thereof; or
(B) if the transfer is being effected pursuant to and in
accordance with Regulation S, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item 2 thereof.
(ii) Transfer and Exchange of Restricted Certificated Note for
Unrestricted Certificated Note. Following the occurrence of one or more of
the events specified in Section 2.06(a), a Restricted Certificated Note
may be exchanged by the Holder thereof for an Unrestricted Certificated
Note or transferred to a Person who takes delivery thereof in the form of
an Unrestricted Certificated Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
29
35
(C) the Registrar receives a certificate from such holder in
the form of Exhibit B hereto, including the certifications in item 4
thereof in the case of a transfer, or in the form of Exhibit C
hereto, including the certifications in item 1(c) thereof in the
case of an exchange, and, in each case, an Opinion of Counsel in
form reasonably acceptable to the Company, to the effect that such
exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in Section
2.06(f) hereof are not required in order to maintain compliance with
the Securities Act.
(iii) Exchange of Certificated Notes. When Restricted Certificated
Notes are presented by a Holder to the Registrar with a request to
register the exchange of such Restricted Certificated Notes for an equal
principal amount of Restricted Certificated Notes of other authorized
denominations, the Registrar shall make the exchange as requested only if
the Restricted Certificated Notes are endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar duly executed
by such Holder or by his attorney duly authorized in writing and shall be
issued only in the name of such Holder or its nominee. The Restricted
Certificated Notes issued in exchange shall bear the Securities Act Legend
and shall be subject to all restrictions on transfer contained herein in
each case to the same extent as the Restricted Certificated Notes so
exchanged.
(iv) Return of Certificated Notes. In the event of a transfer
pursuant to clauses (i) or (ii) above and the Holder thereof has delivered
certificates representing an aggregate principal amount of Notes in excess
of that to be transferred, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Note without service
charge, a new Certificated Note or Notes of any authorized denomination
requested by the Holder, in an aggregate principal amount equal to the
portion of the Note not so transferred.
(e) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer (as defined
in the Registration Rights Agreement) in accordance with the Registration Rights
Agreement, the Company shall issue and, upon receipt of an authentication order
in accordance with Section 2.02, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the interests in the Initial Global Notes and Restricted
Certificated Notes tendered for acceptance by persons participating therein.
Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Initial Global Notes to be reduced
accordingly and direct DTC to
30
36
make a corresponding reduction in its book-entry system. The Trustee shall
cancel any Restricted Certificated Notes in accordance with Section 2.11 hereof.
In the case that one or more of the events specified in Section 2.06(a)
have occurred, upon the occurrence of such Exchange Offer, the Company shall
issue and, upon receipt of an authentication order in accordance with Section
2.02, the Trustee shall authenticate Unrestricted Certificated Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Certificated Notes tendered for acceptance by persons participating therein.
(f) LEGENDS.
Each Initial Global Note and each Restricted Certificated Note shall bear
the legend (the "SECURITIES ACT LEGEND") in substantially the following form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT
WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO COLORADO PRIME CORPORATION ("CPC") OR
ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES OF LESS THAN
$250,000, AN OPINION OF COUNSEL ACCEPTABLE TO CPC THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH
31
37
RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE NOTE,
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING
RESTRICTIONS."
(g) GLOBAL NOTE LEGEND. Each Global Note shall bear a legend in
substantially the following form:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO A NOMINEE OF DTC, OR
BY ANY SUCH NOMINEE OF DTC, OR BY DTC TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFER 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
32
38
AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.06 OF THE
INDENTURE.
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as all
interests in the Global Notes have been exchanged for Certificated Notes, all
Global Notes shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such cancellation, if
any interest in a Global Note is exchanged for an interest in another Global
Note or for Certificated Notes, the principal amount of Notes represented by
such Global Note shall be reduced accordingly and an endorsement shall be made
on such Global Note, by the Trustee to reflect such reduction.
(i) GENERAL PROVISIONS RELATING TO ALL TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and
Certificated Notes upon a written order signed by an Officer of the
Company or at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any stamp or transfer tax or similar
governmental charge payable in connection therewith (other than any such
stamp or transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.05, 4.14 and 9.05
hereof).
(iii) All Global Notes and Certificated Notes issued upon any
registration of transfer or exchange of Global Notes or Certificated Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global
Notes or Certificated Notes surrendered upon such registration of transfer
or exchange.
(iv) The Company shall not be required (A) to issue, to register the
transfer of or to exchange Notes during a period beginning at the opening
of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business
on the day of selection, (B) to register the transfer of or to exchange
any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part or (C) to register
33
39
the transfer of or to exchange a Note between a record date and the next
succeeding Interest Payment Date.
(v) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by noticed to the contrary.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder of a
Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are met. An indemnify bond in an amount sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee or
any Agent from any loss which any of them may suffer if a Note is replaced shall
be required by the Trustee or the Company. The Company and the Trustee each may
charge such Holder for its expenses in replacing such Note.
Every replacement Note is an additional obligation of the Company.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all Notes that have been authenticated
by the Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section as not outstanding. A Note does
not cease to be outstanding because the Company or one of its Affiliates holds
the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the Paying Agent holds on a redemption date or Maturity Date money
sufficient to pay the principal of, and interest on Notes payable on that date,
then on and after that date such Notes cease to be outstanding and interest on
them ceases to accrue.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, any Subsidiary or any of their respective Affiliates shall be
disregarded, except that for the purposes of determining whether the Trustee
shall
34
40
be protected in relying on any such direction, waiver or consent, only Notes
that the Trustee actually knows are so owned shall be so disregarded.
The Trustee may require an Officers' Certificate listing securities owned
by the Company, any Subsidiary or any of their respective Affiliates.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes. Until such exchange, temporary Notes shall be
entitled to the same rights, benefits and privileges as definitive Notes.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for transfer, exchange or payment. The Trustee and no one
else shall cancel all Notes surrendered for transfer, exchange, payment or
cancellation. The Company may not issue new Notes to replace, or reissue or
resell Notes which the Company has redeemed, paid, purchased on the open market
or otherwise, or otherwise acquired or have been delivered to the Trustee for
cancellation. The Trustee (subject to the record-retention requirements of the
Exchange Act) may, but shall not be required to destroy cancelled Notes.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest, plus any interest payable on the defaulted interest
pursuant to Section 4.01 hereof, to the persons who are Noteholders on a
subsequent special record date, and such term, as used in this Section 2.12 with
respect to the payment of any defaulted interest, shall mean the fifteenth day
next preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days before
such special record date, the Company shall mail to each Noteholder and to the
Trustee a notice that states such special record date, the payment date and the
amount of defaulted interest to be paid.
SECTION 2.13. CUSIP or CINS Number.
The Company in issuing the Notes may use a "CUSIP" or "CINS" number, and
if so, such CUSIP or CINS number shall be included in notices of redemption or
exchange as a convenience to Holders; provided that any such
35
41
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP or CINS number printed in the notice or on the Notes, and
that reliance may be placed only on the other identification numbers printed on
the Notes. The Company will promptly notify the Trustee of any change in the
CUSIP or CINS number.
SECTION 2.14. Payments of Interest.
(a) The Holder of a Certificated Note at the close of business on the
regular record date with respect to any Interest Payment Date shall be entitled
to receive the interest and Additional Interest, if any, payable on such
Interest Payment Date notwithstanding any transfer or exchange of such
Certificated Note subsequent to the regular record date and prior to such
Interest Payment Date, except if and to the extent the Company shall default in
the payment of the interest or Additional Interest due on such Interest Payment
Date, in which case such defaulted interest and Additional Interest, if any,
shall be paid in accordance with Section 2.12; provided that, in the event of an
exchange of a Certificated Note for a beneficial interest in any Global Note
subsequent to a regular record date or any special record date and prior to or
on the related Interest Payment Date or other payment date under Section 2.12,
any payment of the interest and Additional Interest payable on such payment date
with respect to any such Certificated Note shall be made to the Person in whose
name such Certificated Note was registered on such record date. Payments of
interest on the Global Notes will be made to the Holder of the Global Note on
each Interest Payment Date; provided that, in the event of an exchange of all or
a portion of a Global Note for Certificated Notes subsequent to the regular
record date or any special record date and prior to or on the related Interest
Payment Date or other payment date under Section 2.12 any payment of interest or
Additional Interest payable on such Interest Payment Date or other payment date
with respect to the Certificated Notes shall be made to the Holder of the Global
Note.
(b) The Trustee shall pay interest and Additional Interest, if any, to
DTC, with respect to any Global Note held by DTC, on the applicable Interest
Payment Date in accordance with instructions received from DTC at least five
Business Days before the applicable Interest Payment Date.
SECTION 2.15. Ranking. The Notes shall rank pari passu in right of payment
with any other senior unsecured Indebtedness of the Company.
36
42
ARTICLE 3
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company wants to redeem Notes pursuant to paragraph (e) of the
Notes at the applicable redemption price set forth thereon, it shall notify the
Trustee in writing of the redemption date and the principal amount of Notes to
be redeemed.
The Company shall give the notice provided for in this Section 3.01 at
least 45 days before the redemption date (unless a shorter notice shall be
agreed to by the Trustee in writing) but not more than 60 days before the
redemption date, together with an Officers' Certificate stating that such
redemption will comply with the conditions contained herein.
SECTION 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed pursuant to paragraph (e)
thereof, the Trustee shall select the Notes to be redeemed in accordance with
the rules of any national securities exchange on which the Notes may be listed
or, if the Notes are not so listed, pro rata or by lot or in such other manner
as the Trustee shall deem appropriate and fair. The Trustee shall make the
selection from the Notes then outstanding, subject to redemption and not
previously called for redemption. The Trustee may select for redemption portions
(equal to $1,000 or any integral multiple thereof) of the principal of Notes
that have denominations larger than $1,000. Provisions of this Indenture that
apply to Notes called for redemption also apply to portions of Notes called for
redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption by first class mail to each Holder
whose Notes are to be redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the CUSIP or CINS number(s);
(d) the name and address of the Paying Agent to which the Notes are to
be surrendered for redemption;
37
43
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making the redemption payment,
interest on Notes called for redemption ceases to accrue on and after
the redemption date and the only remaining right of the Holders is to
receive payment of the redemption price upon surrender to the Paying
Agent; and
(g) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption
date, upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion thereof will be issued.
At the Company's request, the Trustee shall give the notice of redemption
on behalf of the Company, in the Company's name and at the Company's expense.
SECTION 3.04. Effect of Notice of Redemption.
Once a notice of redemption is mailed, Notes called for redemption become
due and payable on the redemption date and at the redemption price. Upon
surrender to the Paying Agent, such Notes shall be paid at the redemption price,
plus accrued interest thereon to the redemption date, but interest installments
whose maturity is on or prior to such redemption date shall be payable to the
Holders of record at the close of business on the relevant record dates referred
to in the Notes. The Trustee shall not be required to (i) issue, authenticate,
register the transfer of or exchange any Note during a period beginning 15 days
before the date a notice of redemption is mailed and ending at the close of
business on the date the redemption notice is mailed, or (ii) register the
transfer or exchange of any Note so selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
SECTION 3.05. Deposit of Redemption Price.
At least one Business Day before the redemption date, the Company shall
deposit with the Paying Agent money sufficient to pay the redemption price of
and accrued interest on all Notes to be redeemed on that date other than Notes
or portions thereof called for redemption on that date which have been delivered
by the Company to the Trustee for cancellation.
SECTION 3.06. Notes Redeemed in Part.
38
44
Upon surrender of a Note that is redeemed in part, the Trustee shall
authenticate for the Holder a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the Notes in the
manner provided in the Notes. An installment of principal or interest shall be
considered paid on the date due if the Trustee or Paying Agent holds on that
date money designated for and sufficient to pay the installment in full and is
not prohibited from paying such money to the Holders of the Notes pursuant to
the terms of this Indenture.
The Company shall pay interest on overdue principal at the same rate per
annum borne by the Notes. The Company shall pay interest on overdue installments
of interest at the same rate per annum borne by the Notes, to the extent lawful.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Notes may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York, for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
39
45
SECTION 4.03. Limitation on Transactions with Affiliates and Related
Persons.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into directly or indirectly any transaction with any of
their respective Affiliates or Related Persons (other than the Company or a
Restricted Subsidiary of the Company), including, without limitation, the
purchase, sale, lease or exchange of property, the rendering of any service, or
the making of any guarantee, loan, advance or Investment, either directly or
indirectly, involving aggregate consideration in excess of $1,000,000 unless a
majority of the disinterested directors of the Board of Directors of the Company
determines, in its good faith judgment evidenced by a resolution of such Board
of Directors filed with the Trustee, that the terms of such transaction are at
least as favorable as the terms that could be obtained by the Company or such
Restricted Subsidiary, as the case may be, in a comparable transaction made on
an arms-length basis between unaffiliated parties; provided, however, that if
the aggregate consideration is in excess of $5,000,000 the Company shall also
obtain, prior to the consummation of the transaction, the favorable opinion as
to the fairness of the transaction to the Company or such Restricted Subsidiary,
from a financial point of view from an independent financial advisor. The
provisions of this covenant shall not apply to (i) transactions permitted by
Section 4.06, (ii) reasonable fees and compensation paid to, and indemnity
provided on behalf of , officers, directors and employees of the Company and its
Restricted Subsidiaries as determined in good faith by the Board of Directors of
the Company, (iii) loans to employees in the ordinary course of business which
are approved in good faith by the Board of Directors of the Company and (iv)
transactions in connection with a Permitted Receivables Financing.
SECTION 4.04. Limitation on Indebtedness.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, Incur any Indebtedness (including
Acquired Indebtedness), except: (i) Indebtedness of the Company or any of its
Restricted Subsidiaries, if immediately after giving effect to the Incurrence of
such Indebtedness and the receipt and application of the net proceeds thereof,
the Consolidated Fixed Charge Coverage Ratio of the Company for the four full
fiscal quarters for which quarterly or annual financial statements are available
next preceding the Incurrence of such Indebtedness, calculated on a pro forma
basis as if such Indebtedness had been Incurred, and such net proceeds received
and applied, on the first day of such four full fiscal quarters, would be
greater than 2.0 to 1.00; (ii) Indebtedness of the Company and its Restricted
Subsidiaries, Incurred under the Credit Agreement in an amount not to exceed
$50,000,000; (iii) Indebtedness owed by the Company to any direct or indirect
Wholly Owned
40
46
Subsidiary of the Company; provided, however, upon either (I) the transfer or
other disposition by such direct or indirect Wholly Owned Subsidiary or the
Company of any Indebtedness so permitted under this clause (iii) to a Person
other than the Company or another direct or indirect Wholly Owned Subsidiary of
the Company or (II) the issuance (other than directors' qualifying shares),
sale, transfer or other disposition of shares of Capital Stock or other
ownership interests (including by consolidation or merger) of such direct or
indirect Wholly Owned Subsidiary to a Person other than the Company or another
such Wholly Owned Subsidiary of the Company, the provisions of this clause (iii)
shall no longer be applicable to such Indebtedness and such Indebtedness shall
be deemed to have been Incurred at the time of any such issuance, sale, transfer
or other disposition, as the case may be; (iv) Indebtedness of the Company or
any Restricted Subsidiary under any interest rate agreement to the extent
entered into to hedge any other Indebtedness permitted under this Indenture
(including the Notes), (v) Indebtedness Incurred to renew, extend, refinance or
refund (collectively for purposes of this clause (v) to "refund") any
Indebtedness outstanding on the Issue Date, any Indebtedness Incurred under the
prior clause (i) above or the Notes and the Subsidiary Guarantee; provided,
however, that (I) such Indebtedness does not exceed the principal amount (or
accrual amount, if less) of Indebtedness so refunded (plus unused commitments
under revolving credit facilities) plus the amount of any premium required to be
paid in connection with such refunding pursuant to the terms of the Indebtedness
refunded or the amount of any premium reasonably determined by the issuer of
such Indebtedness as necessary to accomplish such refunding by means of a tender
offer, exchange offer, or privately negotiated repurchase, plus the expenses of
such issuer reasonably incurred in connection therewith and (II) (A) in the case
of any refunding of Indebtedness that is pari passu with the Notes, such
refunding Indebtedness is made pari passu with or subordinate in right of
payment to the Notes, and, in the case of any refunding of Indebtedness that is
subordinate in right of payment to the Notes, such refunding Indebtedness is
subordinate in right of payment to the Notes on terms no less favorable to the
Holders of the Notes than those contained in the Indebtedness being refunded,
(B) in either case, the refunding Indebtedness by its terms, or by the terms of
any agreement or instrument pursuant to which such Indebtedness is issued, does
not have an Average Life that is less than the remaining Average Life of the
Indebtedness being refunded and does not permit redemption or other retirement
(including pursuant to any required offer to purchase to be made by the Company
or a Restricted Subsidiary of the Company) of such Indebtedness at the option of
the holder thereof prior to the final stated maturity of the Indebtedness being
refunded, other than a redemption or other retirement at the option of the
holder of such Indebtedness (including pursuant to a required Offer to Purchase
made by the Company or a Restricted Subsidiary of the Company) which is
conditioned
41
47
upon a change of control of the Company pursuant to provisions substantially
similar to those contained in Section 4.14 and (C) any Indebtedness Incurred to
refund any Indebtedness is Incurred by the obligor on the Indebtedness being
refunded or by the Company, (vi) Indebtedness of the Company or its Subsidiaries
not otherwise permitted to be Incurred pursuant to clauses (i) through (v) above
which, together with any other outstanding Indebtedness Incurred pursuant to
this clause (vi), has an aggregate principal amount not in excess of $5,000,000
at any time outstanding, which Indebtedness may be incurred under the Credit
Agreement or otherwise; (vii) Indebtedness of the Company under the Notes
incurred in accordance with this Indenture; (viii) Indebtedness outstanding on
the Issue Date; (ix) Indebtedness incurred by the Company or any of its
Restricted Subsidiaries constituting reimbursement obligations with respect to
letters of credit issued in the ordinary course of business, including, without
limitation, letters of credit in respect of workers' compensation claims or
self-insurance, or other Indebtedness with respect to reimbursement type
obligations regarding workers' compensation claims or self-insurance, and
obligations in respect of performance and surety bonds and completion guarantees
provided by the Company or any Restricted Subsidiary of the Company in the
ordinary course of business; (x) guarantees by the Company or its Restricted
Subsidiaries of Indebtedness otherwise permitted to be Incurred hereunder; (xi)
Indebtedness pursuant to a Permitted Receivables Financing, provided, however,
that Indebtedness Incurred under such Permitted Receivables Financing and
Indebtedness Incurred pursuant to clause (ii) above shall not exceed $50,000,000
in the aggregate at any time outstanding; and (xii) Indebtedness (including
Capitalized Lease Obligations) Incurred by the Company or any of its Restricted
Subsidiaries to finance the purchase, lease or improvement of property (real or
personal) or equipment (whether through the direct purchase of assets or the
Capital Stock of any Person owning such assets) in an aggregate principal amount
outstanding not to exceed 5.0% of Tangible Assets at any time (which amount may,
but need not, be Incurred in whole or in part under the Credit Agreement)
provided that the principal amount of such Indebtedness does not exceed the fair
market value of such property or equipment at the time of Incurrence thereof.
SECTION 4.05. Limitation on Certain Asset Dispositions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, make one or more Asset Dispositions
unless: (i) the Company or such Restricted Subsidiary, as the case may be,
receives consideration for such Asset Disposition at least equal to the fair
market value of the assets sold or disposed of as determined by the Board of
Directors of the Company in good faith and evidenced by a resolution of such
Board of Directors filed with the Trustee; (ii) except in the case of a
Permitted Asset Swap, not less than 75% of the consideration for the disposition
consists of cash or
42
48
readily marketable cash equivalents or the assumption of Indebtedness (other
than non-recourse Indebtedness or any Subordinated Indebtedness) of the Company
or such Restricted Subsidiary or other obligations relating to such assets (and
release of the Company or such Restricted Subsidiary from all liability on the
Indebtedness or other obligations assumed); and (iii) all Net Available
Proceeds, less any amounts invested within 360 days of such Asset Disposition in
assets related to the business of the Company (including the Capital Stock of
another Person (other than any Person that is a Restricted Subsidiary of the
Company immediately prior to such investment); provided, however, that
immediately after giving effect to any such investment (and not prior thereto)
such Person shall be a Restricted Subsidiary of the Company), are applied, on or
prior to the 360th day after such Asset Disposition, unless and to the extent
that the Company shall determine to make an Offer to Purchase, to the permanent
reduction and prepayment of any unsubordinated Indebtedness of the Company then
outstanding (including a permanent reduction of commitments in respect thereof).
Any Net Available Proceeds from any Asset Disposition which is subject to the
immediately preceding sentence that are not applied as provided in the
immediately preceding sentence shall be used promptly after the expiration of
the 360th day after such Asset Disposition, or promptly after the Company shall
have earlier determined to not apply any Net Available Proceeds therefrom as
provided in clause (iii) of the immediately preceding sentence, to make an Offer
to Purchase outstanding Notes at a purchase price in cash equal to 100% of their
principal amount plus accrued interest to the Purchase Date. Notwithstanding the
foregoing, the Company may defer making any Offer to Purchase outstanding Notes
until there are aggregate unutilized Net Available Proceeds from Asset
Dispositions otherwise subject to the two immediately preceding sentences equal
to or in excess of $5,000,000 (at which time, the entire unutilized Net
Available Proceeds from Asset Dispositions otherwise subject to the two
immediately preceding sentences, and not just the amount in excess of
$5,000,000, shall be applied as required pursuant to this paragraph). Any
remaining Net Available Proceeds following the completion of the required Offer
to Purchase may be used by the Company for any other purposes (subject to the
other provisions of this Indenture) and the amount of Net Available Proceeds
then required to be otherwise applied in accordance with this Section 4.05 shall
be reset to zero, subject to any subsequent Asset Disposition. These provisions
will not apply to a transaction consummated in compliance with the provisions of
Section 5.01.
In the event that the Company makes an Offer to Purchase the Notes, the
Company shall comply with any applicable securities laws and regulations,
including any applicable requirements of Section 14(e) of, and Rule 14e-1 under,
the Exchange Act.
SECTION 4.06. Limitation on Restricted Payments.
43
49
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, (i) declare or pay any dividend, or
make any distribution of any kind or character (whether in cash, property or
securities), in respect of any class of the Capital Stock of the Company or any
of its Restricted Subsidiaries or to the holders thereof, excluding any (x)
dividends or distributions payable solely in shares of Capital Stock of the
Company (other than Disqualified Stock) or in options, warrants or other rights
to acquire Capital Stock of the Company (other than Disqualified Stock), or (y)
in the case of any Restricted Subsidiary of the Company, dividends or
distributions payable to the Company or a Restricted Subsidiary of the Company,
(ii) purchase, redeem, or otherwise acquire or retire for value shares of
Capital Stock of the Company or any of its Restricted Subsidiaries, any options,
warrants or rights to purchase or acquire shares of Capital Stock of the Company
or any of its Restricted Subsidiaries or any securities convertible or
exchangeable into shares of Capital Stock of the Company or any of its
Restricted Subsidiaries, excluding any such shares of Capital Stock, options,
warrants, rights or securities which are owned by the Company or a Restricted
Subsidiary of the Company, (iii) make any Investment in (other than a Permitted
Investment), or payment on a guarantee of any obligation of, any Person, other
than the Company or a direct or indirect Wholly Owned Subsidiary of the Company,
or (iv) redeem, defease, repurchase, retire or otherwise acquire or retire for
value, prior to any scheduled maturity, repayment or sinking fund payment,
Subordinated Indebtedness (each of the transactions described in clauses (i)
through (iv) (other than any exception to any such clause) being a "Restricted
Payment") if at the time thereof: (1) a Default or an Event of Default shall
have occurred and be continuing, or (2) upon giving effect to such Restricted
Payment, the Company could not Incur at least $1.00 of additional Indebtedness
pursuant to clause (i) of Section 4.04, or (3) upon giving effect to such
Restricted Payment, the aggregate of all Restricted Payments made on or after
the Issue Date exceeds the sum of: (a) 50% of cumulative Consolidated Net Income
of the Company (or, in the case cumulative Consolidated Net Income of the
Company shall be negative, less 100% of such deficit) since the end of the
fiscal quarter in which the Issue Date occurs through the last day of the fiscal
quarter for which financial statements are available; plus (b) 100% of the
aggregate net proceeds received after the Issue Date, including the fair market
value of property other than cash (determined in good faith by the Board of
Directors of the Company as evidenced by a resolution of such Board of Directors
filed with the Trustee), from the issuance of, or equity contribution with
respect to, Capital Stock (other than Disqualified Stock) of the Company and
warrants, rights or options on Capital Stock (other than Disqualified Stock) of
the Company (other than in respect of any such issuance to a Restricted
Subsidiary of the Company) and the principal amount of Indebtedness of the
Company or any of its Restricted Subsidiaries that has been converted into or
exchanged for Capital
44
50
Stock of the Company which Indebtedness was Incurred after the Issue Date; plus
(c) 100% of the aggregate after-tax net proceeds, including the fair market
value of property other than cash (determined in good faith by the Board of
Directors of the Company as evidenced by a resolution of such Board of Directors
filed with the Trustee) of the sale or other disposition of any Investment
constituting a Restricted Payment made after the Issue Date; provided that any
gain on the sale or disposition included in such after tax net proceeds shall
not be included in determining Consolidated Net Income for purposes of clause
(a) above.
The foregoing provisions shall not be violated by (i) any dividend on any
class of Capital Stock of the Company or any of its Restricted Subsidiaries paid
within 60 days after the declaration thereof if, on the date when the dividend
was declared, the Company or such Restricted Subsidiary, as the case may be,
could have paid such dividend in accordance with the provisions of this
Indenture, (ii) the renewal, extension, refunding or refinancing of any
Indebtedness otherwise permitted pursuant to clause (v) of Section 4.04, (iii)
the exchange or conversion of any Indebtedness of the Company or any of its
Restricted Subsidiaries for or into Capital Stock of the Company (other than
Disqualified Stock), (iv) the redemption, repurchase, retirement or other
acquisition of any Capital Stock of the Company in exchange for or out of the
net cash proceeds of the substantially concurrent sale (other than to a
Restricted Subsidiary of the Company) of Capital Stock of the Company (other
than Disqualified Stock); provided, however, that the proceeds of such sale of
Capital Stock shall not be (and have not been) included in subclause (b) of
clause (3) of the preceding paragraph, (v) the payment of dividends to Holdings
in an amount equal to the amount required for Holdings to pay Federal, state and
local income taxes to the extent such income taxes are attributable to the
income of the Company and its Restricted Subsidiaries, (vi) payments of up to
$500,000 annually for management and financial advisory fees to TC Management
L.L.C. pursuant to the terms of a management and consulting agreement entered
into between the Company and TC Management L.L.C., (vii) other Restricted
Payments of up to $5,000,000 in the aggregate, (viii) payments in lieu of
fractional shares in an amount not in excess of $100,000 in the aggregate, (ix)
distributions to Holdings to permit Holdings to repurchase its common stock at
no more than fair market value (determined in good faith by the Board of
Directors of the Company as evidenced by a resolution of such Board of Directors
filed with the Trustee) from present or former Management Investors in an amount
not in excess of $2,000,000 in the aggregate and (x) a payment of merger fees to
TC Management L.L.C. in connection with the consummation of the Transactions
which payment is made on the Issue Date. Each Restricted Payment described in
clauses (i) (to the extent not already taken into account for purposes of
computing the aggregate amount of all Restricted Payments pursuant to clause 3
above), (v), (vi), (vii), (viii) and (ix) of the previous
45
51
sentence shall be taken into account for purposes of computing the aggregate
amount of all Restricted Payments pursuant to clause (3) of the preceding
paragraph.
For purposes of this Section 4.06, (i) an "Investment" shall be deemed to
have been made at the time any Restricted Subsidiary is designated as an
Unrestricted Subsidiary in an amount (proportionate to the Company's equity
interest in such Subsidiary) equal to the net worth of such Restricted
Subsidiary at the time that such Restricted Subsidiary is designated as an
Unrestricted Subsidiary; (ii) at any date the aggregate of all Restricted
Payments made as Investments since the Issue Date shall exclude and be reduced
by an amount (proportionate to the Company's equity interest in such Subsidiary)
equal to the net worth of an Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary, not to exceed, in
the case of any such redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary, the amount of Investments previously made by the Company and the
Restricted Subsidiaries in such Unrestricted Subsidiary (in each case (i) and
(ii) "net worth" to be calculated based upon the fair market value of the assets
of such Subsidiary as of any such date of designation which shall, in no event,
be less than zero); and (iii) any property transferred to or from an
Unrestricted Subsidiary shall be valued at its fair market value at the time of
such transfer.
SECTION 4.07. Corporate Existence.
Subject to Article Five, the Company shall do or shall cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each of its
Subsidiaries in accordance with the respective organizational documents of each
such Subsidiary and the rights (charter and statutory) and material franchises
of the Company and its Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right or franchise, or the corporate
existence of any Subsidiary, if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not, and will not be, adverse in any material respect to the
Holders; provided, further, however, that a determination of the Board of
Directors of the Company shall not be required in the event of a merger of one
or more Wholly-Owned Subsidiaries of the Company with or into another
Wholly-Owned Subsidiary of the Company or another Person, if the surviving
Person is a Wholly-Owned Subsidiary of the Company organized under the laws of
the United States or a State thereof or of the District of Columbia.
SECTION 4.08. Payment of Taxes and Other Claims.
46
52
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary of the
Company or upon the income, profits or property of the Company or any Subsidiary
of the Company and (2) all lawful claims for labor, materials and supplies
which, in each case, if unpaid, might by law become a material liability, or
Lien upon the property, of the Company or any Subsidiary of the Company;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which appropriate provision has been made.
SECTION 4.09. Notice of Defaults.
(a) In the event that any Indebtedness of the Company or any of its
Subsidiaries is declared due and payable before its maturity because of the
occurrence of any default (or any event which, with notice or lapse of time, or
both, would constitute such a default) under such Indebtedness, the Company
shall promptly give written notice to the Trustee of such declaration, the
status of such default or event and what action the Company is taking or
proposes to take with respect thereto.
(b) Upon becoming aware of any Default or Event of Default, the Company
shall promptly deliver an Officer's Certificate to the Trustee specifying the
Default or Event of Default.
SECTION 4.10. Maintenance of Properties.
The Company shall cause all material properties owned by or leased to
it or any of its Subsidiaries and used or useful in the conduct of its business
or the business of any of its Subsidiaries to be maintained and kept in normal
condition, repair and working order and supplied with all necessary equipment
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section 4.10 shall prevent the Company or any of its
Subsidiaries from discontinuing the use, operation or maintenance of any such
properties, or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Board of Directors or of the board of directors of the
Subsidiary concerned, or of an officer (or other agent employed by the Company
or of any of its Subsidiaries) of the Company or such Subsidiary having
managerial responsibility for any such property, desirable in the conduct of the
business of the Company or
47
53
any of its Subsidiaries, and if such discontinuance or disposal is not adverse
in any material respect to the Holders.
SECTION 4.11. Compliance Certificate.
The Company shall deliver to the Trustee within 90 days after the close
of each fiscal year an Officer's Certificate signed by the principal executive
officer, principal financial officer or principal accounting officer stating
that a review of the activities of the Company has been made under the
supervision of the signing officers with a view to determining whether a Default
or Event of Default has occurred and whether or not the signers know of any
Default or Event of Default by the Company that occurred during such fiscal
year. If they do know of such a Default or Event of Default, the certificate
shall describe all such Defaults or Events of Default, their status and the
action the Company is taking or proposes to take with respect thereto.
SECTION 4.12. Provision of Financial Information.
Whether or not the Company is subject to Section 13(a) or 15(d) of the
Exchange Act or any successor provision thereto, following the effectiveness of
the Exchange Offer the Company shall 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 such Section 13(a) or 15(d) or
any successor provision thereto if the Company were so required, such documents
to be filed with the Commission on or prior to the respective dates (the
"REQUIRED FILING DATES") by which the Company would have been required so to
file such documents if the Company were so required. Regardless of whether the
Company files such reports or other documents with the Commission, the Company
shall (a) within 15 days of each Required Filing Date (i) transmit by mail to
all Holders of Notes, as their names and addresses appear in the Note Register,
without cost to such Holders, and (ii) file with the Trustee, copies of such
annual reports, quarterly reports and other documents, and (b) if filing such
documents by the Company with the Commission is not permitted under the Exchange
Act, promptly upon written request supply copies of such documents to any
prospective holder of Notes.
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury law
or other law, which would prohibit or forgive the Company from paying all or any
portion of the principal of and/or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so)
48
54
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it shall not hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law had been enacted.
SECTION 4.14. Change of Control.
Within 30 days following the date of the consummation of a transaction
resulting in a Change of Control, the Company will commence an Offer to Purchase
all outstanding Notes at a purchase price in cash equal to 101% of their
principal amount plus accrued interest to the Purchase Date. Such Offer to
Purchase will be consummated not earlier than 30 days and not later than 60 days
after the commencement thereof. Each Holder shall be entitled to tender all or
any portion of the Notes owned by such Holder pursuant to the Offer to Purchase,
subject to the requirement that any portion of a Note tendered must be an
integral multiple of $1,000 principal amount. A "CHANGE OF CONTROL" will be
deemed to have occurred in the event that (whether or not otherwise permitted by
this Indenture), after the Issue Date (a) any Person or any Persons acting
together that would constitute a group (for purposes of Section 13(d) of the
Exchange Act, or any successor provision thereto) (a "GROUP"), together with any
Affiliates or Related Persons thereof, other than Permitted Holders, shall
"beneficially own" (as defined in Rule 13d-3 under the Exchange Act, or any
successor provision thereto) at least 40% of the voting power of the outstanding
Voting Stock of the Company; (b) any sale, lease or other transfer (in one
transaction or a series of related transactions) is made by the Company or any
of its Restricted Subsidiaries of all or substantially all of the consolidated
assets of the Company and its Restricted Subsidiaries to any Person; (c) the
Company consolidates with or merges with or into another Person or any Person
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which immediately after the consummation thereof
Persons owning a majority of the Voting Stock of the Company immediately prior
to such consummation shall cease to own a majority of the Voting Stock of the
Company or the surviving entity if other than the Company, (d) Continuing
Directors cease to constitute at least a majority of the Board of Directors of
the Company; or (e) the stockholders of the Company approve any plan or proposal
for the liquidation or dissolution of the Company.
In the event that the Company makes an Offer to Purchase the Notes, the
Company shall comply with any applicable securities laws and regulations,
including any applicable requirements of Section 14(e) of, and Rule 14e-1 under,
the Exchange Act.
SECTION 4.15. Limitations Concerning Distributions and Transfers by
Restricted Subsidiaries.
49
55
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary of the Company to (i) pay, directly or indirectly, dividends or make
any other distributions in respect of its Capital Stock or pay any Indebtedness
or other obligations owed to the Company or any Restricted Subsidiary of the
Company, (ii) make loans or advances to the Company or any Restricted Subsidiary
of the Company or (iii) transfer any of its property or assets to the Company or
any Restricted Subsidiary of the Company, except for such encumbrances or
restrictions existing under or by reason of (a) any agreement in effect on the
Issue Date as any such agreement is in effect on such date, (b) the Credit
Agreement, (c) any agreement relating to any Indebtedness Incurred by such
Restricted Subsidiary prior to the date on which such Restricted Subsidiary was
acquired by the Company and outstanding on such date and not Incurred in
anticipation or contemplation of becoming a Restricted Subsidiary and provided
such encumbrance or restriction shall not apply to any assets of the Company or
its Restricted Subsidiaries other than such Restricted Subsidiary, (d) customary
provisions contained in an agreement which has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets of a
Restricted Subsidiary; provided , however, that such encumbrance or restriction
is applicable only to such Restricted Subsidiary or assets, (e) an agreement
effecting a renewal, exchange, refunding, amendment or extension of Indebtedness
Incurred pursuant to an agreement referred to in clause (a) above; provided,
however, that the provisions contained in such renewal, exchange, refunding,
amendment or extension agreement relating to such encumbrance or restriction are
no more restrictive in any material respect than the provisions contained in the
agreement that is the subject thereof in the reasonable judgment of the Board of
Directors of the Company as evidenced by a resolution of such Board of Directors
filed with the Trustee, (f) this Indenture, (g) applicable law, (h) customary
provisions restricting subletting or assignment of any lease governing any
leasehold interest of any Restricted Subsidiary of the Company, (i) purchase
money obligations for property acquired in the ordinary course of business that
impose restrictions of the type referred to in clause (iii) of this covenant,
(j) restrictions of the type referred to in clause (iii) of this covenant
contained in security agreements securing Indebtedness of a Restricted
Subsidiary of the Company to the extent that such Liens were otherwise incurred
in accordance with Section 4.17 and restrict the transfer of property subject to
such agreements or (k) any agreement relating to a Permitted Receivables
Financing.
SECTION 4.16. Limitation on Issuance and Sale of Capital Stock of
Restricted Subsidiaries.
50
56
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, (a) transfer, convey, sell or otherwise dispose of any shares
of Capital Stock of any Restricted Subsidiary of the Company (other than to the
Company or a Wholly Owned Subsidiary of the Company), except that the Company
and any such Restricted Subsidiary may, in any single transaction, sell all, but
not less than all, of the issued and outstanding Capital Stock of any such
Restricted Subsidiary to any Person, subject to complying with Section 4.05 or
(b) issue shares of Capital Stock of a Restricted Subsidiary of the Company
(other than directors' qualifying shares), or securities convertible into, or
warrants, rights or options to subscribe for or purchase shares of, Capital
Stock of a Restricted Subsidiary of the Company to any Person other than to the
Company or a Wholly Owned Subsidiary of the Company.
SECTION 4.17. Limitation on Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, incur any Lien on or with respect to any property or assets of
the Company or such Restricted Subsidiary owned on the Issue Date or thereafter
acquired or on the income or profits thereof, which Lien secures Indebtedness,
without making, or causing any such Restricted Subsidiary to make, effective
provisions for securing the Notes and all other amounts due under this Indenture
(and, if the Company shall so determine, any other Indebtedness of the Company
or such Restricted Subsidiary, including Subordinated Indebtedness; provided,
however, that Liens securing the Notes and any Indebtedness pari passu with the
Notes are senior to such Liens securing such Subordinated Indebtedness) equally
and ratably with such Indebtedness or, in the event such Indebtedness is
subordinate in right of payment to the Notes or the Subsidiary Guarantee, prior
to such Indebtedness, as to such property or assets for so long as such
Indebtedness shall be so secured.
The foregoing restrictions shall not apply to (i) Liens existing on the
Issue Date securing Indebtedness existing on the Issue Date; (ii) Liens securing
Indebtedness outstanding under the Credit Agreement and any guarantees thereof
to the extent that the Indebtedness secured thereby is permitted to be incurred
under Section 4.04; (iii) Liens securing only the Notes and the Subsidiary
Guarantees; (iv) Liens in favor of the Company or a Subsidiary Guarantor; (v)
Liens to secure Indebtedness Incurred for the purpose of financing all or any
part of the purchase price or the cost of construction or improvement of the
property (or any other capital expenditure financing) subject to such Liens;
provided, however, that (a) the aggregate principal amount of any Indebtedness
secured by such a Lien does not exceed 100% of such purchase price or cost, (b)
such Lien does not extend to or cover any other property other than such item of
property and any improvements on such item, (c) the Indebtedness secured by such
Lien is
51
57
Incurred by the Company within 180 days of the acquisition, construction or
improvement of such property and (d) the Incurrence of such Indebtedness is
permitted by Section 4.04; (vi) Liens on property existing immediately prior to
the time of acquisition thereof (and not created in anticipation or
contemplation of the financing of such acquisition); (vii) Liens on property of
a Person existing at the time such Person is acquired or merged with or into or
consolidated with the Company or any such Restricted Subsidiary (and not created
in anticipation or contemplation thereof); (viii) Liens to secure Indebtedness
Incurred to extend, renew, refinance or refund (or successive extensions,
renewals, refinancings or refundings), in whole or in part, any Indebtedness
secured by Liens referred to in the foregoing clauses (i)-(vii) so long as such
Liens do not extend to any other property and the principal amount of
Indebtedness so secured is not increased except for the amount of any premium
required to be paid in connection with such extension, renewal, refinancing or
refunding pursuant to the terms of the Indebtedness extended, renewed,
refinanced or refunded by means of a tender offer, exchange offer or private
negotiation, plus the expenses of the issuer of such Indebtedness reasonably
incurred in connection with such extension, renewal, refinancing or refunding;
(ix) Liens in favor of the Trustee as provided for in this Indenture on money or
property held or collected by the Trustee in its capacity as Trustee; (x) Liens
incurred in the ordinary course of business securing assets not having a fair
market value in excess of $250,000 and (xi) Liens incurred in connection with a
Permitted Receivables Financing.
SECTION 4.18. Future Subsidiary Guarantors.
The Company shall not create or acquire, nor permit any of its
Restricted Subsidiaries to create or acquire, any Restricted Subsidiary after
the Issue Date (other than a Securitization Subsidiary) unless, at the time such
Restricted Subsidiary has either assets or stockholder's equity in excess of
$25,000, such Restricted Subsidiary executes and delivers to the Trustee a
supplemental indenture in form reasonably satisfactory to the Trustee pursuant
to which such Restricted Subsidiary shall unconditionally guarantee all of the
Company's obligations under the Notes and this Indenture on the terms set forth
in Article Ten.
ARTICLE 5
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Restriction on Mergers, Consolidations and Certain Sales
of Assets.
52
58
The Company shall not consolidate or merge with or into any Person, or
sell, assign, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to consolidate or merge with or into any
Person or sell, assign, lease, convey or otherwise dispose of) all or
substantially all of the Company's assets (determined on a consolidated basis
for the Company and its Restricted Subsidiaries), whether as an entirety or
substantially an entirety in one transaction or a series of related
transactions, including by way of liquidation or dissolution, to any Person
unless, in each such case: (i) the entity formed by or surviving any such
consolidation or merger (if other than the Company or such Restricted
Subsidiary, as the case may be), or to which such sale, assignment, lease,
conveyance or other disposition shall have been made (the "Surviving Entity"),
is a corporation organized and existing under the laws of the United States, any
state thereof or the District of Columbia; (ii) the Surviving Entity assumes by
supplemental indenture all of the obligations of the Company on the Notes and
under this Indenture; (iii) immediately after giving effect to such transaction
and the use of any net proceeds therefrom on a pro forma basis, the Company or
the Surviving Entity, as the case may be, could Incur at least $1.00 of
Indebtedness pursuant to clause (i) of Section 4.04; (iv) immediately before and
after giving effect to such transaction and treating any Indebtedness which
becomes an obligation of the Company or any of its such Restricted Subsidiaries
as a result of such transaction as having been Incurred by the Company or such
Restricted Subsidiary, as the case may be, at the time of the transaction, no
Default or Event of Default shall have occurred and be continuing; and (v) if,
as a result of any such transaction, property or assets of the Company or a
Restricted Subsidiary would become subject to a Lien not excepted from Section
4.17, the Company, Restricted Subsidiary or the Surviving Entity, as the case
may be, shall have secured the Notes as required by said Section 4.17. The
provisions of this paragraph shall not apply to any merger of a Restricted
Subsidiary of the Company with or into the Company or a Wholly-Owned Subsidiary
of the Company or any transaction pursuant to which a Subsidiary Guarantor is to
be released in accordance with the terms of the Subsidiary Guarantee and this
Indenture in connection with any transaction complying with the provisions of
Section 4.05.
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation of the Company or any Subsidiary of the Company
with, or merger of the Company or any such Subsidiary into, any other Person or
any sale, assignment, lease, conveyance or other disposition of all or
substantially all of the Company's consolidated assets (as an entirety or
substantially as an entirety in one transaction or a series of related
transactions, including by way of liquidation or dissolution) in accordance with
Section 5.01, upon the execution of a supplemental indenture by the Surviving
Person in form
53
59
and substance satisfactory to the Trustee (as evidenced by the Trustee's
execution thereof), the Surviving Person shall succeed to, and be substituted
for, and may exercise every right and power of and shall assume all obligations
of, the Company or such Subsidiary, as the case may be, under this Indenture and
the Notes or the Subsidiary Guarantee, as the case may be, with the same effect
as if such Surviving Person had been named as the Company or such Subsidiary, as
the case may be, herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Notes or the Subsidiary Guarantee, as the case may be.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(a) the Company fails to pay principal of (or premium, if any, on) any
Note when due;
(b) the Company fails to pay any interest on any Note when due and
payable, and the default continues for 30 days;
(c) the Company defaults in the payment of principal of and interest on
Notes required to be purchased pursuant to an Offer to Purchase, as described
under Sections 4.05 or 4.14 hereof, when due and payable;
(d) the Company fails to perform or comply with any of the provisions
of Section 5.01;
(e) the Company fails to perform any other covenant or agreement under
this Indenture or the Notes, and the default continues for 30 days after written
notice to the Company by the Trustee or Holders of at least 25% in aggregate
principal amount of outstanding Notes;
(f) the Company defaults under the terms of one or more instruments
evidencing or securing Indebtedness of the Company of any of its Subsidiaries
having an outstanding principal amount of $5,000,000 or more individually or in
the aggregate that has resulted in the acceleration of the maturity of such
Indebtedness or the Company or any of its Subsidiaries fails to pay principal
when due at the stated maturity of any such Indebtedness;
54
60
(g) there shall have been rendered any final judgment or judgments (not
covered by insurance and not subject to appeal) against the Company or any of
its Subsidiaries in an amount of $5,000,000 or more which remains undischarged
or unstayed for a period of 60 days after the date on which the right to appeal
has expired;
(h) the Company or any of its Subsidiaries pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors;
(i) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any
Subsidiary in an involuntary case or proceeding,
(B) appoints a Custodian of the Company or any
Subsidiary or for all or substantially all of its property, or
(C) orders the liquidation of the Company or any
Subsidiary,
and in each case the order or decree remains unstayed and in effect for
60 days; provided, however, that if the entry of such order or decree
is appealed and dismissed on appeal then the Event of Default hereunder
by reason of the entry of such order or decree shall be deemed to have
been cured; or
(j) the Subsidiary Guarantee ceases to be in full force and effect or
is declared null and void and unenforceable or found to be invalid or any
Subsidiary Guarantor denies its liability under the Subsidiary Guarantee (other
than by reason
55
61
of a release of such Subsidiary Guarantor from its Subsidiary Guarantee in
accordance with the terms of this Indenture and the Subsidiary Guarantee).
The term "BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors. The term "CUSTODIAN"
means any receiver, trustee, assignee, liquidator, sequestration or similar
official under any Bankruptcy Law.
SECTION 6.02. Acceleration.
If an Event of Default with respect to the Notes (other than an Event
of Default with respect to the Company described in clause (h) or (i) of Section
6.01) shall occur and be continuing, either the Trustee or the Holders of at
least 25% in aggregate principal amount of the outstanding Notes may accelerate
the maturity of all Notes; provided, however, that after such acceleration, but
before a judgment or decree based on acceleration, the Holders of a majority in
aggregate principal amount of outstanding Notes may, by written notice to the
Company and the Trustee, rescind and annul such acceleration if all Events of
Default, other than the nonpayment of accelerated principal, have been cured or
waived as provided in this Indenture. No such rescission shall affect any
subsequent Default or impair any right consequent thereto. If an Event of
Default specified in clause (h) or (i) of Section 6.01 with respect to the
Company occurs, the outstanding Notes will ipso facto become immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
maturing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Default.
Subject to Sections 2.09, 6.07 and 9.02, prior to the declaration of
acceleration of the Notes, the Holders of not less than a majority in aggregate
principal amount of the outstanding Notes by written notice to the Trustee and
the Company may waive an existing Default or Event of Default and its
56
62
consequences, except a Default in the payment of principal of or interest on any
Note as specified in clauses (a) and (b) of Section 6.01, a Default arising from
failure to purchase any Note rendered pursuant to an Offer to Purchase or a
Default in respect of any term or provision of this Indenture that may not be
amended or modified without the consent of each Holder affected as provided in
Section 9.02. The Company shall deliver to the Trustee an Officers' Certificate
stating that the requisite percentage of Holders have consented to such waiver
and attaching copies of such consents. In case of any such waiver, the Company,
the Trustee and the Holders shall be restored to their former positions and
rights hereunder and under the Notes, respectively. This paragraph of this
Section 6.04 shall be in lieu of Section 316 (a) (1) (B) of the TIA and such
Section 316 (a) (1) (B) of the TIA is hereby expressly excluded from this
Indenture and the Notes, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture and the Notes, but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
SECTION 6.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal amount
of the outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of another Noteholder, or that may involve the
Trustee in personal liability; provided, however, that the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction. In the event the Trustee takes any action or follows any direction
pursuant to this Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against any loss or expense caused by
taking such action or following such direction. This Section 6.05 shall be in
lieu of Section 316 (a) (1) (A) of the TIA, and such Section 316 (a) (1) (A) of
the TIA is hereby expressly excluded from this Indenture and the Notes, as
permitted by the TIA.
SECTION 6.06. Limitation on Suits.
A Noteholder may not pursue any remedy with respect to this Indenture
or the Notes unless:
(a) the Holder gives to the Trustee written notice of a continuing
Event of Default;
57
63
(b) the Holders of at least 25% in aggregate principal amount of the
outstanding Notes make a written request to the Trustee to pursue a remedy;
(c) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability or
expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the outstanding Notes (excluding Affiliates of the Company) do not
give the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over such other
Noteholder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on the Note, on or after
the respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified in
Section 6.01(a) or (b) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Notes for the whole amount of principal and accrued
interest remaining unpaid, together with interest overdue on principal and to
the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the Notes
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
58
64
and advances of the Trustee, its agents and counsel) and the Noteholders allowed
in any judicial proceedings relative to the Company (or any other obligor upon
the Notes), its creditors or its property shall be entitled and empowered to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same, and any Custodian in any such judicial
proceedings is hereby authorized by each Noteholder 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 Noteholders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Noteholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustees to vote
in respect of the claim of any Noteholder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for
principal and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Noteholders pursuant to this Section
6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 shall not apply to a suit by the Trustee, a suit by a Holder
or group of Holders of more than 10% in aggregate principal amount of the
outstanding Notes, or to any suit instituted by any Holder
59
65
for the enforcement or the payment of the principal or interest on any Notes on
or after the respective due dates expressed in the Note.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If a 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 their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of a Default:
(i) The Trustee shall not be liable except for the performance
of such duties as are specifically set forth herein; and
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions 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 shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(ii) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of
60
66
any of its duties hereunder or to take or omit to take any action under this
Indenture or take any action at the request or direction of Holders if it shall
have reasonable grounds for believing that repayment of such funds is not
assured to it or it does not receive an indemnity satisfactory to it in its sole
discretion against such risk, liability, loss, fee or expense which might be
incurred by it in compliance with such request or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree with the Company. Money or assets
held in trust by the Trustee need not be segregated from other funds or assets
except to the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection and may require an Officers' Certificate and an
Opinion of Counsel, which shall conform to the provisions of Section 11.05. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
(c) The Trustee may act through attorneys and agents of its selection
and shall not be responsible for the misconduct or negligence of any agent or
attorney (other than an agent who is an employee of the Trustee) appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within its
rights or powers.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Noteholders pursuant to this Indenture, unless such Noteholders shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
61
67
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Company in this Indenture or any
document issued in connection with the sale of Notes or any statement in the
Notes other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and the
Trustee knows of such Defaults or Events of Defaults, the Trustee shall mail to
each Noteholder notice of the Default or Event of Default within 30 days after
the occurrence thereof; provided, however, that, except in the case of an Event
of Default or a Default in payment with respect to the Notes or a failure by the
Company to comply with Section 5.01, the Trustee shall be protected in
withholding such notice if and so long as the Trustee in good faith determines
that the withholding of such notice is in the interest of the holders of the
Note.
SECTION 7.06. Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Noteholder a report dated as of such May 15 that complies
with TIA Section 313(a). The Trustee also shall comply with TIA Section 313(b),
(c) and (d).
A copy of each such report at the time of its mailing to Noteholders
shall be filed with the Commission and each stock exchange, if any, on which the
Notes are listed.
The Company shall promptly notify the Trustee in writing if the Notes
become listed on any securities exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for its services. The Trustee's compensation shall not be limited by any
62
68
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances (including fees, disbursements and expenses of its agents and
counsel) incurred or made by it in addition to the compensation for its services
except any such disbursements, expenses and advances as may be attributable to
the Trustee's negligence or bad faith. Such expense shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents, accountants,
experts and counsel and any taxes or other expenses incurred by a trust created
pursuant to Section 8.01 hereof.
The Company shall indemnify the Trustee and its agents for, and hold
them harmless against any and all loss, damage, claims, liability or expense,
including taxes (other than franchise taxes imposed on the Trustee and taxes
based upon, measured by or determined by the income of the Trustee), arising out
of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of enforcing this Indenture against
the Company (including Section 7.07) and of defending itself against any claim
(whether asserted by any Noteholder or the Company) or liability in connection
with the exercise or performance of any of their powers or duties hereunder,
except to the extent that such loss, damage, claim, liability or expense is due
to their own negligence or bad faith. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity. However, the failure by the Trustee to so notify the Company shall
not relieve the Company of its obligations hereunder. The Company shall defend
the claim and the Trustee shall cooperate in the defense (and may employ its own
counsel) at the Company's expense; provided, however, that the Company's
reimbursement obligation with respect to counsel employed by the Trustee will be
limited to the reasonable fees and expenses of such counsel. The Company need
not pay for any settlement made without its written consent, which consent shall
not be unreasonably withheld. The Company need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee as a result of
the violation of this Indenture by the Trustee.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes against all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of or interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) occurs, the expenses (including the
reasonable fees and expenses of its agents and counsel) and the compensation for
the services shall be preferred over the status of the Holders in a proceeding
under any Bankruptcy Law and are intended to constitute expenses of
administration
63
69
under any Bankruptcy Law. The Company's obligation under this Section 7.07 and
any claim arising hereunder shall survive the resignation or removal of any
Trustee, the discharge of the Company's obligations pursuant to Article Eight
and any rejection or termination under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in
writing. The Holders of a majority in principal amount of the outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in writing
and may appoint a successor Trustee with the Company's consent. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent under any
Bankruptcy Law;
(c) a custodian or other public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. As promptly as
practicable after that, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.07, all property held
by it as Trustee to the successor Trustee, subject to the Lien provided in
Section 7.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have the rights, powers and duties of
the Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Noteholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
64
70
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another corporation
or banking corporation, the resulting, surviving or transferee corporation or
banking corporation without any further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be eligible to
act as Trustee under TIA Sections 310(a)(1) and 310(a)(5). The Trustee (or
in the case of a corporation included in a bank holding company, the related
bank holding company) shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. If the Trustee has or shall acquire any "conflicting interest" within
the meaning of TIA Section 310(b), the Trustee and the Company shall comply with
the provisions of TIA Section 310(b); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or indentures
under which other securities, or certificates of interest or participation in
other securities, of the Company are outstanding, if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect
hereinbefore specified in this Article Seven.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
65
71
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations.
(a) Discharge. The Company may terminate its substantive obligations
and the substantive obligations of the Subsidiary Guarantors in respect of the
Notes by delivering all outstanding Notes to the Trustee for cancellation and
paying all sums payable by the Company on account of principal of, premium, if
any, and interest on all Notes or otherwise.
(b) Covenant Defeasance. The Company may, provided that no Default or
Event of Default has occurred and is continuing on the date of the deposit
referred to below or during the period ending on the 95th calendar day after the
date of such deposit, or would arise therefrom, terminate, on the 95th calendar
day following the deposit referred to below, its obligations and the obligations
of the Subsidiary Guarantors contained in Article 5, Sections 4.03 to 4.06,
Sections 4.08 to Section 4.18 in respect of the Notes by (i) depositing with the
Trustee, under the terms of an irrevocable trust agreement, money or direct
noncallable obligations of the United States of America for the payment of which
its full faith and credit is pledged ("UNITED STATES GOVERNMENT OBLIGATIONS")
sufficient (without reinvestment) to pay all remaining indebtedness on the
Notes, (ii) delivering to the Trustee either an Opinion of Counsel or a ruling
directed to the Trustee from the Internal Revenue Service to the effect that the
holders of the Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and termination of obligations, (iii)
delivering to the Trustee an Opinion of Counsel to the effect that CPC's
exercise of its option under this paragraph will not result in the Company, the
Trustee or the trust created by the Company's deposit of funds pursuant to this
provision becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940, as amended, and (iv) delivering to the Trustee
an Officers' Certificate and an Opinion of Counsel each stating that there has
been compliance with all conditions precedent provided for herein.
(c) Legal Defeasance. The Company may, provided that no Default or
Event of Default has occurred, and is continuing on the date of the deposit
referred to below or during the period ending on the 95th calendar day after the
date of such deposit or would arise therefrom, terminate, on the 95th calendar
day following the deposit referred to below, all of its substantive obligations
and all of the substantive obligations of the Subsidiary Guarantors in respect
of the Notes (including the Company's obligation to pay the principal of (and
premium, if any, on) and interest on the Notes and such Subsidiary Guarantors'
guarantee thereof)
66
72
by (i) depositing with the Trustee, under the terms of an irrevocable trust
agreement, money or United States Government Obligations sufficient (without
reinvestment) to pay all remaining indebtedness on the Notes, (ii) delivering to
the Trustee either a ruling directed to the Trustee from the Internal Revenue
Service to the effect that the holders of the Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such deposit and
termination of obligations or an Opinion of Counsel based upon such a ruling
addressed to the Trustee or a change in the applicable Federal tax law since the
date of this Indenture, to such effect, (iii) delivering to the Trustee an
Opinion of Counsel to the effect that the Company's exercise of its option under
this paragraph will not result in the Company, the Trustee or the trust created
by the Company's deposit of funds pursuant to this provision becoming or being
deemed to be an "investment company" under the Investment Company Act of 1940,
as amended, and (iv) delivering to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating that there has been compliance with all
conditions precedent provided for herein.
(d) Notwithstanding the foregoing paragraphs 8.01(b) and (c) above, the
Company's obligations contained in Sections 2.03, 2.05, 2.06, 2.07, 4.02, 7.07,
7.08, 8.03 and 8.04 shall survive until the securities are no longer
outstanding. Thereafter the Company's obligations in Section 7.07, 8.03 and 8.04
shall survive. After such delivery or irrevocable deposit and delivery of an
Officers' Certificate and Opinion of Counsel, the Trustee upon a Company Request
shall acknowledge in writing the discharge of the Company's and the Subsidiary
Guarantors' obligations under the Notes, the Subsidiary Guarantee and this
Indenture other than those surviving obligations specified in this paragraph
(d).
SECTION 8.02. Application of Trust Money.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 8.01, and shall apply the
deposited money and the money from United States Government Obligations in
accordance with this Indenture solely to the payment of principal of and
interest on the Notes.
SECTION 8.03. Repayment to Company.
Subject to Sections 7.07 and 8.01, the Trustee shall promptly pay to
the Company upon receipt by the Trustee of the Company's written request
accompanied by an Officers' Certificate any excess money held by it at any time.
The Trustee shall pay to the Company upon such request any money held by it for
the payment of principal or interest that remains unclaimed for two years;
provided, however, that the Trustee before being required to make any payment
67
73
may at the expense of the Company cause to be published once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to
such money notice that such money remains unclaimed and that, after a date
specified therein which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining shall
be repaid to the Company. After payment to the Company, Noteholders entitled to
money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person and all liability of
the Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION 8.04. Reinstatement.
If the Trustee is unable to apply any money or United States Government
Obligations in accordance with Section 8.01 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
and the Subsidiary Guarantors' obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.01 until such time as the Trustee is permitted to apply all such money
or United States Government Obligations in accordance with Section 8.01;
provided, however, that if the Company has made any payment of interest on or
principal of any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or United States Government Obligations held
by the Trustee.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVER
SECTION 9.01. Without Consent of Holders.
The Company and the Subsidiary Guarantors, when authorized by a
resolution of their respective Boards of Directors, and the Trustee may amend or
supplement this Indenture or the Notes without notice to or consent of any
Noteholder:
(i) to cure any ambiguity, defect or inconsistency; provided,
however, that such amendment or supplement does not adversely affect
the rights of any Holder;
(ii) to effect the assumption by a successor Person of all
obligations of the Company under the Notes and this Indenture in
connection with any transaction complying with Article Five of this
Indenture;
68
74
(iii) to provide for uncertificated Notes in addition to or in
place of Certificated Notes;
(iv) to comply with any requirements of the Commission in
order to effect or maintain the qualification of this Indenture under
the TIA;
(v) to make any change that would provide any additional
benefit or rights to the Holders;
(vi) to make any other change that does not adversely affect
the rights of any Holder under this Indenture;
(vii) to evidence the succession of another Person to any
Subsidiary Guarantor and the assumption by any such successor of the
covenants of such Subsidiary Guarantor herein and in the Subsidiary
Guarantee;
(viii) to add to the covenants of the Company or the
Subsidiary Guarantors for the benefit of the Holders, or to surrender
any right or power herein conferred upon the Company or any Subsidiary
Guarantor;
(ix) to secure the Notes pursuant to the requirements of
Section 4.17 or otherwise; or
(x) to reflect the release of a Subsidiary Guarantor from its
obligations with respect to its Subsidiary Guarantee in accordance with
the provisions of Section 10.03 and to add a Subsidiary Guarantor
pursuant to the requirements of Section 10.06;
provided, however, that the Company has delivered to the Trustee an Opinion of
Counsel and an Officers' Certificate each stating that such amendment or
supplement complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
The Company, the Subsidiary Guarantors and the Trustee may amend or
supplement this Indenture or the Notes with the written consent of the Holders
of at least a majority in principal amount of the outstanding Notes. However,
without the consent of each Holder affected, an amendment, supplement or waiver
may not:
69
75
(a) change the Stated Maturity of the principal of or any installment
of interest on any Note or alter the optional redemption or repurchase
provisions of any Note or this Indenture in a manner adverse to the holders of
the Notes;
(b) reduce the principal amount (or the premium) of any Note;
(c) reduce the rate of or extend the time for payment of interest on
any Note;
(d) change the place or currency of payment of the principal (or
premium) of or interest on any Note;
(e) modify any provisions of this Indenture relating to the waiver of
past defaults or the right of the Holders to institute suit for the enforcement
of any payment on or with respect to any Note or the Subsidiary Guarantee or the
modification and amendment of this Indenture and the Notes (other than to add
sections of this Indenture or the Notes which may not be amended, supplemented
or waived without the consent of each Holder affected);
(f) reduce the percentage of the principal amount of outstanding Notes
necessary for amendment to or waiver of compliance with any provision of this
Indenture or the Notes or for waiver of any Default;
(g) waive a default in the payment of principal of, interest on, or
redemption payment with respect to, any Note (except a rescission of
acceleration of the Notes by the Holders as provided in this Indenture and a
waiver of the payment default that resulted from such acceleration);
(h) modify the ranking or priority of the Notes or the Subsidiary
Guarantee;
(i) release the Subsidiary Guarantors from any of their respective
obligations under the Subsidiary Guarantee or this Indenture otherwise than in
accordance with this Indenture; or
(j) modify the provisions relating to any Offer to Purchase required
under Section 4.05 or Section 4.14 in a manner materially adverse to the Holders
of Notes with respect to any Asset Disposition that has been consummated or
Change of Control that has occurred.
The Holders of a majority in aggregate principal amount of the
outstanding Notes, on behalf of all holders of Notes, may waive compliance by
70
76
the Company with certain restrictive provisions of this Indenture. Subject to
certain rights of the Trustee, as provided in this Indenture, the Holders of a
majority in aggregate principal amount of the outstanding Notes, on behalf of
all Holders of Notes, may waive any past default under this Indenture, except a
default in the payment of principal, premium or interest or a default arising
from failure to purchase any Note tendered pursuant to an Offer to Purchase, or
a default in respect of a provision that under this Indenture cannot be modified
or amended without the consent of the Holder of each outstanding Note affected.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of that
Note or portion of that Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. Subject
to the following paragraph, any such Holder or subsequent Holder may revoke the
consent as to such Holder's Note or portion of such Note by notice to the
Trustee or the Company received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Notes have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
sentence of the immediately preceding paragraph, those persons who were Holders
at such record date (or their duly designated proxies), and only those persons,
shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Noteholder, unless it makes a change described in any of clauses (i)
through (x) of Section 9.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Note who has consented to it and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note.
SECTION 9.05. Notation on or Exchange of Notes.
71
77
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder of the Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee to Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel and an Officers' Certificate each stating
that the execution of any amendment, supplement or waiver authorized pursuant to
this Article Nine is authorized or permitted by this Indenture and that such
amendment, supplement or waiver constitutes the legal, valid and binding
obligation of the Company and the Subsidiary Guarantors, enforceable in
accordance with its terms (subject to customary exceptions). The Trustee may,
but shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise. In signing any amendment, supplement or waiver, the
Trustee shall be entitled to receive an indemnity reasonably satisfactory to it.
ARTICLE 10
SUBSIDIARY GUARANTEE
SECTION 10.01. Unconditional Subsidiary Guarantee.
Each Subsidiary Guarantor who is or becomes a party to this Indenture
hereby unconditionally, jointly and severally, guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns that: the principal of and interest on the Notes will be
promptly paid in full when due, subject to any applicable grace period, whether
at maturity, by acceleration or otherwise, and interest on the overdue principal
and interest on any overdue interest on the Notes and all other obligations of
the Company to the Holders or the Trustee hereunder or under the Notes will be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; subject, however, to the limitations set forth in Section 10.04. Each
such Subsidiary Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the
72
78
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each such Subsidiary Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that the Subsidiary Guarantee will not be discharged except by
complete performance of the obligations contained in the Notes, this Indenture,
and this Subsidiary Guarantee. If any Holder or the Trustee is required by any
court or otherwise to return to the Company, any Subsidiary Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or any Subsidiary Guarantor, any amount paid by the Company or a
Subsidiary Guarantor to the Trustee or such Holder, this Subsidiary Guarantee,
to the extent theretofore discharged, shall be reinstated in full force and
effect. Each Subsidiary Guarantor further agrees that, as between each
Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six for the purpose of this Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any acceleration of such obligations as provided in Article Six,
such obligations (whether or not due and payable) shall forth will become due
and payable by each Subsidiary Guarantor for the purpose of this Subsidiary
Guarantee.
SECTION 10.02. Severability. In case any provision of this Subsidiary
Guarantee shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 10.03. Release of a Subsidiary Guarantor.
If the Notes are defeased in accordance with Section 8.01(c), or if all
or substantially all of the assets of any Subsidiary Guarantor or all of the
Capital Stock of any Subsidiary Guarantor is sold (including by issuance or
otherwise) by the Company or any of its Subsidiaries in a transaction
constituting an Asset Disposition and if (x) the Net Available Proceeds from
such Asset Disposition are used in accordance with Section 4.05 or (y) the
Company delivers to the Trustee an Officers' Certificate covenanting that the
Net Available Proceeds from such Asset Disposition shall be used in accordance
with Section 4.05 and within the time limits specified by such Section 4.05,
then such Subsidiary Guarantor (in the event of a sale or other disposition of
all of the Capital Stock of such Subsidiary Guarantor) or the corporation
acquiring such assets (in the event of a sale or other disposition of all or
substantially all of the assets of such Subsidiary Guarantor),
73
79
shall be deemed released from all obligations under this Article Ten without any
further action required on the part of the Trustee or any Holder. The Trustee
shall, at the sole cost and expense of the Company and upon receipt at the
reasonable request of the Trustee of an Opinion of Counsel that the provisions
of this Section 10.03 have been complied with, deliver an appropriate instrument
evidencing such release upon receipt of a request by the Company accompanied by
an Officers' Certificate certifying as to the compliance with this Section. Any
Subsidiary Guarantor not so released remains liable for the full amount of
principal of and interest on the Notes and the other obligations of the Company
hereunder as provided in this Article Ten.
SECTION 10.04. Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor, and by its acceptance hereof each Holder and
the Trustee, hereby confirms that it is the intention of all such parties that
the guarantee by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee
not constitute a fraudulent transfer or conveyance for purposes of title 11 of
the United States Code, as amended, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar U.S. Federal or state or other
applicable law. To effectuate the foregoing intention, the Holders and such
Subsidiary Guarantor hereby irrevocably agree that the obligations of such
Subsidiary Guarantor under the Subsidiary Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guarantee or pursuant to Section 10.05, result in the obligations
of such Subsidiary Guarantor under the Subsidiary Guarantee not constituting
such fraudulent transfer or conveyance.
SECTION 10.05. Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"FUNDING SUBSIDIARY GUARANTOR") under the Subsidiary Guarantee, such Funding
Subsidiary Guarantor shall be entitled to a contribution from all other
Subsidiary Guarantors in a pro rata amount, based on the net assets of each
Subsidiary Guarantor (including the Funding Subsidiary Guarantor), determined in
accordance with GAAP, subject to Section 10.04, for all payments, damages and
expenses incurred by that Funding Subsidiary Guarantor in discharging the
Company's obligations with respect to the Notes or any other Subsidiary
Guarantor's obligations with respect to the Subsidiary Guarantee.
74
80
SECTION 10.06. Execution of Subsidiary Guarantee.
To further evidence the Subsidiary Guarantee, any Subsidiary Guarantor
required to Guarantee the Notes pursuant to the terms of Section 4.18 shall
execute the Subsidiary Guarantee in substantially the form set forth in Exhibit
A hereto to be endorsed on each Note ordered to be authenticated and delivered
by the Trustee. Each such Subsidiary Guarantor hereby agrees that its Subsidiary
Guarantee set forth in Section 10.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee. Each such Subsidiary Guarantee shall be signed on behalf
of each Subsidiary Guarantor by its Chairman of the Board, its President or one
of its Vice Presidents prior to the authentication of the Note on which it is
endorsed, and the delivery of such Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of such Subsidiary Guarantee on
behalf of such Subsidiary Guarantor. Such signature upon the Subsidiary
Guarantee may be manual or facsimile signature of such officer and may be
imprinted or otherwise reproduced on the Subsidiary Guarantee, and in case such
officer who shall have signed the Subsidiary Guarantee shall cease to be such
officer before the Note on which such Subsidiary Guarantee is endorsed shall
have been authenticated and delivered by the Trustee or disposed of by the
Company, such Note nevertheless may be authenticated and delivered or disposed
of as though the Person who signed the Subsidiary Guarantee had not ceased to be
such officer of such Subsidiary Guarantor.
SECTION 10.07. Subordination of Subrogation and Other Rights.
Each Subsidiary Guarantor hereby agrees that any claim against the
Company that arises from the payment, performance or enforcement of such
Subsidiary Guarantor's obligations under its Subsidiary Guarantee or this
Indenture, including, without limitation, any right of subrogation, shall be
subject and subordinate to, and no payment with respect to any such claim of
such Subsidiary Guarantor shall be made before, the payment in full in cash of
all outstanding Notes in accordance with the provisions provided therefor in
this Indenture.
SECTION 10.08. Ranking.
Each Subsidiary Guarantee shall rank pari passu in right of payment
with any other senior unsecured Indebtedness of the Subsidiary Guarantor
executing such Subsidiary Guarantee.
75
81
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the extent applicable, be
governed by such provisions. If any provision of this Indenture modifies any TIA
provision that may be so modified, such TIA provision shall be deemed to apply
to this Indenture as so modified. If any provision of this Indenture excludes
any TIA provision that may be so excluded, such TIA provision shall be excluded
from this Indenture.
The provisions of TIA Sections 310 through 317 that impose duties
on any Person (including the provisions automatically deemed included unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.02. Notices.
Any notice or communication shall be sufficiently given if in writing
and delivered in person, by facsimile and confirmed by overnight courier, or
mailed by first-class mail addressed as follows:
if to the Company:
Colorado Prime Corporation
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Attention: President
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with copies to:
Xxxx Xxxxxx Xxxxxxx, Esq.
Xxxxxxx Xxxxxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
76
82
Xxxx Xxxxxxx, Esq.
Xxxxxx & Xxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed, first class, postage prepaid, to a
Noteholder, including any notice delivered in connection with TIA Section
310(b), TIA Section 313(c), TIA Section 314(a) and TIA Section 315(b), shall be
mailed to him at his address as set forth on the registration books of the
Registrar and shall be sufficiently given to him if so mailed within the time
prescribed. To the extent required by the TIA, any notice or communication shall
also be mailed to any Person described in TIA Section 313(c).
Failure to mail a notice or communication to a Noteholder or any defect
in it shall not affect its sufficiency with respect to other Noteholders. Except
for a notice to the Trustee, which is deemed given only when received, if a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.03. Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and any other person shall have the
protection of TIA Section 312(c).
77
83
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee at the request of the Trustee:
(a) an Officers' Certificate in form and substance satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with;
(b) an Opinion of Counsel in form and substance satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with; and
(c) where applicable, a certificate or opinion by an independent
certified public accountant satisfactory to the Trustee that complies with TIA
Section 314(c).
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(a) a statement that the person making such certificate or opinion has
read such covenant or condition;
(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 that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with; provided, however, that with
respect to matters of fact an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.
78
84
The Trustee may make reasonable rules for action by or at a meeting of
Noteholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 11.07. Governing Law.
The laws of the State of New York shall govern this Indenture, the
Notes and the Subsidiary Guarantee without regard to principles of conflicts of
law.
SECTION 11.08. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
or any Subsidiary Guarantor shall not have any liability for any obligations of
the Company or any Subsidiary Guarantor under the Notes, the Subsidiary
Guarantee or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Noteholder by accepting a
Note waives and releases all such liability.
SECTION 11.09. Successors.
All agreements of the Company in this Indenture and the Notes shall
bind its successor. All agreements of each Subsidiary Guarantor in this
Indenture and Notes shall bind its successor. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 11.10. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.11. Severability.
In case any provision in this Indenture, in the Notes or in the
Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and a Holder shall have no claim therefor against
any party hereto.
SECTION 11.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 11.13. Legal Holidays.
If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
79
85
[Signature Page Follows]
80
86
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
Very truly yours,
COLORADO PRIME CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
KAL-MAR PROPERTIES CORP.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
CONCORD FINANCIAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
PRIME FOODS DEVELOPMENT CORP.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
81
87
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
82
88
ANNEX A
SUBSIDIARY GUARANTORS
KAL-MAR PROPERTIES CORP.
CONCORD FINANCIAL SERVICES, INC.
PRIME FOODS DEVELOPMENT CORP.
83
89
EXHIBIT A
COLORADO PRIME CORPORATION
CUSIP NO.:
No. $
12.50% SENIOR NOTE DUE 2004
Colorado Prime Corporation promises to pay to or registered
assigns the principal sum of Dollars on the Maturity Date of May 1,
2004.
Interest Payment Dates: May 1 and November 1, beginning November 1,
1997.
Record Dates: April 15 and October 15, beginning October 15, 1997.
IN WITNESS WHEREOF, COLORADO PRIME CORPORATION has caused this
instrument to be executed in its corporate name by a facsimile signature of its
________________ and its _______________ and has caused the facsimile of its
corporate seal to be affixed hereunto or imprinted hereon.
COLORADO PRIME CORPORATION
By________________________
Name:
Title:
[SEAL]
Dated: By________________________
Name:
Title:
A-1
90
Certificate of Authentication:
This is one of the 12.50% Senior Notes due 2004 referred to in the
within-mentioned Indenture.
The Bank of New York, Trustee
By ________________________________ Date:
Authorized Signatory
A-2
91
[REVERSE OF SECURITY]
COLORADO PRIME CORPORATION
12.50% Senior Note due 2004
(a) Interest.
Colorado Prime Corporation, a Delaware corporation (the "COMPANY"),
promises to pay interest at the rate of 12.50% per annum on the principal amount
of this Note semiannually commencing on November 1, 1997, until the principal
hereof is paid or made available for payment. Interest on the Notes will accrue
from and including the most recent date to which interest has been paid or, if
no interest has been paid, from and including May 9, 1997, through but excluding
the date on which interest is paid. If an Interest Payment Date falls on a day
that is not a Business Day, the interest payment to be made on such Interest
Payment Date will be made on the next succeeding Business Day with the same
force and effect as if made on such Interest Payment Date, and no additional
interest will accrue as a result of such delayed payment. Interest will be
computed on the basis of a 360- day year of twelve 30-day months.
(b) Method of Payment.
The interest payable on the Notes, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture (as defined
below), be paid to the person in whose name this Note is registered at the close
of business on the regular record date, which shall be the April 15 or October
15 (whether or not a Business Day) next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for, and any interest
payable on such defaulted interest (to the extent lawful), will forthwith cease
to be payable to the Holder on such regular record date and shall be paid to the
person in whose name this Note is registered at the close of business on a
special record date for the payment of such defaulted interest to be fixed by
the Company, notice of which shall be given to Holders not less than 15 days
prior to such special record date. Payment of the principal of and interest on
this Note will be made at the agency of the Company maintained for that purpose
in New York, New York and at any other office or agency maintained by the
Company 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 at the option of the Company payment of
interest may be made by check mailed to
A-3
92
the address of the person entitled thereto as such address shall appear in the
Note register and in the case of the Global Notes (as defined in the Indenture)
may be made in immediately available funds.
(c) Paying Agent and Registrar.
Initially, The Bank of New York (the "TRUSTEE") will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or co-
Registrar without notice to the Holders of Notes. The Company or any of its
Subsidiaries may act as Registrar or co-Registrar but may not act as Paying
Agent.
(d) Indenture.
This Note is one of a duly authorized issue of Notes of the Company,
designated as its 12.50% Senior Notes due 2004 (the "NOTES"), limited in
aggregate principal amount to $100,000,000 (except for Notes issued in
substitution for destroyed, lost or stolen Notes) issuable under an indenture
dated as of May 9, 1997 (the "INDENTURE"), between the Company, the Subsidiary
Guarantors (as defined in the Indenture) and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
the Trust Indenture Act of 1939 (the "ACT") (15 U.S. Code Sections 77aaa-77bbbb)
as in effect on the date of the Indenture. The Notes are subject to all such
terms, and Holders of Notes are referred to the Indenture and the Act for a
statement of them. Each Noteholder, by accepting a Note, agrees to be bound to
all of the terms and provisions of the Indenture, as the same may be amended
from time to time. Payment on each Note is guaranteed on a senior basis, jointly
and severally, by the Subsidiary Guarantors pursuant to Article Ten of the
Indenture.
Capitalized terms contained in this Note to the extent not defined
herein shall have the meanings assigned to them in the Indenture.
(e) Optional Redemption.
The Notes will be subject to redemption, at the option of the Company,
in whole or in part, at any time on or after May 1, 2002 and prior to maturity,
upon not less than 30 nor more than 60 days' notice mailed to each holder of
Notes to be redeemed at his address appearing in the register for the Notes, in
amounts of $1,000 or an integral multiple of $1,000, at the following redemption
prices (expressed as percentages of principal amount) plus accrued interest to
but excluding the date fixed for redemption (subject to the right of holders of
record
A-4
93
on the relevant Record Date to receive interest due on an interest payment date
that is on or prior to the date fixed for redemption), if redeemed during the
12- month period beginning May 1 of the years indicated:
YEAR PERCENTAGE
2002 106.250%
2003 103.125
In addition, prior to May 1, 2000, the Company may redeem up to 35% of
the aggregate principal amount of the Notes at a redemption price (expressed as
a percentage of the principal amount) of 112.50% of the principal amount
thereof, plus accrued and unpaid interest to the date fixed for redemption, with
the net cash proceeds received by the Company or Holdings from one or more
public or private offerings of Capital Stock (other than Disqualified Stock) of
the Company or Holdings; provided, however, that at least $65,000,000 in
aggregate principal amount of the Notes remains outstanding immediately after
any such redemption (excluding any Notes owned by the Company or any of its
Affiliates). Notice of redemption pursuant to this paragraph must be mailed to
holders of Notes not later than 60 days following the consummation of such
offering.
Selection of Notes for any partial redemption shall be made by the
Trustee, in accordance with the rules of any national securities exchange on
which the Notes may be listed or, if the Notes are not so listed, pro rata or by
lot or in such other manner as the Trustee shall deem appropriate and fair.
Notes in denominations larger than $1,000 may be redeemed in part but only in
integral multiples of $1,000. Notice of redemption will be mailed before the
date fixed for redemption to each holder of Notes to be redeemed at his or her
registered address. On and after the date fixed for redemption, interest will
cease to accrue on Notes or portions thereof called for redemption.
The Notes will not have the benefit of any sinking fund.
(f) Purchase upon Occurrence of a Change of Control
Within 30 days of the occurrence of a Change of Control, the Company
will offer to purchase all of the Notes at a purchase price equal to 101% of the
principal amount thereof plus any accrued and unpaid interest thereon.
A-5
94
(g) Notice of Redemption.
Notice of redemption will be mailed by first class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Notes to be redeemed at his registered address. On and after the redemption
date, interest ceases to accrue on those Notes or portion of them called for
redemption.
(h) Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000. A Holder may transfer or exchange Notes
in accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not transfer or exchange any Notes selected for redemption.
(i) Persons Deemed Owners.
The registered Holder of a Note may be treated as the owner of it for
all purposes.
(j) Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for
two years, the Trustee or Paying Agent will repay the funds to the Company at
its request. After such repayment Holders of Notes entitled to such funds must
look to the Company for payment unless an abandoned property law designates
another person.
(k) Discharge Prior to Redemption or Maturity.
The Indenture will be discharged and canceled except for certain
Sections thereof, subject to the terms of the Indenture, upon the payment of all
the Notes or upon the irrevocable deposit with the Trustee of funds or United
States Government Obligations sufficient for such payment or redemption.
(l) Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the outstanding Notes, and any past default or compliance
with any provision may be waived with the consent of the Holders of a majority
in principal amount of the outstanding Notes. Without notice to or the consent
of any Holder, the Company, the Subsidiary Guarantors and the Trustee may amend
or supplement the Indenture or the Notes to cure any ambiguity, defect or
inconsistency, or to make any change that does not adversely affect the rights
of any Holder of Notes.
X-0
00
(x) Xxxxxxxxxxx Xxxxxxxxx.
The Indenture restricts, among other things, the ability of the Company
or any of its Subsidiaries to permit certain Liens to be imposed on their
assets, to make certain Restricted Payments and Investments, limits the
Indebtedness which the Company and its Subsidiaries may incur and limits the
terms on which the Company may engage in Asset Dispositions. The Company is also
obligated under certain circumstances to make an offer to purchase Notes with
the net cash proceeds of certain Asset Dispositions. The Company must report
annually to the Trustee on compliance with the covenants in the Indenture.
(n) Successor Corporation.
Pursuant to the Indenture, the ability of the Company to consolidate
with, merge with or into or transfer its assets to another person is conditioned
upon certain requirements, including certain financial requirements applicable
to the surviving Person.
(o) Defaults and Remedies.
If an Event of Default shall occur and be continuing, the principal of
all of the outstanding Notes, plus all accrued and unpaid interest, if any, to
the date the Notes become due and payable, may be declared due and payable in
the manner and with the effect provided in the Indenture.
(p) Trustee Dealings with Company.
The Trustee in its individual or any other capacity, may become the
owner or pledgee of Notes and make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
(q) No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
or any Subsidiary Guarantor shall not have any liability for any obligations of
the Company or any Subsidiary Guarantor under the Notes, the Subsidiary
Guarantee or the Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. Each Holder of a Note by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
(r) Authentication.
This Note shall not be valid until the Trustee signs the certificate of
authentication on the other side of this Note.
A-7
96
(s) Abbreviations.
Customary abbreviations may be used in the name of Noteholder or an
assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
(t) CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Note Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Noteholders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
(u) Governing Law.
The laws of the State of New York shall govern the Indenture, this Note
and the Subsidiary Guarantee without regard to principles of conflicts of law.
The Company will furnish to any Holder of record of Notes upon written
request and without charge a copy of the Indenture.
A-8
97
SENIOR GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture referred to in
the Note upon which this notation is endorsed) hereby, jointly and severally,
unconditionally guarantee on a senior basis (such guarantee by each Subsidiary
Guarantor being referred to herein as the "SUBSIDIARY GUARANTEE") the due and
punctual payment of the principal of, premium, if any, and interest on the
Notes, whether at maturity, by acceleration or otherwise, the due and punctual
payment of interest on the overdue principal, premium and interest, if any, on
the Notes, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee, all in accordance with the terms set
forth in Article Ten of the Indenture.
The Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Notes upon which the
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
This Subsidiary Guarantee shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of law.
This Subsidiary Guarantee is subject to release upon the terms set
forth in the Indenture.
KAL-MAR PROPERTIES CORP.
By: ______________________________________
Name:
Title:
CONCORD FINANCIAL SERVICES, INC.
By: ______________________________________
Name:
Title:
A-9
98
PRIME FOODS DEVELOPMENT CORP.
By: ______________________________________
Name:
Title:
A-10
99
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Note to:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint_____________________________________________,
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Dated:_____________________________ Signed:___________________________________
(Sign exactly as name appears
on the other side of this Note)
Signature Guarantee:__________________________________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of The Bank of New York, 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 Bank of New York in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
A-11
100
OPTION OF HOLDER TO ELECT PURCHASE
If you the Holder want to elect to have this Note purchased by the Company,
check the box: / /
If you want to elect to have only part of this Note purchased by the Company,
state the amount: $________
Dated:__________________ Your signature:______________________________________
(Sign exactly as name appears on the
other side of this Note)
Signature Guarantee:__________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of The Bank of New York, 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 Bank of New York in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
A-12
101
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Colorado Prime Corporation
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Attention:
[Name and Address of Registrar]
Re: 12.50% Senior Notes due 2004
Reference is hereby made to the Indenture, dated as of May 9, 1997 (the
"INDENTURE"), between Colorado Prime Corporation (the "COMPANY"), the Subsidiary
Guarantors listed therein and The Bank of New York, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
___________________ , (the "TRANSFEROR") owns and proposes to transfer
the Note[s] specified in Annex A hereto in the principal amount of $___ (the
"TRANSFER"), to (the "TRANSFEREE"), as further specified in Annex A hereto. In
the event that Transferor holds Certificated Notes, this Certificate is
accompanied by one or more certificates aggregating at least the principal
amount of Notes proposed to be Transferred. In connection with the Transfer, the
Transferor hereby certifies that:
1. / / CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE RESTRICTED
GLOBAL NOTE OR RESTRICTED CERTIFICATED NOTES PURSUANT TO RULE 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "SECURITIES ACT"), and,
accordingly, the Transferor hereby further certifies that the Notes are being
transferred to a Person that the Transferor reasonably believes is purchasing
the Notes for its own account, or for one or more accounts with respect to which
such Person exercises sole investment discretion, and such Person and each such
account is a "QUALIFIED INSTITUTIONAL BUYER" within the meaning of Rule 144A in
a transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred Note will be subject to the restrictions
on
B-1
102
transfer enumerated in the Securities Act Legend and in the Indenture and the
Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE REGULATION S
GLOBAL NOTE PURSUANT TO REGULATION S OR CERTIFICATED NOTES PURSUANT TO
REGULATION S. The Transfer is being effected pursuant to and in accordance with
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 904(b) of Regulation
S under the Securities Act and (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the Note will be subject to the restrictions on Transfer enumerated
in the Securities Act Legend printed on the Regulation S Global Note and in the
Indenture and the Securities Act.
3. / / CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE UNRESTRICTED
GLOBAL NOTE. The Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture, and the restrictions on transfer
contained in the Indenture and the Securities Act Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
Notes will no longer be subject to the restrictions on transfer enumerated in
the Securities Act Legend and in the Indenture and the Securities Act.
4. / / CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN AN UNRESTRICTED
CERTIFICATED NOTE. One or more of the events specified in Section 2.06(a) of the
Indenture have occurred and the Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture, and the restrictions on
transfer contained in the Indenture and the Securities Act Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred Notes will no longer be subject to the restrictions
on transfer enumerated in the Securities Act Legend and in the Indenture and the
Securities Act.
B-2
103
This certificate and the statements contained herein are made for your
benefit and the benefit of the Trustee.
__________________________________________
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated:___________________
B-3
104
FORM OF ANNEX A TO CERTIFICATE
OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) / / Interests in the
(i) / / Restricted Global Note (CUSIP ____), or
(ii) / / Regulation S Global Note (CINS ____).
(b) / / Certificated Note.
2. That the Transferee will hold:
[CHECK ONE]
(a) / / Interests in the:
(i) / / Restricted Global Note (CUSIP ____), or
(ii) / / Regulation S Global Note (CINS ____), or
(iii) / / Unrestricted Global Note (CUSIP ____);
or
(b) / / Restricted Certificated Notes;
(c) / / Unrestricted Certificated Notes;
in accordance with the terms of the Indenture.
105
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Colorado Prime Corporation
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Attention:
[Name and Address of Registrar]
Re: 12.50% Senior Notes due 2004
(CUSIP_____________)
Reference is hereby made to the Indenture, dated as of May 9, 1997 (the
"INDENTURE"), between Colorado Prime Corporation (the "COMPANY"), the Subsidiary
Guarantors listed therein and The Bank of New York, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
___________, (the "HOLDER") owns and proposes to exchange the Note[s]
specified herein, in the principal amount of $___ (the "EXCHANGE"). In the event
Holder holds Certificated Notes, this Certificate is accompanied by one or more
certificates aggregating at least the principal amount of Notes proposed to be
Exchanged. In connection with the Exchange, the Holder hereby certifies that:
1. EXCHANGE OF RESTRICTED CERTIFICATED NOTES OR INTERESTS IN THE
INITIAL GLOBAL NOTE FOR UNRESTRICTED CERTIFICATED NOTES OR UNRESTRICTED GLOBAL
NOTES
(a) / / CHECK IF EXCHANGE IS FROM INITIAL GLOBAL NOTES TO THE
UNRESTRICTED GLOBAL NOTE. In connection with the Exchange of the Holder's
Initial Global Note to the Unrestricted Global Note in an equal principal
amount, the Holder hereby certifies (i) the Unrestricted Global Notes are being
acquired for the Holder's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Initial Global Notes and pursuant to and in accordance with the Securities Act
of 1933, as amended (the "SECURITIES ACT") and (iii) the restrictions on
transfer contained in the Indenture and the Securities Act Legend are not
required in order to maintain compliance with the Securities Act.
C-1
106
(b) / / CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED NOTES TO AN
INTEREST IN THE UNRESTRICTED GLOBAL NOTE. In connection with the Holder's
Exchange of Restricted Certificated Notes for an Interest in the Unrestricted
Global Note, (i) the Interest in the Unrestricted Global Note is being acquired
for the Holder's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Certificated Notes and pursuant to and in accordance with the Securities Act and
(iii) the restrictions on transfer contained in the Indenture and the Securities
Act Legend are not required in order to maintain compliance with the Securities
Act.
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED NOTES TO
UNRESTRICTED CERTIFICATED NOTES. In connection with the Holder's Exchange of a
Restricted Certificated Note for an Unrestricted Certificated Note, the Holder
hereby certifies (i) the Unrestricted Certificated Notes are being acquired for
the Holder's own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to Restricted
Certificated Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Securities
Act Legend are not required in order to maintain compliance with the Securities
Act and (iv) one or more of the events specified in Section 2.06(a) of the
Indenture have occurred.
2. / / CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED NOTES TO INTERESTS
IN AN INITIAL GLOBAL NOTE. In connection with the Exchange of the Holder's
Restricted Certificated Note for interests in the Initial Global Note in the
[CHECK ONE] o Restricted Global Note, o Regulation S Global Note, with an equal
principal amount, (i) the interests in the Initial Global Note are being
acquired for the Holder's own account without transfer and (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Restricted Certificated Notes and pursuant to and in accordance with the
Securities Act. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Interest in the Initial Global Note will be
subject to the restrictions on transfer enumerated in the Securities Act Legend
printed on the Initial Global Notes and in the Indenture and the Securities Act.
C-2
107
This certificate and the statements contained herein are made for your
benefit and the benefit of the Trustee.
_________________________________________
[Insert Name of Holder]
By:_____________________________________
Name:
Title:
Dated:__________________
C-3
